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tv   Tonight From Washington  CSPAN  October 17, 2011 8:30pm-11:00pm EDT

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data and the disclosure is the impact of the the the when it's compromised or the availability of the system and so at the end of the day, the goal was to make sure that cio has enough information to make sure that they can make a reasonable decision. so what we're advocating is to make sure that the security controls specify where the systems are located and make sure that they specify who and what sort of citizen or background personnel have access to them. in some agencies they may look and say this cloud is outside of the u.s.. perhaps i don't want to use it for one of my applications but i can use it for another one. different agencies and even within the agency even different needs. so the answer to the question, for the cloud today i don't think that you are going to see any classified information because that isn't included in the profile and it might be a long time before that's coming
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you will see higher risk systems that can endanger an agency of compromise. but there is a lot of low risk and moderate risk systems to data can be moved through the cloud to be an organization that is involved in cybersecurity or information involved in federal government planning may decide to either keep it in house or use it in a cloud with in the u.s. where as an organization or federal agency that is supporting workers all over the globe may want to use the clout it is all over the world, recognizing the are making a choice and they can see the risks that they are documenting so we will see the low or moderate systems moving i don't see any reason why an agency cio can't make that decision. >> john curran is with the registry for internet members and has been our guest on the communicators along with our guest reporter, jennifer martinez, who is a technology reporter with politico. >> thank you.
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the head of the federal communications commission julius genachowski lead and is of guidelines that notifying wireless customers when they are about to exceed their plan limits and incur charges. the four major wireless carriers in the u.s., at&t, verizon, sprint and nextel and t-mobile agreed to abide by the guidelines to read these new rules would be implemented by april 2013. this is 20 minutes. ..
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[applause] >> thank you all for being here this morning. i had the privilege last night of being at the memorial service for steve jobs in california, and it was a powerful event or an irreplaceable american hero and visionary. one of the themes that comes down so clearly for steve jobs life was his focus on products that bring benefits to people, real benefits to people that have a real positive effect on our economy. and, maybe above all else, products and services that delight people, that delight
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people. and then, these different themes are at the heart of what we are announcing today, taking steps to make sure that mobile devices continue to delight every american that uses them. communications technology, as those of you know heard me and us that the fcc speaking about these topics, are essential to our economic recovery and long-term recovery. communications technologies are also at the core of consumer products used every day by hundreds of millions of americans and everyone of those consumers deserves to be treated fairly. empowering consumers with the tools and information they need to navigate the rapidly changing technology landscape has been one of the federal communications commission's top
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rarities since i became chairman. as part of our consumer empowerment agenda, we have cracked down on mystery fees come on phone bills, securing record settlements. we have armed consumers with interactive tools like the broadband speed test which has been used more than 1 million times so far. and we are close to transforming the universal service fund in a way that will bring massive benefits to consumers. building on these proconsumer efforts, last year the fcc identified a growing problem we called bill shock and took important steps toward a solution, which led to today's victory for more than 200 million wireless consumers. thesis solution will give consumers the information they need to save money on their monthly wireless bills. consistent with the fcc's ongoing effort, these actions harness technology to empower
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consumers. and ensure consumers get a fair shake, not bill shock. so what is bill shock? bill shock is when wireless subscribers experienced a sudden unexpected increase in their monthly bill. common cases are one of subscribers charged for unknowingly exceeding plan limits for voice, text or data or gets hit with unexpected international roaming charges. according to a 2011 survey by consumers union, roughly one in five americans with cell phone plans received unexpected charges on their bills during the previous year. that amounts to tens of millions of people nationwide. at an fcc form highlighting the problem i met a woman who was shocked by and over 34,000-dollar cell phone bill for international data and
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texting charges incurred while visiting her sister in haiti after the 2009 earthquake. we also met a man who got an in 18,000-dollar bill after his predated download expired without morning. after that event we heard from people writing and saying, this happened it was too. a business executive e-mail to describe how he had incurred $2000 in charges during a recent overseas trip, despite buying an international plan before the trip. these are large examples and there are other examples like these and there are many examples in the hundreds of dollars as well in these times. obviously these amounts make a real difference to real americans trying to get through this difficult economy. the conclusion from our work is clear, bill shock is a real consumer problem that needs to be fixed. and, there are ways to do this easily and inexpensively using technology that is widely available. more specifically, what we said at the time was that to treat
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consumers fairly, wireless company should take three steps. send voice or text alerts to notify consumers when they approach and when they reach monthly plan limits for voice data and text that would result in overage charges. send an alert in advance. two, send alerts when consumers are about to incur international roaming charges that are not covered by their monthly plan. two is like one, send alerts in advance for international plans, and three, clearly disclose any tools that mobile providers offer to let consumers that their own usage limits and monitor their usage balances. this is particularly important because we are in a period a very healthy education of consumers when it comes to these new services. people are learning what it make abide is in howe abides translate to how many web sites you download and how many videos you watch but they don't know
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that yet. and so, finding ways to help consumers understand what megabytes are and what it means to their plan. it is important that we know what these are and we can kind of do that in our head. in addition, well, those were the goals that we set out for how we wanted to see wireless companies and consumers interact in this area, given the documented problem. i am very pleased to be here today with ctia representing the wireless industry and with consumer union to announce that we are taking a major step to solve the problem of bill shock and the wireless industry will take those three steps to treat consumers fairly. they are moving forward with the solutions we identified. in addition, and this is important, these alerts will be offered for free, and
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automatically with no customer often required. the wireless industry's code of conduct will be revised to reflect these basic applications and to ensure consumers receive the alerts and notifications they need and that the fcc has been calling for. the carriers are committed to moving as expeditiously as possible to change their systems and implement these alerts. i am grateful to ctia and the wireless industry for stepping up and to the consumers union for helping ensure that the commitments will protect and empower consumers. from the start, the goal was to change practices to benefit consumers and we have achieved that goal. now moving forward, the fcc will take a trust but verify approach. the wireless industry has taken the steps to help consumers avoid rough shock and we'll put our pending rulemaking on hold. we will however be monitoring
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system make sure all carriers provide this necessary information to consumers as promised and if we see noncompliance we will take action. to help ensure compliance, consumers union and the fcc will work together to launch a new web portal on the fcc web site that will allow consumers and anyone to see what types of alerts are provided by each member of ctia, by each company in the wireless industry. this portal will allow the fcc and the public to track whether carriers have complied with their obligation. this public portal will also provide public incentive for carriers to move quickly with implementation. carriers competing to see who can provide the best alerts, notification. today's announcement is a big win for consumers and i want to thank the people who made it possible. first ctia for your constructive, engagement and
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your proactive and responsible actions, innovative mobile devices benefit consumers every day, connecting families and friends, linking co-workers and clients, helping to fuel economic growth, job creation and u.s. global competitiveness. your actions today help show we can achieve those goals and ensure consumers are treated fairly. and in the near future we hope to score another victory for where was consumers are ongoing effort to free up spectrum for mobile broadband through voluntary incentive auctions that will make sure even as mobile demand goes up, we can have an invisible infrastructure that will help keep calls and connections from getting dropped our prices from skyrocketing. second, does that -- thank you for your leadership role in bringing this to the attention of the public for a national server servers that establish the scope of the problem and throughout this process, for your laser like focus on making sure that we achieve real
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benefits for real consumers. thank you for that. thank you also to all the participants you had contributed their ideas and research and the fcc's preceding. i certainly want of knowledge and thank are friends in congress who have taken an interest in this issue and who have displayed really leadership and commitment on the whole series of consumer issues including senator mark udall who introduced legislation on the subject and all of the other members of the senate committee on commerce as well as those of the house energy and commerce committee for their interest in this issue on behalf of consumers. i'm certain they will continue to monitor this area as we will at the fcc. finally thank you to the fcc staff, who have worked so hard on this issue with the constant focus in doing the right thing for the american public. including those in my office, charisse smith. i'm looking around for charisse. amy levine who i just saw sitting next to charisse.
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just a calm and, three for three. as well as the staff of the fcc consumer and governmental affairs bureau. i see at least two of our leaders here today and we think all of you. in these challenging economic times, even a small, unexpected fee on your bill at the end of the month can make a big difference. i look forward to working with all stakeholders to make sure that, as we foster a thriving mobile economy, that it will benefit all americans and drive real job creation, consumers are empowered and treated fairly every day. thank you. [applause] >> good morning and thank you chairman genachowski. thank you all for joining us today and thank you to brookings brookings institute for allowing us to use your facilities. it is greatly appreciated. last week we had a fall show in
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san diego as many of you may know. i hope some of you are able to join us on the west coast because it really was a successful event. our shows our place for people to go to talk about wireless, what is happening now and especially what we anticipate for tomorrow. at all these, what strikes me as a number of of fixed editors and a variety of wireless products and services they provide consumers and businesses. it is everything from health care to education, to transportation and energy. there is no question that the united states has the world's most innovative wireless industry. we have the hottest selling devices first. we have more than -- 4g users in any country and as we announced last week at our show we now have more wireless connections in the united states than we actually have citizens. that is because their members compete against each other on everything from coverage two speeds to customer service. while our members compete aggressively against each other for every single customer, there
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are-somethings that we agree on as an industry. not many, but some things. one of which is we need more spectrum but you have heard me talk about that already. the second is that there is a baseline framework for serving consumers we think should be part of every providers wireless offering. that is why we adopted our ctia consumer code and that is the reason why we are here today. i am pleased to announce that once again our consumer code is evolving to meet consumer needs. last week in san diego, ctia's board of directors voted to add a new wireless consumer usage notification guidelines to our code. as a result wireless providers are going to be sending free alerts to their subscribers to help them manage their usage and avoid unexpected overage charges for data, voice messaging and international roaming, as the chairman said. consumers will not need to sign-up sign up to receive a
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free alert for each of those for service areas. more than 300 million u.s. wireless customers will be protected against potential billing surprises by the industry's effort to help subscribers manage their usage. participating providers will offer customers at least two of the four notifications for data, voice messaging and international roaming by october 17, 2012 and all of the service alerts by april 17, 2013. of course many of our members already offer several other account enrichment tools and as a part of the guidelines, wireless providers will conspicuously disclose these tools and services to continue to help consumers better manage their usage. we appreciate fcc chairman julius genachowski, fcc commissioners, the fcc's consumer and governmental affairs barrow in each of their respective staffs who provided
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valuable insight into our development of the wireless consumer, usage notification guidelines. i have been as ctia since 2003, so you have often heard me and many other -- others in washington talk about the concerns of excessive government regulation, especially on our industries since it has such a significant impact on the economy, jobs and their lives. recognizing the direct czars directed to avoid costly regulation, the chairman and his team worked with the industry on these guidelines that will honor his and the commissions mandate to serve and protect customers and consumers while avoiding costly regulation. today's announcement would chairman genachowski shows there is a different way to get things done in this city. we also thank parul -- parul desai. on behalf of the wireless industry are proud to provide our customers with these free alerts to help them manage their
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usage and prevent unexpected overage charges. and now it is my pleasure to welcome parul desai of consumers union to speak. thank you. [applause] >> good morning everyone and thank you chairman genachowski and congressman largent for taking this initiative forward and moving porch of consumers. our magazine "consumer reports" has consistently found in its surveys that consumers are experiencing bill shock as a result of over charges overcharges that they are unaware of. we have heard from many consumers about the heavy toll of finding unexpected charges on their monthly cell phone bills which according to the fcc has chairman genachowski pointed out could be up to $1000. as a result we at consumers union have long been pushing for
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reform to crack down on this problem. today we are encouraged that the wireless industry is offering to provide free alerts to help consumers with bill shock. we understand the industry has agreed to start doing this within 12 months but we urge them not to wait and challenge each company to do it do it as it is possible. we know some carriers like at&t, sprint, cox and u.s. cellular are providing certain alerts and verizon is also providing alerts for a fee so we think it is possible consumers deserve to begin receiving free alerts now to avoid overcharges. it is especially important to provide these tools now because many consumers cannot afford these overcharges in this tough economy and difficult economy. consumers union is going to work together with the fcc on their web site that will shine a light on industries compliance with its code of conduct and we are pleased the commission is going to keep the proceedings open to ensure -- ultimately this is about helping
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people protect their pocketbooks and we applaud fcc and ctia members for this effort to do right by consumers and we encourage and challenge the industry to follow suit. >> thank you, all. >> first off, after -- [inaudible] >> my understanding it is that applies to all ctia members. >> said the fcc will do something if carriers don't comply. what will they have seized -- fcc do and what can they do?
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>> if there is no compliance we will take appropriate action. what happens in that world we will see but neither of us think that it will happen. there is a commitment here to do something that is a win-win for the company and consumers and we expect to see these commitments carried out. [inaudible] i don't understand where the fcc has the authority to take action on a voluntary basis? >> there is noncompliance with these commitments. we will take appropriate action and i think this ctia understands that there is no upside to not following through with these. >> i would just say we have had a consumer code in place for eight years. we started our consumer code when i first came to ctia and we have never had any compliance issues with any of the items that are on our consumer code and we don't think there will be any compliance issues with this particular addition to our code anyway.
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[inaudible] >> i think that is something you would have to ask the members of the legislation. all of us involved in this are confident that the steps that we want the industry to take for consumers will be taken. right now we are calling for implementation of these guidelines. they meet the needs that serve the consumers, it and we are all going to focus our attention on working, helping and making sure it happens in providing this portal that will make visible the rate of progress. again it is a win-win for everybody. >> why does it take so long? why do consumers have to wait for a year or a year and a half? >> i would just say, it is not easy to do. it is not simple. to notify her customers of all
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for different areas of those kinds of alerts. those are not easy to do especially when you are talking about over 300 million people in this country. it is not easy to do. there are systems that have to be changed, and the chairman, the fcc, we came to an agreement on how long would be reasonable. i would tell you that for example, we announced at our show that there was an agreement that we had made to introduce what was the -- to attach the funds to recharge her, rechargers. we implemented that particular proposal three months ahead of schedule. i anticipation is it will be implemented before those deadlines. but we have those deadlines in place to ensure that all carriers are moving forward with this. >> i would second that. i think what we will see by virtue of how this is being implemented including the open and transparent web site. i think we will see competition
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among carriers on the basis of providing the best service to consumers to come back to the steve jobs idea. we are going to see as a result of this more competition from carriers to really delight consumers in every aspect of what they do, including how the charges work and when the alerts meet the needs that obviously consumers have her go so i think we have set this topic on an excellent course and i'm very optimistic about the rollout that we will see, so thank you all very much. [inaudible conversations] [inaudible conversations]
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[inaudible conversations] in a speech last week secretary is date hillary clinton said the u.s. should learn from a number of other countries and make its economic interest central to its foreign-policy. that is next on c-span2.
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spain next secretary of state hillary clinton on the role of economics in shaping foreign-policy. she talked about a doctrine that calls on it and dancing u.s. economic interest as a central mission of american diplomacy. secretary clinton spoke at the economic club of new york last week. this is just over an hour. >> we welcome our secretary of state. hillary rodham clinton has demonstrated that in foreign-policy and national security, what is economic a strategic and what is strategic as economic. she has been a great advocate for american leadership and for investing in and promoting the sources of our strength. she knows what it takes to compete in the 21st century. she understands the relationship between the economic strength of the united states and america's standing in the world, and that is what has animated her tireless daily work in the past three years that has spanned some 600,000 miles and almost 90
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countries. ladies and gentlemen, our secretary of state, hillary rodham clinton. [applause] >> thank you. [applause] >> thank you and good morning. it is absolutely wonderful to be here in new york and at this distinguished, historic new york economic club. i want to thank and he andy tisch for his introduction. i want to acknowledge the economic club's president, jan hopkins. i must say, jan, it never gets old seeing a woman president of anything. [laughter] and so i'm especially pleased to be heard under your tenure. [applause] but i appreciate andy setting the scene, because i know some of you might have wondered, why
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is the secretary of state coming to the new york economic club? i could see the treasury secretary or the commerce secretary or the chair of the acts i am bank -- eximbank but why is the secretary of state here and it is because, as he just said, the economic and strategic and the strategic is economic. now i suppose that should go without saying to some extent. it is true. it has been true and it will always be true. but there is an urgency to that formulation. that has everything to do with american leadership, now and in the years to come. it was after all harry truman who said, our relations, foreign and economic, are indivisible.
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because president truman understood that if america wanted to shape the post-war world, america has to lead, not just diplomatically or militarily but critically and maybe most importantly economically. so we marshal our economic strength to rebuild friends and even former enemies. we lead the charge to create a new international economic order and we made the investments we need it here at home. to advance our ideals and promote shared austerity. well, today it is just as true. our foreign and economic relations remain indivisible. only now are great challenge is not deterring any single military foe, but advancing our global leadership at a time when power is more often measured and
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exercised in economic terms. here at home, it is no secret to any of us that these are difficult times for americans. families across our country are struggling to get back on their feet after the worst economic downturn in my lifetime. the protests, just a few miles from here, is a reminder to all of us that we have a great deal of work to do. whether you come from the laughter you come from the right, the challenges are how do we all get on the american team? how do we work together to help our country continue to advance and meet the expectations of the american people? and yet this is not happening in a vacuum. around the globe, economic forces are transforming foreign-policy realities. we have seen governments toppled by economic crisis.
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revolutions born in a tunisian marketplace have swept across an entire region. europe faces arguably the most severe economic test since the second world war, thanks to recession and debts. and everywhere i travel, i see countries gaining influence less because of the size of their armies then because of the growth of their economies. and i don't think i need to tell a roomful of new yorkers that we still face serious threats. we always will. we have to position ourselves to live in a world where security is shaped in boardrooms or on trading floors as well as on battlefields. simply put, america's economic strength and our global leadership are a package deal. a strong economy has been a
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pillar of american power in the world. it gives us the leverage we need to exert influence and advance our interests. it gives other countries the confidence in our leadership and a greater stake in partnering with us. and over time, it underwrites all the elements of our power. robust diplomacy and development in the strongest military the world has ever seen. right now, the challenges of a changing world and the needs of the american people demand that i were foreign-policy community, as the late steve jobs put it, think different. our problems have never respected dividing lines between global economics and international diplomacy and neither can our solutions. that is why i have toyed what i
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call economic statecraft at the heart of our foreign-policy agenda. economic statecraft has two parts. first, how we harness the forces and use the tools of global economics to strengthen our diplomacy and presence abroad, and second, how we put that diplomacy and presence to work to strengthen our economy at home. following this speech tomorrow, i am issuing up david's instructions on economic statecraft every single embassy around the world. we have made it a core diplomatic mission to enhance our economic leadership in the world and to drive domestic economic renewal. under president obama's sister should, national security strategy is focused on shoring up the sources of our global strength. now, it is certainly the case of that economic recovery is mostly
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a matter of domestic policy, political will, and the willingness of the american people to really keep focused on tomorrow. but while our efforts may begin at home, they cannot end there. and today, i want to talk about how we are modernizing our economic statecraft to rise to this global challenge. we simply have to get this right. because, despite all the problems, the world still looks to america for leadership. in nearly every country i visit, i see what is sometimes missed and amid all the noise in washington. i see the fact that we have a very strong presence, we have still an amazing amount of goodwill and admiration, but we
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also have doubts, doubts about who we are, about our staying power, about our willingness to lead economically, politically and every other way. when i think about the power of our example and the work we do in every country on this continent -- on every continent, i am reminded that we still have the best economic model that reminds the single greatest engine of growth and shared austerity that the world has ever known. now the events of the past week for a powerful reminder of what is at stake in the intersection of economics and foreign-policy. on tuesday, the senate passed a bill signaling it's concerned about misaligned exchange rates around the world, including in china.
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and on wednesday, the congress passed free trade agreements with three critical partners. and throughout the week, our european allies have been in urgent negotiations to stabilize the eurozone. these economic developments are having a major impact on some of our most important strategic relationships. this is the fourth in a series of speeches that i have been giving on economic statecraft. in mid-july in washington, explain how diplomacy and development contribute to our economic recovery. in hong kong, i laid our economic alleys and our expectation that all who benefit from the local economy must respect the rules of fair competition. and in san francisco, i gave a speech on the role of women in the global economy. and here in new york, i want to talk about how are foreign-policy priorities and
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our capabilities are evolving to meet challenges that are both strategic and economic. first, we are updating our foreign-policy priorities to include economics every step of the way. emerging powers like india and brazil but economics at the center of their foreign policies. when their leaders approached an international challenge, just as they do when they approach a domestic challenge, one of the first questions they ask is, how will this affect our economic growth? we need to be asking the same question, not because the answer will dictate every one of our foreign-policy choices, it will not, but it must be a significant part of that equation. now, there will always be times when they put cost decide to keep americans safe or to honor our principles, and for the last decade are foreign-policy has by necessity focused on the places
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where we have faced the greatest dangers. this week brad a fresh reminder that responding to threats will always be central to our national security. but it cannot be our foreign-policy. in the decades ahead, our foreign policy must focus just as intensely on the places where we have the greatest opportunities. and often, those will be economic in nature. as we end the war in iraq and begin bringing troops back from afghanistan, we are making an important pivot. the world strategic and economic center of gravity a shift in eased, and we are focusing more on the asia-pacific region. one of america's great successes of the past century was to build a strong network of relationships and institutions across the atlantic -- and investment that continues to pay off today. one of our great projects in
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this century will be to do the same across the pacific. are free trade agreement with south korea, our commitment to the transpacific partnership, our clear demonstration that we are not only a resident military and diplomatic power in asia, but we are a resident economic power and we are there to stay. gal course asia's tigers aren't the only large economic cats out there. we are also making a priority to engage with the latin american jaguars, if you call them mac, which grew by more than 6% last year. are free trade agreements with panama and colombia move us closer to our ultimate goal of a hemispheric trade partnership reaching from the arctic to the tip of argentina. we believe in the power of trucks and the to turn growth across the americas into recovery and jobs here in the united states.
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we are also committed to strengthening the economic dimensions of our closest relationships. together, america and europe account for half the world's economic output, but just one third of global trade. we can and we should be trading more. at the transatlantic economic council, too often we read litigator regulatory differences when we ought to be resolving them and avoiding new ones. and this frustrates companies on both sides of the atlantic. transatlantic economic council is the forum where we try to resolve these differences, and i believe harmonizing regulatory schemes between the united states and the e.u. is one of the best ways we can both enhance growth, enhanced export and avoid duplicative costs. ..
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freedom of navigation and a rules-based approach to resource development in places like the south china sea and the artic ocean. and, of course, you can't talk about our economy or foreign policy without talking about energy.
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with a growing population and a finite supply of fossil fuels, the need to diversify our supply is urgent. need to engage traditional exporters and emerging economies alike to bolster international energy security and ensure that countries' natural wealth result in inclusive growth. we are establishing for the first time in the state department a bureau of energy resources to make sure all of our relationships include advancing our vital national interest in a secure expanding and ever cleaner source of energy. i plan to address these issues also in a later upcoming speech but it's important to point out that when we decided after i commissioned a study about what we were doing well, what we needed to do better, what we needed to add to the portfolio, what we could afford to drop
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energy just stood out in an area we had not focused on in complexity and importance. as we embrace economic statecraft it is not our priorities that are changing. the way we pursue them is evolving as well. and this is my second point. we are honing our ability to develop and execute economic solutions to strategic solutions and a strategic power of economic forces is not new in american foreign policy. what is new is the reach and complexity of global markets, the expertise, sophistication, and creative cooperation needed across the whole of government for us to remain effective. consider the transitions underway in egypt, tunisia and libya. we want to see democracy take route which we do. we have to bring advanced tools to bear to help countries reform
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economic systems designed to keep autocrats and elites in power and we know that aid alone, no matter how generous is not enough. we need a sophisticated effort to intergrate the region's economies that promote investment and to assist in economic modernization. this is the logic behind the middle east proposals that the president laid out in may which i have been urging congress to support. to succeed, the era of political wakening must also be an economic awakening we're supplying tools in afghanistan where any successful endgame requires a viable economic vision that helps stabilize the country and gives its neighbors a greater stake in its success through greater regional trade and integration. and in our development efforts in africa and elsewhere where we are insisting that our dollars
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re-enforce not substitute for what markets can achieve on their own, we are pushing an investment agenda. we are aiming for that same market-minded creativity and sophistication in addressing security challenges. when iran threatens global security or syria threatens its own people we are responding with ever more targeted and hard-hitting tools not only sanctions against leaders and generals but more sophisticated measures to cut these regimes off from insurance banking and shipping industries as well as the shell companies that they depend on. we are committed raising the economic cost of unacceptable behavior and denying the resources that make it possible. if sanctions are among our more powerful shtick, our culture of
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entrepreneurship is one of our most effective carrots an often overlooked element of our economic statecraft and a source of american power. at a time when there are compelling vision for the future of the global economy that are competing visions, this is a part of the american brand that speaks to people and wins them over to the values we promote around the world. to free markets, the rule of law, the free exchange of ideas. that's one reason we created a global entrepreneurship program that builds networks of innovators around the world. we're very well well of the fact that we're not in a political or economic competition, we are in a competition for ideas. if people don't believe that democracy and free markets deliver, then they're going to be looking elsewhere for models
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that more readily respond to their daily needs. and we happen to believe that our model is not only the best for us, we think it embodies universal principles, human aspirations and proven results that make it the best model for any country or people. now there can be variations on how it's implemented. but we are in this competition to win it. we want to make clear that it's not only good for america but it's good for the rest of the world to pursue democratic and economic reform. third, we are modernizing trade and diplomacy to deliver jobs and growth for the american people. now, i can imagine that some of you know that we have our work cut out for us there. because what is the connection between what we do in the state
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department every day and what is happening here in new york or anywhere else in the country. and i know there are some who believe that america after taking our lumps in recent years should turn inward. but you can't call timeout in the global economy. our competitors aren't taking a timeout and neither can we. what we can do is fight to build and enforce a system rules that apply equally to everyone. now, of course, no nation is perfect including or own. but we don't fear a system that is open, free, transparent and fair because we know american companies will thrive when the playing field is level. and a level playing field is not just a timeworn rhetorical device. countries that benefit because we honor our commitments should know we expect them to honor
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theirs. that principle must be a cornerstone of our approach to economic statecraft. not an ideal that we strive for case by case. but a universal expectation everywhere and always. all who benefit from the rules of the global economy have a responsibility to follow them. enough of the world's commerce now takes place with developing nations that exempting them would render the whole system, not just unfair but unworkable and that would end up harming everyone. one example of just such an unsustainable approach is china's currency policy, which does, in fact, cost american jobs but it also costs brazilian jobs and german jobs and other jobs and it denies the chinese people the full fruits of their own labor. china has been gaming the
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trading system, to hold down the value of its currency to give its companies a leg up. its currency has appreciated and not enough and currency is just one unfair practice. president obama has made clear that whatever tools we put in place in response must actually work. and must be consistent with our own international treaties and obligations. at the same time, we need to be assertive in securing the win-win economic relationship we can and should have with china. the state department is determined to help our companies seize opportunities around the world and bring down barriers to trade, investment, and fair competition. our ambassadors are leading whole of government efforts to drum up new business and fulfill the goal of doubling america's exports by 2015. undersecretary bob orman, once
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very involved in this club is coordinating with the export-import bank opec to support our exporters and importers economies. by passing the trade deals with south korea, colombia and argentina, that in today's washington leaders from both parties can still come together to deliver results but also to send a message to the rest of the world. these agreements will allow us to compete in important emerging markets, creating tens of thousands of jobs to the american people. these victories also give us new momentum to take on a broader agenda of promoting fair competition around the world and updating our economic toolkit. so we are moving forward in negotiating a cutting edge multilateral free trade agreement called the transpacific partnership. our goals is not only to lower barriers but to raise the
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standards of economic competition from vietnam to new zealand, to peru and many places in between. and we will continue to use the asia pacific economic cooperation forum which president obama will host next month in hawaii to push the envelope on open, free, transparent and fair trade across the pacific basin. now, we have to be nimble and creative because we are confronting new barriers that are emerging not as borders but behind borders, denying our companies a chance to compete on their merits. and this is not just an issue for trade negotiations. it is a challenge for our diplomacy around the world. for example, when government impose a so-called toll booth that forces unfair terms on companies just to enter or expand in a new market, we push back. and for me, it's clear that when
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companies turn a blind eye to piracy or other problems, we have to demand that they protect intellectual property. and our embassies are there on the front line. we step in when we see corruption, red tape or bullying of small or medium size businesses. and when companies want to compete, then countries have to open up their government contracts and not just expect us to open ours. we are pushing the procurement -- the international procurement standards so that it's not just again a one-way street. but when american companies are not given a chance to compete fairly, that cost us jobs at home. just as the wto eliminated the most harmful tariffs in the 1990s, today we need institutions that can provide solutions to the new market
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distortions that go beyond tariff. countries that share the same economic values need to create and enforce new agreements and mechanisms to guarantee fair competition. and let me speak briefly about one barrier we urgently need to address and that is the participation of women in the global economy. because when half the world isn't invited, that makes a mockery of the ideal of free, open and fair economic competition. according to the economist over the last decade, women's increased participation in the global labor market in the developed world accounted for a greater share of global growth than china's. so this is not just about somebody else. it's about all of us to keep tearing down these walls that prevent business and individuals from seeking their own full potential. but it's not just enough for us to defend against bad behavior and barriers that block people
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and companies from global competition, we have to get better at playing offense. every year the population of the world's cities grows by 65 million people. that's the equivalent of seven chicagos. the idea of a new world order with seven mayor rahm emanuels should be enough to get us all moving. american businesses, though, have a major opportunity to help build new ports, stadiums and highways and to shape the sustainable cities of the future. i've asked assistant secretary jose fernandez to help american companies compete where growth is the fastest. it's also not enough for our commercial diplomacy to promote the flow of goods and services. investment in both directions, backed by well enforced rules is vital to creating growth in jobs here at home. for example, last year, the
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kentucky-based company that owns kfc and pizza hut, two iconic american brands, actually made more money selling pizza and fried chicken in china than in the united states. but this creates jobs at headquarters in louisville. and it creates jobs as well in china. when tom friedman warns that the chinese will eat our lunch, i'm not sure what he had in mind. but it is true that we expect fair treatment for our investors overseas. and if we do that, we have to welcome foreign investment in america. through the president's josh council in a mole of government paradigm called select usa, we are focused on attracting billions of dollars of new investment to create american jobs. the state department and the u.s. trade representative's office will also lead negotiations a next generation
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of bilateral investment treaties that protect and encourage investment and i'm pleased to announce we will soon resume technical level discussions on a new bit with india. to make the most of open markets, however, we have make sure that all companies play by the same rules. whether their owners sit in corporate board rooms or government ministries. now, let's just be very clear here. too often national favorites enjoy preferential access to government resources and special protection from competition in their markets. that gives these companies, whether they are wholly owned or partially owned by a government an unfair advantage and harms foreign competitors and local entrepreneurs alike. we are working to include a chapter on state-owned enterprises in the transpacific partnership and to finalize new oecd guidelines.
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our premise is simple. the rules must apply equally to all companies. we call this commonsense principle competitive neutrality. and we promote it all over the world. but these challenges to our economic interests are not the whole story. my fourth point is that we also confront a special set of strategic challenges from the growing wealth in state hands today. governments are entering markets directly through their cash reserves, natural resources and businesses they own and control. and they are shaping these markets, not just for profit but to build and exercise power on behalf of the state. now, there is nothing new about countries using economic power to force others to bend to their will. but today the resources at their disposal are unprecedented.
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and interconnected global markets present new avenues to deploy them. a decade ago, the governments of emerging nations added a combined $100 billion a year to their reserves, 2009, they took in $1.6 trillion. sovereign wealth funds now control 12% of investment worldwide. and increasingly, state-owned and state-supported enterprises operate not just in their home markets but around the globe sometimes in secrecy, often lacking transparency and accountability that would come from shareholders and regulatory themes and boards. we also see hybrid companies masquerading as commercial actors but actually controlled by states and acting with strategic consequences. the dividing lines just aren't clear anymore.
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when states participate in markets directly or through the companies they own and control, their behavior is often benign. they are doing what they say they are doing. making an investment. sometimes it's even beneficial as when energy suppliers work with consumers to stabilize global markets. sometimes but not always. we also see states bullying their neighbors. for example, national oil companies tightening gas supplies in the dead of winter. or they restrict access to critical minerals after a dispute. the way states deploy their cash, companies and natural resources especially in global markets is of critical concern to us and i hope it will be also to you. we need, therefore, to develop international rules and norms that sets the boundaries, police
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bad behavior and require transparency so that state-owned entities are clear about their intentions and their actions. as we respond to this challenge, however, we must not respond in kind. when the international community grew worried about sovereign wealth funds, countries institutions and the funds themselves came together to agree on the santiago designs that these funds would act responsibly. today we need to seek similar commitments and binding agreements about the behavior and intentions of state-owned companies. this is an ambitious agenda. and we need to ensure that the state department and the u.s. government are on the right footing to get it done. after 9/11, we realized that we had to break down the silos that prevented our intelligence and law enforcement agencies from working together.
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today, many of the responsibilities of economic statecraft are similarly split among many government agencies. so we all need to bring our eincrease strengths to the same table. and under the leadership of the president and the white house we are taking part in a genuine whole of government effort. for our part the state department has talented tireless diplomats engaged in dip outreach around the world and at every level we are trying to up our game. we are reorganizing to break down old bureaucratic silos creating an economic activity of growth and government and applying the chief economist to the state department. we will also do more to train our diplomats to understand economic finance and markets and more to promote those who do. we should be aiming for universal economic literacy and widespread -- we need to be at a department where more people can read both foreign affairs and a bloomberg terminal.
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finally, let me underscore that. for all we can do beyond our borders, the choices we make at home will be the most crucial to shoring up the source of our leadership. and it's not only choices by our government and our political leaders, it's also choices by our businesses. we need to recognize that our dependence on imported oil and our national debt, our foreign policy challenges, not just economic ones in the short term they create volatility and give others leverage against us. in the long term, they pose a generational challenge to our global leadership. we are working to respond with new thinking and a renewed sense of common purpose to get our economy growing, modernize our infrastructure and bring down our debt and if we do we must resist the temptations to slash our investments not only our
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investments in infrastructure, education, r & d but also in diplomacy and development. as i said before and i'll repeat again today, the 1% of our budget that we spend on diplomacy and development is not driving our deficit or our debt. and either we invest now in what keeps us safe and secure or we should expect to pay the cost of living in a more dangerous and economic more challenging world. i don't think that is a choice we can afford. washington has to end the culture of political brinksmanship which i can tell you raises questions around the world about our leadership. when i was in hong kong, i was just barraged by questions about what i thought would be the outcome of the debt ceiling negotiation. and having been around washington now for longer than i care to admit, i was able to
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assure all of the business leaders and government leaders that we would get to a solution probably at the very end and like winston churchill said we had the best system but we didn't get to a solution until we exhausted every other alternative. and that american democracy will always be a little messy. that goes with who we are. but that messiness cannot outweigh the imperative of delivering results. we have to recognize every decision we make now in this totally 24/7 interconnected world is followed around the world. a lot of people don't understand our system very well. but when they see that we can't make decisions on something as fundamental as to whether the united states of america will default on our debt, you got to know it raises questions in their minds. about where we're headed as a
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nation. but as i say it's not only our government, our businesses also need to lead. many companies today are sitting on large cash reserves. and in many companies i visit, leaders ask me, where are the american businesses? how come they're not here competing for this contract? this mining deal? or this business opportunity? but we are working to create an environment where american companies large and small at home and abroad have the tools and the confidence to go full bore. but ultimately it is up to all of you, the businesses yourselves, the higher invests, take the kinds of informed risk that has been successful to america's success. yesterday at the state lunch for the korean president i sat with a group of american businesses who do business in korea and we started talking about this. and one of them said -- one of
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those business leaders said, you know, there's a lot of risk in the global economy today. and we have to evaluate those risks because we owe our shareholders a very well thought-through investment policy. he said but there's also a new element. we now feel like we're competing not only against other companies. we're competing against countries. and it's the obvious countries that we all know were state owned enterprises or hybrids that's out there competing and there's also countries that are much more in between the state and the government and we need to be back on the same american team. we have to work together to address these challenges. you know, in the 1990s, businesses used their supply chain to take on the problem of child labor in the developing
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world and it was american businesses that began to change the terrible picture of 5, 7, 9-year-old children in what amounted to forced labor. today i'm encouraged that a new coalition of major companies is coming together to keep global supply chains free of pirated software and counterfeit goods. that gives innovators their rightful reward but it also creates american jobs because nobody outworks us and nobody outinnovative -- outinnovates us. to be sure the challenges facing our companies, our government and our people are sizeable. but this is not the first time that america has faced adversity. and we have to be just prepared to get out there and fight hard for what we know we can achieve. we have to overcome our
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adversity at home and around the world. you see i believe confidence is a commodity. and we need to remember that out at our very best, america remains the opportunity society. a place of idealism, possibility and pragmatism. a country hatched in a college dorm or a garage can still grow and flourish into a multimillion dollar business. and i also believe that our diversity is one of our greatest strengths. no place in the world shows that bench new york. america today is as well positioned as any nation to adapt and thrive amidst all through this complex change and just as we always have, we will seek our success in a way that helps other succeed as well. because i know that somewhere in new york or elsewhere in america today, somebody is creating a
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business with an idea that could be a billion company if that idea can find its way into the marketplace. i know that somewhere in the developing world there's an entrepreneur who could succeed if they're given a chance. and then to keep trying even if they fail at first. and i know that in some of the places we're following most carefully in the news, middle east and north africa, we have to help create that culture of entrepreneurship that will give people a belief in themselves and the possibility that they too can have a better life. wrench across this country, we have hard-working talented people who are ready to be part of america's recovery. it is my commitment that our economic statecraft will help americans first and foremost live up to their own god-given potential and then spread that
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opportunity society broadly. america's core belief that everyone should have a chance to succeed is one we've come closer to meeting than any country ever and we cannot afford to lose that. so in the century ahead we need to make it true that for every american and hopefully eventually for every person around the globe, we're going to build a stronger economy that will provide more prosperity, more broadly. we will rise the challenge and answer the questions being asked around cooking tables and cooking fires and we will ensure that american leadership will be there for decades and decades to come. and not only will that be good for america but it is my conviction -- it is absolutely essential for the world we want to live in. thank you very much. [applause]
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>> thank you, madam secretary. as is our tradition, we invite two of our members to pose questions to the secretary of state. abby joseph cohen is an goldman sachs. ed is chairman of the isd group and former trustee of the club. they will each ask a question to the secretary. abby? >> andrew, thank you. and good morning, madam secretary. >> good morning, abby. >> thank you so much for joining us today and for providing what was an extremely forward-looking thoughtful and dare i say it, comprehensive review of these very critical issues. it was so comprehensive that what i would like to do is to
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drill down on just one of the topics that you raised specifically the efficacy of the u.s. economic model. you asserted and the data certainly prove that has never been a more effective economic model in terms of creating widespread prosperity and also enhancing democracy and freedom. and one of the elements of our model has been a focus on free markets. and what we certainly see in the environment today is that many u.s. companies have already begun to respond to the global rebalancing with faster economic growth now being seen in places like asia and latin america. in fact, with the companies in the s&p 500, 30% of their revenues are already being generated outside the united states and we estimate about $1.2 trillion in reserves
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sitting outside the united states, available for investment someplace. can you give us some idea of how you would use this corporate strength to benefit the creation of jobs and enhance economic growth in the united states. >> abby, i understand that's exactly the right question but i want to put in somewhat of a context and then i will certainly respond. there is no argument with the opportunity that american business has now in growing around the world we are 100% behind that. we want to do everything we can to facilitate it. we want to be out there to open doors and knock down barriers because we do think that there is an absolute connection. it is not as though american companies go invest in china or india or brill and there's no
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benefit back home. there is, the quality of the benefit, and the amount of the benefit and the durability of the benefit depend on the decisions we make here as to how we think about our competitive stance in this new challenging environment. so there is a very important discussion that needs to take place. and i wish it could take place now in our political system with the involvement and the support of american business leaders about what is it that we need to do to change the tax code, to provide incentives, to work towards the ability to capture some of those resources, reserves that are offshore. how do we bring small and medium size businesses to the table more effectively because it's still the fact that most of our exports come from larger
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businesses. we haven't cracked the code about how we open more doors for small and medium size businesses. this is fundamentally an economic and political discussion. but i think we are at a standstill in that debate here at home and i deeply regret that because i don't think we have the time quite as caught up in our own political arguments. there are certain economic realities and underlying those are the rules of arithmetic. there are certain decisions that we could make that would in my view benefit american business, benefit our long-term challenges on the debt and the deficit. it wasn't 100 years ago. it was the 1990s after all where we did have a booming economy and ended up with four years of surplus in our budget.
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and i will remember being on the budget committee of the united states senate as your new york senator where a debate was going on about how lowering the debt even eliminating the debt would not be a good idea. well, who could even have that conversation today? and i say this not as a political statement because i truly am out of politics, i say that as an almost ruful admission that we are doing this to ourselves. and i think it's so important that we rebuild that sort of team american spirit. does the corporate tax code to be revised for a more competitive 21st century global environment, yes. we'll talk about what works and doesn't work. do we have to begin thinking about more how we try to enlist
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our businesses in an effort to change codes of conduct and international rules that will benefit them but also benefit the united states, i think so. so does either/or or us versus them meant that i see, unfortunately, too much of our country today has to give way to a much greater understanding of what we need to do to benefit all of us and particularly children and grandchildren to come. meant. so there are a lot of answers. i look out in this audience and i see people like alan blinder out there there's a lot of answers about with a we can do and what we should do. but the thing that we cannot afford to do everything is remain paralyzed by ideology and partisanship. we need to roll up our sleeves and sit around the tables that people have sat around in the past of our country and make these tough decisions.
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i mean, it's an age-old debate about how best we do it. how we most motivate, incentivize the market but let's have that -- let's have that debate and based on the fact and the -- you know, what adds up and what doesn't add up and what we know from the past. let us end by saying that, you know, i'm very bullish on america. i'm very convinced that our system will stand the test of time. that it is enduring. but i really don't want to have to hedge my bets at all. i want to make sure that our economic and political interests are working in tandem to get to the result we seek. which is really strong at home, strong abroad, continuing to generate more ideas that are going to benefit us here as well as elsewhere and putting the building blocks in place.
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there are thousands of jobs in america today, right here in new york today, that go unfilled because we don't have the workforce with the skills to fill them. so it's -- it's got to be a common effort but i would hope, abby, that, you know, we would begin to recognize and maybe we'll see some of that coming out of the super committee, you know, ronald reagan, george h.w. bush, bill clinton, you know, they reached balanced results that benefited both our economic and strategic interests and i think we should look for the same. >> thank you. >> secretary clinton, it's an honor to be on stage with you. >> thank you. >> i can speak for this group in appreciation for coming here. i know your schedule is so busy so thank you very much. i would join, abby, that it was
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an excellent speech so thank you. i'm bullish on this country as well. but i'd like to have a question -- i'd like to have many questions but i only have one. [laughter] >> but i'd like to ask a question that goes down the road of unintended consequences. this group is fairly gloomy. your speech picked them up a little bit but there's a lot of worry that we are like japan. there's some worry about the '30s. and in that there's worry that what smoot hawley might have a
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calamitous attack. i was wondering what the administration would do legislation on the china currency manipulation is and how we can limit to leading too a trade war. i think people are anxious and that's understandable we've gone through a rough couple of years. ..
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assuming we start to act like americans again, we start actually solving our problems and working together and realizing of the opportunities that lie ahead, but that doesn't mean we can't afford to look out at the global economy and not realize a lot of things have changed and other countries are now major players on the economic scene and we should welcome that. we welcome the rise of the country. we welcome the rise we see happening in asia. remember our export trade with the southeast asian countries is
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actually still greater than the trade with china, so we have a big investment in growing the these economies and seeing middle class's develop, consumers develop but that doesn't mean that we should accept what these countries do to us or the global economic order. chuck schumer, who has been the champion of the chinese currency appreciation bill in the senate has many of you know is a very staunch defender of new york's economic interest, and he would have to ask yourself why is senator schumer leading the charge on this? in part because it is not only distorting the market, it is not only making our exports more expensive, it is now beginning to impact other countries as well so it is not done united states alone singing china needs
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to rebalanced this artificial depreciation which is good for their exporters, which disadvantages their own people in many ways can go on. so i don't think there is anything wrong and standing up and asserting ourselves, and i don't see that leading into the kind of protectionism you warn about from the 1930's. and the obama administration has said about the bill in the senate that anything we would do needs to be consistent with our international obligations including the wto obligations. but we also don't want to be taken advantage of. it's one thing when you see country rising to a level they are highly competitive and where we see their presence across the globe, where they are sitting on
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more cash reserves than any entity has had in the history of the world by our assessment, that they continue to try to game the system to their advantage and our disadvantage. right now they are quite dependent upon us and our market. so we still have leverage and a certain ability to influence the future events and we have allies now we did not have just a few years ago. so i think it's appropriate and fitting and timely to stand up and say this is not acceptable. we need a rule based reciprocity system, border barriers, non-tariff barriers, currency actions and all the rest of it. i think we would not be serving our own country right if we just thought we can't do anything about that that doesn't seem a
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very american to me so we have to be smart. we can't be protectionist in the classic 1930's sense but we have to expect a pretty pleased by the same rules, and in the absence of that we have to put together an international coalition of countries that have the same economic states as we do of rules based systems that is going to protect economic growth and make it possible to continue to compete in the way that we can wherever we can. i believe this is the beginning of a discussion maybe even a negotiation, and as i said to you earlier when we were waiting to come if you are china you were going to do what advantages china. why does that surprise anybody human nature being what it is and will get the remarkable success that they have had, but
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we are america and we need to take care of what is going to put us on the strongest position. that means first and foremost taking care of our own business here at home because that is where we are giving away to everybody else who wishes to compete against us but it also means working for a new set of global rules that take into account the changes that we have seen in the last several decades. thank you very much. [applause] >> thank you madame secretary and for everything that you do every day for the united states. to my fellow members of the club to paraphrase what the secretary said, go out and create a business. we are adjourned. [laughter] [applause]
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the supreme court heard a case
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last week involving privacy rights and strip searching policies in jails. the case involved a new jersey man wrongfully arrested in 2005 for an unpaid fine which he actually paid. he was taken to two different jails, stirred searched at each one and released six days later after the charges were dropped. the court will decide if this [inaudible] we will hear argument and florence versus the county of burlington. mr. gould steam. >> mr. chief justice ai please the court we ask this court to hold ag amit strip search and arrest the in cases of reasonable suspicion that is the world was applied for almost the entire country in the three decades without an administrative difficulty or any apparent increase in smuggling. we are here today of course because both the jail and the
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essex county jail require every to stand 2 feet in front of a correctional officer and strip naked. >> is a reasonable suspicion rule to all arrestees i thought you were making a distinction between felons and less serious offenders. >> we applied the respondents deutsch draw a line just as nature versus minor offenders. i think they do that because if you think that people who commit more serious crimes might be inclined to greater criminality but our role is one of a reasonable suspicion. there are minor offenders because the class definition is only people who were arrested for minor. islamic is there a reasonable suspicion on the test more easily met if it was for a serious felony? >> it is in the view of the courts that have considered this
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question. >> in your view. >> yes. >> in fact that you are going on a case by case basis based on the offense. >> there's the categorical one and that is adopted by these respondents by the prisons and court of appeals that say if you are arrested for a more serious offense, categorically there exists a reasonable suspicion. the case by case rule it is true applies with respect to the minor offenders and that is the class that was -- >> how would this work with respect to individuals who have been arrested for serious offenses but say someone has been arrested for assault. say it is a case of domestic violence, would that be enough to justify the search? >> i think you have to ask -- i know you want me to answer the question. let's be very clear. the respondents called the major minor offense line. the respondents are prior
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reasonable suspicion. in my -- >> i anderson and you want to apply that to everybody. and i'm asking you whether the fact someone has been are arrested for a violent sense would in your judgment be sufficient to provide a reasonable suspicion. >> if the jail made the judgment we would think the court would overturn that you really think that illustrates when someone is arrested for not paying the fine that there is no justification whatsoever because the logic of their policy is that this is a person inclined to violence. >> i take that what we are trying to do is protect the individual dignity of the detainees but it seems to me that you risk compromising the individual dignity if you say we have reasonable suspicion as to you. you are just sitting us up and setting up the detainee for the classification that may be questioned at the time and would
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be seen as an affront based on the person's race and what he or she said to the officers coming in. it imperils individual dignity and that we in a way in a blanket rule does not. stomach it is an incredibly important issue they don't have a blanket rule. the respondents apply the reasonable suspicion standard. the serve everyone naked but if they are going to look for contraband, that is look at the person's mouth, look at their ennis they apply to a reasonable suspicion standard. to your concern that maybe we are inviting discrimination or appearance of discrimination, remember that there was going to produce more of that problem than ours because their role is not that they have to strip search everyone for contraband their rule is they can. they can make a choice. this court they say -- >> i'm not sure if it is there will their role but ultimately
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it is good to be our role. >> i hope that your rule is there has to be a reasonable suspicion standard which is the rule but was a light almost everywhere in the week of -- >> to do what? you just said strip naked? it's different from a strip search? what is permitted? there are various things. one is shown wearing in the prisons. >> shall bring in the presence of officers is not something that requires reasonable suspicion. the courts of uniformly concluded if you are just generally in an area in which you were being monitored by the officers that is not a fourth amendment search that cellulite's a reasonable expectation of privacy. >> that can be inspected without their clothes in more than that? >> there are two different scenarios. one is a common room everyone is standing around and for jail security purposes, a common shower area, and for security
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purposes this is different. you ask what's prohibited in the absence of reasonable suspicion. what's prohibited is standing 2 feet away from the person -- >> i want to know what is permitted. >> what is permitted is what is subject to not reasonable suspicion standard is anything other than looking at a close inspection of a person at arm's length with the court of appeals uniformly recognized in the lower federal court with the literature recognizes and clearly by think concerned the court in the case is that when you are standing so close to the person inspecting their genitals, looking directly at their most private parts of their body that is a direct intrusion on their individual -- >> are you suggesting with three different levels stripping naked it's okay to stand 5 feet away but not to feed? >> i don't think the courts have had to confront 5 feet versus 2 feet. what they've come from it is the acknowledged jails are places
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that require securities of your just observing a shower room that doesn't implicate reasonable invasion of privacy. >> are you taking the position it's the purpose of the search? >> no, -- i know, it is the closeness of it. there is not a problem, i think, with a question of to country, four, 5 feet. they are done the same way and that is the officer stands in front of you. the question is to feed it seems to be a common -- >> i am unsure if it is okay to shower and have an officer what you shower naked the intrusion is that you are standing 2 feet as opposed to 5 feet away? >> gist generally observing the room. spec this doesn't make much sense to me. let's go to the next line which is that's one kind of search. the second is, i think what some have called a visual cafe de tecum -- kathy search whether you will have the individual
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open or expos private parts. can make an argument that that's different than just a visual search? >> you can. what we just say, let me try to close my answer to the question of the five versus 10 feet and turn immediately to the visual body cavity research. the court will require this is a reprise of the argument in the case where the schools argued that well there's an observation of the students in gym class the shower together naked and undress and the court said it's different when you are standing right there looking over the student. so that is what implicates the fourth amendment right of privacy and the distinction that makes sense. ask your question, yes, there is a material difference we think both should be covered by our rules. but a visual body cavity inspection as occurred in the ethics facility where you require someone to bend over and cough which is what the testimony is in this case -- >> one, not the other.
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>> that's correct. at the second jail and a slightly different search protocol in which the testimony is he was required to bend over and cough and expose his anus for inspection and the respondents themselves regard that as a more significant intrusion and apply reasonable suspicion standards themselves to that. >> would you suppose it is reasonable enough and some states could adopt that kind of a protocol instead of what they have. but what you are asserting is the fourth amendment prohibits them from adopting it, and the obstacle by ec is at the time the fourth amendment was adopted this was a standard practice to strip search people admitted to prison. so how could it be deemed an unreasonable invasion of privacy when it was done all the time and nobody thought it was unconstitutional? >> we don't believe the premise is correct. if you read the history
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different than the i'm not going to be able to persuade you, but our understanding of history is the closest they can come is two things colin coke first people were strip searched upon arrest and that certainly not the rule under the first amendment. and that in a certain jails of the time of the founding, other inmates in a process of evolution where there is almost a kind of ritual cleansing would strip search inmates that have nothing to do with the jail officials themselves or intercept contraband. >> that is somehow less of an intrusion of privacy to be naked in front of a whole bunch of inmates rather than one jail officials inspecting? >> first it wasn't a nearly uniform practice i think your question assumes and it's just a different kettle efficient entirely. we don't believe obviously that historical lesson obtains today that the prisoners can strip search new inmates, new arrestees as they come in. i do agree on the basic premise of your question that it's our position can't just be i have a
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reasonable rule i do have to in either under the terms of bill reverses the attorney or established that this is an exaggerated response that this is much more, materially more than is necessary to accomplish their goal. >> the search involved pretrial detainees. >> we disagree with that at least to the second search we think that there's no difference between the degree of intrusion but there is another significant reason not just in the nature of the search but a difference between this case and bell the inmates in that case made a voluntary choice. they decided to have the contact -- >> do we know if the pretrial detainee's were also inspecting on entry into this facility? >> we do not. i tried everything i could to check the record of the case and there was no record of the strip
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search at the time to reverse the nec is there a distinction between the simple strip search and the visual body cavity search. you say that they apply reasonable suspicion standard to the official body cavity search. is the visual body cavity search therefore off the table? >> no it is not we contend that the fourth amendment prohibited the visual body cavity search of the ethics facility. >> right, but you would say that they had to have a reasonable or articular global suspicion before they could do that. >> we say under their policy they should have but they didn't. the burlington -- the only evidence about a conclusion about the jhelum reasonable suspicion is that the intake officers filled out before missing there is no reasonable suspicion here and ethics i don't believe content there was reasonable suspicion to engage in a visual body cavity research. am i as a matter of fact it happened. >> you see the distinction
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between what they do and the written policy? >> i do with regard to the ethics -- no, what happened here is the ethics after this search occurred, and this is described in the opposition in case you want to look at it leader the asked for the surge in this change its policy and we were denied an injunction going forward under a lease versus line. so it is just a question of damages for the surge that occurred at the time under the policy. >> suppose the jurisdiction has the policy of requiring every inmate who is arrested and is going to be held in custody to disrobe and take a shower and apply an occasion for the prevention of the spread of linus and observed while this is taking place from some distance by a corrections officer let's say 10 feet away. it does that require reasonable
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suspicion? >> it does not. >> so you're only concern is searches that go further than that. >> that's right. a very close inspection of the individuals genitals, which can occur absolutely so long as there is some minimal level of suspicion that's created. i do want to return to justice kennedy's concern about dignitary interest here and whether drawing -- >> can i just follow up on that? is there a disputed fact as to whether anything beyond that occurred in burlington county? >> in burlington county there is a dispute with the so-called general lift whether mr. florent was required to lift his genitals or not. there is no dispute butte he was directed to strip naked despite the officer having made the finding which is on page treen 90 of the appendix there was no reasonable suspicion to conduct a strip search. that is the only dispute. >> could you clarify to points for me? the first is he was admitted into the general population at burlington?
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>> the record is not entirely clear. what the record says is for the first few days -- remember, he inexplicably was capped six days. the first several days he was kept in the cell with only one other inmate for possibly two and one time he had lunch with other people. in essex he was admitted to the general population. >> the final charge against your client was involved the use of a deadly weapon? assuming the prison knew this would and that provide a reasonable suspicion that he argued was missing? >> it depends because of the breath of the phrase possession of a deadly weapon as this illustrates the record shows the possession of a deadly weapon and that is why the charge wasn't pursued by the state was that he was pulled over at a traffic stop and he drove away. >> you are speeding into your anniversary arguments that what you are asking the police to do on the intake of the corrections facility on the intake is to
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investigate in that fine detail? they can't even look at the sheet used of the deadly weapon and say this guy could be dangerous? >> no, the rap sheet doesn't contain the charge. what it does show and we are perfectly fine with them looking at the representative sheet. the rap sheet is in the joint appendixes says he had a single charge. he pleaded guilty and got a term of probation. there is nothing about that the jail would have had any information suggesting that he had some charge involving a deadly weapon and that is why they themselves certified that there was no reasonable -- >> is a rap sheet available immediately? i thought it was rather common, correct me if i am wrong, that it would take maybe 24 hours, 48 hours for the wiretap, for the services and the internet to report he was wanted for questioning for some very serious crime and some other
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state? in my practice at least county jails were much more dangerous than penitentiaries because you don't know who these people are paid to arrest them for traffic and they may be a serial killer. you don't know. >> that is not the view of the jail in this case. they have a reasonable suspicion standard. they didn't find any concern in their own policy neither does the marshals service, i.c.e.. we have a prospect of a prior offense. as to what the rule is and how common it is and whether this works in practice, the jail did look him up in the new jersey criminal-justice a version system that's in the record. they are required by the new jersey law to do that. every single one of these jails has computer access to the new jersey and the nci. they just type in his identified information. they were able to pull him up without any difficulty and they've not complained that they didn't have enough information about him. they filled a form saying there is no reasonable suspicion here. and remember, our rules we
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operate in a system, justice kennedy, in which the jeal does have enough information. when our point is this, if the jail has the fact that as it did here to affirmatively determine that there is no reasonable suspicion, which is the decided about mr. florence, than it is an extraordinary in to strip him naked when they have a reason to do so. >> my understanding of the statistics and correct me if i'm wrong is they get about 70 new people going through this process of a day. is their anything in the record about how much additional time would require to look at each one, to look at their record to determine which category they should fall into to strip search or not as opposed to having a blanket rule? >> sure, there is because they do this already. it is not in the administrative problem. they require the rule today. remember mr. chief justice when he arrived at the burlington county jail the did an assessment of him and determined there was no reasonable suspicion.
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the jails in the case did pull of his prior criminal history and they have no problem doing about the of why the standard today. it is not a difficult one. >> you have acknowledged that we have held that when you have visitors you may be stripped searched after the visit in the same kind of close examination that you object to hear. now your explanation why that is a case that that is voluntary. >> i have to explanations. >> you don't have to have visitors. can you really condition you're having visitors on your waiver of your fourth amendment rights? >> yes it is to roche's you have no right whatsoever to have the contact visits so of course, you can say i voluntarily relinquish my fourth amendment right in exchange for this privilege but i have a second -- >> are you sure about that? you can condition certain
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privileges upon the waiver of constitutional privileges? >> i believe that this -- i think it is a fair statement of the law. i do have a second point the way and that is the principal reason underlining the holding that the searches were reasonable is that there was a potential to deter smuggling, and that determines rationale has much more of a relationship to this case. remember the inmate in that case was having a planned meeting with someone and the representation of the government is our problem is if you plan to have somebody come visit you and you were going to have a contact visit you can plan for them to try to sneak something for you. this court is set -- >> there of course were guards there watching the visits, and as i anderson and the case, there was really no empirical evidence that smuggling can about as a result of these visits. >> can i read with the court said about that the court had a slightly different take and from page 559 of the court's opinion
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there has been only one instance where an inmate was discovered attempting to smuggle contraband to the institution on this person may be more testament to the effectiveness of the search technique as a deterrent than any lack of interest on the party inmates to import such items when the opportunity arises and our point is that when you have an unexpected arrest remember mr. florent showed the paperwork that he was not wanted for arrest and that is going to be true in all kind of traffic stops and the like. >> i thought you were saying -- imagine a case a person is going to be arrested, put into the general prison population. there is a warrant out against him for second degree murder and the policemen stopping him for a traffic offense and arrest him because he knows he's wanted in other place and the jail has a policy that says when you come in here because of second degree murder we strip search and they
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do that under door rule or not it always has to be reasonable suspicion. aspin is a debate we think it is reasonable suspicion. >> that isn't helping me. it helps me to know what the category of things are that the jail in your opinion is going to have to look into the characteristics of this individual person and when i look at the aba they talk about minor arrests and when i look at some of the cases there is a long list like violence, drugs and so forth we don't have to that you can just use the general fact that he was arrested but there are other ones where you do. so what is your rule on that? >> the rule that we would accept is with respect to the minor offenders -- >> the next question who is a minor offenders and how do you administer that rule?
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>> i think it is a great question for them because that is their rule. they have a rule that says for minor offenders you have to have reasonable -- >> would you state the constitutional rule and you keep talking about what is their role and we are trying to find out what is the limit of the rule and i think that you've already qualified what he said opening new set reasonable suspicion is the rule for every one that fell in as well as the minor offenders. now you seem to be saying this case involved only a minor offenders so let's limit it to that. that's what i thought you were saying. >> that's right. because it only involves minor offenders we have articulated with respect -- >> unfortunately i am asking you and not to them and it's the same question how do you want us to write this so the jail personnel have to people to follow it and know exactly what
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they are supposed to do? for three days the rule articulated by the courts and applied without difficulty is one that says for minor offenses when the was a practice was basically done it a felony verses misdemeanor one. the court accepted that if the courts accepted if you are suspected of a more serious offense than for administrative reasons and because we think he might be engaged in more criminality then you don't have to take in the individualized inquiry whatsoever. >> i can understand that for cavity searches, but why for bow searched to see if the person has fleas or committees or any other communicable disease before he's put into the general population? are felons more likely to have those damn long felons? >> know they are not to use the mcdevitt would make more sense for the aspect of the search which is we want to make sure we have a clear prison. >> the testimony in the case establishes that the jail guards
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allowed any medical rationale for the search to be conducted by medical personnel, not the guards themselves. all of the inmates are examined by a medical person, a nurse or the like and they are responsible for -- >> it is where the fourth amendment invitation of privacy law and is to be drawn if you are examined close by someone who has a medical degree it's okay and on the other hand it's someone who doesn't have a medical degree it's not okay? as to whether your privacy is being invaded. >> it can be the line and is the line that's been accepted for decades. if you keep the person in custody for 24, 48 hours until the medical personnel can come to him for the intakes do in the morning. you are telling us that every county jail in the united states have medical personnel on duty 24 hours a day ready to do the
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search. >> i'm telling you what is in the record in this case and it was 2 feet, it's too close but 5 feet is okay sticking with that three estimate a close inspection to examine the person's individual -- their genitals whether it is to feed or 4 feet if i could make one point and then reserve commander of my time. >> children in schools inspected head lice, prisoners for body lice you don't need a doctor to do that. >> if that is right what happens is that medical professionals the people assigned that response about diaz that is the testimony. the only last point i want to make -- >> that's not constitutionally required so that's another thing they can respect for body lice
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and that's okay? >> if that's what they are doing i think that is okay. the court said that that is not itself -- the problem of sandlin shampoo which is what these jails do but that is not a sufficient justification to require the person to strip naked. the only other point i did want to make is that this is the rule of just burlington and essex but the marshals service which is the intake of 220,000 inmates every year and also the bureau of immigration customs enforcement which intakes -- >> they tell us that is true only if they don't put the arrestee in the population. >> that is only the population of the prison much as an intake of minor offenders of a few thousand people a year for the marshals service and i.c.e. which has a combined 600,000 people every year they do not have the support housing rule if
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i could reserve -- >> we will give you a rebuttal time but maybe just to be clear you don't -- do you or do you not have an objection to the superseding policy? >> we do because they still have to stand directly naked in front of the superseding policy. with the superseding policy is which is burlington's policy throughout this is they will not search the person for contraband which is the supposed interest here for contraband in the absence of the reasonable suspicion. both deals at time of the search and also now will still require the person to strip naked, supposedly for contraband even though their own policies as we won't search -- we won't engage in the death of the search required. we won't look at the anus or the person's mouth in the absence of reasonable suspicion. >> that is the current policy and you have no problem with that? >> amine you have no problem
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with the reasonable suspicion aspect of the body cavity search? >> that's correct. >> with respect to the simple strip search your only objection is that the guard is too close to the inmate. >> that's right. >> okay. thank you. >> mr. phillips. specs before. may i please the court. i appreciate clarification that your questions brought to this case because i think there's a bit of confusion that i'd like to try to clear up, although my colleague's movement in terms of answering some of the questions left me a little bit perplexed as exactly what the nature of their claims are. with the first question that the court should maybe focus on this policy is at issue and since the class certification that deals with one set of issues and the plaintiffs with another set of issues i think he has to be careful. you have to focus on the policies that existed in 2005 and that is the basis on the
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pitch he was in fact searched under the circumstances. the policy in burlington was primarily aimed frankly at health and tattoos and the policy at essex was aimed primarily at contraband and then secondarily tattoos and health and the policy at burlington was largely you come in the present, give up your clothes they take a sharper, examine you fairly thoroughly and look at you and then give you a prison guard and move along your way. i'm sorry, shower and look at you, those are separate things or is it during a shower? >> it places a lot of significance on how close the examination is. under that policy how close was the examination? >> it would have been about an arms length, because the problem is if you are exchanging clothes with somebody handing them close to change into its charter to be
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larger than arm's length and get the clothes into his hands. okay, to arms' length. [laughter] that's not right to could take the clothes off -- >> that's what they do in essex the dewitt that way. but the difference between essex is that essex in fact does have -- it is tautological. burlington is basically a body visual observation and the district court says that is unconstitutional. observing it all is unconstitutional. to some extent it seems to be my friend has given up the part of the district court's decision, which clearly the court of appeals has reversed their part and ought to be affirmed on that ground alone. >> from more than 2 feet or less than 2 feet. >> that was not the district court pherae triet >> what happened, do they know? >> to feed or not within 2 feet.
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they granted a judgment to the plaintiffs in the case so you would have to interpret and give us the benefit of the interpretation which is more than 2 feet but without regard to that because the court of appeals says if you applied the court's decision it doesn't matter because you can engage in a much more intrusive true body cavity search which is more intrusive than even what essex does in this case because they were not asked to bend over and have a body cavity in all search. what he was asked to do is squat and costs in the event that would cause the contraband to fallout and you can catch it under those circumstances so that is the context. >> if i can understand your position there is no reasonable suspicion even for that more intrusive body cavity search is the right? >> that's the rule of law being
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introduced into the general prison population but what you also say the person is not been introduced into the general prison population do you still think there is no reasonable suspicion of requirement? even if they weren't going to be admitted into the general prison population because the risks remain to substantial but the truth to fund that argument is because they had met 99.1% of the. cities have taken to arrest people for traffic citations. they have a lot of tickets for being caught on speed cameras
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let's say that person can be subjected to the search is that you're describing. >> the basic principle we are asking for is the difference to the jail's and the administrators of the jail require this court respect their judgment you can't make a distinction based on that specific individual, that whether somebody as a minor a fender or a major offender is never more that clear in the first place and number two on the basis on which they distinguish the risk that opposes -- >> the aba as minor offenses, not drugs, not violence and you have to have reasonable suspicion. i've read through the briefs and i can't find a lot of contraband caught in that category and they think it is one of 64 also were
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less. so what is the justification for a rule to avoid a reasonable suspicion in that category. ceramica to the expert testimony before the court and the court in this case both of the testimony or the plaintiff and the expert testimony on the defendant this is a 348 as a joint appendix its is the greater presence of contraband among those individuals that have minor offenses that is their experts characterization that minor offenders bring more contraband and the major offenders. our experts say the misdemeanors' can be more dangerous and more likely to bring -- >> we have a lot of practical experience because the different states have different rules and sandra cisco came which i think the toughest on your side. i just say looking through that it's very hard to find somebody who really was a minor fender category who really was found to have contraband so what should i
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look at to show that my initial reaction from a quick reading is wrong? >> to go back to where this court said that the fact that there is not a lot of contraband being found a be a testament to the effectiveness of the deterrent. >> so why do we change the policy? we found the policy was successful even though there were searches the contraband still got in. so virtually every circuit in practice in the federal system had been following this reasonable suspicion for minor crime and they had been fairly successful so why do we change the constitutional rule to let them do more? >> i think first of all anybody that thinks the problem of contraband are less serious today than they were in 1978 is ignoring -- >> we understand contraband is
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serious but most of the studies point to it not being on the intake but coming in the great cause today is that from the corrupt officials. >> we can debate that seems the fundamental principal on the court's analysis comes out of that line. >> could i ask you something just in terms of your rule? your rules as you are not entitled to constitutional we in the right and prism if that is the case are you saying if the prisons decide on a manual search it for a prisoner who comes in, correction officers can manually check their cavities? >> no. >> so there is some privacy.
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>> it seems hudson versus polymer and the history of the amendment clearly suggests there's no reasonable expectation of privacy and viewed in the prison and there for the ordinary looking at him or her naked for tattoos and health and incidental contraband clearly constitutional and doesn't raise the issue. >> beyond that point they start to begin what essex does which is not a true amol cavity search but the animal and general focused search this subject -- >> on justice alito's question isn't one of the factors we look at the reasonableness and should we be thinking about the fact that many of these people who
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are now being a rested are being put into the general population were into jail sometimes not just over night but longer periods of time like this gentleman for six days before he sees a magistrate. should we be considering a rule that basically says your rights to search some one depends on whether the individual has been arrested for a crime that is going to lead to jail time or not or whether that person has been presented to a magistrate to see whether there is in fact probable cause for the arrest and the detention of this individual? there is something unsettling about permitting the the police to arrest people for things like kids staying out after curfew -- >> i think what is disturbing about this case is in fact he
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was arrested under circumstances in which he shouldn't have been arrested as a matter of state law. i a understand that. but i think the change the constitutional rule and the standards and ignore with the inquiry should be which is these policies that apply across the board and pinch the constitutional protection but nevertheless represent our jailers. >> what do we do with the presumption of innocence? this also a constitutional right and so shouldn't the degree to which a search has permitted be conditioned in some way on whether or not this person has been presented to a magistrate? >> if you ask me the way that i would analyze it if you want to adopt a different set of standards on who ought to be arrested and for what to be taken to jail that's fine. by understand that.
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but once you are talking about actually bringing someone into the jail to be admitted into the general population into what is without question one of the most dangerous and the most risky environment in that context i would hope this court rather than asking the individual jailers to make decisions on the basis they will not have the kind of information that you are asking them to make and where they make the judgment wrong in either direction of what means is litigation. >> i thought your friend said that is what you do with respect to the visual body cavity search. reasonable, articular level suspicion under the new policy. spec that is what we do with a true in all body cavity search. we changed the policy to be sure. we changed the policy because of litigation concerns. >> as i understand with respect to the visual body cavity search you require a particular
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individual reason and you don't require that with respect to simple strip search so you agree with your friend the only thing at issue here is how close the guard is going to be to the individual who you have no suspicion to think anybody is different than somebody else. during a simple strip search he says to fetus to close or whatever is okay. you want to go to 2 feet you don't want to have to stand back to 6 feet? >> you can characterize it that way but a better way to think about it is what essex wants and the policy permitted it to dubious to examine -- >> not what essex permitted it to do in the past and looking into the new policy. under the new policy you have
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the articular global suspicion for everything except simple strip search and observation. spec that is the problem is the language is different because the truth is the line of the new policy drawls is between what i think they were describing you ask the inmate to bend over and exposed his or her anus for a cavity search. we don't do that. but we do in fact >> can i finish and find out what you do? you said we don't do that -- >> what we do is ask the individual to lift his generals and -- jenna bush and scott and cough. >> than you do more than a symbol strip search? >> there's still an issue in the case beyond the ordinary visual inspection and that is even though you have changed your
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policy now the question remains whether that change in policy was constitutionally required so that when you treated the plaintiff in a different fashion under the old policy the was a violation of the constitution. estimate that question remains. >> so you have to consider both. the pure visual and also the inspection for contraband. the only point i'm trying to make is if you look at the way the district court analyzes the kate the district court split of and it's the class distinction. >> is it a common experience to justify an argument that if you have the person who stopped for a traffic ticket that person is going to be in custody for five or six days the person might well prefer an institution where everyone has been searched before he or she is put into the
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population. >> to ensure everybody's safety we are better off with a blanket policy who says we are going to engage in some form of the search davis slightly more in terms of one but it's designed to accomplish the same thing it's not just designed to ensure against contraband and that is to ensure there isn't somebody like mr. florence who's going to end up being -- >> i count seven or eight states anyway to have some variation of reasonable suspicion will likely want there's more contraband being smuggled in. there's a testimony in the record for their expert who said that in kentucky there is today the single biggest problem in kentucky prisons and cause of death is a drug overdose suggest
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there's a serious contraband issue in kentucky. i would say there is some evidence for which you could infer it's worse now than it was the wine is common sense and what it is essentially says and bell and referred verses this is a serious problem and no less a serious problem today than it was more than 30 years ago. some are there any limits in your view the research done in bellevue is there any constitutional impediment doing so the balance would tip in favor of the institution under those circumstances. obviously there is a limit
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between emanuel physical body cavity search, and that it seems to me would be a very different balance of the equation and i would be hard pressed to convince five members of this court. >> it applies only to squatting and coughing is that it? >> what i would really like is an opinion that recognizes difference to the prisons and to their judgment is what is appropriate and the circumstances and that extends all the way to the bill versus line are would like the cap to the court to analyze in which the analysis is the logical nexus between the rule the presence half preventing the problem and the answer was reasonable alternatives and the answer is no.
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>> as far as the constitution is concerned. all of the searches are permissible. >> clearly all of our searches are permissible. i think that is exactly the holding. bill was not tight in its opinion itself to the fact. >> they did express there was a visitor who could give the inmate contraband. i asked mr. gould steam whether we know if the trial of detainee's in new york or searched that way on entry and he said nothing that shows one way or the other. >> that is correct. we don't know. part of the empirical problem is that facility isn't going to open for four months any way so it will be difficult if you were going to adopt the policy that they have adopted that insists
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on some sort of empirical proof. >> approved between this case is that in the bill there was an opportunity for people to plan and conspire together to bring in the contraband. here you are talking of somebody arrested on the spot with no opportunity for planning and conspiracy and respect to contraband, is there? >> the policy itself is aimed at all people not just mr. florence and a not all people the people that self report that got an opportunity to bring the contraband and people get arrested and happen to have drugs or something on them and rather than show those when they are stopped for a speeding ticket would put it somewhere else. >> thank you, counsel.
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>> mr. chief justice and may i please the court similar to the search is issued in this case should be upheld want to start with the justice's question it is true the visits and belle are different from a person coming into the jail for the first time that there might be a greater opportunity for planning but if one of the justices' pointed out there was less than the opportunity to actually get the contraband the person coming was going to be searched, the inmate as justice marshall pointed out was wearing a one-piece jumper and watched the entire time the contraband situation in this case the person does have an opportunity even if they are not self reporting in the way they are going to be arrested protesters for example who decide to get arrested they might be stopped by the police, they see the squad car behind them, they might have contraband or a gun in their car and think i'm going to put that in my purse i need to put it somewhere that won't be in a pat-down search and potentially the of the contraband with them. also the process of going from
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the rest, point of the rest to the general jail population is not a quick one, the person who typically goes to the metropolitan police department as is what is happening here and the person would mix potentially in a holding cell with other offenders. if the court for example adopted a rule saying minor offenders wouldn't be searched in a way that other offenders were i have no doubt there are some in those circumstances all on the bus together to go to the general jail population who would give this to the minor -- >> that's not the federal rule, and by the way, the brief was confusing when i read a page one page one tells me they require all incoming detainees to be subject to the visual body cavity inspections and then it isn't until page 30 there is an exception for the very category of a rest that we are talking
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about here that the are not subject to the body cavity inspection unless there is a reasonable suspicion. the misdemeanor or less of a would come -- seĆ³ul attempt. >> and sorry that was confusing to read the policy a person will not be put in the general population being allowed to mix with other offenders unless he or she has undergone the strip search. >> yes but i want to know how people in this category are treated in the federal system. >> of those people are not subject to this visual body cavity research. >> when they go into the jail they would be asked whether they are willing to consent to this search in most cases the deutsch. if they don't and there is not reasonable suspicion that they are not placed in the general jail population they are kept separate from the other
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offenders the rule the third circuit identified which is a blanket policy that any one that's going to go into the general jail population with everyone else has to be strip searched the is the federal bureau of the present policy. >> you say when they go in and they are asked will you come said to the more intrusive body cavity search and be put into the general population or if you don't you don't have to be searched and we put you in some place else. who would consent to that? [laughter] >> the general jail population has certain facilities, computer facilities and others you don't get when you are in by yourself as a practical matter it is in frequent in the system we are talking a lot fewer than 1% of the offenders and the question before the court at this point really is you have before you a blanket policy that says we need to strip search everyone and is it something that is unreasonable or irrational in the way to the court has considered its difference. estimate a understand most the
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general proposition that you are advancing, but i have to say i was somewhat surprised at the evidence of the amount of contraband that was discovered and the amount of weapons discovered in the literature and the citation was somewhat escambia. i felt that there would be a stronger showing than i found in the brief. >> there are not empirical studies of this type of information tickly it arises when there are incidents at a facility and reports are written up. they are not published regularly. there isn't a laboratory study you can do. the facilities to deal with it and sometimes it makes the news those are the kind of things we have reported and i would hate for the court to think that there is not evidence of people who commit a minor offenders in the record of bringing in very i would point you to the footnote 15th in the government's brief which talks about people being arrested for track affect -- traffic offenses and i point to both experts in this case cited by mr. phillips and a point in
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full the san francisco case. >> the issue has to be certainly some misdemeanor some people charged with the misdemeanor crimes tried to smuggle in. the issue is how many of them would not have been found on a reasonable suspicion standard? i think justice breyer said in the sentence is to study it appears on the one. spec that is very hazardous for the courts to do with the hindsight. the court could look at individual offenders. >> we don't have it in 2020. we have 15 years in this bill where the prisons have been applying the reasonable suspicion standard and the most you can muster under that standard islamic sample of the case where someone has entered? at some point empirical evidence has to mean something in terms of trusting the question of the reasonableness.
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>> what i am saying is the individuals doing the searches of the limited information about people this is when you have people coming to the first the cut of the most contact with the of solid wood and the least amount of information about them >> i know it's bad to base your judgment on your own personal experiences. when i was a prosecutor it took some time to get a rap sheet. ayaan understand that that is no longer the case today. that they are virtually almost only successful by computers. >> that may be true but it's all the information the people that do intake and the searches do not have that information at your fingertips in the federal system to give me a committee of birth and the person charged with. they don't know anything else and the question before the court if i may is whether there are reasons for the rule this court should defer to and there are several. first you cannot say that there are some minor ofer


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