 Welcome to the day's second talk by Jeff Kosev from the Naval Academy on Hamilton's private key. Let's give a big hand to So thank you so much for having me here I'm really excited to be here to be talking about probably a different topic than is being covered at most of deaf Come but I promise you will see how it is relevant by the end of the Presentation and just a very bit a bit of background about me and what my interests are I'm a professor at the US Naval Academy's cyber science department and Later, okay, sorry about that. I actually am just getting over a cold in August which is kind of odd But so please let me know if you have any trouble hearing me So I'm a professor in the US Naval Department Naval Academy's cyber science department And we have created a cyber operations major graduated our first class of undergraduate cyber ops majors in 2016 It is now grown so that 10% of our rising sophomores at the entire Naval Academy are majoring in cyber operations So I'm really excited about that. I'm a lawyer by training and I teach the midshipman About cyber security law and policy So that's my background and before I get into the substance of this presentation I have to give the standard disclaimer that they always make me give What I say today is not the view of the government Naval Academy Department of Navy Who else Department of Defense? my family doesn't usually like to Go by what I say so Sometimes I don't I'll back away from what I say so it's but these are just my views so With that and you'll see why in a second I Want to talk today about the various debates about encryption and other privacy protective technologies and This has been going on obviously for decades, but it kind of got revived in the past few years with a few court cases and statements from law enforcement officials and I want to start off with the Proposition because I'm a lawyer I work with a lot of computer scientists and engineers, but I am not one I Try to be but I am not very good at it But I do I am a lawyer I make arguments for companies for individuals on cyber security matters And when I take a step back and look at the public debate About encryption and other privacy protective technologies. I frankly get really worried because I Am a strong believer in Encryption and other technologies that protect content identities metadata anonymity I Think that it is necessary for national security I work with a lot of folks from intelligence agencies and strong encryption is vital that said The debates and even the successes that the crypto community has had recently I Worry about their ability to endure Facing challenges that we might see in the future So what I want to do is come up with some ideas some other ways To sort of position the debate that might be able to succeed in the future And again what I'm going to talk about is just one of many arguments That could be made and I'm going to mention other ways that Other arguments in favor of encryption and other technologies But this is just one example one argument that I think is very specific to the United States But also I frankly believe has not been made nearly enough in this context so Just to sort of frame this in one of the more recent Series of debates obviously, I'm sure you all know very a lot about the recent apple versus FBI Both court debates and also in the public forum I've seen many I'm sure many of you saw former director Comey testifying In I think it was the Senate about the dangers of unbreakable encryption and there were a few There were a few court disputes about this the most common one or the most sort of Sighted one was the San Bernardino shooter Who after he died the government tried to get Apple to help? unlock his phone and it never resulted in a decision on the merits because The FBI was able to have a third-party help them access the phone There was a less high-profile case, but I think much more important that was going on in Brooklyn in 2016 and this was a drug dealer or suspected drug dealer had been arrested The DEA and FBI got a warrant to search his iPhone 5s I believe and there wasn't the issue of the auto wife after ten incorrect tries, but The FBI said that it was unable to get into the phone. So what the so they Saw this order from Apple and also just to say the alleged drug dealer said that he forgot his iPhone passcode Which I It's clever. Maybe true may not be but so What the FBI did was they went to the court and it goes to a magistrate judge and a magistrate judge is kind of The lowest level judge on the federal system. They're appointed for eight-year terms rather than for a life They're not confirmed by the Senate And he went to the or that be I went to this judge and sought an order under what's up here the all-ritz act And this was a lot changed a little bit in wording, but it was passed in 1789 signed into law by George Washington and What the government said was under this law? We have a warrant and now we need a writ basically an order Necessary or appropriate an aid of the court's jurisdiction and agreeable to the usages and principles of law And that means Apple needs to help us access this information. So that makes sense, right? you look at that and think that's what that means and They're actually These orders had been issued quite frequently But for the FBI is bad luck. They ended up Going in front of magistrate judge Ornstein in Brooklyn That was really unfortunate for them because judge Ornstein had some concerns about this and He actually forced the parties Apple and the federal government To go to court and argue about does the all-rich require this the all-ritz act require this Apple said no and The government said yes and judge Ornstein issued a 50-page opinion and I cannot stress the number of these requests that magistrate judges get every day is Overwhelming and so for him to issue a 50-page opinion on this means that he had strong feelings and I just excerpted some of it here. He used the He used the word absurd probably I don't even know how many times, but he basically said that The all-rich act was a gap filler statute But it was never intended to get the courts to basically order companies to do whatever the Courts or the federal government want and he pointed to something called Kalea, which I'm sure many of you are familiar with which was passed to require Telecommunication service providers like the phone companies to assist in the execution or to make their network susceptible to the execution of Wiretap orders and he's what he said is that Kalea does not cover Companies like Apple and they're specifically excluded So he said you know if Congress looked at one type of company and said they do have to insist Have to assist but did not with another type of company Then it would be stretching basically the separation of powers to say that the judiciary could read this into this law and There was an undertone in the statement that was basically saying you know This is an old law and encryption is a new or the Apple iPhones or a new thing And I'm not I'm not going to stretch it to this level And I have mixed feelings about his order on a policy level just in terms of what the outcome was I think it's a good idea But I also think that Invalidating a statue or invalidating the use of a statue because it's old Might not be the best way to go about things because we have a lot of old laws on the books The all-rich act is part of the judiciary act of 1789 Which created all of our federal courts other than the Supreme Court because the Supreme Court's the only Court that's required to exist under the Constitution Congress creates all the other courts I would never say well, you know, I don't think these courts are valid anymore because they're authorized under a new law But so I'm not sure about the reasoning I think there's been a lot of debate about what he did But let's just say that Judge Ornstein was right and that other courts would have in would adopt his reasoning We've got a problem here if we want to protect strong encryption For the long term and that's because what Judge Ornstein is saying is Congress didn't pass a law that allows this Congress could pass a law that Allows various restrictions on encryption on anonymity on privacy protective technologies And I know this sounds like a bit of a conspiracy theory For those of you who are of my age range, you probably remember what Congress did in 2001 Right after the devastating terrorist attacks they passed the Patriot Act with barely any opposition So for anyone to think that that a law could not be more restrictive I think we have to look back in history So that gets me thinking what are the defenses that would endure past a Congressional action on encryption What I always like to do is look at the Constitution. Is there a constitutional right? to privacy anonymity and extending that over to encryption now now That's a tough one because the United States Constitution does not have an explicit right to privacy Other nations do in their constitutions or charters of human rights, but the US doesn't so we have to we have to start looking at Where could we find this right? So I like to look at the Constitution and I'm just looking at some possibilities And I'll get to the one that I really like they're right after this But there's the second amendment which actually Provides a right to bear arms and there actually have been some scholars who have said that or I don't know if they're scholars, but lawyers have said that encryption and cyber defenses are Arms and the second amendment attaches to that I've been in a lot of courtrooms and I would never be comfortable going to a judge and making that argument because They're they would laugh and probably sanction me so I'm probably not I think that's not gonna work The third amendment I have a red exclamation point because it's my favorite amendment It's an amendment that says that soldiers cannot force It's an amendment that says soldiers cannot force people To quarter them in their homes during times of peace and only Congress can authorize quartering in times of war now There have been some lawyers a few who have said this prohibits the NSA from operating in private networks because The NSA's operations are like quartering in someone's home That basically my reaction is the same as the second amendment. I don't think that's gonna be very useful The fourth amendment this is one that has more merit especially I'm sure many of you know the carpenter decision that came up from the Supreme Court recently and that basically gave a fourth amendment expectation of privacy in Cell site information So the fourth amendment is useful What often gets overlooked is a lot of these encryption disputes Happen after a warrant has been issued. So the fourth amendment has a warrant requirement and a reasonableness requirement So I'm concerned that the fourth amendment would be of limited utility for a broad defense of privacy protecting technologies and The other issue is the main remedy under the fourth amendment is suppression of evidence in a criminal case there You can sue for fourth amendment violations, but if we're talking outside of the criminal realm That's where I get a little concerned Fifth amendment actually can be helped for one that we've all seen in movies the Miranda rights You have the right to remain silent That's all originates from the right against self-incrimination There have been a lot of really interesting cases in the past five years where the government tries to compel people to enter their codes on their phones or their computers and We've had mixed results. The first thing is that it only applies if it's testimonial so if you have a thumbprint this is Not legal advice, but if you have a thumbprint on your phone You cannot rely on the fifth amendment to protect against compel the unlocking of your phone The other big limitation is even if you're forced to say The code that can be seen as testimonial, but the problem is if it's already known that it's your phone So if you've said to the police, hey, that's my phone give it back Then it's known as what's a foregone conclusion. So that's not going to help you all that much So again, that has limited utility the ninth amendment. This is a law that's an amendment that basically says The enumeration of rights in the Constitution does not mean that you can encumber other existing rights This is kind of a big academic debate. I've not seen it that much in the encryption discussion the final The the final amendment that I'd like that I think is worth considering is the due process cause of the 14th amendment That actually has there's been a right to privacy read into that. That's where rovers wade Originates from as well as the right to contraception. There has not been a tremendous amount of focus on Digital privacy in as applied to the 14th amendment. I think there actually could be I think it's a good idea But there hasn't been very much California actually does have an explicit right to privacy in its Constitution And they have had a number of really interesting cases involving online privacy But I don't but unfortunately the California Constitution is just in California and I think that if you went to the US Supreme Court and told them to apply the California Constitution they would laugh. So that's not going to happen So what I want to go to is the first amendment. It's my favorite amendment And this is admitting my bias. I'm a former journalist. I availed myself of the First Amendment quite a bit And what I want to look at is 10 words within the First Amendment because there's a lot of great stuff about religion But that's for another day Congress shall make no law or bridging the freedom of speech That is pretty darn simple if you look at the free expression rights and the constitutions and charters of other countries They kind of read like an itunes terms of service agreement and I apologize for anyone from Apple But they have exceptions. They say it doesn't apply in this case The US is different. You don't have that in the Constitution That's not to say that the Supreme Court has not read some of some exceptions. There's exceptions for imminent incitement of Lawless action. There's exceptions for obscenity. So things like child pornography and but if there is Sort of non exempt type of speech The court applies various types of scrutiny. So if it's a content neutral regulation, so for example if the town says If my town were to say that you can't play music above a certain decibel rubber after a certain time That's going to be easier to justify if the town says Jeff's music is terrible. He cannot play music after a certain time. That's content based That's pretty difficult if not impossible to justify. So that's the framework of the First Amendment Now how it's applied to encryption I'm sure many of you know about the Bernstein versus DOJ case from the 9th circuit This was back. It actually was through the 90s lower number of iterations of it but what the 9th circuit looked at is whether The federal government could require a license a really onerous licensing process for the publication of both an article and source code about it for encryption and What the 9th circuit did is they said this is unconstitutional under the First Amendment But they looked at an interesting angle and to do it they went back to a case from 19 the 1970s New York Times versus us and in that case the New York Times was going to be publishing the Pentagon papers and This was a classified document that highlighted the US government's missteps in Vietnam It was very embarrassing to the government so The government saw an injunction to prevent the publication This is what's known as a prior restraint preventing speech from happening in the first place and what the 9th circuit or what the Supreme Court said is a prior restraint is One of the greatest forms of First Amendment violations It's not like punishing someone after speech has occurred a prior restraint is actually stopping speech and you have to have An exceptionally strong compelling case for that So the 9th circuit applied that precedent and so this is the same thing This is a prior restraint on speech You're preventing the publication of an article and source code another important rule and from this case is that Coded speech which has been used in a number of other contexts The one thing that I put over here, which is really interesting The part said this affects other rights such as the right to speak and it anonymously the right against compelled speech the right to Informational privacy When the government restricts encryption, but we leave that for another day So this is a day that I think we've got to start talking about it because I think that The Bernstein case could be useful for further to argue against further restrictions But for example, but there are a lot of other ways other than publishing the code that the Encryption and other technologies could be regulated and I'm not sure if a court would say that's a prior restraint I think it might but we've got to get more creative and have sort of a larger frame of arguments So that's where I want to start talking about how the First Amendment applies to anonymity and the first thing that I want to talk about is obviously Encryption and anonymity are not synonymous but there's a growing recognition that they work hand-in-hand together and Certainly anonymity technologies rely on encryption Encryption promotes anonymity. This is a report from the UN Special Operator on freedom of expression Saying yeah, obviously metadata that identifies a person is different than encrypting the content of the communication But they but working together they create a zone of privacy and that's what That's what I think is missing. I think we look at issues in buckets We look at encryption we look at anonymity and we have to start looking at what are the fundamental values for why we protect each And how do they work together? so I Think the best way to understand the US which I will say from the beginning and this is not because I'm a federal employee I will say the United States has an exceptional right to anonymity. It is compared to other countries We value anonymous speech anonymous expression far more than many other countries even some might surprise so you look at some of the Various privacy and anonymity restrictions China's requirement that companies host encryption keys within China even though they say there are various restrictions that prevent The government from accessing and I'll leave that to your judgment China also prevent it has a real name law which says that you can't post anything online Without using your real name Over in Russia, they've recently blocked telegram because they said terrorists use it They also block VPN laws, which some critics say is because they might Allow some sort of an anti-government news sources But it's not just the countries that we might question their true democratic values. There are other countries throughout Europe there have been there's been a lot of criticism of They're of anonymity online anonymity Europe values traditional informational privacy I Think there's there could be an argument that that comes at the expense of free expression You could look at that with the recent GDPR privacy regulations, which Resulted in some newspapers not even being accessible In Europe some US newspapers and you might say it's because the newspapers fell to comply with the privacy regulation But that Demonstrates this tension that we have between sort of traditional privacy values and free speech So to understand why and how the United States has these Extraordinary protections for anonymity you have to think back before our founding So this is John Pennery. He was a 16th century Protestant minister from Wales he and a colleague John Udall had Published a series of tracks that basically very strongly Criticized the Anglican church, which was not a good idea in those days in Wales and that so they published them under Martin Marpele a pseudonym and Unfortunately for for John Pennery. There was not very strong Tour did not exist then So he was tracked down. He was tried within a day and hung in the public square at 4 p.m so that kind of framed as The colonies were looking at speech what they believed about the need to communicate privately and anonymously This guy had a better view of better success of this Alexander Hamilton so he Well, he was successful until he was shot in a duel, but that's a whole different but until that point he was pretty successful so he was Understand why he published anonymously you have to understand our country's history So for the first ten years of the United States, we operated under a confederated government and that confederated government Was just god-awful. It was terrible. It that basically there was no real central government We had a president in Congress, but they couldn't do anything because they had no ability to tax. They had no Central that no military that very little policy ability so the states were doing everything So you had every state tracking striking trade deals with other countries You had states clinging their own money and states trying to unilaterally defend themselves until there was a rebellion And the states couldn't do it so this caused Congress to call a constitutional convention and Alexander Hamilton was among the leaders who Said okay, we he found this compromise where we have the house represented by Population the Senate represented by state other ways to sort of balance the concerns of large states and small states So Congress approves the Constitution, but the states need to ratify it So Hamilton and a big concern was New York because New York did not want to cede so much power to smaller state not to pick on Rhode Island, but Rhode Island and And so what they wanted to do is make their arguments and that they were very prominent figures But they didn't want Themselves to be the focus of these arguments. So what they did is they started sending essays to newspapers throughout New York And they eventually became known as the Federalist Papers and they signed them not with their names but with a pseudonym pooblies and The best expert and there were a few reasons one was a fear of persecution They did not want to be persecuted for their beliefs, but there were other reasons also Alexander Hamilton in the first Federalist paper. I think he made one of the best arguments for anonymity and privacy My motives must remain in the depository of my own breasts My arguments will be open to all and may be judged by all they shall at least be offered in a spirit Which will not disgrace the cause of truth So that was his argument for anonymity and it prevailed so the Supreme Court started to recognize Anonymity is the heart of the US democracy The first case to really recognize this was in 1958 There's a case called NAACP versus Alabama. This was during the civil rights movement desegregation the Alabama state government started trying to pass laws to really crack down on Opposition groups they viewed as opposing them including the NAACP one of their laws required the publication of the names of Everyone who is a member and an officer and the Supreme Court said you can't do that. They said by doing that even though it's not restricting them from speaking directly by Associating their names with an unpopular group that can actually that has been persecuted You're chilling their speech and that and that violates the First Amendment So that was it was interesting because it wasn't a direct restriction on speech, but it was a restriction on association The next case came a few years later this was someone who was collecting signatures and Are campaigning for against companies in Los Angeles that discriminated against racial minorities in employment He distributed these pamphlets without his name on it that violated the Los Angeles ordinance that required people to identify themselves and The Supreme Court at this point went all in on the history He started talking about John Henry and saying we don't want to live in a society like that and even the federalist papers Demonstrate that anonymity is used for the most constructive purposes. So this was probably the high watermark for For anonymity, this was the Supreme Court saying this is part of our history So we have Kelly but that which which applied to all handles But the problem was There were other states that started saying, okay, we won't restrict all Communications, but we will restrict any communications related to elections because that There's an interest in doing that. So our Ohio is one of the states that said if you are a If you're campaigning for a ballot initiative or a candidate you have to use your name on any of the campaign materials There's a woman in Margaret McIntyre who did not want a school bond passed through a referendum So she started distributing materials without her name on it the Supreme Court said you cannot find her because even though this is just restricted to Elections again, this is an unpopular view. She's going around saying I don't want the schools to be funded She can remain anonymous The next case was a little different in it involved a requirement that people who collect ballot initiatives Have to wear ID badges with their real names The Supreme Court once again said this violates the First Amendment going back to the federalist papers tally McIntyre and the most recent case not all that recent anymore was an ordinance that said if you campaign door to door You have to register with your real name with the government and what the government said is if you're going door to door People see your face. It doesn't matter and the Supreme Court disagreed and said again This basically will chill speech and it will make it more difficult for people to To speak because they might not want their names to be on record with the government So that's the Supreme Court stands on anonymity. Now. How does it apply online? It actually has applied online pretty pretty robustly So actually just to just to back up the way that typically works there have been a lot of disputes you may have heard of them where someone is sued for violating a for Defaming someone online. So there's an anonymous poster on a bulletin board online or a newspaper and a news website's comments Who posts anonymously or pseudonymously? Says something that really upsets the subject the subject wants to sue They don't know who to sue because they can't sue someone in the anonymous or whatever they want to put on there They also just tangentially they can't sue the website There's a law in the books called section 230 of the communications decency act I have a book coming out about it next spring. Please buy it. It's a great be-trued and That what that Law says is that you can't sue a website except in very limited circumstances for content created by third parties So they've got to find it if they want to sue they need to find out who they're suing So typically what they do and this is the very easiest scenario Typically, it's much more complex, but they'll file a lawsuit against someone in John Doe and then They use discovery in that case to issue a subpoena to the website for the IP address and any registration information Sometimes the sites require email addresses and then if they have the IP address they go to the ISP and issue a second subpoena for the subscriber information and as you all might expect there have been some hilarious mishaps and identifying grandparents who Don't secure their Wi-Fi connections, which I'm sure is not an issue for anyone in this room But that's the easiest way. There's obviously a lot of glitches in it. So what courts have had to do is say Okay, we have Mac entire we have all these cases that say there's a right to anonymity. How does this apply? on the internet The first case to deal with this was a case where the company Columbia insurance on Sees candy, which seems to be in every shopping mall in the United States there was someone who registered seas candy dot com domain, but it was anonymous and So Columbia insurance wanted to get the identifying information about this person who registered it and the court had never really Confronted it before and they said, okay We'll let you have the discovery, but you have to really tell us why you need it and what other steps you've taken So that was the first case. It didn't go through all that much detail The first big case was a publicly traded ISP called to the mart. There were investors who are people who? Commented on the investments in the stock who did not like the management I posted a few of the comments up here that that they added and then subsequently they were the company was sued by shareholders So what to the mart wanted to do is find out who posted these comments So they subpoenaed the company that owned the website and said you want to know who these people are So what to the mart said is Mac entire doesn't apply because one of the users challenged it and said this violates my first amendment rights and argument there was that Mac entire and all those other cases involved restrictions on the ability to speak all of these people spoke already There's no way to remain anonymous forever and the court basically soundly rejected this They said if you don't have the right to remain anonymous Then you don't have the right to speak anonymously and they sent forth a test that basically looks at how strong is your case Are you trying to harass people? Do you need this information and then the court said we're not going to grant it we're going to get rid of the subpoena and They made some great statements about how the free exchange of ideas is so important on the internet for first amendment purposes There's another case a few months later called dendrite international B. Doe again. This was Company and just as a side note any lawyers who deal with defamation cases See the companies that have people post about their share prices are among the most common plaintiffs in these defamation cases And so they were saying So it was a typical case the company wanted to get the identifying information about the posters and the poster and the posters challenged that and The court said no, you can't do that Because we don't have any evidence that this really harmed the share prices of the company and the last sort of defamation case there was a city councilman in Delaware and Someone posted something saying that he demonstrates obvious mental deterioration on a local news blog Councilman was not happy about this filed the typical lawsuit and the court here said we're gonna apply a really high standard That's really difficult to meet and he didn't meet so these are some examples of how courts have really said anonymity is at the center of our US First Amendment law An interesting case not in the defamation context dovey Harris the Harris in this case is Senator Kamala Harris who is the Attorney General of California at the time every state has a sex offender registry law the California law was amended to say that sex offender offenders have to register all of their internet identifiers and their ISPs and a Child one person anonymously obtained a preliminary injunction saying this violates the First Amendment All because you can't speak anonymously if you have to register all your names with the government and The Ninth Circuit said yeah, this isn't the classical anonymous speech case But it chills anonymous speech Because of this disclosure requirement and now the Ninth Circuit all full disclosure I clerked for a judge on the Ninth Circuit The Ninth Circuit has a reputation of not always Following what the Supreme Court might want the Ninth Circuit to follow There was a judge who actually recently passed away who had a famous saying that the Supreme Court can't catch them all So you might you might think that this is a really liberal ruling But the author of this ruling is a judge named J. Bybee who some of you may know He was appointed by George W. Bush But he worked earlier in the Bush administration and he was one of the authors of the torture memos, so This isn't some sort of radical liberal saying this. This is a fairly conservative Judge saying even in this case where the defendants are not sympathetic We're gonna find that they have this right to anonymous speech and then finally there was a case recently in the DC Circuit the appeals court in Washington DC Which basically there was a challenge to the FEC's rules that said you only have to disclose the names of people who donate to companies For election communications, but not for other types of communications and the AFI so the FEC said one of the reasons They justified it is said well, you know We need to safeguard anonymous speech So this is a balance and the DC Circuit agreed with that and said that these sort of this is firmly entrenched in the Supreme Court's First Amendment jurisprudence, so they recognize the strong right and To anonymity in a different context So to apply these rights, I just want to stress that obviously We've not confronted a case on anonymous speech quite like this But I think we need to start thinking about how we can make these arguments effective and as I think I have shown today this is an extraordinary right that we have in the United States and If you think about the various ways that governments in other countries crackdown on VPNs on anonymity technologies on encryption That can really chill this anonymous speech that it has been at the forefront of our democracy since our founding But there's another reason and I I've lived in the Washington DC area for a long time so I tend to think of things in policy political terms and One judge I remember saying that the Supreme Court is the most powerful policy-making body in the United States The sort the Chief Justice of the Supreme Court likes to say that he calls balls and strikes But there are a lot of Cases where it does come down to a policy judgment and the First Amendment is a place where The first amendment the first amendment is winning in the Supreme Court These are just some recent cases where the Supreme Court has decided First Amendment issues And it's almost always deciding it in favor of First Amendment rights now There's Citizens United which I imagine some people are not all that thrilled about which allows Unlimited expenditures for campaigns. There's also US v. Alvarez. That was a case where the Supreme Court said You can't ban speech or you can exempt speech from the First Amendment simply because it's a lie That was a case where there was something called the Stolen Valor Act which made it a crime to lie about military honors someone was running for a local government position and he made the statement in Public forum that he was the recipient of the Congressional Medal of Honor Which is not really bright because there's very few living people who are the recipients of that you lie about something different So he was prosecuted but the Supreme Court said you cannot prosecute someone just for lying Snyder v. Phelps that involved the fine people from the Westboro Baptist Church who Picketed the funeral of a fallen soldier and the family sued The church for intentional inflation and emotional distress the Supreme Court expressed significant sympathy for the family But said you know we the First Amendment prevails Agency for international development that involved a restriction on age funding age prevention funding to nonprofit organizations That had a string Attached saying you had to make a statement against prostitution that was found to be compelled speech The Janus case that actually was was issued a few months ago. That's where the Supreme Court said you that state employees cannot be compelled to donate to unions and finally US v. Stevens that struck down a ban on depiction on animal cruelty. So there's some sort of Theories from some people that say well the Supreme Court is weaponizing the First Amendment In favor of corporations with cases like Janus and Citizens United Others say you know the First Amendment is just it's highest peak right now So that's the political reason and it feels weird to talk about the politics of the Supreme Court but if there's a challenge to Encryption other privacy-protecting technologies. I really do think that Sort of focusing on this line of reasoning that goes back to our nation's history could be a very successful way to go rather than sort of rehashing the same arguments about how statutes work and Obviously, there are pragmatic considerations such as you can't ban math But that's a whole other situation But but again, I think we need to be focusing on the best constitutional arguments And I think this is a good place to start. So I wanted to leave a little time for Questions or comments or anything like that because I do want it to be a dialogue That's also loud. A lot of your conversations seems to be about protecting privacy between individuals in the government What about individuals and corporations which are way worse offenders in my opinion and also the government's ability to get your Information from corporations and you're completely outside the decision-making matrix on that Yeah, I think that's a great point and I think that keeping information from corporations is One step in sort of preventing both the corporations and governments from doing it from obtaining it But a lot of these anonymity cases it was corporations seeking the data. So I think that protecting strong encryption and other technologies is a way to Both have privacy from the government and from corporations. Absolutely Thank you So obviously there's been a lot of talk recently about, you know, fake news and the whole idea of that and I was I was just to get Your thoughts on I mean, obviously you mentioned the US Alvarez case or whatever like that, you know about lying or whatever But how do you feel like that's going to fit into the whole picture as people? You know as there's all this talk about cracking down on fake news, you know And that sort of thing like how do you think that that's going to play into all of this? So I think it's dangerous I I think the fake news like the crazy things on Facebook that pop up that it's a problem But I also worry about government regulations that will say what types of news that you can and can Broadcast or put on a platform because who's making those judgments? I think I Will give them credit a lot of the platforms Twitter face But they've started to make much better efforts along those lines and it is market-based. I mean if I Would hope it would be that if you continue to get garbage news from a platform You'll go to another platform obviously there are economic barriers to that, but I Don't see under the First Amendment precedent how the government would be able to restrict that Hi, so in the context of that 3d printed gun design case that's going on right now Is there anything that says that like it's futile? So we shouldn't restrict this speech and generally what do you think about that case? So that that's a good question, and I think we need to distinguish between sort of the design and the actual manufacturer I Have trouble seeing that that it's speech itself the actual gun making 3d printed guns, so I I think that it would be tough to really make a strong enough first amendment argument on that Thanks Just want to ask a little more broad question to you about you early on in your talk You talked about how I'm poking at early precedence in early legal precedence in our history Could kind of open up a can of worms where like more and more laws upon which our entire system of government is based could be It caught up called into question, and I'm just wondering if You're if like all of the things that are going on in our democracy right now around like perhaps laws that aren't being broken but precedence that are being flouted right by The executive branch and others but I'm interested in hearing your general concerns about the extent to which our system of government is dependent on Precedents and other customs that are not actually codified into law and Whether we're seeing threats that significant threats, I guess as a result of those Precedents that are being flouted that aren't necessarily laws themselves. So you're talking about norms of behavior. Yeah Yeah, in in all three exec all three branches of government, right? Yeah, I mean, I And the press for that matter as well Yeah, I think there's blame to around in terms of Various norms. I think they're a lot of norms or have been flouted for a long time. I Think for courts, it's a little different. Justice Breyer has this theory of active liberty that basically The Constitution is we need to interpret the Constitution in light of today's Setting and in that context the late Justice Scalia had a very strong originalist bent where he said you need to interpret the Constitution as it would have been interpreted in the 1700s I I've got to say Justice Breyer's reasoning is more compelling and we have a lot of rights and Very positive developments because of this active liberty Viewpoint, but I think that norms are Tough because if they're not codified into a statute or in the Constitution or regulations There is room to Deviate and that's I mean I've always been a big believer in getting things into statues Because then we're then we don't have to worry as much about what is the norm and who's violating it So are you worried that these norms are going to lead to sort of deterioration of our democracy? Yeah, I mean I so my my specialty is the online speech cyber security and I Worry about the norms of behavior Online and I mean I think this is this has been for 10 20 years now But I think that the way I we talk a lot about what's Twitter's responsibility? What's Facebook's responsibility? but I Worry a lot of it is that people how I mean if you don't have the bad behavior Then you're not going to have the problems and I I think that that's what concerns me the most I mean you see what people do online and you think would they do it in person face-to-face And I so I mean that that's frankly because that's what I really specialize in When I look at I mean I see a lot of what I've observed moderators and how they moderate content And that really concerns me because I don't know how you solve people being some people being horrible people That's not yeah, thank you I was mostly asking about the way our government officials are behaving in their plouting of norms, but I've already taken too much time So thanks a lot for your time. Yeah, I can't remember his name So if you do you tell me but a British statesman once said you're right to do is you please stops at the tip of My nose where's the other side in other words what protects me against your first amendment rights if the right to lie is protected? That that's a good question. And if you look at other countries, it's the reverse The year Europe for example for the past few years has recognized a right to be forgotten if you if there's something online that you believe is harmful to you either false or true you can Demand that it be de-indexed from search engines. So if someone searches for your name, they're not going to get the result There's a trade-off with free expression because I think it's a little orwellian to Erase history and in the United States that wouldn't fly, but I think that's just a value judgment I think you make a really good point though. That's definitely a very strong Counter-argument to free expression. Okay. Thank you Bill rang with me a little bit when you were talking about you know, how when do people know when it's right or it's wrong and Kind of I'm in education and so one of the things that comes to mind is education and Do you see anonymity and privacy playing a role within education K through 12 within the next generation to kind of Would you see the Ideas on anonymity and privacy playing a role within K through 12 education in the future years in order to kind of circumvent that entire Issue that we have going on of people knowing the difference between right and wrong when conducting themselves on the internet I think so at the K through 12 level California for example has passed a law that allows Miners to request the deletion of information they've provided to sites once they turn 18 and I so I think that's There's some trade-offs, but that's generally a positive development because I didn't have social media when I was in high school But I sure as hell would have posted stupid stuff on there that I'd want offline for the rest of your life So would you say there is a need for that then K through 12? I think so for K through 12 my yeah, because I mean I I have a four-year-old daughter And I'm gonna keep her offline as long as humanly possible. So yeah, absolutely. Awesome. Thank you. Sure. I Think I think we're at 1050 so thank you very much