tv Laura Donahue on Balancing National Security and Privacy Concerns CSPAN October 13, 2015 9:30pm-10:24pm EDT
>> will have more road to the white house coverage of the republican candidates tomorrow, including florida senator marco newo, who will be in derry, hampshire. jeb bush holds a town hall in concorde, new hampshire. watch all of our 20 sixteen rd to the white house coverage online at c-span.org. next, on c-span, georgetown university law professor laura donahue on balancing individual rights and national security. then, washington journal visits a maryland prison to discuss the and johnjustice system
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comments during the program. on c-span, c-span3, and c-span radio. background, order your copy of the companion book. $8.95 plus shipping at c-span.org\landmark cases. >> at a conference on balancing freedom and security, georgetown professor laura donahue talked about the fourth amendment and privacy. she was director of georgetown national security and law. this took place in september at westminster college in missouri. this is just under one hour. >> hello, everyone. i am a senior here address minster college. i had the pleasure of serving on
the symposium committee this past year. i am honored to introduce professor laura donahue, our opening plenary speaker. she is a professor at georgetown and director of the center on privacy and technology. professor donahue writes on u.s. constitutional law, history, and national security and counter terrorist law in the united kingdom. books and author of the forthcoming book on fourth amendment and digital surveillance. she obtained a bachelor of arts from doug ruth college, a inters in peace studies northern ireland, a jd from stanford law school and a phd
from the university of england. please welcome professor donahue. [applause] donahue: thank you very much. thank you very much, president, it dean, associated in jefferson, dr. gibson, ms. gibby, and members of the committee for inviting me to the symposium. particularly the sure, as you commemorate the 70th university of sir winston churchill's address. privilege tor and be her. as a graduate of churchill college, cambridge, i have more than a little loyalty and respect for sir winston.
i returned every summer to avail myself of his great legacy and to center my thoughts in an increasingly complex and swift-moving world. in our archives, for many years we had one of winston churchill's great school report cards on display. as graduate students, it gave is great hope. when winston was 10 years old, the headmaster of saint george's been, his conduct has exceedingly bad. he is not to be trusted to do a single thing. in a gross mistreatment of character, he added, "he has no ambition the co it turned out that sir winston had great ambition. waspersonal ambition, which a facet of his character he referenced when he came to missouri in 1946. he took the opportunity to speak freely. ambitions i private might have had in my younger
days have been satisfied beyond my wildest dreams. specialwledged the relationship between the united states and the united kingdom and arts them to set a common hours. the freedom and progress of all the homes and families of all men and women. to give securities, sir winston argued, every home must be shielded from tyranny. ar churchill, it was not question of security versus freedom, but security through liberty. he spoke of the liberties enjoyed by individual citizens throughout the british empire. never, he stated, ceased to proclaim in fearless tunes the principles of freedom and the rights of man which are the joint inheritance of the english speaking world. the magna carta, the bill of rights, that heaviest corpus famouseir most
expression in the declaration of independence. seven decades later, the united states and the united kingdom, again find themselves at the dawn of a new air. again, we face existential threat. science and technology have again radically altered our world. while the cold war was to find my nuclear weapons, our world is defined by technology. they offer great promise. nevertheless, the digital age, like the atomic age, offers great. at risk for the fundamental principles of liberty churchill underscored, the english bill of rights and centuries of common law. principles of the founding so seriously as to incorporate into the virginia bill of rights, our state constitution, and ultimately,
the fourth amendment. i will draw from three areas today. english legal treatises and case law, the american experience, and the current state of affairs. my principal concern is advances in technology and efforts of the government to protect us threaten to undermine one of the most important protections on government power. the prohibition on general warrants. the right against promiscuous search and seizure lays at the heart of law. it was to prevent the general warrants, specific warrants that lack particularity, that we adopted the fourth amendment. if we do not act quickly, this liberty, which service to churchill recalled in his address, will be lost. a general warranty is a document issued by a court or executive branch giving officials the
and toty to search for seize private documents without any prior or specific evidence of wrongdoing. it does not specify with particularity the persons or places to be searched or the mozilla records to be seized. it is not supported by an oath or affirmation of any wrongdoing. it is a fishing expedition to find evidence of wrongdoing. scholars andlish jurors rejected general awards as the worst exercise of tyrannical power. during the reign of charles i, sir edward coke argued against the use of general warrants. in such instruments be used for matters of state, we argonne. we're in a worse case and win ever if we agree for matters of
state. we should only magna carta and other statutes and make them fruitless, and do what our ancestors would never do. returned to his argument in the third part. to issue general warrants, he wrote, is against magna carter. preventing their use lay at the heart of the law. [latin] neither will we pass upon him or condemn him, but by the lawful judgment of his peers, or by the law of the crown. deathbed,on his charles i ordered that looks home be searched and all such
papers in manuscripts that might be relevant to be seized. the trunks when they arrived. his actions were too late. even as charles i pass execution and did this, cook's ideas became cemented into english thought. an intellectual giant famous for his history of the laws of england noticed in his first volume a general warrant to search for felons or stolen goods not good. two years later, parliament direct the publication of his manuscript. appeared inlly 1936, it became enormously influential. stated, a general warrant to search in all places is not good. but only a particular place with
suspicion and probable goal cause. cause.probable he continued, therefore i take those general warrants to be dormant. they are not justifiable. makes the party to be in effect, the judge. years, england looked to these and reject did the idea of a general warrant. in 1760 two, john looks founded north brittany in opposition to the pro-government paper. when the english entered into negotiations with the french, the north britain attacked the
terms of peas. wilkes, it shown here and somewhat unflattering light, lamented the french king, i the stroke of his pen, has rejected but the sovereign nation could never have done. remarkably, the treaty of paris saved england from a certain ruin. the crown had been sunk, even to prostitution. this time, he went too far. three days later, the crown issued a general warrant trying and- making a strict diligent search for the authors, printers, and publishers of northport and publishers of north britain number 45. dozens of cases challenged the kings actions. actions.own's it was argued that more was at stake than the simple execution of one warrant against one person. beenain has our house
declared, by the law, our asylum and defense. it is capable of eating centered, upon any frivolous or no preference at all, by a secretary of state account argued,law, counsel might make a man's bed for the promulgation of our most private concerns. secretive the most and personal nature. reparation could not be made. beyond the privacy invasion, significant risks accompanied the proposition that some papers, quite innocent in and of themselves, might be made by the slightest alteration criminal action. after more than one -- i'm sorry -- after only one hour of deliberation, the jury returned anerdict and rewarded
astonishing one thousand pounds to him. two days later, the st. james chronicle, reflected on this important decision. every englishman has the satisfaction of sinbad to his home is his castle. recall that sir thomas cook stated, every house of everyone castle and photos as well as his defense against injury and violence. with four years later he incorporated this into his institute. required, for a man's house is his castle and each man's home is his safest refuge. later, lord chief justice mansfield, similarly found himself confronted by a general warrant. in this case, as it was executed against the printer. -- dunning argued that the
generality of warrants is what made it invalid. no mobile cause. if such a warrant could be issued, the court would be extremely mischievous. its studiesfact of to search for evidence and even without a previous charge on oath, is contrary to national -- natural justice. to search a man's private papers without accusation is in an infringement of the natural rights of mankind. lord mansfield, presiding over the case, agreed. such a an uncertain warrant is void. there is no case or book to the contrary. the judge has stood. charlesstice
contemplated under the general warrant issued. rolling against the government, the greatrved that edge that men enter into is to secure their privacies. any breach, be it ever so minute, is a trespass. he did not mean this merely as a home. said, is man's dearest property and are so far from and during a procedure that they will hardly bear and expection. -- in inspection. a general warrant is such a piece of nonsense as deserves not to be spoken of. two years later, william blackstone's commentaries on the laws of england underscored the distinction between general and theific warrants, rejecting
latter. it is the duty of magistracy and ought not be left to the officer to judge the grounds of suspicion. when the american colonists left england, they expected that their rights as englishman will travel with them. generalthe new world, warrants began proliferating again. this time, in the form of a bit of assistance. a writ of assistance. this gave a allowance to search in order to recover goods. be first tod would assist. -- thus, writs of
assistance. massachusetts state governor, relied on the executive general to serve the order. in 1790, the southern secretary of state director of massachusetts colony to stop just not northern trade, but trade with the french indies. the merchantser, had an opportunity to challenge them in court. the merchants chose one of the leading writers of the time, james otis, junior. he resigned his position as deputy advocacy general to take the position. case,n'son in
named after one of the assistants, remains one of the most famous in american history. more than 50 years after the event, president john adams, who was present at the time, said, overdose is a flame of fire. everyman appeared to me to go as i did, ready to take arms against writ of assistance. to speak andood up something profound changed in america. otis attacked the very concept. i will, until my dying day, up the powers of such instruments of slavery on one hand and villainy on the other as this wr it of assistance is.
it rejects the fundamental rules of the constitution. hearken back to charles i and james at i, he said it was this type of to spot it when king of england his throne and another his head. king has the potential to be a tyrant. not just in behavior, but one backed by the law. they could use it to take revenge on others. anyone could force others to his will. the freedom of one's house is his castle. and he should be as well guarded as a printed in his castle. of assistance would totally annihilate this privilege.
it was reflected, then and there was the first act of resistance to the arbitrary claim of great written. then and there, the child independents was born. americans were eager to ensure the united states did not have the same power to override their rights. so, the fifth of virginia convention assembled and the plan of the american public. lee,e mason, richard henry thomas jefferson, and others. to mason fell the responsibility of drafting the virginia declaration of rights. internet document, mason laid out the natural rights of man. document, in that mason laid out the natural rights of man. man has rights to limit the government.
to be free of general warrant. the virginia declaration of that the general warrants, whereby any officer or messenger may be commanded to search suspected places without , orence of a fact committed to seize any person or persons not named, but offense. along with the square of confess -- long it free to the colonists from tyrannical rule. 1770 six, benjamin franklin, james cannon, tom's and others drafted a new constitution for the state of sylvania. in establish security from search and seizure of a road of the paper. fromeople shall be free
unreasonable search and seizure. by using the word unreasonable, sylvania meant something different than what is attributed to it today in the fourth amendment. it meant, against reason. againstable meant reason. against the reason of the common law. anything against the reason of the common law was illegal. by using this term, unreasonable search, it they meant precisely general warrants because they violated the common law. other states followed suit. these state constitutions transformed a colonial grill events about the rights to enter them as englishman into a important guarantee of individual rights. the founders ray wrote the
articles of confederation into the constitution, state after state demanded a new clause be added to the bill of rights the building general warrants. the most lively and intense exchange place in the gillette. check henry led the attack. -- patrick henry led the attack. he demanded a bill of rights be added to ensure the protection of ancient liberties. general warranties or one of his particular concerns. i feel myself distressed, he said. thingsy other valuable missing. general warrants, by which an officer may search suspected places without evidence of a commission or a fact, or seize a person on to be prohibited.
the problem was that property can be taken in the most arbitrary manner without any evidence or reason. everything considered sacred could be searched and ransacked by the strong hand of power. the virginia delegates went on to establish the protection against unreasonable search and seizure and general warrants. article 16 stated that every to be frees a right from all unreasonable search and seizure of his person, paper, property. all warrants had to pay particular eyes. the debates in new york similarly highlighted the absence of a protection against warrants. for rhode island, it was only with the understanding the constitution will take into account and ratified the constitution.
in maryland, anti-federalist wind excise officers would be able to enter your home at all times, night or day and if you refused entrance, they could break open at your doors, trunks, desks, and ravage your houses from adam to cap. that to also asked for be included. sylvania, north korea -- carolina,ia, north similar requests. wrote, "the rights of conscience, the freedom of the press, trials by jury. -- and the u.s. constitution,
the right of the people to be secure in their persons, houses, papers, and affects against unreasonable searches and seizures shall not be violated. the first part of this clause as established as the prohibition on general warrants. says what poet specifically is required for a specific warrant to be valid. history in mind, one could perhaps be forgiven for when theprised guardian announced that the united states was collecting the telephone records of millions of americans. this order required verizon to turn over all call records created by verizon for communications between united states and abroad for within the
united states, including local calls.ne issued by the foreign intelligence surveillance court, this order did not name any suspected of wrongdoing. it did not specify a crime. there was no oath or affirmation. the order did not note the particular place to research. it did not appear to be tailored in any way whatsoever. it demanded that documents detailing individual private networks, social network, relationship, location as revealed from trunk information identifier, seven days a week, and four hours a day, for months the time, be turned over to government. it is important to note a significant amount of personal information was included.
a study at stanford university showed that for just a few months, the telephony information, looking one participant in the stanford study received calls from a pharmacy for a medical device that is used to monitor cardiac arrhythmia. participant called a firearms store specializing in ar-15 automatic rifles before telephoning customer service for manufacturing that produces the line. another customer called a henshaw, -- locksmith, head shop, hydroponics dealer. one woman telephoned the clinic
and called it a final time. metadata provided gun purchases, heart conditions, cannabis cultivation, and the decision to have an abortion. it was a small sample over a short period of a limited number of calls. the order, it turns out, was in place for over a decade. it was a judicial risk and demanded that anyone circumvent complied. to findeing used evidence of illegal activity. to be sure, there are differences between the general warnings issued by the founders and this general warrants that marks the telephony metadata program. it was physical entry into people's homes which was at stake where is now the collection of data is not involved a physical trespass. in the founding, if an
individual's home was being searched, there was an element of embarrassment and also occurred, while today the programs are secret. and since everybody is subject, it does not carry the same in premature -- the carry the same wait. that an englishman's home was his castle is largely in anti-federalist writings, and the same is at stake in this program and other programs that were at stake in the founding. embedded in the concept of the englishman's home being his castle are deeper understandings about what we ought and ought not to be forced to reveal to the government. access to our castle means access to our family, our friends come our bedrooms, our bathrooms come out of books come in our correspondence.
further implicated as the right ,o solitude, the right to relax the right to be unguarded and our actions and ideas and question the world and our role in it. who we are, who we want to be, how we evolved come all of this in protected space will we can interact with our own thoughts, beliefs, and ideas. to decide for ourselves different degrees of intimacy to contribute to our own development. underlying these ideas is a basic understanding that when you are subject to surveillance, you change your behavior. democratic deliberations turns on our ability to discuss ideas, however unpopular our views are so that we may further develop our ideas in the marketplace for ideas.
gibson exactly what dr. says the symposium is about. if you think that everything you say and do is recorded and analyzed in subjected to algorithms, you change what you say and do and with whom you say and do it. these ideas were alive in .olonial times the relationship between different rights like the right to privacy, free speech, association, was understood and protected. considerations such as the potential harm that could follow from government amassing too much power in one place. for one, it gets the assumption that you are innocent until proven guilty wrong, instead that you are guilty until you are innocent or free of guilt. another way of approaching this manner is the possibility that
individuals will target people simply because of their ideas, beliefs, or positions. it can be used to prevent political or economic opposition. using intimate information to gain insight into our relationships and then using that to stifle opposing views. it can also override the structural division of power for our government at a federal level. the u.s. government to collect all of the communications of judges, legislators, and secretly analyze. the amassing of this power in one place holds enormous attentional for abuse. because of this potential for harm, the founding generation
warrants eveneral more concerning the general warrants for arrest. search.ral warrants for defenders have defended the collection of metadata in three ways. first, they say congress specifically authorized them to collect the information when inserted information into the usa patriot act by providing them the power when the government has reasonable grounds to believe that the tangible thing saw a relevant to an authorized investigation other than a threat assessment. so how did this program fit? the government interpreted the word relevant, the second clause underlined, to mean that all telephony metadata is potentially relevant, so we can collect it.
the problem with reading it in this way is that it reads relevant out of the equation. if all telephony metadata is relevant, and so is all financial metadata, so were all gun records, educational records. everything becomes relevant, nothing is irrelevant. the government, by reading it written, approved it large and turned this authority into precisely a threat assessment, which is explicitly banned by the statute itself. second, proponents of the measure claim telephony metadata is not private. they point to a case in the 1970's called smith versus maryland, in which the supreme numbersld that the dialed from a telephone provided to a third party or not private.
in one case, for tricia mcdonough was walking down a street in baltimore when someone assaulted her. he took her purse and a monte carlo drove by her. later, somebody started calling her and making threatening phone calls. she saw the same 1975 monte carlo drive pastor home. she called the police and told them she was getting these phone calls. the police approached the phone company and said, we have is the device that allows us to record numbers to be dialed from their phone. police didn't the have the numbers you called. you were built by the minute. they did it as a favor for the police. sure enough, the man who owned the license plate of the car that had been driving in runs, he called patricia mcdonough. they use that information to go into his home, they walk in the
door, and there is the phonebook . they use that to build a case against him. supreme court said that by providing the telephone information to the company when you pick up your phone, you have no privacy interest in it. if there was zero privacy interest in 1970, even now there is more of that information, it is still zero. zero plus zero equals zero. the problem with this argument, as i have noted already, is that there are enormous privacy interests at stake . it is absurd to think that we have no privacy interests in our network. , sleep next date to, all of this is private regardless of whether the information is gleaned from metadata or a camera inside of our home.
interestsnot the same they were at stake in 1970. then, it was applied to a landline. now we have mobile devices. where we where we go, are located, even when we are not on the phone. our phone can communicate with local cell phone towers letting us -- letting them know where we are. this reliance means that detailed social networks can be ascertained. one socialust network, but the entire social network. e, is zero plus one yadabit which is a totally different level of inclusion. third is that it is set to expire so we don't need to worry about the collection of telephony metadata. that is a red herring. thathing is -- something
is especially meeting to be misleading or distracting. new analytical tools compared with ways in which technology has catapulted our world forward makes this one of the most pressing questions of our time. telephony metadata collection is not the only game in town. myriad other mass collection programs are under way, giving the government insight into our most private affairs. there are just a few examples we know from documents that have been leaked. starting in october of 2001, operated aush surveillance program entirely outside any statutory structure. collected telephone and internet metadata as well as content. it was so secretive, that for a few years, the nsa itself was
not allowed to see the legal reasoning. the legal reasoning effort provided -- the legal reasoning has been provided by an attorney within the olc. oh lc has since repudiated the memos that he wrote at the time. as the program -- a concerted thatt was made to shoehorn program into the existing legislative framework. this is how we get that absurd reading of relevant, where everything is relevant. find a way to stick it into existing legislative framework. transferred toy the intelligence surveillance act. we already have legislation that covered how we record numbers dialed from an numbers that call
somebody for foreign intelligence purposes. the way that all internet metadata was precisely the same, by saying that all internet metadata was relevant, therefore we can collect all internet metadata. this is an extraordinary -- everythingeast is relevant, then everything is relevant across the board, not just for national security but for criminal law purposes. this program was officially ended in december of 2011, but internet metadata collection continues through a program called evil olive. issued of the orders under section 215, there are 711 orders that we know have been issued under section 215.
we do not know the other programs that have been continued underneath that section. in 2012, there were 212 applications alone in that one year. considering the statutory interpretation that is taking place, this could implicate millions of americans records. in 2008, congress added a new section to the foreign intelligence surveillance act to give it more flexibility in intercepting international content and traffic. the reason for this was strong. had a bad guy you or bad girl -- say we have a bad person in london calling a bad person in paris. previously, that phone call would go right across the channel and the intelligence companies in the united states should not be expected to go to a court every time they want to tap anyone international,
especially bad people. the problem is that in an internet generation, when e-mail is now being carried to servers in the united states, those same communications might go through domestic borders. the argument was exceedingly strong. we should not have to go to record every time a bad person in london tossed person in paris just because they have views -- just because they happen to use an american isp. for non-us persons believed to overseas,. over the past two years, we have discovered that the nsa has used , collectingon massive amounts of information about u.s. citizen, including
intercepting conversations of an entirely local character in the united states, because it turns out that if i were to text or e-mail somebody sitting here from here, it might go to canada. that can now be picked up through section 702. it turns out that not just national -- not just community should come domestically, but our domestic communications are carried internationally. the first program, prism, draws apple, some yahoo!, of the largest indications providers, making the information that can be obtained substantial. e-mail, videos, photos, stored data, file transfers, network details, etc. the second is called upstream collection under 702, and that
amounts to collection of information directly from the backbone of the internet facilities. it monitors all traffic crossing certain cables, not just information targeted at a specific internet protocol address or telephone numbers. by 2011, the nsa was declaring around 26.5 million internet transactions per year through the upstream collection. notably, the nsa interprets the to ore to me not just from the target. there is one order with 85,000 targets. it is to, from, or about those targets, so content is being monitored.
the fbi routinely used databases for completely unrelated criminal activity to look for evidence of wrongdoing. a rule change allows law enforcement agencies to query these databases using u.s. persons information. other forms of personal information have also been undere of fisa guidelines. first internet -- first introduced by reagan in 1981 provide the framework. while the full scope is not underwent program called mystic, the nsa protections -- the nsa collects data from countries and in some cases, the content as well. systems some of these
appear not to be for foreign intelligence purposes, such as narcotics trafficking or smuggling. basically, traditional law enforcement concerns. ,he data being collected extends to e-mail lists. chq, is one of our big partners, the nsa counterpart in the united kingdom. 2008-2010, g-8 cq files -- --whether the user was a foreign intelligence target. during 16-month period, they collected data from 8 million yahoo! users. turns out that nudity is a big
problem, they are trying to figure out ways to keep the regions from looking all the nude photographs but they are finding it hard to filter out. not messages are similarly immune. the nsa collected almost 200 million text messages per day globally, using them to ascertain travel plans and details. thise be clear, information is being collected on individuals who are not themselves suspected of any illegal activity. locational data is also being obtained, about 5 million records per day is being collected with more than 27 terabytes of information now associated with that. this information is subject to almost no oversight. acknowledgesein they do not form oversight of these programs.
a similar argument for collection under this program is -- thisy the argument is the promise of big data and the technology age. what it means is that massive amounts of information can now be collected. anticipate individuals who might engage in wrongdoing. that approach is what the founders rejected. while this information is being affected -- being collected, and -- in certain circumstances it can be used and is being used. the problem is, our communications are now global. counted onorically the borders of the united states to protect us but we no longer bound by geography and how we communicate. our conversations go internationally routine yearly -- routinely come in when they
do they can be monitored under myriad programs. our papers and documents couple used to happen in our home with her kept under lock and key or in a filing cabinet. .ow, they are held on the cloud companies over which we have no control placed on servers around .he world at the same time, networks have converged. it is no longer just military dispatches that the nsa needs to focus on. these threats can't be separated from ordinary communication networks. to intercept important information, they have to intercept information from the same networks that ordinary citizens use to communicate their thoughts, ideas, and believes. means that all of this
information can now be analyzed. more is available than ever before and it can be subjected to sophisticated algorithms generating new knowledge in the process. this large mass collection at the same time looks a lot like what the founders were trying to avoid by preventing the government from using promiscuous search authority. what gave birth to the fourth amendment. , in 1946, churchill warned us from this very place about the dangers attached to tyranny. that great power will erode the ancient rites by which english-speaking people rely. concernt without great that i returned to his words. face new enemies, it is our liberty that continues to define who we are. for ceie