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tv   The Communicators  CSPAN  December 3, 2016 6:30pm-7:01pm EST

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in 1979 c-span was created as a public service by america's cable television companies and is brought to you by your cable satellite provider. >> university professor paul ohm is keeping up with technology. is difficult to keep up with technology. we have different areas of the constitutional law, statutory law. shiftsand of the day the , the changes, the different has we communicate, it begun to infuse lawyers in the legal system and judges in disruptive and profound ways. ist: is because technology changing so quickly or is it because law is not changing?
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paul: it is a little bit of both. ancient set of disciplines but at the same time law has also managed to keep up with seismic or tectonic shifts in all sorts of things in society. and technology is the latest challenge. there is always going to be a give and take when it comes to rapidly changing things like the law. think it willnd i all work out in the end. host: what is an example today we are facing? paul: fourth amendment. we think about the centuries old guarantee that unreasonable searches and seizures shall not occur without a warrant, let's say. how doquestion is something like that apply to cell phones, to email accounts,
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and it is a great measure of how fast things change. the law is just figuring out those two examples and it may be figuring that out about the time those two won't be as important in our daily lives. there is this built in delay that the loss suffers from and it is hard to keep up with the latest shifts. are speaking with georgetown university law center professor paul ohm. he is also the faculty director of that university center on privacy and technology. volz,oining us is dustin who covers cyber security and surveillance. dustin: how is this affecting government prosecutors, government lawyers have to deal with cyber criminals and cyber means. is this rewarding criminal investigations?
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paul: i should get a little biographical, i'm a computer scientist by training. after i graduated i became a criminal prosecutor. a and it's funny because as an on demand this was a half generation ago when we were just beginning to deal with hackers and viruses and all sorts of emerging challenges online. time, and probably more so today, it was really a challenge to figure out how to take these olds dusty's old schools we have and adapt them to something new. so it is a constant struggle of reeducation and trying to keep up. >> lawyers who go into law school and government, those types of folks would maybe go to engineering or medical school.
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we need to focus on retraining them more? you: both halves of what said i think are absolutely true. we could definitely stand to law schoolechies in and eventually an law and policy, propagating throughout the system. really the dream is the person who was legitimately well-trained in both disciplines. it is a simple matter of numbers, we are not going to get there. one thing i had been thinking about a lot is what can i do as a legal educator to bring people with very little and the kids with law school thing to make them at least do no harm, but even better to be confident and successful navigating this intersection. >> georgetown, i believe you have a class teaching them coding basics, talking about these issues. can you talk more about that and
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is this something we should make mandatory in law school? to learnhe students criminal cyber law. >> it would certainly be good for my long-term employment. have several courses, but let me focus on one. i have been teaching at the university of colorado for 10 years. had this crazy idea than i could take my a lot ofng knowledge people were in law school because they made life choices that pushed them away from technology. the course we created is called computer programming for lawyers, and it is an intensive , a reallys per week deep dive into the nuts and bolts into computer programming.
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it has been a painful but fantastic experience, both thinking about what it means to teach a lawyer technical skills and just, understanding and appreciating the pent-up demand. let me tell you a quick statistical story. we offer this course for the first time in mid november of last year. students are thinking of nothing else but their final exams. we said you have to register by the start of the spring semester. we had 120 students clamoring to get into the class. so it was just beyond the expectations. >> in your assessment, given the
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focus on training and education, is that enough to fill this gap? are you confident the next couple of decades we may see some progress? >> it's harder to make predictions about where technology will go. if we are going to assume we will continue on this radical group rate where fundamental technology sees a shift every five or six years, then i think we can keep up. think not only will it be useful and important to educate lawyers before they become lawyers, but i also think we are going to have some advances generationally. i have some 11-year-old twins, they know about as much as programming. i think a lot of kids like that
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will grow to be law students. host: is important from the aspect that lawyers need to know programming? may be a liability lawyer needs to know how a car is built? some of them.e that is a great analogy. engineering and medical law in some disciplines. another example i think about is economic statistics. a generation ago there were not many lawyers who used it in their daily lives. if you are an agency lawyer you really need to know how to have -- how to understand economic analysis. host: what about the justice department dustin will alluded to earlier?
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paul: there are two categories. the first is let's teach everybody. even back in the dark ages, when i was at the justice department we had a small unit. we all tend to be pretty technical and we had a lot of courses. the second thing you see a lot, particularly outside the justice department is the import export model. employ a computer scientist to spend two years at a government agency. they will hire some permanent staff to be more specific. and they have a program where they have a chief technologist, they have a small unit that grows every day and made up of hybrid lawyer technologists. both of those, teach a man to fish and hire a fisherman would
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be the metaphor. happening and vitally important, but both very difficult to scale up. havere always going to that issue, how can you continue establishncoming lawyers -- how can you ever keep up with the size of the workforce? >> you mentioned you are almost to the point of do no harm. has there been harm done when it comes to technology? >> there are lots of stories people told about. government hacking has very much been in the news and my research. now you have government investigators and crimefighters for the first time using the tools of the trade we used to associate with criminals. and they do this in large part because encryption makes it difficult for conventional
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methods to do surveillance. the challenges you have an fbi agent who is chomping at the bit to use a new exotic vulnerability exploit to essentially break into someone's .hone i have no doubt the fbi, and these are not lawyers, these are engineers by training, the fbi teaching that person what they need to know to do their job, what about the prosecutor who has to go to the judge and try to explain what they are trying to do? we have examples where documents are coming to light where that particular case didn't go through the training i was talking about a few minutes ago. and either willfully or most ,ikely or entirely incidentally confused the judge about what the technology did. of the day that is going to have repercussions for
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civil rights and liberties. it is a little esoteric, but one question is if you send us something like this, which is indistinguishable from a virus, and you send it to an anonymous person online, the odds are high that person is not going to be in your jurisdiction. you send out from virginia may go to california, to alaska, to eastern europe. there have been documented cases where the judge signed the warrant, knowing full well they don't have the authority to sign a warrant to search eastern europe, because they weren't clear about the fact that this thing was about to slip the boundaries of their jurisdiction. of a rulesnd violation we should worry about but also an underlying privacy story we should worry about. maybe that is too much power for a particular prosecutor or judge.
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host: does this knowledge gap among law enforcement officials, prosecutors, judges, do we see any evidence this has any policy implications, or our decisions being made by the fbi? i think about the san bernardino case, trying to get an encrypted phone. a lot of technological people might say this effort is born out of a lack of understanding encryption works. these lawyers just didn't understand it. will allow me to be somewhat controversial. what i have been describing in this conversation has been the main, the masses of prosecutors and how difficult it has been to teach them the technology they need. -- atare at least prop least pockets where this isn't a problem at all.
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they hire technical people, they give them the resources they need. unit i was at probably fits within that category. that have to do with apple via the fbi? they probably reflect the failure of many different wasgs, but i'm not sure it a story of a lack of technical sophistication. at what the fbi was aapple to do, it pretty sophisticated task. if you look at the way they responded to objections from the encryption community, sure they disagreed with that community, but i don't think it is accurate to say they find old -- they fundamentally misunderstood what the cryptographers told them. it is a devilish problem.
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host: was the law player in that case? paul: the lawn that case was old. so you have a very old very that the justice department was aggressively trying to use in a new set of circumstances. that is the reason why a judge could have reasonably said you are asking for too much. what i am trying to push back on is the critique that the fbi just didn't understand. i think they knew what was going on. i think it would have been fascinating to see what the judge did. day, the judgehe had the technical consultation it needed and it was left with a very difficult legal question. >> have any of these cases played out to the supreme court?
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numeroushave been cases where the court has had to delve into technical -- i'm not even talking about patent law. ourselves -- if we can find ourselves to surveillance and privacy and speech, i can think back to my own lifetime, 2001 in a landmark case about attempts to restrict oft children that attempts children to get on this new thing called the world wide web. i thought it was so funny the supreme court said these they have these things called hyperlinks. and hyperlinks tend to be blue. and that is a great example of knowing enough to be dangerous.
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then we fast-forward to 2014. you have a case where it was asked the question, if a police arrest see on the side of the road, are they allowed to open up your phone the same way they can rifle through your pockets? justice roberts writing a very sophisticated and technically savvy opinion that gets most of the technology right. talk about slow-moving institutions, look how far that has come in 13 years. even the supreme court has it within them to cap -- to keep up with the times. >> what about the congress? paul: congress seems to be hit or miss. one thing i have really noticed,
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and this is so commonplace to be obvious, a lot of it depends on is the member of congress committed to hiring the right staff? are they willing to allocate a person to someone who really understands the technology? i'm sure i haven't met all of the hill staffers that are serious technologist. and there are enough. elective --k our elected representatives need to be techies. >> how much is it an enduring problem finding enough talent in the justice department? people can work in silicon valley and make hundreds of thousands of dollars instead of giving a few years to government services. is that one of the fundamental problems? >> i think it is.
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all you want is a website and the same -- and for some reason you are going to have to pay that person the same salary. the government faces those challenges even more self given the restriction on government and salary. i think the antidote is to appeal to the idealism of a lot of techies. the reverse question is interesting, how can we get techies interested in law and policy? i have had more deep conversations about love with computer scientist than i have had about computer science with lawyers. i wonder if that is something we can use to appeal the people to do their duties?
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>> president obama has been called by some as the first cyber president. he has reached out to silicon to forge partnerships. president-elect donald trump had a more adversarial approach. do you see this as more tension with the incoming administration trying to get this talent to come and serve in washington? >> from my vantage point i cannot say i have talked to a lot of new people in the new administration. for my vantage point it is mostly disinterest. i don't know that it is outright hostility. secret listhas that of priorities, my guess is technology is not going to be on the first few pages. what does that mean? that means that will probably be some inattention paid.
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will the administration be sophisticated in technology? what will their surveillance policies he? i-16 -- i think we simply don't know because they don't know. so it is a waiting game. you are right, we are i think at a pinnacle of the obama .dministration the matter who would have been president, i think we would have had the drop off. i'm just wondering if it would be a serious cliff. >> any advice for president donald trump and his administration coming in? >> i think institutions matter a lot. i think continuing to keep some of the physicians, even if you populated with people of like-minded politics is a great idea.
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obama is a chief technology officer, office of technology and science policy in the white house is more robust and vibrant, particularly on issues. it would be great if the new administration said i was going to keep the structures in place and i'm going to find people who can populate them. a lot of agencies are at their peak in terms of sophistication. >> this disconnect between technology and law has affected the federal trade commission and federal communication. >> those agencies understand that they have to get good at this. and i have some expense of those agencies. i think they have made strides not as quickly as i have -- as i would have liked.
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both of them have established t -- have established chief technologist. those two offices have been populated by amazing people, sophisticated people. as long as they continue on that path, they will be fine. they will be good at keeping a steady state. in a perfect world we would double or triple on the budgets for these purposes. and i don't think this is slightly to happen within these agencies. host: have we hit a period like this in our history before where technology got way ahead of law? sure, the rise of antitrust law was a direct result. reinventedaw got
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again with the deregulation of the airlines. a history of law in many senses is the history of trying to respond to a technological shift. one thing i talk about is the internet and digital technology, it is faster. the question is is it a difference in kind? are we seeing some kind of sharp elbow in the curve that means this won't be just like the last ones we have encountered? it may be more fundamental and fast. the jury is out. wake and say there is something distinctive about what is going on. people have had that thought before and this too shall pass. >> i'm curious, as this problem was made worse by the fact we
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see surveillance and the opportunities to collect data expand. rule 41 is going to go into effect, which will allow the government to issue warrants for computers ines in any jurisdiction, not just their own. is this all given the fact that there is this confusion? that make it more likely that we will see abuses and innocent people victimized by way the government -- by the way the government carries this out? >> the knowledge gap we have been talking about is so much worse on the national security side. you have the presumption of secrecy and classification. jurors that give deference to people on the ground.
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and there are probably a lot of good reasons to have everything i described. what it means is very few people can have as outside an impact on the latest technological advance. think it is easy for a few to saytentioned people to advance the latest goal from the government we are going to take advantage of the latest going ton, and we are really bend the law along the way to allow us to do that. and given the inherent lack of restght, it may take the of us 10 years to figure out what is going on. this is a story of a lot of things we have learned about the nsa over the last 10 years. ways i shudder to think about how surveillance may
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expand partly because the keys -- the techies ruled the roost. >> i guess what you're saying is it is not malicious intent sometimes the way lawyers are getting involved, there is just a lack of understanding on how intrusive it may be. >> that is right. thead numerous filings from lawyers who have gone to court and said that thing we told you, it turns out we were wrong. here you have an example of a real failure to communicate that has resulted in surveillance programs that are much more massive than they probably should have been. to makecan congress do this more smooth? >> where should we begin right now?
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privacy the electronic act, which relates to what we were talking about. the foundational law that governs when the fbi can read your email. that is in dire need of updating. bills in several consecutive congresses that would make some sensible mixes and changes. congress itself could get better on science. could create new offices and higher scientists to give them advice the way they do with the congressional research service. that would be a wonderful benefit for them. communications act needs updating, the copyright act needs updating. pick a direction and fire. corrects the center on privacy and technology. and dustin of reuters. this is the communicators on c-span.
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announcer: in 1970 nine, c-span was created as a public service by america's cable television companies and is brought to you today by your cable or satellite provider. now former homeland security and surrounding the presidential inauguration on january 20, and the challenges of countering violent extremism in the u.s.. this runs an hour.
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>> good evening and welcome to this evening's council on foreign relations meeting. the top against domestic security. frankly, i cannot imagine anything more relevant or pressing at this point. as a journalist i am happy to say this meeting is on the record so you can use it, record it, and i am sure we will all leap with much more wisdom than we arrived with. if you have a cell phone or other personal device, if you could not only muted but also turn it off that would be fantastic. the format, i will guide the conversation for the first half hour or so then turn it over to
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