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>> Are we safe?
We are safer.
Are we absolutely safe?
No.
I think the marathon bombing would highlight that.
>> I think it's a really interesting debate
as to who you really care reads your stuff.
>> This is a trade-off of contemporary living.
>> This goes back to Louis Brandeis, who looked
at wiretapping and said,
"Look at this-- you can do wiretapping
without invading anybody's property interests."
>> Where do you draw the line between your privacy
and your safety?
When is it okay for the government to spy on people?
Well, this is an issue
that's dominated headlines in recent weeks,
and tonight on "The Aspen Institute Presents",
we'll take an in-depth look at exactl y
what measures are reasonable when it comes to our safety.
>> I'm Jon Stewart from the BBC on location for World Channel
at the 2013 Aspen Ideas Festival
here in Aspen, Colorado.
It's been a remarkable week with a host of influential panelists
taking on issues that affects all our lives.
There's perhaps no issue more important
than the line between our safety and our privacy.
In our first session we'll hear from national security experts
about what the government is doing to keep us safe
and whether we have the right to know
that we're being watched.
>> Some of the complexity about the question, of course,
is due to time, place and comparison.
Safe compared to where, safe compared to when.
Some of the complexity is due
to the difference between the perception and emotion,
you know,
what fear we have about our securit y
and the physical reality of just how safe we are.
Some things may in fact be quite safe, but we're fearful of them.
We all know many people who don't like to fly,
yet they have no problem driving to the airport,
which is a much more dangerous kind of activity.
And, of course, we'll be talking about these, I hope,
the trade-offs that inevitably exist
between safety and liberty.
Trade-offs really relating to the kind of societ y
that we want to live in.
We might be a lot safer in the physical sense, of course, if we
had armed guards at every corner in every school yard
and metal detectors at every entrance
and cameras everywhere
and all of our communications intercepted.
But I don't think any of us would want to live
in a society like that.
But there are those trade-offs and I think at different times
we as a country come to different points
on that spectrum.
Congress has taken many steps in the last decade
relating to this question.
The Patriot Act, foreign intelligence,
the Surveillance Act, the Protect America Act,
others, many others.
The Department of Homeland Security is a decade old.
So I wonder if you can just start by telling us
how well you think they have worked
and whether they've made us safer.
Do we have the right overall strategy for this challenge?
>> Actually, Congress's role in crafting some security measures
that have made us safer is a good one.
Some of you may be stunned to hear this,
but I actually believe it.
I'm totally objective since I played a major role in this.
But I was there on 9/11 walking toward the Capitol
of the United States when I got news
about the two planes hitting the Trade Towers,
and guess what Congress did?
We closed the Capitol and evacuated all the buildings.
Huge mistake on a day when America was so vulnerable,
we thought about protecting ourselves first.
That was a bad story.
Later that day, the buildings were reopened,
we stood hand in hand--
this really happened, you can check it out--
and sang "God Bless America."
But since then, Congress by and large
has played a pretty constructive role here.
The reason that Mike McConnell
was the director of national intelligence is that Congress
reorganized our intelligence community in 2004, and created
this office which is a joint command
over 16 intelligence agencies,
the point of which was to try to improve
the way we do intelligence so we could connect the dots.
And the DNI's responsibility is to do that,
is to leverage the strength of different intelligence agencies
and build one, hopefully, accurate picture
of what our future and what the threats against America are.
So that was positive, I believe,
and intelligence reform is a work in progress.
But I think as we go through the years,
current director Jim Clapper is doing a very good job.
Of course I serve on his advisory committee
so again I'm totally objective.
But by and large that's worked well.
We also insisted that one of the programs
that's now fully disclosed,
this Terrorist Surveillance Program,
which was first implemented by the Bush administration
outside of the law,
the Foreign Intelligence Surveillance Act,
be brought under FISA
and FISA was amended in 2008, Congress was
involved, to create safeguards around how this law works.
Some of you may disagree with it, and I think we should
have a public debate about whether we need this kind
of collection of meta data
both for telephone calls and e-mails
and other forms of communication.
But I believe something that's now been disclosed,
which is that this collection of stuff
has thwarted a large number of attacks against our country.
When you look at it, at least the way I add, there have been
five small-scale attacks that have had some foreign nexus.
The Boston bomber episode might go in that package.
But there have been 53 or more that have been thwarted.
So I think that works pretty well.
But finally, let me say this:
there is no such thing as 100% security.
It is impossible, and every one should understand this
and become more resilient, the way the Israelis are.
>> Mike, from an executive branch perspective, I'd like you
to tell us generally how you think how well we are prepared
to deal with acts of domestic terror.
In Boston there seemed to be a great degree of coordination,
cooperation and good communication among federal,
state and local officials.
Better than it might have been earlier.
But from an overall perspective,
how well do you think we are doing?
>> For our defense or protection
against domestic terrorism, I think we're significantly better
than we were when 9/11 occurred.
Much better at sharing information,
cooperation and so on.
The laws that Jane mentioned have had dramatic impact.
Now, I have a particular point of view about living inside
the executive branch, where authorities and responsibilities
overlap or touch.
It generates friction, and there tends to be a lack
of information sharing and so on.
A lot of these laws put in place require you to do that.
So, the way I would answer the question is, Are we safe?
We are safer.
Are we absolutely safe?
No.
I think the marathon bombing would highlight that.
The challenge for those in the portion of the contribution
that I grew up in, is to morph and to change
and to prepare for next.
There's an old saying in the militar y
that "Every general is preparing to fight the last war
but not the next war."
And that's true generally of bureaucracies.
So the challenge for our community,
and I think with the Congress creating the office
of the Director of National Intelligence,
you don't have allegiance to a particular agency.
You're supposed to be looking over the horizon
trying to determine what's next.
>> Is it possible that the so-called war on terror
has actually made us feel less safe than we should feel?
And might it be, you know, as I said, 12 years after 9/11,
ten years after Homeland Security Department,
that we think of domestic terrorism
the way we think of crime?
I mean, no one expects the police to stop all of crime.
And as you said too, I mean two guys with access to the Internet
and, you know, poisonous ideas were able to create mayhem.
So what about this war on terror?
Is that the right way to look at domestic violence,
mass violence, indiscriminate violence?
>> As you know and I know,
because we've both written on this topic,
we may have different points of view from many people
in the audience here.
Seven years ago I wrote a cover story in The Atlantic arguing
it was time to declare an end to the war on terror
and declare victory.
That we were being distorted too much
by thinking about terrorism too much.
There were ways to deal with the absolute level of threat
without all the sort of corresponding problems
that we are creating for ourselves.
I was thinking of two anecdotal illustrations.
There's no objective way to talk about
whether you're safe or not.
One of the things I do in my line of work is get proposals
for magazine articles, or book blurbs, whatever.
Somebody sent me a proposal this morning for a new book
about how to make people feel calmer
about taking commercial airline flights.
And the introduction said, "While statistics show
"that the risks of dying on a commercial flight
"is like one in 63 billion, that's not enough
for cognitive safety among many people."
So there's nothing you can feel really safe about.
But I would argue that a principle that all students of
terrorism over the decades and centuries have observed which is
the damage is not the attack, it's the reaction it provokes.
We found ways to make that-- we have walked into that
by magnifying the effect of terrorism, magnifying the fear
we feel internally.
Certainly that the classic example for here,
this is the assassination that touched off World War I.
One person was able to kill 20 million people
with the reaction he provoked.
I would argue that even the 9/11 attacks,
which were a hideous act of destruction on our land,
were more damaging to the United States to the reaction
than the event itself--
the reaction of the subsequent ten years of warfare
that we decided to undertake.
So therefore I think the task of becoming resilient,
as my favorite congressman from California
Jane Harman said, is that that involves deciding
to dampen down and minimize
the attacks that will continue to occur.
I think the news media have been guilty of ramping everything up
and the political establishment has been too.
So if the news media and political establishment
could thicken our skin.
People are going to be killed in car crashes while we're here,
they'll be killed in murders while we're here,
we're not going to talk about them.
Somebody will be killed in a terrorist attack
in the next year, and we should not go crazy about it.
>> We'll come back to that.
>> Could I just add one thing to that and that is
I thought our reaction to the Boston marathon bombing
was excellent.
Country, you deserve credit for that.
It was wall-to-wall on TV for days, and all communities
in the country didn't go into lockdown.
And the search for these guys was done competentl y
and appropriatel y
by an integrated group of law enforcement
which had practiced for this--
unfortunately didn't prevent it but practiced for the response.
So I think we are becoming more resilient.
One last comment on this-- the war on terror
has always been a misnomer.
Terror is a tactic, it's not an enemy.
And that phrase has inflamed the Muslim community.
Not all terrorists are Muslim, in case anyone missed it.
But that's how they hear it, which generates a response
that creates more terror.
So we need to think about this.
And we should never have used it.
>> Let's just stay on that, about inflaming.
You just gave some pretty good grades
to some policies of the government.
Is it possible that some of our policies do more
to recruit terrorists than stop them?
Drones, Guantanamo Bay, pick anyone you like.
>> Yeah, we're generating attacks than we are
taking steps to stop them.
That was a Rumsfeld question.
I think sometimes the answer to that is yes.
The tactics we're using, to my mind, have a place in a tool box
against terror attacks.
But we haven't explained the strateg y
of when we're going to use them
and what we stand for effectively.
And so some people think our foreign policy is drone attacks.
If they think that, whether they live in the U.S.
or they live in Somalia or they live in some outskirt
of some place in Yemen, they form an impression of us
which generates more terrorists.
>> Jim, I ought to come back to you as you talked about
the responsibility of the media and leaders.
I want to talk about a different aspect
about the responsibility of the media.
And that is what the responsibility is, if at all,
to keep national security information secret,
when leakers hand it to you on a silver platter.
I wonder would The Atlantic have published as The Guardian did.
>> Let me first explain the general approach
and then the specific case.
Whenever there is classified or sensitive information
that as a journalist you receive,
there's always a trade-off that's involved here.
Let's use one extreme: suppose somebody gave you
information about the Osama bin Laden raid.
24 hours before it happened, six hours before it happened.
The harm you could do by publishing that information
you would know would vastly outweigh
the good you might do with transparency.
Because there is always this harm
if they're real-time operations
and so every test case in the ethics classes for journalism--
yes, they exist--
involves who are you hurting by publishing this information?
So we do recognize that there is harm to somebod y
when you're revealing secrets.
Usually things are secret for some kind of reason--
maybe a bogus reason, but there's some reason
why it originally was secret.
On the other end of the spectrum,
you have things where you think
there's some public value by making the information known.
When I was still in college
working on the college newspaper,
there was a guy who showed up hanging around
with the students
in the upstairs loft of the newspaper room.
And he had this gigantic stack of papers
that he wanted help photocopying
because it was a big problem to do.
That was Daniel Ellsberg.
The government at that time was dead set
against him having the Pentagon papers.
You recall the Supreme Court case.
But it seemed to me then and now that the benefit
in making that information known far outweighed the damage
to ongoing operations in Vietnam
or whatever the Vietnamese and the Soviets or Chinese
might know about U.S. intentions.
My view, which I suspect my friend Mike McConnell might
disagree with, is that there was enough benefit
in public recognition, public debate about these programs
to justify some publication.
So I'm agnostic about the person himself
who seems to be a very weird person.
I stipulate there may be real damage from some of this.
My perspective is there is benefit
to the public in knowing these programs are going on.
>> Mike will not be surprised that I am going
to follow up on this.
>> Can I just respond? >> Please.
>> Let me use a historical example
to make my case here.
In World War II, we were breaking Nazi Germany codes
and reading the orders to the field commanders
before the German field commanders.
Now the historians have written about this and they've indicated
it probably shortened global conflict anywhere from 18 months
to two years.
So now I would challenge a journalist to sa y
if you had that information, in the interest of transparency,
would you have made it public?
>> Could I just add one thing to make it, I mean I think that
the question is, who decides?
>> Right.
>> Not everything that we classify should be classified.
The executive branch has overclassified forever.
The reasons you classify, the only reasons you should classif y
are to protect sources and methods.
Therefore if that really happens.
And classified material leaks, people die and our capabilit y
going forward is compromised.
That's what classification is for.
Obviously it's broadly used to protect turf,
to protect people from embarrassment
and that's a problem we have to solve.
But I would just put something out there before Jim answers
and that is it leaked that Osama bin Laden,
about 10 years before we got him,
was using an Intelsat phone.
So, it was published that he was using a cell phone
that we were able to track.
What did he do?
He stopped using cell phones and started using couriers.
And nobody has missed how long it took
to find the guy through the chain of couriers.
So we lost a lot of capability.
I feel the same way about the Stuxnet virus,
won't disclose who was doing that,
but it's certainly been in the press that that happened.
I think that has compromised our capability to interfere
and slow down the development of nuclear weapons
by countries that I believe threaten our allies and us,
so, bad that that's been in the press and on this leak,
again, it was in the press seven years ago.
These programs, all the folks are saying, "I'm shocked,
I didn't know, I didn't know."
This was in the press in 2005 and 2006
and it caused Congress,
that was when it occurred to some of us
that the administration wasn't following FISA,
to amend FISA to bring all of this stuff
under strict safeguards
with the federal court reviewing this stuff,
and Congress being more fully informed.
>> Do you want to comment before I go back to Mike?
>> I will comment on three brief planes.
Point one, I certainly agree with Mike's proposition,
there are times when there... of operational sensitivity.
Of course the press in most nations will recognize
the importance of guarding information.
World War II, you know,
I'm sure there are people in the press in both U.S. and UK
who understood the Coventry bombing, where Churchill
allowed Coventry to be bombed rather than reveal
they had broken the German code.
Same with Yamamoto and his codes with Japan.
I wrote a book called "breaking the news" in which one part was
about whether an American news unit in Vietnam
that saw an American platoon about to be ambushed,
would they have any duty to warn them or not?
I think even in the press, we recognize this.
Point two would be to say yes,
when it comes to information surveillance.
We recognize the concept with Stuxnet, with Osama bin Laden
that changed behavior.
I think the belief in the press is that most of these leaks
actually come, they are usually voluntarily given
either by executive branch or legislative branch people.
That said, you probably know too.
Now we come to the instant case of this guy Snowden
whose motives we don't know.
So the harm is knowledge
the information broadly is being collected
more than many people recognize.
It seemed to me that every spy movie, spy thriller
and documentary in the past ten years
has turned on this basic plot point.
You don't use cell phones.
Osama bin Laden lived in a compound because they knew
something like this was happening and yet the public
wasn't debating the actual programs because the y
weren't brought to attention.
The president has said it's good we're having this debate.
We wouldn't have it without this episode.
>> Let me just go back to Mike.
Obviously I know you can't talk about
the Snowden investigation itself but what about the debate
that his actions have sparked about security and privacy?
Where do you think that will take us as a nation,
and might there be changes coming from this debate
that are actually good?
>> Let me answer by saying I think debate is good.
Let me give you a simplistic way I think about this.
I'm going to go
to the Constitution of the United States, three articles.
Only three articles of the Constitution.
First is the Congress.
Two basic jobs.
Raise money, appropriate money, and tell us how we can spend it.
That's the basic job of Congress.
Article 2 is the president.
First responsibility is to protect the United States,
its interests, citizens and allies.
The third article is for the judicial branch.
So when I was asked to come back as DNI,
probably no one would be aware in this room,
I tried to amend FISA as the director
of the National Security Agency in 1992.
Now, the reason I did is because the guy I relieved
tried to revive it and improve it in 1988
because it was out of date.
Technology had passed it by.
It was tried a couple of other times.
So when I came in to the government,
I had knowledge that we have to change this law.
Here's the circumstance.
A terrorist in Pakistan-- this is real--
a terrorist in Pakistan
coordinating with a terrorist in Turkey,
to blow up a U.S. facility in Germany,
foreigner to a foreigner, to a place in a foreign countr y
where the only place my community had access
was in the United States.
And the reason is most communications flow
through the United States.
The law said I had to have a warrant.
Those terrorists have 100 e-mail accounts,
they move around, they change.
So if I get a warrant, that takes time,
it takes people off the job to write up the warrant.
So what I pleaded with the Congress to do,
which my colleague here helped me do,
was let's change the law to sa y
as long as we're collecting foreign intelligence,
it's appropriate regardless of where or how we intercept it.
That was the basic change in FISA.
>> Booz Allen Hamilton has become an example,
in part through this,
for the government outsourcing of security functions.
And part of the Snowden debate is about
whether that's a good idea.
Obviously you support the work Booz Allen does in this area
and I just wonder if you think
the country should support that work.
>> My belief is when I look out at the Department of Defense
having served there for 30 years,
we're the best in the world.
We are the best in the world.
We can go anywhere and accomplish
just about any mission.
Everything we use is made in the private sector.
Ships, airplanes, submarines, ammunition,
that's all manufactured in the private sector.
So there's some element of bringing the best and brightest
of the free market innovation, creativity, new ideas
in to equip those of us in the militar y
or whatever function we have in government,
to carry out our duties in the most productive way.
The way I think about it, if you take away the abilit y
of the government to harness the private sector,
it would do serious harm to our collective interest.
>> Let me ask one other question relating to this,
which you may or may not be able to answer,
and that's the simple one is
how the people at Booz Allen Hamilton feel
about Snowden having been a fellow employee.
>> Let me just say that if you will read
General Alexander's description of the harm and how he feels
about what he calls a traitor, at least those that I talked to
in my company reflect a similar point of view.
Remember what Alexander said.
This has caused irrevocable harm
to our ability to protect the country.
>> Jane, I want to come back.
I think it was Mike who said how we're fighting,
sometimes we fight the last war, and I wonder
if you think we focus disproportionatel y
on aviation security since 9/11 fighting
the proverbial last war.
By contrast, we're talking about how safe we are.
How safe are we, by way of contrast,
at our seaports, mass transit, stations, stadiums, theaters,
soft targets?
Are we still fighting the last war as we go through
all those screens at the airports?
>> The TSA process is analog, you all know that
and those little boxes are sometimes ridiculous.
But aviation is a place that al-Qaeda has said historicall y
over the years and still says it wants to attack.
So I do see aviation as a vulnerabilit y
and we have made it much much safer.
We have layered security at airports, and again, some of it
you don't see and I'm not going to tell you what it is
because you shouldn't see it.
But there are many different things you have to go through
to get on an airplane including
having your name in advance go through a database
which, if we do the database right
and sometimes we don't,
should at least require you to go through
some kind of secondary check.
So I am for aviation security and I again think
the TSA model should be revised.
We should talk to our friends the Israelis,
who do a much better job of screening passengers
without all that stuff.
On the other areas, we have done a much better job
of maritime security.
Congress passed a law which I coauthored a few years back
which again, requires layered security at ports of entry,
especially for goods.
I mean, think about dirty bombs coming in through ports.
There are not only sensors now-- which are a mixed bag,
because they have false positives--
but at the point of embarkation
the stuff in containers is checked,
and there are all kinds of ways those containers are secured
on the high seas.
So, it would be very hard but not impossible
for people to get bad stuff into our country.
So we're doing better there.
We're doing better on borders.
Well, again, I think, I've been watching this debate
on immigration.
I don't think building a fence
across the southern border
is going to make us safer from terrorists.
Most of them have not tried to enter that way.
The few that have entered our country through borders
have come in more from Canada than Mexico.
But hey, I guess it gets votes at home, or something.
>> Almost all terrorist type events here have been
one-off, lone-wolf, angry person with unlimited
and easy access to incredibly high powered explosives,
guns, unlimited ammunition,
untraceable, and it seems to me a lot of the conversation and
a lot of the animation that's going on about maintaining the
war on terror in our country is coming from the very same people
in Congress who are focused on maintaining the status quo
in terms of people having access to those guns,
weapons of mass destruction
at a time when the state- sponsored terror since 9/11
essentially has not been an issue.
So it's sort of a spin-off on the fighting the last war thing,
but I was just wondering, I mean,
Gabby Giffords is going to be here.
She's my congresswoman and I was on my way to see her
the day she was shot and six people were killed in Tucson.
This was a kid who went into a Wal-Mart, bought a gun
and multicapacity magazine like he was a buying a Snickers
and walked right up and shot a whole bunch of people
before anyone, even if they had a gun,
could have done anything about it.
So I would like to get your reaction to that,
and why are we talking about this
when this no longer seems to be the main problem right now.
>> Well, I think they are both huge problems.
And I used to, I had an F-minus rating from the NRA
as a member of Congress.
It's the only F-minus I ever got in my life.
(applause)
And I think easy access to guns and explosives is a bad thing.
Fortunately, the explosives part is being reduced.
It's very hard to buy the right kind of explosives to build
a fertilizer bomb like Timothy McVeigh used in the last centur y
to take down an office building in Oklahoma.
But the guns piece is absolutely right
and there are lots of people who are self-radicalized
who are not Muslims, some of them are Muslim,
but they are radicalized for other reasons or they're nuts,
who can walk into any place and shoot it up.
And that is, to me, completely unacceptable
and it was a tragedy when Congress punted
on the easiest piece of legislation it could have passed
to reduce gun violence.
We don't need to talk about gun control,
which scares people to death.
I'm not against talking about it.
But reducing gun violence does require, it seems to me,
having a database of people who shouldn't own guns.
>> One thing I also was going to ask
that we haven't talked about,
the risk of bio terrorism, loose nukes, these other potentiall y
catastrophic things.
Should those be keeping us up at night?
We're trying to find ways to sleep better.
But should they be?
>> Well, back to my comment about fighting the last war,
not the next war.
Those of us in the community spent a lot of our time
worried about extremist groups making efforts
to get biochemical or nuclear weapons.
You add cyber to that,
you can say, instead of "weapons of mass destruction,"
maybe "weapons of mass disruption,"
but there's a concerted effort to see it, understand it,
track it, have some awareness of it,
but it's not something that's been used in a demonstrable wa y
that people can react to it other than what's been
released in Syria apparently at some limited level.
But that is a huge, huge problem.
With the right kind of bioweapon, you could do
significant damage.
>> Communities practice for this.
That's the good news.
And there are quarantine practices that most communities,
first responders in communities would know how to deplo y
in the event of some of this stuff.
Most people, well, believe that it would be hard to mount
a large-scale bio attack.
But it's certainly not impossible.
It's also possible to make dirty bombs from materials
already in the United States.
Let's understand it's not just catching nuclear materials
outside and I'm not going to make some suggestions
of what somebody could do because I don't want to put
any good ideas out there for bad guys.
>> We're out of time.
>> But okay, we're out of time.
>> To do that ...
>> The last point is, a lot of this in terms
of putting vaccines in appropriate places,
vaccinating people against things that could happen,
then comes the question of immunit y
in case something goes wrong
and Congress has punted every time it has considered
legislation that would protect those trying to protect us
in advance of possible attacks.
So if we're closing on a really cheery note,
the United States Congress,
I would like people to think it has done
a lot of things after 9/11 right,
but there's a huge unfinished agenda.
It's up to all of you
to bug your members of Congress mercilessl y
to solve these problems rather than just point fingers.
>> Mike, please.
>> You're living in the safest nation on earth,
the safest nation in the history of the world.
And the reason it works is because a dialogue like this
in citizens who vote
who make those congressmen do the right stuff.
And so engagement and dialogue is how we say where we are
with the right values and a shining example
to the rest of the world.
>> The question of privacy versus safety is one that went
all the way to the U.S. Supreme Court this year.
And speakers of the 2013 ideas festival included
Supreme Court Justices Stephen Breyer and Elena Kagan.
Justice Kagan talked about the court's recent decisions
with law professor Jeffrey Rosen.
>> The question is can the police bring a dog
onto your front porch without consent
and have it alert to drugs and then go in your house
without a warrant.
Justice Scalia said no, because it's a trespass.
Your porch is part of your private property.
But you wrote a separate concurrence.
First of all, you have this amazing wa y
of seizing the audience's attention
by speaking directly to us, and you said something like,
"Imagine the dog comes on to your front porch.
"Would you think that was a trespass?
"Yes, you would.
"And would you think that was an invasion of your privacy?
Yes, you would think that too," you said.
You sort of grabbed our attention that way.
Tell us what it was that you thought needed to be said,
in addition about why in an electronic age
privacy has to be protected not just by property rights
but also by expectations of privacy.
>> Yeah, it's interesting you said "in an electronic age."
In a way, this was a very old school kind of case.
It was about dog sniffing,
which is a kind of law enforcement technique
that has existed for many decades.
But at the same time, it's really quite connected
to a lot of the newer Fourth Amendment issues
that we have started to deal with
and that we're going to continue to be dealing with.
This is going to be, I think, a growth industry for the court.
The next decade I think we're going to have
many of these cases.
And there was a lot of similarit y
between this case about the dog coming up
to your front porch and sniffing,
and a case that we had last year which was about GPS,
the use of GPS surveillance.
And there, the police officer had put
like a card on a car and then had been able to track
the movements of that car
every minute of every day for weeks and weeks and weeks.
And the question was very much the same.
Could the police do that
without any kind of warrant, without even probable cause?
In both cases, Justice Scalia wrote and talked about
property interests,
and even as to the car, said, when you put something on a car,
it's a form of trespass,
even though most of us wouldn't consider it as such.
And the purpose of my concurrence really was to say,
you know, property is part of what... invasion of propert y
is part of what makes for a Fourth Amendment violation.
It's not only about privacy,
it is about expectations of privacy more generally.
So that it wouldn't matter, for example,
whether you actually put something on the car
and committed a formal trespass,
or whether you could do the exact same thing
with techniques that didn't involve a trespass on property.
And this is not a new concept.
This goes back to Louis Brandeis,
who looked at wiretapping and said,
"Look at this, you can do wiretapping
without invading anybody's property interests."
But you get the same thing, you invade privacy and you invade,
you know, what makes... the prerogatives of a person
over their own stuff in the same way.
>> Next up, we'll hear more from Professor Rosen as he debates
fellow law professor Tim Wu on this question:
Is privacy paramount,
or should we live in a transparent society?
>> This is the perfect time to have this debate.
The degree of public surveillance these days
seems to be unprecedented.
There are CCTV cameras,
sensors collecting location information
on smart phones and other sorts of devices,
and even future surveillance by flying drones
or the Internet of things
where your dishwasher will be able to tell
whether you sent them a communication
and relay that back.
And we may soon be at a point
where all of our public movements
are recorded and stored.
Is this a good or bad thing?
Should we have any expectations of privacy in public places?
Do we need to buy what today's New York Times fashion section
called "stealth-wear" to be able to evade detection?
>> Well, first of all, I'm delighted to be here
debating my old friend, Tim Wu,
and I'm especially delighted to be
on the pro-privacy side of this debate.
Because, ladies and gentlemen, I am determined to convince you
that of course, we have some expectation of privac y
in public places and to the degree that Tim says otherwise,
he is unconvincing.
(laughter)
So you described some of the surveillance technologies
that we're now facing.
Flying drones that could track us from door to door.
Soon, Google Glass will record our conversations
and we'll have to decide ahead of time
whether a particular encounter is on or off the record
as well as existing camera footage
from publicly and privately owned cameras or smart phones.
I was at a conference at Google just a few years ago, 2007,
and the head of public policy said he imagined very soon,
Google and Facebook will be asked to unite
all of these surveillance feeds, and to archive and store them
and put them live on-line.
If Google and Facebook did this,
then you could zoom on a picture of anyone in the world,
say me, back-click on me to see where I was coming,
in this case lunch in town,
forward-click to see where I'm going after the panel,
and basically have 24/7 ubiquitous surveillance
of anyone at all times.
Would this violate my Fourth Amendment rights
against unreasonable searches and seizures of my person
and electronic effects?
Of course it would! How could it not?
>> It's my turn and it's also a pleasure to be here
with my longstanding friend, Jeff Rosen,
who I've seen wear many hats but not a tin foil one before.
(laughter)
So this is the first time I've seen that.
I just want to make a few points.
Now, one of the things that's sort of lacking
from this whole discussion
is that a lot of what you're referring to
as surveillance is actually things
that people have voluntarily gotten into.
You're talking about Google and Facebook and so forth.
You know, people have evidently chosen
to sign up for Facebook and tell everyone about themselves
because they think that's what they want to do
to maintain their friends and family relationships.
People sign up for Gmail, because Gmail gives us
enormous free e-mail service which the people seem to like.
And so a lot of what you're talking about
is actually the actions of independent citizens
who have decided what to do.
And you're sort of trying to impose on that and saying
these are going beyond what people should do,
which is paternalistic.
I think people can choose for themselves whether or not...
you're not a paternalistic person,
so I don't know why you would want
to have people choose themselves.
The way I've done research for this panel
is have gone to many of the parties here.
And I talked to people about their preferences
and the only thing you can really say that is true
about privacy is that people vary dramatically,
vary dramatically in what their privacy preferences are.
There was a gentleman who shall go by the name of Rex
to protect his privacy.
He said to me, "I don't care
"if everyone knows who I sleep with, what kind of drugs I take.
"Why should the government be interested in that?
"They don't care, they can know whatever they want.
"I really don't care.
It's not going to affect my career; I don't care."
So that's sort of one extreme.
So anyone can know anything they want.
"I don't want my girlfriend to find it out."
This is his opinion.
There are people like that.
There are other people whose position is very clearl y
that they don't want anything known.
They want a very strong sphere of privacy for themselves.
I think that's right.
What I'm trying to suggest is we need a framework
where Americans can choose for themselves
the kind of privacy they want as opposed
to sort of a one-size-fits-all solution-- we need to have
very tight bands on how much surveillance is allowed.
There needs to be this power in public spaces
to have more surveillance, as long as we maintain
a private space as well.
And what Jeffrey hasn't talked about is the fact that
even though he's worried about all this public stuff,
we have maintained this private space inside your house
where you're free to take off your clothes and dance around
or do whatever you want.
Being... trying to...
(chuckles)
Whatever you want you can do in that private space.
In the public space, you should understand that as a society,
we have certain public demands that demand
that we will have greatly diminished privac y
in the public space.
So that is a trade-off.
The decisions you're talking about like the tracker decision,
the justices actually did say that was a violation of privacy.
The Supreme Court is in the process of trying to adjust
this line between public and private at all times.
So we have a system that is more or less working,
so I don't see what you're complaining about.
>> Can I have a minute to respond?
>> Sure. >> Sure.
>> Let's make sure the issue is joined.
The position you just heard
is that whenever you go out in public,
it is permissible for the government,
not the private sector, to, say, take a drone
and put it on you and track you 24/7
from door to door for a month.
That is the position Tim Wu has raised,
and he's claimed it's paternalistic
to stop you from doing that, because you voluntarily do that
because you turn over your e-mail to Facebook.
I would like to just start this debate
with a constitutional vote, just a show of hands.
Who agrees with Tim Wu?
(all talking at same time)
>> In fairness, I think we should draw a line here.
>> Hold on one second.
The line may be between comprehensive tracking
of an individual and incidental capture of information
through a surveillance camera or otherwise.
If you think about the London Underground, for example,
the after IRA terrorism in the 1970s and early 1980s,
the London Underground decided to put
surveillance cameras in every station.
They proved to be very useful
after an al-Qaeda terrorist attack in London.
And the cameras are visible.
It's not the sort of thing that comprehensively tracks people,
but it take photos in places where there are
particular security risks.
Do you agree that that's a reasonable limitation
on your right to be private in public spaces?
>> I will answer that question as soon as I get an answer
to the one that I raised.
(laughter)
We're not talking about targeted surveillance,
which raises other questions I'll talk about in a moment.
Tim made the claim; he said it was paternalistic
to prevent any comprehensive tracking in public places.
>> That's not exactly what I said.
I said that when you have excessive rules
on private companies and their collection of information,
that those end up being paternalistic,
when Americans have very different preferences
on how much information they want to share.
>> Okay, if you don't embrace it,
I want to see if anyone in the audience does.
Just to make sure what the parameters of debate are.
Who agrees with the proposition
that the government should be able to take a drone
and follow you without suspicion door to door
in all of your movements in public spaces, 24/7 for a month?
>> Your own private drone.
>> I'm asking the question.
Who thinks that would be consistent with the Constitution
and the Fourth Amendment?
I see two hands.
And who thinks it would be inconsistent
with the Constitution and the Fourth Amendment?
Tim?
>> Well, if you want to boil everything down
to a specific case, this is what I think is the real problem
with this debate.
Is once you put the case, like for example,
should we have CCTV cameras which are running,
but not being viewed by anybody.
Then those are used to find the Boston bombers.
Who thinks that was unconstitutional?
For that particular case to analyze that data
to look for the Boston bombers.
Does anyone think that was unconstitutional use
of the government's power?
>> Depends on where the cameras were.
>> The camera's in the public. Cameras are in public.
They're on the streets and they are panning and collecting data
all the time, which is sort of like your little drone.
Basically, what everyone in the audience is...
This is insulting the audience,
but you're in an inconsistent position.
Because you already are in that world when you're walking around
and the cameras are collecting information.
So it all tends to depend
on what you think are the specifics of the situation.
>> I think it's helpful that we start this
with a consensus in this room, and I think from Tim as well,
that ubiquitous month-long surveillance
without limits and without suspicion
would and should violate the Fourth Amendment.
>> What I'm trying to suggest is that when you...
Our answers are somewhat inconsistent
because everyone put up their hands and said
they find that it's unconstitutional.
Nonetheless,
presented, for example, with the Boston bombing,
and the fact that we know there's cameras
It's not quite a drone.
on all the streets, so in fact there is...
The drone makes it sound a lot scarier.
But there are these little cameras that are panning forth.
So you're already in that world.
And then faced with an actual case
where there was people killed, real criminals involved,
everyone's all of a sudden, "Well, of course, in that case
that seems completely reasonable."
So it all comes down-- and this is maybe where the details--
to the specificity of what's going on.
So if you're walking out of your house
and you have your imaginary drone,
but we also know that you're the head
of a criminal organization
or that you are a terrorist planning an attack,
and we have specific information about that,
and it's the same situation we're monitoring him
to try and find out where he's going to meet
his other contacts so that they'll design their plan,
how many people think that would be unconstitutional
to use that data?
A few people.
With a warrant, I'm talking about with a warrant.
I'm saying with a warrant.
And that's what it comes down to.
It comes down to what we're talking about.
>> If that's all we're talking about, then we have no debate.
(laughter)
Justice Scalia, in his wonderful dissent in the DNA case...
>> I overstated, you're right.
You're right, it has to be without a warrant.
>> Yes.
So then the question is do you have to have a warrant?
That's an important debate to have.
Do you have to have... but even without a warrant,
you have some degree of individualized suspicion.
You're not doing mass dataveillance of anyone;
you have a particular suspect.
So, I would say, about the Boston bombing...
Your intuition, "Were the cameras public or private?"
is important.
And in fact they were private.
It was a Lord & Taylor surveillance camera
as well as iPhone footage
voluntarily submitted by citizens.
There's something far less violative
of the Fourth Amendment
which after all only binds the government
and not private individuals
when private footage is aggregated.
>> We are in an area
where all the boundaries seem to be shifting.
And when the Fourth Amendment was written,
it was relatively clear what a home is
and where its boundaries ended.
So you could support this relatively clear boundary.
I don't know if I have an answer for every single question
in these areas.
I do believe sometimes when you...
I believe in some instances,
you are definitely projecting out, you know,
if you have, for example, a blog post, you have no expectation
in the blog post on how it's private.
You put it on the Web, everyone can read it.
And then at the other end, I happen to think--
the Justice Department disagrees with me--
that people's e-mails even stored on servers
is still their private stuff,
still part of what I consider their home.
>> You know it's true, the Fourth Amendment does require
a judgment about reasonableness
and reasonableness reflects norms.
But it is not true that the public is indifferent
to mass national security surveillance.
What was the one example of a case where the public rose up
in outrage against a surveillance technology?
This was the choice between the naked machine
and the blob machine.
I love this story because it just shows
what the future of surveillance may be.
So right after 9/11, the government is presented
with two screening technologies:
the naked machine that shows contraband and plastics
under your body but also those graphic, creepy, skeletal images
of the naked body;
and the blob machine,
which has the friendly sort of avatar with a baseball cap
and a little thing that points to the place on your bod y
that needs secondary screening.
You'd think given this choice
between two screening technologies
both equally effective-- one is a privacy Chernobyl,
and the other protects privacy and security at the same time,
that the government would choose the blob machine.
In fact, both the Bush and Obama Administration
chose the naked machine over the blob machine.
And it took a political protest, namely that immortal cr y
by the Patrick Henry of the anti-body scanner movement.
That guy who at the airport so memorably exclaimed:
"Don't touch my junk!"
That guy created a mass protest
and then the Obama Administration went back
to the drawing board and they were shocked to discover
they could in fact retrofit all of the naked machines
as blob machines
and I'm now pleased to report that most of the naked machines
have been shunted off to distant airports--
maybe, I hope they're still not left at Aspen-- a few here.
But in the big cities we now have blob machines
and not naked machines.
That for me just sums up both the promises and pitfalls
of this debate we're having now.
In almost all of the technology we're talking about--
surveillance cameras, mass dataveillance for NSA screening,
security screening--
you can design the technologies in ways that protect privac y
and security at the same time.
It just takes legal constraints,
technological will and ultimately Tim is right,
a political commitment to insisting
on the privacy protective technology.
And we'll see about NSA surveillance.
I think the moment
that some celebrity has their search terms revealed
and leaked by accident, which is going to happen,
there will be an uproar.
>> I disagree.
I think we're in a moment,
and I've even been surprised myself,
where we're looking at what is reasonable
and maybe because people have been conditioned
through Facebook and Google, or maybe because
someone always has an uncle or aunt taking pictures
every five minutes and filming everything,
but people have sort of gotten used to this
and don't find it so unreasonable
especially at a metadata level.
If that's the case, if the sort of metadata--
not the particularized but the more blobby type of information
people feel okay with, we may be seeing a changing moment
in the Fourth Amendment.
>> Until the Obama administration,
moved by the disclosures in these news reports last month
began to put out... I should say the NSA
began to put out information about privacy safeguards,
which of course can't be confirmed, there really was
almost no discussion of the program, first of all,
and secondly of the safeguards.
Would your views on this program be changed
if there were a public set of safeguards that were issued?
Privacy safeguards,
safeguards against secondary use of information-- for example,
information about Americans' communication
with an illegal gambling site or a copyright infringement site
couldn't be used by the Department of Justice
for other purposes.
And if the privacy oversight was very clearly articulated,
could this become something
that, Jeff, you wouldn't be so excited about
and, Tim, that you would be more warm about?
>> The answer is yes, absolutely.
That's what I said in the last exchange...
>> Bear in mind that fundamental to this
is collecting information
from people, from communications from people
who are not suspected of any illegal activity.
That is the cornerstone of these NSA programs.
>> That's, I suppose, the most... the trickiest point.
You can certainly design a program
that focuses on suspected terrorists
that doesn't allow the government to share information
with law enforcement unless it finds evidence of terrorism,
that has minimization requirements,
that doesn't allow suspicion-less people
to be looked at.
Not that we trust the government, but I suppose
whether we trust the technology and legal constraints on it
enough to allow suspicion-less recording
and amassing of masses of data, because we're confident
that that data will only be examined by a human being
if there's some kind of suspicion.
Turns on the degree of our faith in technolog y
and our faith in the legal constraints.
>> Why do you say, "our faith in technology"?
You mean you think that it won't do
what it's supposed to be doing.
>> It can't be hacked, for example.
>> Oh, or you're saying that when you think
the NSA thinks it's spying on foreigners
it might be spying on Americans.
>> That's a separate question.
But just the broad question of whether we can tolerate
mass dataveillance
with the promise that no human being will examine
the data without a degree of individualized suspicion.
Look, you know more about the technolog y
and hack-ability of this than I do.
Would you be confident that that would actually remain...
>> Well, unfortunately, I do know more about it.
It does make me... things tend to come out now and then.
That is always something
that I think government needs to be careful about in these areas.
Even when we have this situation.
I think it's a really interesting question
as to whether you care if a robot is reading your stuff.
It's like a fundamental underlying thing
is when do you care?
This is something that's come up for all this NSA stuff is,
who do you care about reading?
It goes back to my friend Rex at the bar who only cares
if his girlfriend sees this stuff.
He doesn't care about government,
doesn't care about Google.
People have very different sensitivities.
>> Tim, think about all the people here who use Gmail.
A robot is reading all of your Gmails to produce advertising.
How many people are upset about that?
Would it make you be unwilling...
how many people who currently use Gmail,
now that you've really reflected on this,
are going to switch to another e-mail service provider?
>> It's so good, you get so much stuff, it's cool.
It's not cool, but um... sorry, go ahead.
>> You're right, it's uncool to say it's cool.
>> There's this really interesting question
at the heart of it,
but I think what we're examining now
is who do we care about reading your stuff?
As I said, robots read them all the time
and probably Google employees could
when they want to sort of glance over and see what's going on.
I don't know enough about the internal workings of Google.
They don't usually want to, they don't care, but they do.
And government... and then you have these sort of foreign,
these intelligence officials.
And in some ways an intelligence official, they only care
if you're interested in terrorism.
Generally speaking, they're interested in terrorism links,
so maybe you don't really care if the government is
reading all your stuff because they don't care
about anything you think salacious.
They just care about whether you're contacting
foreign elements; and maybe you do care.
I think it's a really interesting debate
as to who you really care reads your stuff.
This is the trade-off of contemporary living.
We live in an era where we're in a much more fragmented society,
and therefore face different types of threats.
I've said over and over, I've returned to my thesis,
this is why there's this phrase, "Get a room."
In other words, when you're in the public,
you're going to be making out in public,
there's a risk this is going to become known.
I think again we have to figure out what that border is.
But to say, you know, there can't be that border,
everything's sort of fuzzily defined,
just gives up too much from what we need to do in these times.
>> We are out of time, so last word to Jeff.
>> I just wonder whether we even need these public cameras
in an age when in Boston, thousands of feeds
were voluntarily surrendered by private cameras.
Justice Brandeis, my hero, the great hero of privacy,
was very big on the curse of bigness and the importance
of individual laboratories of democracy.
I think the idea of top-down CCTV cameras
is 20th-century technology.
If we are to have surveillance,
maybe it's best to come from private individuals
rather than the government.
>> On that note, thank you both
for a really provocative discussion.
>> The debate on privacy versus safet y
is just one of the many topics that inspired
lively conversations at the Aspen Ideas Festival this year.
You can see much more at aspenideas.org.
You can catch episodes of The Aspen Institute Presents
on worldchannel.org,
and you can join the conversation yourself
on Facebook and Twitter.
From the 2013 Aspen Ideas Festival,
I'm Jon Stewart.
Thanks for watching.