 Professor Geoffrey Rosen is Professor of Law at George Washington University, Legal Affairs Editor of the New Republic, a non-resident senior fellow at the Brookings Institution where he heads the Brookings Project on Technology and the Constitution. His most recent book as co-editor is Constitution 3.0, as you can see is the topic of discussion today. He is also the author of The Supreme Court, the personalities and rivalries that defined America, the most democratic branch in 2006, and the unwanted gaze, the destruction of privacy in America from 2000, which The New York Times called the definitive text in privacy perils in the digital age. He's a very distinguished and long list of achievements, so we'll stop it there and if I could ask Professor Rosen to give his introductory remarks. Thank you. I'm honored to be here and we have important subjects to discuss, namely the future of free speech, privacy and limitations on executive power in a digital age. This is a vibrant time in the United States. There are important clashes between the US Supreme Court and our president about these matters. This is also a time when lawyers at Facebook and Google and Twitter have more power over privacy and free speech and who can speak and who can be heard and what can be seen than any king or president or even Supreme Court judges. The fact that many of these companies are located here in Dublin makes the need for a dialogue about the similarities and differences between the US and Irish and European constitutional traditions all the more urgent. I'm so pleased to have begun a collaboration with this important institute. I head up an institution called the National Constitution Center in Philadelphia and the US, which is America's only non-partisan center for constitutional education and debate. And I think there are many productive platforms for collaboration. I want to talk about three areas about privacy, free speech and executive power and then have a conversation with you about them. Let me begin with privacy because next term the US Supreme Court will hear what may be the most important privacy case of the digital age. And it's a case involving the ability of the police to seize cell phone records, essentially making it possible to reconstruct someone's movements in public for 127 days. Of course, we can reconstruct movements not merely by seizing the geolocational records that are stored in third-party servers in the digital cloud but also by flying tiny drones in the air and tracking our movements from door to door. So the court's rulings on this question will determine the scope of privacy in public spaces for a generation. Let's begin with the text as we do in the US. It's at any pulpit, you have to begin with the text and hear the text as the fourth amendment to the US Constitution. I can recite this bit by heart but I want at this moment to plug this exciting new digital tool that I've shared with some of you. It's called the Interactive Constitution. You can find it in the App Store or at ConstitutionCenter.org. And using this thrilling tool you can read not only the text of any provision of the US Constitution but the views of the leading liberal and conservative scholars in America with a thousand words about what they agree the provision means and then separate statements about what they disagree about. This tool is co-sponsored by the National Constitution Center and the leading liberal and conservative lawyers organizations in America. And it also allows you to compare any provision in the US Constitution with that in the Irish Constitution or indeed any constitution around the globe. It's gotten 10 million hits since it launched a year ago and we really want to bring it to the entire world. So the text of the fourth amendment says the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated. There's a paradigm case behind the text as there is behind each text of the US Constitution. It was the general warrants and writs of assistance that sparked the American Revolution that allowed the king to break into the homes of critics like John Wilkes in the 1760s and to rummage through his private diaries and indict him for seditious libel leading to the famous judgment of Lord Camden that because our private papers are sacrosanct they may not be searched without a particularized warrant specifying the place to be searched or the thing to be seized. The Wilkes case was so galvanizing to the American colonists that when James Otis denounced the rits of assistance invoking the Wilkes case in 1763 John Adams said at that moment the child revolution was born. So that is how central the battle against over-broad searches and warrants are to the American constitutional tradition. And we face now the challenge of translating that provision into an age when our private papers and movements can be seized not merely by physically trespassing into the home and other private areas but merely by tracking our movements in public or by seizing data that we've surrendered to third parties like our cell phone carriers. So we started with the text. What are the relevant precedents? Well, just last a few terms ago there was a case involving a suspect whose movements in public for a month were tracked by a global positioning system device that was put on the bottom of his car. And using this device the police tracked his movements for a month. So it sounds a lot like the cell phone case that the court will decide next term. The difference is that there was physical trespass. The police had to physically walk onto the guy's driveway in order to fix the GPS device and they had to seize his car to stick this device in secret that allowed the tracking to be possible. In the case, the Jones case from 2013, five judges led by the late Justice Scalia said because there was physical trespass a warrant was presumptively required. At the time of the founding any search that involved physical trespass and was designed to collect information would have required a warrant. Court justices led by Justice Samuel Alito said why does it make sense to focus on physical trespass? After all, Justice Alito anticipating the case the court will hear next year, the police could have reconstructed the guy's movements merely by seizing the geolocational records from Verizon or Comcast or whatever his US cell phone provider is. So it's an open question whether under US law physical trespass is required in order to trigger the provisions of the Fourth Amendment. The case is all the more significant because we have in US law a doctrine which will seem unfamiliar to you with your more rigorous protection for private data but is central to us and that's called the third party doctrine. It holds that when I surrender data to a third party I abandon all expectation of privacy in it. This arose from a series of cases from the 1970s involving bank records and the court said that when I turn my bank records over to the bank the bank is free to turn it over to the government. Justice Sonia Sotomayor said in her concurring opinion in the GPS case the third party doctrine would mean that in an age when all of our private papers are stored in third party servers owned by private companies we essentially have no privacy. It would eliminate any possibility of restricting access to geolocational records or private diaries or any private papers that are stored on third party servers. What will the court do next year? I don't know. I'm not a seer but I have a quiet confidence that this will be a strong decision in favor of digital privacy and it will be a bipartisan decision. There is an appreciation on both sides of the spectrum on the Supreme Court about the need to translate the requirements of the Fourth Amendment into a digital age. Two terms ago there was a cell phone case involving a guy who was arrested and the question is can you look at his cell phone on arrest? There's a series of cases that say that ordinarily if someone's arrested you can pat them down and open any closed container on their, it's in their pockets. So the government actually was the Obama administration at the time said a cell phone is like a cigarette packet and the Supreme Court has said if there's a cigarette packet on the suspects pocket you can open it and see if there are drugs. The court unanimously rejected that analogy and in an inspiring decision by Chief Justice John Roberts cited the case of the general warrants and rits of assistance and said that our cell phones are nothing like a cigarette packet. They contain our most intimate hopes and dreams, our political associations and our thoughts that therefore they may not be seized without very good reason. So that case although it involved arrest which is different than the seizing of records stored in third party servers gives me some expectation that the court will not allow 127 days of cell phones to be searched. How the court will divide, I don't know whether or not it will come up with an alternative to the third party doctrine. I'm not sure the court the case could be decided narrowly or broadly but I think that we will find there a victory for cell phone privacy. Much of the advances for digital privacy in the US have come from Congress, not from the courts. In the 1960s the court set out a framework for wiretapping and Congress responded by filling in the details. Our Congress at the moment you may have read in the papers is not a haven of bipartisan bonomy and therefore I'm not sure that they'll be able to pass the geolocation of bills that have been introduced by people from both parties. But because Congress is rather paralyzed at the moment or having trouble getting through. So I feel that if there is to be an advance for digital privacy, it's more likely to come from the courts and the legislature in this case. And I think it's gonna be an important decision. All right, that's my first example and it's a rather sunny example of the Supreme Court in a bipartisan way. Operating to protect, to identify a fundamental value that roots in the 18th century, namely protection against overly broad searches and to translate that into the digital age. My second example is free speech and you are at the center of these debates. We have a data protection officer here and you're doing such good work to protect, to balance values like privacy and free speech. But we see here very dramatically how the platforms Facebook and Google really have supplanted judges and legislatures in the fact that their terms of service have more influence over whether videos stay up or down. And whether a speech that's truthful but embarrassing can be removed or allowed than the judgments of the Supreme Court. The US Supreme Court is remarkably unanimous and libertarian on matters of free speech. We were discussing at lunch the difference between the Irish and European and the US constitutional traditions. In Ireland, I learned from our distinguished judges, you balance values like proportionality and the public interest. And I was further educated in that difference by clicking on the thrilling interactive constitution and finding the text of the Irish provisions regarding free speech. And I can't read them without my constitutional reading glasses. So here they are when I just clicked on the American First Amendment and then here's the Irish provisions. And it says, what struck me is how technologically specific your constitutional provisions are. It says that the education of the public opinion being a matter of such grave import to the common good. The state shall endeavor to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving that rightful liberty of expression, including criticism of government policy, shall not be used to undermine public order or morality or the authority of the state. That's striking both in the adivism of its technologies, because of course it doesn't include the internet, although naturally the radio and the press might be extended to include the internet. And in this sweeping catch-all phrase that provides for balancing interests of free expression against interests of public order and morality as the judges identified. The US tradition is very different. And I want just as condensed and succinct a matter as possible to try to explain to you what it is and why we in the US are very attached to it. Although I understand that we're a global outlier when it comes to the protection of free speech and that you in Ireland and Europe do not share this libertarian rigor or enthusiasm. So the basic idea comes from a very beautiful decision that Justice Louis Brandeis, I think one of the greatest of all profits of free speech and privacy in the 20th century, expressed in 1927. It's a case called Whitney in California. And Brandeis laid down there the principle that speech in America may only be banned if it's intended to and likely to cause imminent violence. That's how narrow the standard is and really has to be, go shoot Jeff now and you have to be likely to do it, which you may well be at this point in the lecture in order to make the speech actionable. Simply exhorting, this religious group is bad or even some of our president's tweets, which have been called incitement, don't qualify. It has to be intended to and likely to cause imminent violence. That has its roots in Madison and Jefferson and the Virginia and Kentucky resolutions and in their strenuous notion that speech is a natural and unalienable right that comes from God or nature and not from government and may not, I may not alienate to government the ability to control my freedom of opinion or my means of expressing it because my opinions are the product of my reason. And as a creature of reason, the American framers channeling people from the Scottish Enlightenment like Locke and also Hutchison and Berlimach, he believed our reason cannot be alienated. But Brandeis and Whitney, citing Jefferson because he was a great Jeffersonian, has a beautiful passage which I'm just going to recite to you as a party trick because it's so inspiring and gives to you the framers profound belief in reason. We were talking about the entire American system being premised on a belief in public reason and their faith that as long as there was time enough for public deliberation, the best remedy for evil councils was good ones, not suppression. This is Brandeis and Whitney. Those who won our revolution believed that the final end of the state was to make men free to develop their faculties and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. That's from Pericles' funeral oration. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth that without free speech and assembly, discussion would be futile that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine, that the greatest threat to freedom is an inert people, that public discussion is a political duty and that this should be a fundamental principle of the American government. You hear in that beautiful paragraph this profound rationalist enlightenment faith in public reason and the idea that dignity is not an adequate basis for suppressing public deliberation because the people themselves ultimately must have access to all views no matter how hurtful and damaging and whatever indignities that they create so that public reason can prevail. It is an urgent question that we began discussing over lunch with the honorable judges about whether in the age of filter bubbles and echo chambers and fake news the faith of Brandeis and Madison and the framers in public reason is being challenged by new media technologies. But it is for better rather than for worse the founding premise of the American system and that's why we do not allow the banning of hate speech. Facebook and Google do and this is a big topic and I want to leave time for questions so I won't talk too long about this conflict between the European and the American traditions except to say that Facebook and Google have their own terms of service which in the U.S. allow for the banning of some hate speech but not as much as European law would allow. So according to Facebook and Google it's illegal to criticize religions but not a religious leader so you can't say on Facebook I hate Muslims but you can say I hate Mohammed and it was that Jesuitical distinction if that's the right tradition that led Facebook and Google to refuse to take down a rather crude video called the innocence of the Muslims despite calls to the contrary by both President Obama and the president of Europe because this video criticized the prophet but not the religion. Where did that distinction come from? A 22 year old college graduate who is working the helplines at Facebook and been promoted to run their free speech policy and he read John Stuart Mill in college and he just made it up. He thought it would be interesting to distinguish between criticizing religion and criticizing religious leaders. I tell you this because it's interesting and also it just reminds us how much a group of 22 year old kids usually wearing flip flops and t-shirts in San Bernardino County by the San Francisco airport as well as their colleagues here and many of whom are in Dublin have to set the contours of free speech for the entire world. So that's the Facebook and Google policy. The European court in its important right to be forgotten decision said that broader restrictions may apply and that any time a data subject finds speech to be irrelevant or to cause indignity he or she can demand that it be removed and then first Google and Facebook in the first instance and then data privacy commissioners in the second have to decide whether or not the speech is irrelevant, outdated or relevant to the public interest and if Google and Facebook guess wrong then they're liable for up to 2% of their annual income per incident which in Google's case was $60 billion last year that concentrates the mind and as a result Google has removed 43% of the takedown request. It's received under the right to be forgotten including about articles about the right to be forgotten itself. I signal this debate just to remind you that in good I'll just put my cards on the table in case you haven't guessed them. As an American constitutional lawyer I believe in the Brandeisian tradition. I think it's a correct faith in deliberation over dignity and therefore I am concerned also about the mechanics of this decision which delegates to American lawyers as it happens I guess I can boast my former student at GW is now running privacy for Google and this is a job he'd rather not have. He says I'm not especially well equipped to try to channel the dignitary values of citizens in Ireland or Belgium or France and delegating it to the private companies on fear of being second-guessed by regulators may not be the best decision but it's the European law and Google and Facebook will abide. The big question now is international application and France is now demanding takedown not only for material that's offensive in France on google.fr but across the globe. So Google now faces a tough choice. It can refuse and be faced with ruinous fines and being kicked out of France which it doesn't want to do. It can comply and change the Google search engine for the world which it doesn't want to do or it can create two search engines Google US and Google.eu and I think that's probably the way it's going and maybe that's fine but just realize that's the effect of that decision. The final subject just so we can have a question and answer is executive power and all of you like all of us are looking with interest at the vigorous criticism that our president has unleashed not only on cable television hosts but also on federal judges with life tenure and the question is whether these tweets pose a threat to judicial independence and what is the future of the relationship between the presidency and the judiciary. I'm heartened by seeing the response of judges to criticisms Justice Gorsuch appointed by President Trump himself called the president's criticism of individual judges unfortunate and Justice Gorsuch also joined a unanimous decision just a few just last week if that's when it was that essentially sent the president's travel ban back to the drawing board through a masterwork of judicial statesmanship by Chief Justice Roberts. The court said we will hear the travel ban case in the fall but you President Trump need to start the clock ticking for evaluating whether this travel ban is a good idea and you've said you need 90 days to do that so the clock is ticking now and by the time the court hears the case again in October the 90 days I think will have expired by which time the court the administration presumably will have come up with a new policy perhaps obviating the need to hear the constitutionality or legality of the existing one. Three justices in the travel ban case suggested that the existing one was consistent with the constitution and the laws although all the lower courts to have heard the case concluded the opposite the legal questions very broadly in the US Congress has plenary authority over most things including immigration and presidential efforts to act by executive order which are presidential orders passed without congressional approval are constitutionally suspect President Obama found a bunch of his executive orders struck down by the Supreme Court including by a four to four vote his executive order deferring deportation of the so-called dreamers on immigration because the court held that Congress not the president has plenary authority over immigration who gets into the country is a different matter the president is generally has the authority to set policy at the border and here the question is complicated by two conflicting statutes one says the president can exclude whoever he wants that's from the 1950s and a more recent one for the 60 says he can't exclude people on the basis of religion so the two clash and the three lower court said the later one governs and therefore you can't exclude people on the basis of religion and although the first travel ban seemed to prefer Christian to Muslim refugees by making an exception for religious minorities the second one is formally neutral and only signals out refugees and travelers from six countries lower court judges said that the president's tweets which had such subtle tantalizing hints of his true intentions like I want to create a Muslim travel ban that that was probative and relevant evidence of his desire to create a Muslim travel ban and therefore that the ban should be struck down as a violation of these statutory prohibitions on religious discrimination there are also constitutional questions are constitution prohibits an establishment of religion and guarantees its free exercise the lower court said that to discriminate on the basis of religion was a violation of free exercise rights but that's a controversial question because we're narrowly American constitutional rights do not apply to non-citizens who have no connection with the country a traveler or refugee who seeks to come to the US but is not yet admitted is not someone who in the past has been accorded free exercise rights so that's a more controversial holding so there we are with the travel ban but I just want to say that I am heartened so far by the vigorous interplay between executive claims and the willingness of courts I would you could even say the eagerness of courts to step up into the breach and to check executive overreach when they perceive it I think that the president's attacks have stiffened the backs of judges republican as well as democratic and increase their desire to show their independence I would be concerned about the future of the American system only if the president disobeyed decisions that were adverse to his administration if he openly defied a ruling that would be I think unprecedented in the US tradition in the past even confrontations between the president and congress have led to and the courts have led to accommodation John Marshall told the president Jackson to release refugees involved in a controversy over Cherokee Indians and Jackson who criticized Marshall John Marshall has made his decision now let him enforce it defuse the controversy by removing the refugees president Dwight Eisenhower complained about judicial orders that demanded the integration of African American students in Little Rock, Arkansas but ultimately sent federal troops to enforce the decision so it would be unprecedented and unusual were the president to refuse to enforce the lawful orders of courts but there's no evidence so far that he's going to do that and so far his criticism has been limited to Twitter and not to open defiance I'll end just by saying how urgent it is for us to continue this conversation in this venue and others about similarities and differences between our constitutional tradition there may be areas in which we diverge such as the balance between hate speech and dignity and free speech but we're ultimately united by this beautiful inheritance we have of enlightenment reason and in the revolutionary thinkers who inspired our common revolutions Lauren and I stopped off in just before Cork at the 1798 museum there nearby and it was so inspiring to see how Thomas Payne inspired both the Irish revolutions as well as that of the US and our constitutions may vary in their precise protections but they are united by a common belief in liberty and the importance of constitutionalism in limited government in reason and the rule of law those values are being threatened now in the US and around Europe by new forces of populism expressed through social media technologies that enable the direct expression of popular will in ways that the US and Irish framers I dare say would have found to threaten liberty and we need to think together about ways of preserving the rule of law and constitutionalism in the face of these populist threats the future of liberty demands no less