tv Politics and Public Policy Today CSPAN April 28, 2016 5:00pm-7:01pm EDT
here by plying that to internet service providers you're only applying that to a tiny subset. from the isp's perspective and from a consumer's perspective it doesn't make sense there's a lot of confusion that will ensue if you have one set of rules for isp's and other companies who are handling the exact same data in some cases even more data because if you think about using your phone and you're bouncing around from one isp to another throughout the day you might be logged into services throughout the day consistently no matter which isp you're using. e-mail provider, social network you may be logged in that entire time. that social network or search engine would be able to see your activity throughout the day or any isp would see a fraction of that. >> catherine is saying the sensitivity of the data and it's unique you're saying well the data that the isp would collect isn't all that different from what other apps or operating
systems would collect, why are we being treated differently, is that the point of contention? >> yei don't think so. the mark has changed so much. the cell phone hsmartphone has way we communicate. in the 90s when you had your home connection and you sat on your computer and worked for a few hours and you turned your connection off because you had to dial in. now we have the always on connection and you're seeing isp's all over town, it's a very different market. there is a lot of competition, especially in the wireless market. think about when you're watching the super bowl, how many of those ads were for wireless companies trying to get you to switch from one provider to another provider. it's like the market where there was a monopoly phone provider. is. >> one of the challenges here is that in an overall internet eco system where there is
potentially tracking of users in a variety of different ways, probably the simplest thing for consumers to understand is they can go one place and opt out. exercise control. that's what -- if you read the legislative history of the cpni law that congress passed as part of the telecom act. the key consecept was to give consumers control. control can mean an opt out or opt in. if you're in a market there's a small percentage of markets in the united states where there is one land line isp. if you have an opt out you can still object and exercise your choice provided that's presented clearly. similarly with the rest of the eco system on the internet, there are self-regulatory mechanisms like the digital advertising alliance opt out. one could work on that further
and spread it's adoption more broadly and isp's could be part of doing that. but if this order goes through, isp's will be subject to a unique far more restrictive set of privacy rules than apply to virtually any other sector in the united states. and they'll be separated out from and not be part of a unified system where consumers would have control and consumers may not understand, probably won't understand that the opt in request that they get from the isp doesn't apply to anyone else in the internet universe. >> let me go to catherine. and basically, if we need to clarify what opt in is. the opt in is we're going to provide this service and use the information in the following ways and here it is. do you want this? and you have to do something, but basically it's like yes. so that's opt in. opt out is they do it provide you notice generally.
if you say i don't want to do that you can click on something that says exempt me. it manifests in a lot of ways. this is an opt in regime. why should it be an opt in regime. can you defend that portion? >> these important distinctions opt in requires an affirmative action. opt out assumes you don't have an objection. which, you know, okay. what the fcc right now is proposing we know this from the fact sheet. we do have some idea of what they have in mind. the three buckets with regard to the use of the data. so the first bucket is the implied consent you don't need to ask the customer to do anything. because you might need the data to use for maintenance or sort of security purposes. also, for a service that is for marketing using the data for marketing for the same type of service that the customer already has, again, no action is needed, so let's say you have a
certain data plan and you need an upgrade for that. no further action is needed. when you then look to the opt out regime they're proposing, again, you have to look at the use of the data. it's for marketing of communications related services. so these are the use of the data that you don't sign up for a particular purpose now. the isp wants to market you related services. it seems to make sense that you can expect that the customer would be interested it's related. there's certain expectations that makes sense to say we assume you're okay with this until you tell us otherwise. the third bucket is for any other purposes to use the data for any other purposes. so i think it's fair to say that you cannot assume that the customer is okay with that. unless they tell you affirmat e affirmatively yes i would like for you to tell me what other things you can offer me and then i agree to that kind of practice. al i think you have to look at
the purpose for the use and that's really critical. and so i think that's sort of a fair process. >> yeah, i think it's interesting. that kind of scheme is found -- i don't think that's ever found anywhere in the rest of the marketing rules that apply to companies in the united states. it's on. now, it's on. so if you think about a company that is offering you clothing and they decide to go into the shoe business, or they go into a completely different business, they're selling hardware or something, they are fully able to say, hey, we saw you bought some clothing and we'd like to sell you something completely different. they're not restricted from doing that. i'm not understanding the sensitivity of marketing different kinds of products and services. especially when customers probably want to get discounts on different products and services that a company might offer. an example of that was just yer yesterday or the day before sprint came out with a new offer
you can get amazon prime by the month as opposed to amazon prime by the year. this would be a benefit if you want to have amazon for the christmas season. you want to have free shipping during christmas season and don't want to pay for it for the whole year. amazon -- sprint would be potentially -- i don't know these rules are a little unclear. we haven't seen them yet. but they would not be able to market that to their customers and let their customers know about this new offer unless the customer said i want to get marketing offers from you. as opposed to saying, hey here's a marketing offer for amazon. you can get it on a monthly basis. it's october you're going to get ready for christmas shopping and the customer can say i don't want that. maybe i'll tell them not to send that to me. a lot of customers will say that's a great deal. it doesn't give them a choice if they have to affirmatively say in february when they sign up for service that they want marketing e-mails or not. because how are they going to know that the amazon offer is
going to be so great for them. >> i would challenge actually this argument that we don't have anything like this anywhere else in the u.s. privacy regime. of course, the most obvious place where we have a similar framework is with respect to phone information. with respect to information customers share to their phone carriers where there is a very similar privacy regulatory framework that applies to that information. the information that a customer shares with their phone provider, or that the phone provider has access to solely by virtue of the customer relationship. the phone carrier can only use on an opt out basis for marketing of related services, and it's on an opt in basis for marketing of unrelated services. again, i think there's a couple things here. so one is, if you're talking about what the privacy justification for that type of regime is, again, you know, it's important to remember that privacy is contact specific.
consumers feel their privacy has been violated when they think information has been used out of context. out of the context -- no. in violation of the norms that they applied to the way they thought the information would be shared and the context in which they first shared it with the provider. and we do see -- in the phone contacts or in the internet context where a consumer is sharing information with their carrier for purposes of routing traffic, or for purposes of routing phone calls, they expect the information will be used in that way. and not that it will be used for marketing purposes. we see this in, you know, other types of information -- other contexts where consumers have no choice but to go through a particular provider. for a service we think is generally essential. like health. >> let's unpack that a little bit. right. we have in the united states we have this patchwork -- i'm not saying that in a negative way. we have different types of regimes for different types of
privacy. for instance in congress passed the klaw in 1996. we have hipaa, the health information privacy act. those are related to just generally non-internet types of data. really the only major legislation we have related to internet privacy is coppa the children's online protection act. that's very specific. lastly as an overlay. jim mentioned earlier. correct me if i'm wrong i'm not the expert here you fwguys are. we have the federal trade commission section five act. if somebody says we're going to protect your privacy and do it this way and not give your information here but use it for this, if they make that promise and they fail to follow up with it whether it's online or offline the federal trade commission, the other cop on the beat here, can come in and say,
you know, you didn't do what you told the customer you'd do with regard to your policy and we'll slap a $20 million fine on you. >> both the democratic controlled white house and the majority democratic controlled ftc issued reports on privacy, the way they thought privacy should work in the united states. that established a bunch of best practices that are wildly followed in the business community. both of those thought there should be no choice whatsoever offered with regard to first party advertising. not opt in, not opt out. the eu data protection regulation, which you've heard the privacy discussion last week, europeans think is way tougher than u.s. privacy law. does not require an opt in consent for first party advertising. this party, this first party advertising aspect of the cp&i
rule would be the toughest or most extreme however you want to characterize it restriction on use of data by entities that you as a consumer have a relationship with. in u.s. law. if it were to gone through without qualification. in the health context, there are limits in some aspects, first party advertising is prohibited your doctor can't come to you and say hey you should use this drug instead of that drug. they can put up signs but they can't use your information to go propose that to you. if you go to a hospital, some of you may have had to do that for good reasons or bad reasons and you check into the hospital. you get marketing communications from that hospital. because they know that you've been to the hospital. they start offering you other sorts of services and things through their hospital. this would be a limit only on
offering existing types of services that the broad band isp currently offers to a consumer with some small types of upgrades. to give you an idea of how that's different, or how that made sense in the context of the telephone network which laura was talking about before as of 1996 when the telecom acts passed from the way the internet is today, you need to think about the competitive purpose cp&i law. there are requirements on the incumbent phone company to disclose to competitors, subscriber lists so that competitors can go market to them and try to get service or they can shift service over to, if they choose to sign up with a competitor. there are restrictions against trying to win back customers. if a customer decides to switch to a competitor. and the competitive concern if
you look at the original cp&i rules. the incumbent your local telephone company which had all these customers would use that information to keep large control of the market. in the context of the telephone network which was as debbie explained a closed network, there was no question about advertising, there was no advertising over the phone network. we're now in a very different world where there is a lot of advertising. this would effectively be saying only for this category of people can opt in. >> you're saying two things. one coming off of my comment about the different types of privacy regimes for different types of data you're saying no fair. that isp's are held to the higher standard compared to the other privacy regimes. >> more importantly, confusing. >> customers can't get the offers they're getting from other companies. >> number two the competitive
environment under which the original rules were passed you're saying -- i'm not saying this -- you're saying they seem not to make sense. just ask you to respond to that. >> with regard to the consistency argument, we need consistency and clarity. the host of you know public interest organizations active in the space we have advocated for a long for the need of base line privacy legislation for all the players in the space. absent such regulation which is unlikely to come anytime soon, and with the fcc having that authority and a responsibility to protect the privacy of customers, you know, we feel, you know, they have to take that step that's an important step. and we'll see, what has to happen afterwards. you know, that's sort of the context we operate in. and we feel that the consistency is important goal. but it's not sort of the sake of consistency. we want to have the right
protections, the right standards that customers feel they have control over their data. just to pick up on this control piece, i think we have to look a little bit at the evolution of the space and we have yesterday the commissioners many of them cited the pugh study that's come out early in the year, there's another study from the university of pennsylvania that talks about how customers internet users have lost a sense of control over their data. they have resigned they feel that they don't trust the institutions in the space. so i think for the purpose of the robustness of the economic development and people wanting to engage with the technology, it's important to give customers and users and citizens a sense of control over their data back. >> the problem though is if you give control to customers over a tiny segment of certain companies that hold the data when the data is flowing freely throughout the eco system
they'll get a false sense of security. oh, i've opted out or opted in to certain things and that will apply across the board when it's not. all those other companies -- not even just the companies they directly interact with the social networks, the advertising networks they've never heard of. data brokers, their operating system they may not appreciate the operating system that's on the phone is seeing the data. they're seeing it in an unencrypted way. the isp's as we talked about a little bit about encryption a lot of the internet is becoming encrypted. the isp's are unable to see the data that's encrypted. at the same time the other companies on the internet can see that data. there's a real disparity. it's like taking a gun and shooting a mosquito. all that data is going to go everywhere. >> so i have -- a few things,
one is i think you know there is definitely a desire by the companies an understandable one to try to make it sound like isp's and other companies that are operating on the internet that are collecting information and marketing with it are the same type of entity. and that consumers have the same type of relationship with them. they don't. consumers pay their isp's to provide them with service. they pay their isp's to get them connected to the internet. and then once they're on the internet, they make choices about what services they're going to use, you know, online. or on the internet or however they're using the network. and that's -- but -- as an initial matter, they have no choice but to go through an isp in order to get on to the network in the first place. that is different. you know, there's a different value exchange where they are exchanging money in a subscription generally a subscription context for access
to the network and that's what they're paying for. that's what they expect they're getting. there is a difference with respect to the fact they have to go through an internet access provider to get on there. i mean, i can choose whether or not to use a free e-mail service where i understand i'm sharing information about my communications with the e-mail provider. i'm sharing that information in exchange for getting e-mail for free. but i can't choose whether or not to build a relationship with an isp and share lots of super sensitive information about my communications with them to get on the network. >> that's interesting. so what you're suggesting is at least in part, this is only the first part of what you were suggesting, is that we've -- consumers and customers and people using the internet have come to the convention of their expectation of privacy that if they pay for a service that they want to just get that service. for the free services on the internet like twitter or
facebook or snapchat, there is a built in assumption that they're bargaining for a free service, they're bargaining something. maybe it's perhaps advertising. >> i'm not necessarily saying that is always the case. i mean, i think there are probably situations where people -- i think that it is questionable in some situations whether people understand that the information they're providing is -- will just be used in whatever, you know, they clearly don't read privacy policies, they don't understand how they're information will be used in exchange for a free service. i think the relationship they're building with their broad band internet service provider is one they believe the relationship is one where they have subscribed to a service specifically to go online and that's the service they think they're getting. not an advertising service. >> go ahead. chairman wheeler said in his statement that most of us understand that the social media we join and the websites we visit collect our personal information and use it for advertising purposes. he's suggesting, not you suggesting, but you're not
suggesting it as strongly as he's suggesting it. >> it's an empirical question. i think in general people probably understand more about how their information will be used, at least consider it in the context of considering an optional service and considering to engage in an optional service then when they're engaging in a service that's essential. al just on the point of first party uses of data, again, like, you know, these are -- they're different types of service. you can expand if you're a company that provides internet service you want to expand into advertising, that's fine. but you don't have a right necessarily to use the information that you've collected in the context of routing traffic in the broad band access service. provision of broad band access service. you don't have a right to use that information to build this other business. i think, if you saw a health insurance company expand its business into advertising, you know, start moving -- whatever. start up an advertising arm
because it's a giant and has a lot of money and wants to move into advertising, you wouldn't say, okay, yeah, go ahead and use, this is first party use of information. use all the information you know about insurance. >> wait, we're talking about opt in versus opt out. we're not saying they have a right to do it without any choice. we're saying why should consumers have to choose specifically to get better deals on products they might want to get? why can't they get the offer if they decide they don't like those kind of offers they can opt out. like it is for all the other companies in the eco system. there's nothing unique about an isp offering the deal, so uber has cars and they drive you around. all of a sudden they started offering uber eats. should they be prevented from telling you about uber eats unless you said i want to learn about food offered by uber. it doesn't make sense to me. >> in terms of framing the debate that you opt in to get
better or additional offers, i think what a lot of the folks in the community and civil rights groups have pointed out this data with also be used to sort of disadvantage you. it's not always about you getting great new offers but that there might be information leading from you that might be used to your disadvantage. that's where i think it makes a lot of sense if people want to have control over that. >> the naacp president has written saying it did not make sense to focus on this particular area. secondly, essentially a lot of the advocacy for the proposal and the logic of what the fcc has said, well, there might be particular uses of information which are unfair to consumers discriminatory intrusive. the way that the federal trade commission approaches this, is to say there needs to be opt in for specific types of uses. laura also equated an isp with a
hospital or healthcare institution that opens an advertising network. >> i would say compare not equated. >> you drew an analogy. absolutely. the point here is that if there is sensitive data, that is being obtained through provision of internet access service, under the old federal trade commission framework or the framework that applies to the rest of the internet eco system it makes sense for the fcc now that it now has done something regulatorially which means it rules the roost it should apply the same sets of standards which would be opt in for uses of health data, prohibition against use of information in a way that would discriminate against consumers. probably if there was analysis of absolutely all the data that travelatiled through a system t night might be worthy. we're seeing opt in consent is the requirement for all of these buckets of uses, regardless of
whether there's any health data, any discrimination, anything else. i think we need to take that off the table for the purpose of this. it would be more narrowly and precise to focus on things that might cause consumer harm. from what we know about the proposal it also applies to not information that contains your name, but information that could be used to identify you. it's very very broad. all the data and internet access provider might have that might be linked to your account, even if it is not linked. that's a huge amount of information that would be subject to a lot of regulation. >> we are scratching the surface me. yc i want to drill down on two points. before we go to questions from the audience, but before we leave i would ask you guys to explain what happens from here. before we leave. and what is the role of congress in this entire rulemaking ross? since they originally wrote the
law. any questions from the audience? john. h he's going to bring the microphone to you. it's not going to go through the speakers, so talk away. >> two of you have emphasized the fact that there are different rules for different players. but the fcc -- if what you want is the same rules everywhere, the fcc can't give you that. they have title i authority over commercial internet providers, they don't have authority over starbucks. the only way to get that is legislation. are you calling -- the staff in this room, are you calling for broad based privacy regulation across all of these legislation all these providers? >> do you want to opt in for privacy legislation from congress or do you want to be opt out of this fcc rule? >> i think to be clear, the
previous fcc requirements which can be placed into regulations under the fcc's own framework there's a proposal that was submitted to do that. there is nothing to stop the fcc if it's going to as is proposing in its -- talking about regulating all information, not just cp&i that's received by an internet access provider. if it has the authority to do that, it certainly has the authority to go beyond the structure of cp&i. and to replicate essentially the fcc framework with opt ins for use of sensitive data, opt ins for prohibitions against disclosing any information that might be used for profiling or in ways that might discriminate against data. all that is within the fcc's authority if as it says it can it's going to regulate all
customer information received. >> there's two ways to do this just to answer your question. you could pass legislation there has been support to have one overriding privacy law to simplify everything in the united states. that's certainly -- not all industries are unified behind that. there are some. i think what jim is saying to harmonize it with the ftc's framework is a good way to go. because it has resulted in very strong enforcement actions against huge companies, i'm not going to name them here. huge companies you have heard of that last for 20 years. and provide really strong protection. at the same time, there's enough flexibility in the ftc framework unlike what the fcc is proposing, enough flexibility to allow for all the new kinds of innovation we've seen over the last 20 years in the internet. that's been the model that's applied across the internet so far. to try to pull into a very restrictive scheme where there's lots of specific notices and very arcane choices is not going to promote any kind of -- it's
going to make it really hard to make innovation around isp's. so i think it's a serious question to ask is how we want to move. what direction do we want to go. do we want to go more prescriptive. compared to other countries that don't have as much innovation. >> it's a question that's going on in my view for 18 years. certainly very very strongly. and let me ask -- before we leave john's question let me go to -- john suggested that why don't you go up to the hill and ask for privacy regulation across the board and it be opt in. with the center for democracy and technology support ommitt bs legislation and would it be opt in and opt out? >> of course we would support base line privacy legislation. i think we would have to look again at the particular context of the data and the purposes of
the data whether that's, you know, that's opt in or opt out. it wouldn't have to be differentiated. >> if i can add, it's worth noting here that these are not mutually exclusive options, right? it may be the fact -- i would argue it is a fact. it's appropriate to have high standards for internet service providers. because of this special relationship that they have with consumers. and you know, it's a relationship where you want to encourage consumers to build this relationship, to get on the network, to be willing to connect to and then to consider the services they want to use online accordingly but not be afraid to take the first step to get online because they're concerned about these possible practices that isp's might be engaging in. opt in framework is great for that because the default is privacy protection. do nothing. go online, build a relationship with your isp. do nothing and there will be
very strong protections for your information. the information that you have to provide by virtue of the carrier customer relationship. information you're optionally providing in other contexts maybe it's appropriate. that's not mutually exclusive with perhaps meeting base line information to protect information that is sensitive, maybe is being used already in ways that can most consumers don't agree with and maybe the ftc's framework is not adequately addressing. but, you know, yes, and it's not -- >> that might have made sense when there was one isp a person. we have so many isp's and there's so much competition, let the isp's compete for this kind of business. it's just so different now than it was back in 1996. i appreciate your point. the market has changed so much. >> it is different. but no matter where you are you're going first through an isp and then online. >> you're going to a free wi-fi
hot spot that's not regulated by the ftc. can they just use your data then? >> if you look at what consumers do in a course of a day. they access the internet at work, at home, on their smart device. they may go through a bunch of wi-fi locations. none of those entities has all that much information in the context of the way the consumers are using. >> i don't think that's true. >> you are positing one internet access provider with a special relationship when i connect through the house wi-fi i'm entrusting the data that flows through, unless i put in a vpn, when i connect at starbucks, same thing. this is not the monolithic world of 1996. i think you're positing a special relationship here is -- without polling data to support
it is questionable. also you have in any given situation if you have a customer that's paying you a lot of money, you're going to be very cautious and i think you've seen most of the isp's being cautious about advertising. >> was that to your satisfaction that that answer. any other questions? ma'am. >> i find consistency in your argument in that you say this offer is so valuable the consumers it's so terrible they wouldn't be able to get the wonderful offers. if it's so wonderful why are you assuming the consumers would not be jumping at the chance to opt in. >> they may not understand what the offers are going to be. you sign up for a service in january with a new isp would you like to opt into marketing offers. they're going to be great but
they can't specify what they are because they koedon't know what they are. comes october and there's free shipping on amazon or something and they can't make that offer because you haven't opted in. i don't understand how the consumers are going to know what the offers are before the offers are even out there. >> can i ask, i don't mean to hijack your question. but what is the practical effect of opt in versus opt out? we're throwing them around casually. >> how does it hurt to get an offer? that's the other part i'm not clear on. just getting an offer and you end up not taking it. you get offers all the time. >> more people aren't getting the offer i assume that if amazon and sprint are going together to offer this to somebody they're doing it on the basis of some kind of data, whether it's let's say you buy a high end data package you never use. okay, then maybe you'll be a high end delivery package and a
high end video package because prime is both and not use it that much which will increase the profits to amazon. but some consumer who could use this wonderful per month thing for december or whatever, they're not going to see it. they're going to be red lined. >> why do you assume that? what is the interest in not trying to get as much of the market that you can? >> you want to get the part of the market that gives you a profit. that's why you use the data to find the part of the market where your profits are. >> you're supposing that there isn't an interest in serving middle and low income consumers. if you look at the money -- for example comcast has put hundreds of million dollars to wire low income neighborhoods so they get broad band. >> we're talking about prime by the month. >> it could be something else. you don't know what it is. i'm not saying this is a
wonderful opportunity for consumers. that's not my point. to assume there will always be nefarious conduct in advertising is -- wouldn't really be economically rational. >> it also would apply to the entire advertising ecosystem which isp's are a blip. most of the online advertising 70% is by ten companies. >> i wanted to jump in. i am confident that companies can come up with pretty creative ways to explain the value proposition that the companies are -- by customers should opt in. if it's an opt in they will have to really make that extra step. with an opt out, you know, you basically as a company have to do a whole lot. again, the assumption is until the customer objects you can market. so i think i'm confident the companies can -- >> sorry. if i can just add, i think it's
worth noting that, again, you know, this regulation that is title ii privacy regulation. the regulations we're talking about that apply to internet service providers, or that, you know, are being proposed to apply to internet service providers, again we're getting -- we haven't seen the text yet and we're not sure where it's going to go. a lot of these are great questions that will be addressed in comments for the record. this is activity said based regulation, it is not entity whsed regulation. that means is if a company is an internet service provide and an the operator of an advertising network it can continue to operate under the ftc's generally opt out framework with respect to privacy regulation in this area where it is engaging in advertising. it just cannot use the information that it's collecting from its broad band costmers in the context of providing broad
band service that they're giving them to route the traffic. it can't use that in the advertising context without opt in consent. >> we're running out of time. if anybody has a burning question, i want to finish with -- i didn't get to -- there will be a lot of questions about how much can -- this goes to the heart of the question, how much -- the unique perch that isp's and broad band providers have with regard to data. you'll hear debate how much they can see whether they're on the wi-fi at mcdonald's or accessing the house public wi-fi or a lot of the data is encrypted. that's a question we don't have time for today. you'll hear a lot about that one. i would ask you to ask a lot of questions about that. there's differences of opinion. and then the other one is that where does it go from here? i'm sorry we don't have the text of the notice of proposal we're making. from what i understand there's 500 questions in the text
that -- beyond what they're saying about the rule. where does this -- what's the process from here? just really quickly if i could ask a few of you to say -- what is congress's role since they crafted the darn thing. >> they did. you know, we're going to get the text of the rule shortly i think. there is no consensus to exactly when. sometime today, maybe next week early. there will be two comment periods and will extend through half of the summer and there will be an opportunity for companies, consumer advocates, other parties to comment on the record. and members of congress to comment on the record. congress is faced with a fractured set of laws that apply to some companies and not apply to others that are holding the same data. i think that congress does have a strong role to play here to smooth this out and make sure the data is what's protected not just data that's held by certain companies. >> so we'll be seeing hearings throughout the summer on this and probably a lot more discussion up here on the hill
about the rules, is that fair to say? >> yeah. >> all right. i'll let you have one last parting comment. really quickly on -- >> one thing to think about is whether you're satisfied with, in the members you work for, are satisfied with the speed and availability of broad band in your congressional districts. and in connection with that, think about whether you want a unique pretty burdensome regulatory structure to apply to use of data that's obtained through providing those services. think about how easy it is to set up an internet advertising business. almost no capital investment. and think about what that might do to investment in your district. >> i'll touch on the point that we didn't get to, which is encryption and this is obviously a debate that's much broader than this. because encryption is everywhere. but there is more encryption. and the more encryption we have
going forward the less that isp's are going to see. the trends are clear in this direction. think about that as you're thinking about the larger encryption debates. how it will impact this proceeding. to regulate isp's more when they're seeing less and less every week because more companies are encrypting, is a question that needs to be considered. >> i'll skip over the encryption comment. but it's really excited about this debate. we think this is an important debate for our society at large. i would encourage everybody to just sort of broaden this and educate and get involved in this debate. i think it just really touches upon some fundamental issues. the more educated we are about the issues the better. thank you for hosting us. >> and okay as my final parting thought i would give -- i think it's important for us to think about the justifications for some of the really strong privacy laws we have. al and it's to protect
relationships where we really want people to have -- engage freely with an entity and to have free and open communications. that's why we have strong health privacy laws so people will go to their doctors and feel free to talk to their doctors about their health status. why we have lawyer client confidentiality, which many of us in this room i'm sure are well aware of. so that clients feel free speaking candidly with their lawyers. it's a reason to have strong privacy laws that apply to internet service providers so people can take the step of going online and know that their traffic is going to be routed through an isp without being concerned about how the information will be used. >> with that i'd like to thank the cochairs. thank the panelists and thank everybody for coming. thanks so much. [ applause ]
award presentation. 2,700 people are expected to attend this year's sold out dinner. the host of comedy central's comedian will host. join us beginning saturday at 6:00 p.m. eastern. live on cspan. independent media is the oxygen of a democracy. it's essential. holding those in power accountable. you know, we're not there to serve some kind of corporate agenda. when we cover war and peace, we're not brought to you by the weapons manufacturers. >> sunday night on q&a. journalist amy goodman, host and executive producer of the daily news program democracy now talks about the book she's co-authored democracy now, 20 years covering the movements changing america. which looks back at the stories the people the shows covered. >> the idea of democracy now
starting 20 years ago hasn't changed. bringing out the voices of people at the grass roots in the united states and around the world. and they very much represent i think the majority of people. i mean, i think people who are concerned deeply about war and peace, about the growing inequality in this country. about climate change. the fate of the planet. are not a fringe minority. not even a silent majority. but the silenced majority. silenced by the corporate media which is why we have to take it back. >> sunday night at 8:00 eastern on cspan's q&a. georgetown university law center recently held a day long conference focusing on the impact of government surveillance on the african-american community. speakers including david lewis talked about how government has historically surveilled african-americans. especially civil rights leaders
for signs of subversion moving from slavery to the present day black lives matters movement. good morning and thank you all for coming. i'm bill trayner dean of georgetown university law center. it's my privilege to welcome you to georgetown law. and to our conference, the color of surveillance government monitoring of the african-american community. after the events of ferguson, missouri, and after the creation of the black lives matter movement, our society has begun a reexamination of policing in african-american communities. as this all started i reached out to professor butler and we agreed that we as a law school should undertake a deep exploration of the issues at stake. civil rights, and surveillance
policy. and in the past year and a half, we've had a series of important conversations at the law school that have focused on policing in african-american communities. last year in the wake of michael brown's death. professional butler and other members of our faculty led a public forum here that was called the conversation about ferguson. and then in the wake of freddie gray's death in baltimore, in may of last year, we held another symposium the fire next door. and then this fall, the georgetown law journal hosted a symposium, police state. race, power and control. which had the goals of identifying and analyzing the underlying causes and potential solutions to racialize police violence in america. and today, we're continuing this important conversation. with the symposium. i'd like to thank everyone here
for being part of that conversation. we'll begin with conversation -- these events have begun with conversations with professor butler and with the executive director of our center on privacy and technology. and they're the co-hosts of this conference. so we're now a year or two into the debate about policing black communities. and we're also engaged in a separate robust debate about government surveillance. and our conferences co-hosts, professional butler and professional budoyia argue there are unexplored questions between those two debates. i agree with them. and i'm just so delighted to hear where this colloquy will take us. it's an extraordinary group of
speakers. you'll hear from biographers of martin luther king jr. you'll hear from senior officials at the federal bureau of investigation and the department of justice and you'll hear from the advocates who are using the freedom of information act to lay bare what they see as excessive government surveillance. you'll hear from technologists and leading scholars in the fields of law, anthropology and other fields. i'm particularly proud that this conference strikes upon several of george town's law strengths as a faculty. criminal law, civil rights and privacy and surveillance law. recently. we made a concerted effort at georgetown to offer hands on technology intensive courses. at georgetown our law students,
our law students are literally building apps. they're learning how to code in python. and they're working in teams with m.i.t. engineers to draftl. and we think that this technological, technical background expands their legal toolkit, if you will, to address the public interest focus that's at the center of our legal education. and i think that this conference is a testament to that diversity of thought. so welcome all. thank you again for coming. and it's my pleasure to introduce to you professor butler, a scholar of criminal law, race relations and critical theory and also a former federal prosecutor. professor butler. >> thank you, good morning. welcome to georgetown. my name is paul butler, and i represent the united states.
that's how i used to start my opening statements when i was a trial lawyer with the department of justice. as a former federal prosecutor and as an african-american man, i've experienced all sides of the themes of this conference. from my experience as a law enforcement officer, i understand the importance of using the vast resources of this great nation to keep people safe from harm. the bad guys aren't shy about using the latest technology, and i don't think our government should be either when it's fulfilling its core mission to keep us safe and free. as an african-american, i'm part of a community of people who against all odds are incredibly patriotic. yet, too often, we're treated like enemies of the state. what does it mean when the long
struggle for equal justice is seen as subversive? what is it about black people being free that threatens the identity of the united states? this conference happened because our dean, bill treanor, thought it was important that our law school play a role in this moment in our history. last year, as ferguson erupted and then baltimore and then a movement for black lives responded, my colleagues and i wondered about the role of law schools in earlier social justice movements. where were law schools, for example, during the civil rights movement of the 1950s and '60s? the sense that some of us had is that many students were activists, but law schools as institutions didn't show up as well as they might have. so i'm proud to be part of this community at georgetown law that has shown up. and today we're demonstrating
our strong commitment to social justice by sponsoring this important conversation. there have been other gatherings at other places that have tried to understand what it means for a south carolina school safety officer to throw a teenage girl on the floor, what it means for a cop in tyler, texas, to order sandra bland to get out of the car because he doesn't like her tone, or what it means when the nypd put eric garner in a choke hold for selling a loosing cigarette. but this is the first major conference to look at the role surveillance plays in creating those tragic circumstances. one in one million. that's how i think of the peril and the promise, the promise and the peril of this moment. we have for a few more months one african-american president, and for the foreseeable future,
one million black people in prison. that's around the largest percentage of incarcerated african-americans in our history. and i think it's fair to ask, what happened? why are there more african-americans under criminal justice supervision in 2016 than there were slaves in 1850? what happened was a new forum of control, social control, that was enabled by a racial gaze. so, the war on drugs is one example. if you walk out the doors of the law school and jump on the red line and go to the national institute of health, they'll tell you african-americans don't use drugs more than any other group and don't sell them more than any other group either. people who buy drugs report buying them usually from someone of their own race. but if you go to a different government agency, the united states department of justice, you can actually walk there from here, and ask who's locked up
for drug crimes, 60% are black. 13% of people who do the crime, 60% of people who do the time, and that's because of this racial gaze that sees and does not see. and it turns out that there's an important relationship between where you look and what you find. my friend who's a d.c. cop is going to visit my criminal procedure class next week to give my students a realistic view of what it's like to be a police officer in this town. and he's going to invite them to join him in his squad car at some point to go on a ride-along. and he has this game that he plays called pick a car. he tells the student during the ride-along to pick any car they want, and he will stop it. he's a good cop. he waits until he has a legal reason, but it never takes more
than following one four or five blocks, and they inevitably commit a traffic infraction. so he can stop anyone he wants in a car. any police officer has this power. and so, this racial gaze has brought us the offense driving while black. sometimes people say if you're not doing anything wrong, why would it bother you that you're being watched? but surveillance always demands a response, a performance, a submission. baltimore erupted because freddie gray died in police custody. how did mr. gray come to the attention of the police? because he resisted surveillance. he saw the state in the form of two cops on bikes, and he turned away, he ran. the police had no reason to suspect him of a crime, but because he did not perform appropriately in response to their gaze, they detained him.
and the police have this power because of a case called illinois versus ward law. the supreme court said that if the police see someone who demonstrates that they don't want to be around the police, the police can detain them just to see why. the police don't need any other reason to stop you, other than the fact that you've tried to evade them. but here's the kick er. the court has limited this police power to what it calls high-crime areas. by that, it means african-american, latino or poor neighborhoods. so under the law, if you're in georgetown, where the main campus is, and you see the police and you run, the police have no legal authority to stop you. but if you're in anacostia and you see the police and run, the police can chase you just like they did freddie gray, and detain you. this is the racial gaze at work. when you're in the hood and the state looks at you, you must
communicate submission, or else. i hope you've all read the department of justice report on ferguson. it has some startling data. every time the ferguson police used dogs. they used them against african-americans. but what's even more revealing is the stories. and we can read those as stories of surveillance. the story about mike chilling out in a public park in his car after playing basketball. the police roll up and for no reason ask if they can search his car. mike cites his constitutional rights and says no. he turns down their request for surveillance. the cops respond by asking him for i.d. his license says his name is michael. the cops say, well, you told us your name was mike, so you're under arrest for providing false information. they also arrested michael for not wearing a seat belt. he'd be sitting in a parked car. now, another story in the ferguson report illustrates the
terror of the racial gaze. she had called the police because he was beating her up. by the time the police got there, he was gone. the police did surveillance. they looked around the house and they said it looks like he lives here. does he? she said yes. the police said, well, his name is not on the occupancy permit. you're under arrest. when that happened to another woman in ferguson, she said she would never call the police again. she didn't care if she was getting called. when the state abandons you, it never leaves you alone. i always think of that line from the sociologist avery gordon when i read the ferguson report. the black people in ferguson had been abandoned by the state, and so, it never left them alone. and let's be honest, there are those that think that black people must be watched, that we're dangerous and that racial gaze is required because of the way we act, we deserve all of the surveillance we get. when we think of the most vulnerable children in our
society, those most at risk for violence and poverty, if you label them as thugs or super predators, that does not create policy, it doesn't lead to policy that creates positive outcomes for those kids, but leads to the racial gaze. so in closing, i want to thank dean treanor for his generous support of this conference, our staff, who's worked incredibly hard, and especially our students. our students, scholars, activists, intellectuals. we're having this conference mainly because of and for you. you're the people who have made the strongest demands in our institution with regard to these matters. so this is a movement that's taken off on campuses all over the united states, and i'm proud to say that it's taken off at this law school. some cynics have said that students are wrong to think that universities can be anything other than corporate entities and that the best we should expect is that they bring people together who can make their own
formations. but what i hope we do today is to prove those cynics wrong. we can show that georgetown university law center, at least, is a site of progress and transformation and positive social change. we can help move to a place where officers are not overseers, in the words of krs-1. we can push back against the racial gaze. and thanks to the presence of c-span, this time the revolution is being televised. when the dean asked me to think about the kind of conference that we could have here and how we could make a difference in this important moment, i had to make one important decision, and i've got to say i nailed it. i asked alve lnalvaro bedoya he host this conference. you know that if you want something right with a commitment to social justice but
close attention to the details, ask alvaro to help you do it. none of this would have happened without him. we owe him a huge debt of gratitude. so he's going to come forward now and tell us how the day will proceed. please welcome him. [ applause ] >> thank you so much, paul. many of you are paul's friends, and so you know that paul is an inspiration to learn from and to work with, and i have not taken paul's class, but i've already learned so much. thank you. thank you dean treanor. this event would not be possible without the support of dean treanor, dean teitelbaum, the ford foundation, the open society foundations, the media democracy fund. nor would it be possible without the hard work of our av team, special events team, communications team, facilities team, monica ramirez and katie evans. thank you.
52 years ago in oslo, norway, martin luther king accepted the nobel peace prize. the day before he accepted the award, 40 churches in mississippi were fire-bombed. civil rights activists in philadelphia and birmingham were assaulted. and some of them were killed. and yet, in the face of these attacks, dr. king proudly accepted the prize on behalf of the nonviolence movement. he declared, and i quote, "i refuse to accept the view that mankind is so tragically bound to the starless midnight of racism and war that the bright daybreak of peace and brotherhood can never become reality." he was 35. and at the time, he was the youngest person to have ever received the nobel peace prize. soon after dr. king returned from oslo, an anonymous letter and package made its way to the
king family home. it came from the fbi. the package contained a recording of, allegedly, secret audio -- it was definitely secret -- of dr. king's alleged extramarital sexual encounters. the letter threatened blackmail. "they are out to break me," dr. king told a friend. "they are out to get me, harass me, and break my spirit." it's tempting to attribute what happened to dr. king to racism, and specifically, the racism of one man, jay edgar hoover. the truth is more uncomfortable. because what happened to dr. king was part of a pattern of surveillance that is older and newer than j. edgar hoover. our government didn't just cervalle martin luther king. they surveilled malcolm x, whitney young, even muhammad
ali. and before hoover, a special division of the united states military intelligence division devoted to monitoring "negro subversion" conducted surveillance on w.e.b. du bois, marcus garvey and others. this pattern isn't a thing of the past. just last year, the intercept reported that the activities of the black lives matter movement were being monitored by the department of homeland security. if you can name a prominent african-american civil rights leader of the 20th or 21st centuries, chances are significant that he or she has been surveilled, and usually in the name of national security. you think that when congress debated nsa reform, all of this would be at the front of their minds, particularly because just a few months after the snowden leaks, the nsa revealed that in addition to the fbi and their own wiretap of martin luther
king jr., the nsa had itself wiretapped dr. king. and yet, with only a few important exceptions, congress didn't talk about any of this. in fact, in the senate, it appears that during the two years of nsa debates, no one ever spoke martin luther king jr.'s name. but frankly, most americans weren't talking about it either. instead, it seems as if we're having two almost entirely separate debates. we're having debate about national security surveillance, and we're having a seemingly separate debate about policing in black communities. and there's far too little recognition that for most of american history, some of the most prominent victims of unjust national security surveillance have been african-american. nor is there much recognition that the pervasive policing of black communities is increasingly made possible by
surveillance technologies and some surveillance laws that were developed for the war on terror. there is a color of surveillance, but not enough people are talking about it. we're here to change that. we'll start with some history lessons, and we'll start with the beginning of our country. and so, professor brown will explain how enslaved people in colonial america were controlled in part through systems of surveillance -- lantern laws, slave patrols, even rudimentary biometrics. we'll then jump to the early 20th century, where professor lewis, the pulitzer prize-winning biographer of w.e.b. du bois, will discuss the surveillance of w.e.b. du bois and his contemporaries. then professor garrow, the pulitzer prize-winning biographer of martin luther king and james baker, the general counsel of the fbi. it has to be said the one person in the executive branch who can who consistently speaks about
what happened to dr. king is the current fbi director, james comey. but has the fbi truly righted the wrongs that created that legacy? after that, we'll turn to the present day. the years after 9/11 saw the creation of a vast domestic system to find and stop terrorists. professor aziz will ask, how did that dragnet affect the black community? and brandy collins from colorofchange.org will tell us about perhaps the most salient example of that impact, the hss monitoring of black lives matter. interspersed throughout our class, we'll learn about surveillance technology. freddie martinez will tell us about stingray technology and its impact in chicago. clair garvey and jonathan frankel from our own center will tell you about facial recognition technology and how it may misidentify african-americans at higher rates than whites.
ledbetter professor sethy will have a talk and then starr will tell you about the constitutional issues raised by these techniques. we will tell you about their impact on communities. and christie lane scott will tell us about the department of justice's approach to this technology. but we're not just going to talk about technology. and so, professor henning will remind us that the policing techniques used every day in low-income, black communities -- stop and frisk, confidential informants -- those are forms of surveillance also. led by professor patterson will see that surveillance isn't always about policing, either. professor bridges and hamid khan will tell us about how the simple fact of being poor may subject you and your family to near constant monitoring. and with professors butler, brown and obasagi, we'll take a step back and ask even more
fundamental questions. scholars and writers predicted a pervasively surveilled society. and yet, why did fucowen orrwell fail to predict the racialized nature of that launching? and frankly, what does it even mean to see race anyways? all this is going to be fascinating. but we would be remiss if we only talked about the black community in terms of being an object of surveillance or state power. we have to talk about how people are organizing to level the scales and how technology can help that. and so, eugene purrier from black lives matter d.c. will do a teach-in on organizing techniques. professor cook and brandon anderson will tell us about an app developed by brandon that lets everyday citizens track their interactions with law enforcement. we will also discuss body cameras. the vast majority of incriminating videos have come
from the smartphones of citizens. what happens when you take that camera out of your hand and on to the lapel of a law enforcement officer? is it more accountability or is it just more watching? and so, harlen yuh will explain the scorecard for police one body cameras. finally, how could we not, technologist matthew mitchell of cryptoharlem will tell us about the fbi versus apple encryption debate and why it holds tremendous importance for people of color. nowadays, while some people care more about privacy than they ever have before, others are asking if privacy's become an abstraction. is privacy obsolete? what is privacy? for me, and i hope for us by the end of this conference, privacy is martin luther king and w.e.b. du bois and fannie lou hamer and black lives matter organizing for civil rights without being watched or wiretapped or
blackmailed. privacy is people of color walking down the street without being stopped or frisked or scanned. privacy is children of color being able to be kids and make mistakes without the law watching their every move. and i submit that it is that watching, it is that lack of privacy that contributes in part to the inequality we live today. it is my tremendous pleasure to introduce our first speaker, the author of a book that all of you should be reading, called "dark matters: on the surveillance of blackness." professor simone browne from the university of texas at austin. please join me in giving a big round of applause to professor browne. [ applause ] let me get this for you. here we go. on the right. >> thank you. >> thank you.
>> good morning, everyone. thanks for having me here today for this conference. i'll start here. okay, so, with this short talk this morning, i'm going to turn to the archive of surveillance technologies of slavery as a way to historicize some of the concepts and concerns that we are contending with when we think about surveillance in our contemporary moment. so, the archives of the technologies put in place to monitor black life after the middle passage offers us a necessary entry to entry to further complicate understandings of surveillance. doing so allows us how to question how the conditions of blackness, so the historical, the present, as well as the historical present, can help social theorists, activists and other actors understand better our conditions of surveillance. rather than seeing surveillance technologies and surveillance as something that's inaugurated by new technologies, such as drones or body imaging technologies at airports or something newly
contested by end-to-end encryption technologies, to see it as ongoing is to insist that we factor into how antiblackness underwrites and sustains the surveillances of our present order. so, by these technologies of slavery, i mean slaveship ledgers, plantation rules, organized slave patrols, plantation overseers, the written slave paths, instruments of torture and punishment, negro cloth laws, the auction block, iron collars, bells that chime, the white gaze and many others. but for now, i want to look at just three. those are fugitive slave advertisements, lantern laws and branding. this is a runaway notice, an ad from october 1st, 1767, an edition of "the virginia gazette." on the bottom right-hand corner of the front page, among notices for strayed or stolen horses, ads for the slaves, a plantation
for lease and for a gentile assortment of fashionable trimmings and black silk gloves and mittens is this ad for a man named jupiter. he is described as a negro fellow, about 35 years old, 6 feet high. his right knee bent in more than the left with several scars on his back from a severe whipping that he received at sussex courthouse, having been tried for stirring up negroes to an insurrection. this ad says that he was a great preacher and also goes by the alias "gibb." this ad also tells of jupiter's 25-year-old brother, robin, who has a film over his eyes and a sore on one of his shins, and their mother, dina, who's described as an old winch. the ad is signed by george noble, who, it says, supposed that jupiter, robin and dina would endeavor to make their escape southward. so, notices of escape such as this one tell us a lot about the
black flight to freedom. they tell us a lot about black fugitivity. the notices would not only name those in enslavement and made their own way, but list a description and monetary awards, if any, that awaited those that would aid in their capture and return. the ads would list their talents, occupations and skills, vices, languages spoken, and whether or not they could read or write, strategies that they might have used to escape and what they were wearing when they took off and made their way. also listed could be musical instruments and other items that could be sold, bartered or traded or used to support the appearance of being free. although written from the point of view of those that enslaved other people as their human property, the runaway notice points to the tactics of refusal, rebellion and resistance. like this one here from -- like my man, jerry, from 1820, who's said to have escaped a jail in baltimore, escaping over the
wall, where it was imagined that, no doubt, he would be lurking somewhere around baltimore and its vicinity. or this one here. this is from the 1700s for a 14-year-old mulatto or quad ron girl that goes by the name seth or sal. and so, this fugitive slave notice for set, who chose to pose as white and hide away in sight in new york city by evading surveillance by through makeup, possibly using an surveillance, seth. and otherwise, they talk about her wicked tricks throughout the city. the second technology that i want to look at is lantern laws. and these were laws that were -- this is a clip from one from the 1700s, that mandated that black, mixed race and indigenous enslaved people, if they were to move about that city after dark and were not in the company of some white person, would be mandated to carry a candle with
a -- a lantern with a lit candle in it. if not, any white person and who were by default deputized by white supremacy were then authorized to then seize that unlit person of color and bring them in. the sentence for people who were found unlit after dark could be anywhere from up to 40 lashes. and so, those who were found guilty would be taken to the gow until their owner would come and collect them, their said owner. and so, with these lantern laws, the lit candle became a supervisory device and a means of identification. and so, these laws were around at the same time as a kind of black codes that saw to it that black people or enslaved people in new york city at the time could not ride on horseback on sunday or have weapons, or had to speak with their indoor voices on sunday -- no loud yelling, no gambling.
and so, these laws existed in new york city, but they were also found in boston. and so you also have laws like these in 16th-century paris. but what is particular about these ones is that these were situated for the monitoring of black and indigenous people that kind of situated them as security risks who needed light after dark to walk around. and so, we can see this legal framework around the surveillance of blackness and its transformations, for example, in stop-and-frisk policing practices 300 years later in that city, where the categories of suspicion could include furtive movements, fits a relative description or changes direction at the sight of an officer, which as we know is probably the smart thing to do for many people, or wearing inappropriate attire for that season. so all of those codes were then taken, that i mentioned just now, were taken from the new
york police department data set. and you can also make these links to lantern laws. so, the idea of light being a technology, a disciplinary technology, for example, with the use by the nypd of the omnipresence practice. and so, this is a strategy where either flashing lights from the top of a car or flood lights are projected into housing projects. then you know, subjecting occupants to constant and high-intensity artificial light. and so, as i mentioned, both of these instances, whether it's lantern laws, or in contemporary ways that the omni presence would operate, you see light being used as a disciplinary and surveillance tactic. and it's not only just about the visual. you can think about the psychic effects of having this large hum of a generator of a light in your home. so, the third technology that i'll move on to here is
branding. this is from about 1863. these would sell for about 25 cents or so to raise money for the education of the formerly enslaved. this is for wilson chin. it says he is a branded slave from louisiana. he has tools of correction at his feet, a paddle, irons. he also has around his neck a longhorn that was an attempt to prevent people from running away through this iron technology or implement. so, not entirely visible is the brand on his forehead. there are the initials of "vbn." they are the initials of a louisiana planter, a slave owner that was his former owner. so you can think of the brand here as a traumatic head injury. it is an attempt to fix the
black body as slave, or at least -- i say attempt, because wilson chin escaped and made his own way. he escaped to union lines. so this image of wilson chin, i've put it up here, for it allows us to question the intimate relationship between branding and the black body, and it gives us a way to think about our biometric past can allow us to ask questions about our biometric present and our contemporary. so biometrics in the simplest form is the body and measurement and is often put to work for identification, verification and automation practices. and we'll hear much about that throughout the conference. and so, it's a way of having parts, pieces and performances of the body act as a form of identification. within the era of slavery, the branding might be simple iron type -- letters, numerals that mark people as belonging to a
particular ship's cargo. it could also be literally the mark of the sovereign, so the idea of the british crown or the french crown or the spanish crown being marked on to the hooim human body. these are violent technologies. simple, just type and oil, but quite violent. and so, this, for example, in 1865 in barbados, the society for the propagation of the gospel, a christian society, would mark all of those that they had enslaved with the word "society" on their chest. the barbados council also in the 1860s would brand the letter "r" on the forehead of those that escaped to mark for runaway. so this could be as a form of identification at the time of embarkation on to a slave ship, or it could be something that might happen on an auction block, but it also could be a form of punishment. both attempts to fix the black body as enslaved and make them
identi identifiable off a plantation or a type of enslavement whether through slave or kidnapping or through other means. so, to point to this -- it's also -- i want to just say, of course, benny ran away, regardless of receiving this mark as slave. i'll close now with the story of an enslaved woman by the name of cuba. it's found in the diaries of thomas thistlewood. he with a slaveowner in jamaica. and in these diaries, he tells of weather conditions, his sexual assaults on the women that were enslaved to him on his plantation, torture, but he also tells the story of a 15-year-old girl named cuba who he purchased in 1761. at the time of her purchase, he branded her on her shoulder with his brand, his initials, "tt" in
a triangle. during the over 13 years that she was enslaved in jamaica, she escaped captivity numerous times, and each time she was captured, recaptured, she was subject to punishment. sometimes she was flogged. she was chained and collared. even one time being chained and collared, she escaped with that collar and that chain on to visit a friend in bluefields, jamaica. at one point she was branded on her forehead again with his brand, the "tt." thistlewood wrote in his diary five days after she was branded on her forehead that he found cuba missing in the morning. so, in defiance of this brand, cuba escaped again and again and made her own way to freedom, at least for the moment, temporarily. so eventually, cuba was sold by thistlewood for 40 pounds and transported out of jamaica to
savannah, georgia. but cuba's running away, despite the "tt" that branded her forehead and her shoulders, reveals the limits of these acts of dehumanization and points to those moments of refusal and rebellion. so i briefly outline here fugitive slave notices, lantern laws and branding to say that the historical formation of surveillance is not outside of the historical formation of slavery. and the technologies that i've pointed here and the ways in which people contend with them, challenge them and also resisted them points to how important an understanding of the conditions of blackness is to developing a general theory of surveillance. and of course, it's not the entire story of surveillance, but it's one that often goes missing or comes up short, but not today. thank you.
[ applause ] >> questions? >> thank you very much for your presentation. i've been doing my own historical research and have focused lately on reconstruction. and i'm having trouble coming up with consistent narrative, because i think the theme of this conference today seems to be sort of associating government surveillance with slavery and with racial oppression. but during reconstruction, the federal government, the presence of a standing army in the south, the undercover secret service agents who investigated the ku klux klan actually represents to me a different image of the federal government, where it's actually turning its gaze on those who have turned their gaze on the african-american community. and it continues through with
ferguson, where the ferguson police department subjected the black community to this gaze, and now the justice department is putting its gaze on ferguson. so you know, how do we square those things? how do we account for the fact that a lot of the people that are most excited about libertarianism and keeping the government small are white men? what do you make of that dynamic? >> so, what i did talk about just now? i think that the one thing that -- i think there was one point where i was talking about the lantern laws and that those were laws by the city. this is the time when new york was a holding of the british, but that people became deputized through, like regular, white citizens, through white supremacy to enact state practices. and so, the idea of a state arm investigating another state arm could be just a performance of investigation, and i think there are people here who are experts in talking about the ferguson
report or reconstruction or other moments that we'll hear about today, but that doesn't necessarily change the power that is held by say the police or the states. it might jump around, like you know, whac-a-mole, but it's still an enactment of the state power, i would guess. yeah, sure. >> thank you, professor. >> thank you. >> for your historical reenactment of some rehorrible events. my question to you is to what extent were slaves themselves either coerced or otherwise induced to spy on other slaves? >> yeah. so i haven't done a complete survey of the archive of slavery. i took a particular moments to kind of see some reverberations in our contemporary moment. but if you think of the story of
harriet jacobs' narratives, where she hid in her grandmother's garrett for about seven years, what she called a loophole of retreat, a very debilitating space. one of the ingenious things that she would do during this time is that she would write letters while she was in this, basically an attic, and have them -- many of you know this story -- but address them as if she was in new york or in boston and have them mailed. and in that way, her so-called owner would send people to look for her in those spaces. but you know, it's the idea that loose lips sink ships. people knew, some people knew that she was there. and at the time, as she was ready to make her flight to the north, it was because there were just too many people in the know, and someone might have revealed that she was there. she became so sick in this place that in this loophole of retreat that, you know, think of the idea of not being able to move.
this was a place that was about 7 feet -- about 3 feet high and would slant. so her muscles became atrophied. but there was one time when she was so sick, she was coughing, and her young son that she didn't know knew that she was up there -- she didn't know that he knew she was up there, he would cough -- he would play loudly so that people wouldn't be able to hear, wouldn't be able to surveil her coughing and know that she was there. so you see there the idea of the sonic, the oral as also a ways in which we look at surveillance and the notion that there were some people who did curry favor with others and, you know, tell of notion of times of escape. thank you for that question. thank you. >> yes, thank you, professor browne, for that very powerful presentation, so powerful that it made me mad.
and so, i'm glad that this next session is about a way of fighting back, a way of resisting surveillance. so, we're fortunate to have as they come forward two people, one my colleague, anthony cook. anthony cook is a professor here at georgetown, and he's one of the country's leading scholars at the intersection of law and policy and progressive religion. and we have a star in the making, brandon anderson, who's going to tell us about an app he's invented called swat. so, like a lot of us african-american men, brandon comes to this work-based on his experience, based on his personal experience, including some really bad experiences with the cops. so, we're fortunate to learn all about this app. brandon's a recent graduate of georgetown, so we're especially proud that a hoya is going to
come and help us understand how to fight back. so, please welcome professor cook. [ applause ] >> thank you, paul. thank you, dean treanor, paul and alvaro for organizing and hosting this very important conference. i am going to say a few words about my commitment to this area and introduce brandon, who has, as the ceo and the founder of this monitorless app called the swat app. i will say -- [ inaudible ] from mississippi. and during winter months -- [ inaudible ]
so we had to have what we called our ringers, right? those who could really sing. and trenton, new jersey, was nearby. and so, there was a lot of great gospel singers in trenton, new jersey. so we had a few of them in our choir. so one night, winter night, i mean, with a windchill factor that took the temperature below zero, we decided after a rehearsal that was way too long that we would go get something to eat. so, me and my friend from trenton got in his beat-up hoopdy and made our way up alexander road toward route 1. and on the way to route 1 on alexander road, the car stopped, right? and he's trying to start the car, trying to start the car. we both go look under the hood, not knowing what we were looking at. decide taking was too cold, we got back in the car, kept trying. minutes later, a cop shows up, lights on. we said, well, thank goodness. it's cold out here. this cop will be able to take us to a gas station or somewhere so
we can get out of this freezing cold. so, the cop comes to the window and he asks, "what are you boys doing out here," right? my friend from trenton i think had had a number of encounters like this in the past, so his response and his tone was something that my mama and daddy, raising me in mississippi, never would have suggested or advised that i do. he said to the police officer, "well, i ain't out here for my health." and the police officer looked at him and looked at us and said, okay, you guys wait right there. he went back to his car and commenced a call. two other police cars. so now there are six police officers on alexander road, this country road. no lights, no nothing, basically telling us to get out of the car. so they pulled us out of the car, they took off our down coats and jackets. they threw us against the car, you know, with nothing but t-shirts and a shirt on, freezing weather, and they just started to cuss us out.
you n-words, you know, you ain't got no dope up in here. they searched the car. they searched our possessions. they searched our clothes. they put us in handcuffs, right, as they did all of this. scared to death, not knowing what, you know, was going to come next, they eventually put us in the back of a car and drove us across route 1 into these, like, you know, corn fields. and i had just studied, you know, freedom summer in one of my classes. so, i'm thinking goodman, chaney, schwarner. i'm looking at my friend, he's looking at me. what are we going to do here, knock down this door, make a run for it, what have you, right? it was horrifying. the police officer eventually surfaced back on to route 1 after about 10 to 15 minutes that felt like forever taking this secluded route through the princeton countryside, and let us off at a gas station. when we got out, we were just speechless. it took us more than two weeks to even really talk about the
experience to each other. it took three weeks to actually try to go to a faculty member to tell them about what had happened. and my friend said, because he called me "big country," he said, "welcome to the north, big country," you know, the promise land. so, i was reminded of the words of malcolm x after that experience, that the american south is anything south of the canadian border, right? and so, it always created a commitment on my part to try to find entrepreneurs and to help and assist people who were trying to blend, you know, technology or blend entrepreneurship with the work of social justice. so, i ran across brandon anderson, who was a member of my pracht ka, where i arrange legal and business services to start-up businesses and entrepreneurs, and i'm particularly drawn to social entrepreneurs who are trying to use entrepreneurship as a way of
impacting these important social issues and dealing with issues of social justice. and so, he's going to tell you about the app. >> all right. can everyone here me? awesome. my name is brandon anderson. i am a recent graduate of the georgetown college. and i'm here to talk to you today first about a short personal story, some of the reasons with which i am invested in this work and why i find it important. and secondly, what exactly it is that i'm doing. i'm originally from oklahoma.
anyone from oklahoma in the audience? all right. stop it. is that true? okay, that's one person from oklahoma. we'll have to rap about this after the conference. i'm from oklahoma. this is the place where i learned early on in my life about what it means to be dark skinned, especially in a city where what used to be the richest black community in the country was burned down during the tulsa riots, the first time in the history of this country where bombs were used to drop from planes and destroy an entire greenwood community. one thing i just recently found out is that my grandfather previous to me even being invested in this work -- and i've never actually met my real grandfather. i'm adopted by my
step-grandparents. it's a long story. i won't bore you. but he was harassed by police. he with a business owner and he was harassed by police often. and some of the things that he used to tell my mother is that they would show up at 11:59 and say, you know, your liquor license is just about to expire. it would expire at midnight and they would go and continuously harass him during multiple times. and so, what would happen is he would have to close his doors months later to his business. another story i'll tell you is that about 20 years later my mother is getting back from serving in the army, and she meets up with some folk who she did not know was involved in some really bad stuff and had paraphernalia in their car while
she was riding with them. and the cop pulls them over, and he says, hey, you know, these three are together. and she says, no, i'm not with them. but you're in the car. she ultimately ends up getting probation. that same police officer comes back 11 months later -- not making up -- i can't make this up, i promise. and at that point, he says, hey, look, you know, i remember you being on probation. that didn't stick? and she says, well -- and he proceeded to plant crack-cocaine on my mother. my mother was thrown in prison in which during this time she became addicted to crack-cocaine, in prison. and this was probably a couple of years before i was born -- i mean, a couple of years after i was born. and so, that's the reason i'm adopted by my grandparents.
i say that to say that i have a very long history before i was even born i knew that the value of dark-skinned people was, to me, what i had considered no less valuable than the writings on this paper or the paper with which they're written on. and so, i learned very quickly that i needed to toe the line, so to speak. i didn't take that advice. i dropped out of high school when i was about 15 years old. i lived with a person who had been my best friend for a very long time, seven years. and when i left, i left home and we didn't really have anywhere to go, so school was very difficult to go to. public transportation is nonexistent. my friend in the back will let you know that. it just didn't exist, so it was very difficult to get to school, and quite frankly, we were tired of wearing the same clothes to school every day, so we just stopped going altogether.
this person who was my best friend turned out to be my intimate and lifetime partner of eight years. and as i kind of describe the relationship, you know, it was like falling asleep in class. you didn't mean to, but you did. and i left. i joined the army. i spent five years in the army. in 2007, my best friend and lifetime partner of eight years was shot and killed in oklahoma city, oklahoma, by the police. in fact, in oklahoma city, it is more likely to be shot and killed by a police officer if you are a black man than it is to be shot and killed by any other person in most western european countries combined. so i got out of the military.
and in an effort to really speak more about -- in an effort to go see my partner, i disclosed my orientation during that point in which it was eight and not 2010 at that point. and so, because of that, i was thrown out of the military. on my way to go see my partner on the plane, he passed and i didn't have an opportunity to see him. i say this all not out of pity and not that i expect pity, but to let you know that this is something that's very real to me. it is an experience that i have lived, and i have lived for my entire life. it is something -- police terror has for me been a constant reminder in my life in everything that i do. and so, when i came to georgetown, it was in the effort of developing something that could perhaps help me along these lines. and that's swat app.
swat -- safety with accountability and transparency. the focus here is we're building a national review system that is oriented, that is described by the people with which are patrolled, are policed. and this instance, basically what happened where either you're pulled over or any sort of intervention with an officer, you have an opportunity to review that officer's performance with you. now, we'll ask you questions about whether that officers performed, you know, his or her duties by the book based on whatever jurisdiction or location you reside in. we'll also ask you questions, two or three questions about the overall general aspect of policing in your community. so in some states in the country it's still legal to do choke-holds or a hog tie. and we'll ask you, perhaps, about those. and right now you won't see the website because we're in middevelopment and that's not pretty. so, this is prettier, so swatapp.co.
our focus really is to create a mapping system of police performance. and our hope is that we will look to cities like baltimore, chicago, d.c. so, mayor, if you're watching, it'd be nice to chat with you at some point. and what we want to be able to do is provide statistics and provide metrics with which the way police are performing based on the individuals with whom are being policed. and that's pretty straightforward. later on we'll do a few things like automating the police complaints process. but many of the people that we have spoken to when we did our research basically said, well, you know, why the hell am i going to submit a complaint? nothing's really going to happen. so, i think that largely what needs to happen is a level of legitimacy and trust in the police force. and if we can do that, i think that we have to find a way with which we allow citizens to voice their concerns in an open
platform. i appreciate your time. thank you for letting me tell you my story. i will now take questions. oh, all right. we'll take one question. >> so thank you. i'm really interested in -- thank you. so, thank you for sharing your story. i'm really interested in the topic today in part because we seem to have this duality between data sets as oppression and as a means of controlling the black population and other communities, but then also the idea of collection as a way of combating that. i'm thinking about the red wrecker, i'm thinking about efforts to track police brutality, like yours, similar efforts in the transcommunity. how do you differentiate between data collection that oppresses
and data collection that liberates? >> well, the people that use it, frankly. i mean, that's pretty simple. i think -- good question. i think that our mission statement really is to allow ordinary citizens, the public to collect, maintain and distribute their own stories and their own data. so i think that the master narrative has always been able to be controlled. i mean, look, you can deal with data and you can deal with it in whatever ways you want, but the people who actually have the data have the power, they have information. and this day in age, you can use that information in whatever way you want if you have that level of power. i think that what we're trying to do now and what this conference is all about is shifting those dynamics of power. and so, for instance, one story where oftentimes what i hear during our research process is that people are afraid to submit any sort of formal complaint based on the retaliation from police officers. and it's taking on an average 12 to 16 months to complete any formal complaint by any
jurisdiction in the country. and so, with that amount of information, if police have that information, they know your name, they know your number, they know where you live, people are incredibly afraid. i think that when you have information and it's in the hands of individuals, in the right individuals -- and we can debate about who those right individuals are, but i think those individuals are people, especially when there is a broader subset of individuals who have often been oppressed, i think that when you shift those dynamics of power, you come out with something very different. yeah, so, the answer to that question straightforwardly is the difference is people who hold it. >> thank you, brandon anderson. professor anthony cook. so, our next panel is going to be a deep dive. we have had an enlightening history session, a really interesting teach-in. and so, now is the deep dive.
so, this is about surveillance as a mechanism not only for police but also for other forms of the government and not only against people who other forms government and not only people we suspect of being criminals, but also people who we suspect of being poor, we treat them like criminals. so we have an amazing panel chaired by my colleague robert patterson. he teaches over on the main campus. professor patterson writes about politics. he writes about mass can you listenty and he writes about performance. i'm honored to have my friend and colleague from boston, the professor of law and associate professor of an throw polling at
boston university. and last but not least the coordinator of the stop lapd spying coalition. i've gotten to know him from my work as a justice fellow. he's done some amazing work with that organization. that's one of the few funders in this country of progressive criminal justice intervention and he's one of our stars so i'm looking forward to hearing from professor patterson, professor bridges and mr. chaun. >> good morning.
>> we're going to get right into the spirit of our conversation and then we'll have a conversation and then we'll have the opportunity for maybe ten minutes of questions toward the end so we look forward to having you be part of the conversation and part of the solutions as well. >> it's such a pleasure to be here and it's such a pleasure for me to share my work with everybody. so much of my work concerns the lives of poor women of color who decide to become mothers and throughout my work with these women i've learned that their completely exposed to government surveillance so my first book is called reproducing race and it
was the work of 18 months of a public hospital in manhattan and all of the pregnant patients receiving obstetrics care in that hospital, all of them were poor and most of them were of color and all of them relied on medicaid to cover the cost of prenatal expenses. the process of enrolling in medicaid is just weird. it's weird because as a person with private insurance it was an alan experience for me to watch what women needed to do to get health care. so before even seeing a doctor or nurse or midwife or nurse practitioner, women are subjected by law to what i call informational canvassing and this consists of coerced consultations with a battery of professionals, including nurses, health educators, financial
officers, hiv officers, nutritionists and social workers. a lot of information that's gathered from these women is information that you would expect any pregnant woman to sort of share upon beginning prenatal care, but much of the information is unique. i'll talk a little bit about what i observed. so the psyche owe-social assessment is probably the oddest assessment that coa wome has to endure. a social worker talks to the women to try to determine if she has risk factors. the risk factors include the unplannedness of the current pregnancy, the women's intention to give up the infant to adoption or foster care, hiv
status, a history of substance abuse, a loack of support, mentl disability, lack of social welfare benefits, history of contact with child welfare services and a history of homelessness. if a woman reveals she has any of these risk factors more information is gathered. it's worth noting early and often that wealthier women engage in the same behaviors in which poor women engage. wealthy women co habit with men and smoke cigarettes and drink alcohol, they miss their prenatal appointments, they have histories of sexual and domestic violence, they have used and abused controlled substances, yet no state has erected an apparatus of which to take an
accounting of wealthier women. an effect of this consultation, along the nutritionist and medicaid consultation and the nurse health educator is that poor women's private lives are made available for state vans and regulation. they're exposed to the possibility of punitive state responses. private information about their immigration status and health status and economic status is gathered upened a made into knowledge for statistics. their histories with substance abuse, sexual abuse, public assistance is documented and shared with other government agencies and their fertility is condemned as they're encouraged to think about the method of contraceptions they're going to use after giving birth. this invasion -- this initial contact with medicaid enables these women to be swept up into
other state bureaucracies. the state has all the information it needs after this initial contact to sweep this women into the am bit of child protective services, immigration customs enforcement and if necessary the criminal justice and this is something that wealthier women are not exposed to so that's my work. >> thank you. >> thank you very much and thanks for inviting me i'm here from los angeles. i work with a group called the stop lapd spying coalition. and what we are hearing is that we're discussing a system that is flawed by design and professor brown spoke about the history of surveillance and i think as an organizer one of the things that we try to do is building in our communities and
building with communities in skid row and that yes t's where coalition is based out of is to look at the landscape of policing and how it's impacting our communities. so many folks in the audience may or some of the folks in the audience may have seen this before. this is just a circle of lapd's love that we -- that we feel every day. this is -- this is the architectural surveillance both human and electronic technology that the los angeles police department is using. i don't want to go through that because it's going to take a lot of time, but the point being here that in essence what we are
seeing is that we look at surveillance and information gathering, intelligence gathering and storing and information storing more as tools of social control, it's not always about information gathering, but what happens once that information is picked up and who that information is routed to. what we are also seeing increasingly and this is how ou lives are impacts on the street is how increasingly domestic law enforcement how they're incorporating counter terrorism into their daily policing. there's a lot of talk about militarization of the police, but when you look at the application of the tactics and funding, you see it's not only about the war abroad, this is a war at home that is being waged on our communities, very much so that these tools of counter-terrorism is ruling in
p p protecting acts of insurgency. the suspicious activity program comes directly on the heels of the 9/11 commission report which then led to the intelligence reform terrorism prevention act. so what we're seeing is a heightened acts of counter-terrorism being incorporated into domestic policing. then we look at how this rhetoric of national security and what i'm trying do is look at the structural and political side of it how the rhetoric of national security keeps on giving law enforcement a lot of immunity and local law enforcement agencies so instead of looking at issues and addressing public safety through the lens of what will benefit the communities, we continue to police our way out of social and economic problems. one example is in los angeles the homeless services