WEBVTT - ACLU Points Blame at Administration on Eve of Deadline

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on Bloomberg dot com slash podcasts. The Trump administration

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<v Speaker 1>is ready to declare mission accomplished on reuniting migrant families

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<v Speaker 1>torn apart during a border classic crossing crackdown, but the

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<v Speaker 1>American Civil Liberties Union says the mission is far from over.

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<v Speaker 1>Here's a c l you lawyer league learned speaking outside

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<v Speaker 1>the courthouse yesterday after a hearing in front of the

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<v Speaker 1>judge overseeing the reunifications. There are many other people that

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<v Speaker 1>will ultimately need to be reunified, So when they say

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<v Speaker 1>they're going to meet the deadline, it's only for those

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<v Speaker 1>individuals they've declared to be eligible for reunification by the deadline.

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<v Speaker 1>There are still many many people who were deported. Joining

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<v Speaker 1>me is Kevin Appleby, Senior d Ector of International Migration

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<v Speaker 1>Policy at the Center for Migration Studies. Kevin explain what

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<v Speaker 1>the a c LU attorney was referring to their So

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<v Speaker 1>there are about three thousand close to three thousand family

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<v Speaker 1>separations under the Family Separation Policy, and the administration has

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<v Speaker 1>only reunited um a little over eight hundred fifty uh families.

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<v Speaker 1>They've approved reunifications for about five fifty and and they've deported,

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<v Speaker 1>believe it or not, four hundred and sixty nine parents

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<v Speaker 1>without their children. So wouldn't the attorney says they haven't

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<v Speaker 1>finished the job. It's because they certainly have not meet

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<v Speaker 1>met that three thousand family separation threshold which they are

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<v Speaker 1>responsible for. Not to mention that there are several hundreds

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<v Speaker 1>that they've said say are ineligible for reunifications because of

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<v Speaker 1>certain criminal penalties that they've accrued. So when the administration

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<v Speaker 1>says mission accomplished, uh I would disagree as with uh

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<v Speaker 1>h LU, because they certainly haven't reunited the three thousand

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<v Speaker 1>families that they should be reuniting. So apparently the number

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<v Speaker 1>is four hundred sixty three parents that are under review

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<v Speaker 1>according to the Trump administration, and the judge or the

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<v Speaker 1>government to provide a list of those four and sixty

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<v Speaker 1>three parents. He said, what would be the explanation of

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<v Speaker 1>not knowing where the parents are? Is it that they

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<v Speaker 1>don't know where the parents are or that they're not

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<v Speaker 1>giving that information out. Well, let's let's not get confused

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<v Speaker 1>as to groups. The four sixty three I misspoke, I

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<v Speaker 1>said four sixty nine. They're about four and sixty three

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<v Speaker 1>parents that have been deported to Central America. That's one group.

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<v Speaker 1>They certainly don't know where they are in Central America

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<v Speaker 1>and the prospect of being reunified with their children at

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<v Speaker 1>this point it's not high. There are other smaller groups

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<v Speaker 1>that may of parents that may not be be able

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<v Speaker 1>to be located within the country, but that's a much

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<v Speaker 1>smaller number. But the four three you referred to her

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<v Speaker 1>parents that had been deported, and many say there's evidence

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<v Speaker 1>that they were they were compelled to find waivers to

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<v Speaker 1>be deported because they were told that was the only

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<v Speaker 1>way that they would be reunited with their children, So

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<v Speaker 1>that needs to be investigated as well. It's it's very

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<v Speaker 1>confusing because you're one thing from one side and one

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<v Speaker 1>thing from the other, and then the judge questioning everything.

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<v Speaker 1>The Trump administration said that once immigrant families are reunited,

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<v Speaker 1>any parents that are targeted for deportation shouldn't be allowed

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<v Speaker 1>to leave their children behind to apply for political asylum,

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<v Speaker 1>but that contradicts with what Homeland Security Secretary Kristen Nielsen

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<v Speaker 1>said on Fox News. She said that she said, the

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<v Speaker 1>way the process works is the parents always have the

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<v Speaker 1>choice to take the children with them. So referring to

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<v Speaker 1>those those foreign secret parents, these are parents that made

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<v Speaker 1>the choice not to bring the children with them. So

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<v Speaker 1>what's the real story. Well, the real story is that

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<v Speaker 1>when these parents signed these waivers, the children were not

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<v Speaker 1>with them. They had already been separated. So if if

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<v Speaker 1>the case, if the federal government and the hs UH,

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<v Speaker 1>we're serious about reunited and they would have brought those

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<v Speaker 1>kids to their parents before they would have been deported,

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<v Speaker 1>But they didn't, so the children remain in the country.

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<v Speaker 1>And and the other aspect you got to think about

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<v Speaker 1>here is some of the parents might have thought that

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<v Speaker 1>they were going to be reunited with their children, but

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<v Speaker 1>some might have said, it's okay if my child stays

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<v Speaker 1>with a relative here. That might have been part of

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<v Speaker 1>the purpose of them coming so that their children could remain,

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<v Speaker 1>and they might have signed knowing that. So you can't

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<v Speaker 1>get into mind of the parents because they've been deported.

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<v Speaker 1>But there's been evidence that there's been you know, that

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<v Speaker 1>they coerced to sign these these waivers um on the

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<v Speaker 1>pretense that they would be reunited with their children, and

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<v Speaker 1>that hasn't happened. So what does the A C. L.

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<v Speaker 1>You want to happen going forward? Well, they want accounting

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<v Speaker 1>for all the three thousand families that you know, parents

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<v Speaker 1>that lost their that were separated from their children, and

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<v Speaker 1>the administrations really hasn't met that task in terms of

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<v Speaker 1>all the numbers have been separated. And in this case,

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<v Speaker 1>there can't be room for error. I mean, you know,

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<v Speaker 1>you can't have separate you know, you can't reunite you

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<v Speaker 1>know hundred and then have two hundreds that you just

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<v Speaker 1>don't reunite for because you can't find them. I mean,

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<v Speaker 1>this is a mess created by the administration which they

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<v Speaker 1>didn't have to do. They weren't forced to do, despite

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<v Speaker 1>what they say. So they haven't the ultimate responsibility to

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<v Speaker 1>really make whole all of these families, and they're falling

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<v Speaker 1>short of It. Will be interesting to see what the

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<v Speaker 1>court and what the judge says tomorrow, which is the

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<v Speaker 1>deadline for that reunification, what he will say to that,

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<v Speaker 1>if they'll give them more time or if he'll want

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<v Speaker 1>a more full accounting of what they've done. About a

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<v Speaker 1>minute here. Does it look as if they're going to

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<v Speaker 1>meet any part of the deadline? Are they reuniting more

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<v Speaker 1>families today? Well, they have a plan to reunite families

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<v Speaker 1>at several locations. They haven't really disclosed where those locations are,

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<v Speaker 1>so they could, you know, present to the judge tomorrow

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<v Speaker 1>a more full list. Thanks Kevin. Kevin Appleby, Senior director

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<v Speaker 1>of International Migration Policy at the Center for Migration Study.

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<v Speaker 1>A new report released today about a Center for Strategic

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<v Speaker 1>and International Studies found that law enforcement agencies are increasingly

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<v Speaker 1>asking tech companies for access to digital evidence on mobile

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<v Speaker 1>phones and apps, and about of the requests are granted.

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<v Speaker 1>Joining me is Jennifer Daxel dasco professor at American University

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<v Speaker 1>Washington College of Law and a senior associate at the

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<v Speaker 1>Center for Strategic and International Studies. Jennifer, you were a

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<v Speaker 1>co author of the report and it says that the

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<v Speaker 1>number of law enforce and requests at least as directed

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<v Speaker 1>at the major US based tech and telecom companies has

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<v Speaker 1>significantly increased over time. What does that increase, sure, and

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<v Speaker 1>thanks for having us on. The increase is the number

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<v Speaker 1>of requests that law enforcement is making to the major

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<v Speaker 1>six major tech companies UM obvious ones Google, Facebook, Microsoft, UM, Apple,

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<v Speaker 1>And what we're seeing is an increase in request for

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<v Speaker 1>digital evidence. Now this isn't surprising if you think about

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<v Speaker 1>how much information UM has been increasingly digitalized over the

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<v Speaker 1>last UM several years. UM law enforcement is finding increasingly

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<v Speaker 1>that information it needs to solve criminal cases is both

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<v Speaker 1>digital and in the hands of these service providers. What

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<v Speaker 1>I'm looking for is how much is that increase? You

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<v Speaker 1>say it's increased, but how much should you have a number?

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<v Speaker 1>Yes over the last in two thousand and seventeen or

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<v Speaker 1>about and requests UM compared that to two thousand and

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<v Speaker 1>fourteen where the numbers were about eighty thousand or so,

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<v Speaker 1>so so that's a pretty significant jump. You also write

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<v Speaker 1>that the response rates have been consistent, So does that

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<v Speaker 1>mean that tech companies are complying more often? Well, the

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<v Speaker 1>the rates have been consistent over time, But if you

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<v Speaker 1>if you take the rates in the absolute numbers, then

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<v Speaker 1>there's more cases in which law enforcement is having UM

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<v Speaker 1>difficulty and accessing evidence even if the rates are the same.

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<v Speaker 1>And importantly, these numbers only capture those cases in which

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<v Speaker 1>law enforcement has in fact made the request. So our report,

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<v Speaker 1>which drew on a survey of state, local, and federal

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<v Speaker 1>law enforcement entities and also a number of qualitative interviews,

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<v Speaker 1>UM found that law enforcement was facing significant problems in

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<v Speaker 1>just identifying which service providers had the kinds of information

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<v Speaker 1>that they need in order to UM for their investigates.

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<v Speaker 1>There there the criminal activity that they were investigating, and

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<v Speaker 1>that was one of it. That was really the biggest

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<v Speaker 1>problem that they were facing in terms of dealing with

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<v Speaker 1>digital evidence. So service providers meeting whether it's UM, you know,

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<v Speaker 1>Verizon or a T and T, Yeah, anybody, So those

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<v Speaker 1>so those are are the easier ones. But we're talking about,

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<v Speaker 1>you know, the the law enforcements investing in crime. They

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<v Speaker 1>don't know whether Facebook holds the data or Google are

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<v Speaker 1>more importantly, which of the you know, gazillion apps that

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<v Speaker 1>are on our phones might have the relevant information. And

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<v Speaker 1>so law enforcement is facing challenges and figuring out where

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<v Speaker 1>to go UM and determining how to ask for for

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<v Speaker 1>the data that they that they seek in investigating activity.

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<v Speaker 1>These interesting, These are problems that can be solved. This

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<v Speaker 1>is not an insurmountable problem, and in our report we

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<v Speaker 1>call for a new national Digital Evidence of says that

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<v Speaker 1>can that can consolidate resources and provide training and UM

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<v Speaker 1>kind of a one stop shop for law enforcement to

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<v Speaker 1>go to get some of these answers to their questions.

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<v Speaker 1>So what would that cost to have a National Digital

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<v Speaker 1>Evidence Office and to have it staffed, so you know,

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<v Speaker 1>this can probably done it relatively low cost. Obviously, the

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<v Speaker 1>more money, the more there can be done in terms

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<v Speaker 1>of training, in terms of providing brands to the programs

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<v Speaker 1>that already do exist at the state and local level

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<v Speaker 1>that are quite good into rationalizing those UM. But a

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<v Speaker 1>lot of this can be done simply by you know,

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<v Speaker 1>reallocating UM certain grant programs UM detailing individuals in the

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<v Speaker 1>federal government to specifically focus on these issues. I think

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<v Speaker 1>the biggest cost comes from the need to really staff

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<v Speaker 1>up UM a team of experts who can help distribute

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<v Speaker 1>the technical tools that can help interpret data once it's

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<v Speaker 1>been disclosed and can stand top of UM of changes

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<v Speaker 1>that tech companies make to their own products, which than

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<v Speaker 1>law enforcement has to also be on top of in

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<v Speaker 1>order to be able to determine where to go and

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<v Speaker 1>to interpret data that's being turned over. Currently, there is

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<v Speaker 1>such an entity of federal entity it's within the FBI.

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<v Speaker 1>UM it is expected to service all state and local

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<v Speaker 1>law enforcement across the country. There's about eighteen thousand different

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<v Speaker 1>offices across the country, and this center has a budget

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<v Speaker 1>of just eleven million dollars, which is nowhere near adequate

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<v Speaker 1>to the need. So we call for adequate resourcing of

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<v Speaker 1>that entity, UM, giving it it's kind of its own platform,

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<v Speaker 1>its own authorization, and obviously the more money the better,

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<v Speaker 1>But we think that there can be a lot done

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<v Speaker 1>at relatively UM low cost. So is it different in

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<v Speaker 1>each case where to go to find the information? For example,

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<v Speaker 1>someone may have a Facebook account, someone else may not.

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<v Speaker 1>Exactly I mean, so in each case, um, I mean, obviously,

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<v Speaker 1>the the investigating agent needs to understand the case. They

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<v Speaker 1>need to know what they're looking for. But um where

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<v Speaker 1>to go depends on the specific facts of the case.

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<v Speaker 1>And different providers have different protocols for per requesting data,

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<v Speaker 1>all of which law enforcement needs to be able to

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<v Speaker 1>know and to utilize effectively. Well, well, could some of

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<v Speaker 1>this information that the agencies are looking for be protected? Um?

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<v Speaker 1>So so certainly, and so we're talking about law enforcement

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<v Speaker 1>making requests UM via a warrant so approved by a

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<v Speaker 1>judge pursuance of probable cause, making requests pursuant to legal

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<v Speaker 1>processes UM that have been laid out in statute UM,

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<v Speaker 1>often involving court authorization. So so, certainly, just because law

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<v Speaker 1>enforcement wants it doesn't mean that it's either available or

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<v Speaker 1>necessarily appropriate for law enforcement to get UM. But we

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<v Speaker 1>also have found that there are cases a number of

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<v Speaker 1>cases in which just about everybody would agree that there

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<v Speaker 1>is a lawful basis UM and and consistent with rules

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<v Speaker 1>on privacy and norms on privacy and civil liberties UM

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<v Speaker 1>to access certain information, and they're being stymied not because

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<v Speaker 1>of a lack of legal authority, but because of much

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<v Speaker 1>more practical problems in terms of knowledge and expertise. And

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<v Speaker 1>it seems to us that this is something that can

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<v Speaker 1>be solved, and that's given that's been given not enough

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<v Speaker 1>attention to date, because there's been so much focus on

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<v Speaker 1>problems associated with encryption and the debates about whether or

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<v Speaker 1>not companies should be forced to decrypt data, and that

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<v Speaker 1>there's other what we call low hanging fruit that's out

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<v Speaker 1>there that could significantly improve law enforcement access while those

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<v Speaker 1>other debates kind of continue to um to to rerady

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<v Speaker 1>e on so less than a minute. Here is there

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<v Speaker 1>any one kind of information that law enforcement agencies are

0:13:54.679 --> 0:13:59.520
<v Speaker 1>looking for more than others? Um? You know unclear, you know,

0:13:59.559 --> 0:14:01.640
<v Speaker 1>I don't know into that. I mean, obviously, you know,

0:14:01.760 --> 0:14:05.800
<v Speaker 1>often location information is often quite quite important to the

0:14:05.840 --> 0:14:07.640
<v Speaker 1>Supreme Court. Just to shoot a big case on that,

0:14:08.400 --> 0:14:11.880
<v Speaker 1>um that that law enforcement, at least for historical information

0:14:12.040 --> 0:14:15.240
<v Speaker 1>that's longer than a certain location, information over a certain

0:14:15.240 --> 0:14:18.040
<v Speaker 1>time period has to be acquired by a warrant signed

0:14:18.040 --> 0:14:20.840
<v Speaker 1>off by a judge pursuance of probable cause. Um. So

0:14:20.880 --> 0:14:22.920
<v Speaker 1>that's a legal standard. But here we're talking about the

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<v Speaker 1>practical problems. All right, question up where to go to

0:14:25.400 --> 0:14:28.200
<v Speaker 1>get it? Thanks so much, Jennifer's the Carpenter case the

0:14:28.240 --> 0:14:31.440
<v Speaker 1>Supreme Court decided last term. Thanks for listening to the

0:14:31.480 --> 0:14:34.840
<v Speaker 1>Bloomberg Law Podcast. You can subscribe and listen to the

0:14:34.840 --> 0:14:38.760
<v Speaker 1>show on Apple podcast, SoundCloud, and on Bloomberg dot com

0:14:38.840 --> 0:14:43.000
<v Speaker 1>slash podcast. I'm June Brolso. This is Bloomberg