Ames Final Round Results:
Best Brief: Daniel J. Meltzer Memorial Team
Best Overall Team: Daniel J. Meltzer Memorial Team
Best Oralist: Amanda Mundell
The David J. Meltzer Memorial Team (Petitioner):
Amanda Mundell, Oralist
Trenton Van Oss
The Lucy Stone Memorial Team (Respondent):
The Honorable John Paul Stevens
Associate Justice (Ret.)
Supreme Court of the United States
The Honorable David J. Barron
United States Court of Appeals
The Honorable Alison J. Nathan
United States District Court
Southern District of New York
United States v. Papaya Cellular
Between October 2015 and March 2016, residents of Ames suffered three deadly bombings at a night club, ice skating rink, and middle school. A terrorist organization calling itself “Redemption” claimed responsibility for the attacks and threatened additional acts of violence within Ames. FBI investigators subsequently received an anonymous tip identifying an individual (known as “John Doe” because his name is redacted in public filings) as a member of Redemption and the person who possibly placed the bomb at one or more of the crime scenes. In response to the tip, the government filed an application under the Stored Communications Act for an order directing Doe’s cell phone provider, Papaya Cellular, to disclose Doe’s cell site location information for a six-month period spanning the time of the terrorist attacks. In its application, the government said that the location data—which is generated any time a subscriber uses his phone to make or receive a call, send or receive a text, or access any application requiring cellular data—could help confirm Doe’s location during the bombings and reveal other pertinent information about his and others’ involvement in the deadly attacks. The district court initially ordered Papaya to disclose the cell site location records.
Papaya moved to quash that order. As its CEO averred, its business model is built around protecting its subscribers’ privacy. To that end, Papaya uses proprietary encryption software to aggregate all subscriber information for each cell site and strip it of individualized data that can be used to track the movements, habits, and personal lives of its subscribers. The district court had ordered Papaya to write software to disaggregate Doe’s records from other subscribers’ data. Papaya argued that compliance with that order would constitute an “undue burden” under the Stored Communications Act, 18 U.S.C. § 2703(d), because it would harm Papaya’s privacy-focused business model, undermine Papaya’s encryption technology, and violate Papaya’s First Amendment right not to engage in the expressive act of writing software. Papaya also argued that compliance with the court’s order would violate the Fourth Amendment by permitting the government to conduct an unreasonable, warrantless search without probable cause.
The district court granted Papaya’s motion to quash, and the Ames Circuit affirmed. The court of appeals held that compliance with the order would constitute an “undue burden” within the meaning of Section 2703(d) and would violate the Fourth Amendment.
The Supreme Court granted review on the following two questions:
1. Whether the court of appeals erred in concluding that it would cause an “undue burden” on Papaya Cellular, within the meaning of 18 U.S.C. 2703(d), to require it to write software to override its encryption technology and disaggregate a particular subscriber’s historical cell site information to assist in an ongoing terrorism investigation.
2. Whether the court of appeals erred in concluding that disclosure of the historical cell site information would violate the Fourth Amendment.
Opening Brief for the United States (The David J. Meltzer Memorial Team)
Respondent Brief for Papaya Cellular (The Lucy Stone Memorial Team)
And we’re done.
Congratulations to everyone!!
Stevens: Im grateful for my former clerks who came appropriately attired. Also buy Barron’s new book!
Judge Barron is giving a shoutout to the non-oralist team members.
Barron speaks to parents in the audience. “You should be proud. It’s difficult being judged, and the ability to do it with that much poise is a gift”
Barron: This is scary for oralists.
Nathan: This was better than most of what I see in a courthouse everyday.
Stevens: A very fine performance by both teams. I think the government got it right on the merits.
Stevens: I have a bit of trouble hearing so I didn’t speak up.
Stevens: I intended to ask more questions but my hearing isn’t as good as it used to be. When I was younger, my father told me that if you are faced with a question of whether to speak up and make a fool of yourself and be quiet, you are better off to be quiet. So I was following that advice.
Stevens admits to bad hearing. Literally the most adorable!
Stevens says he enjoyed being here and intended to ask more questions. Both sides were awfully good!
Are those tears from the winning team?
Best oralist: Mundell
Best Brief: Meltzer Memorial Team.
Best Oralist: Mundell.
Also, now all three justices are in bowties.
Both Barron and Nathan clerked from Stevens back in the day. Shout out to Stevens.
And one more time:
Lucy Stone team is maybe the first all female team to make it to Ames finals in history? Someone fact check me
In a week, we might not have a fourth amendment at all!!
This camera work for the live feed is pure public television gold.
The Fourth Amendment is full of holes, so really, we can’t blame the oralists here.
The Supreme Court hates the fourth amendment yall
Best oralist: Mundell
Best overall team: Gov’t
Best brief: Papaya
And the judges are off.
Arguments are done.
Mundell: We don’t think the SCA is really ambiguous in that way. Congress did strike a balance when government is seeking non-content information.
Barron: Given that there is a circumstance in which one would be worried about the government tracking your every movement, why would we take a vague statute such as this..that if we’re not going to have robust fourth amendment protections, we should require congress to be exact about what they are legislating, instead of finding for the government every time
Barron: If we’re not going to have a robust 4th Amendment doctrine, why don’t we make Congress make these choices instead of reading vague statutes in the government’s favor?
Nathan: What if you’re not supposed to be in that area in the first place?
Mundell: That’s different because that leaves questions of why you were there?
But what about stay away orders etc??
Mundell: In this case, it’s not about that kind of stuff. We’re not requesting that kind of information?
Mundell: you won’t find Doe’s personal, sexual, or political interests.
Nathan: when you search a phone, all of your info is aggregated. Yes, you might be able to observe someone in the street and you might know something about their movements, you might have a picture of your kid in your wallet, etc. but when you put ALL of that information together, isn’t that an intrusion?
Nathan: But at some point, in the aggregate, doesn’t this collection just reveal too much. When you search a phone, you put a ton of different kinds of information together. Doesn’t that reveal too much?
Mundell: the answer is no.
Mundell: The question is, “is there an intrusion?”.
“I’ll lean in, your honor.”
“I’ll lean in, your honor.”
Ms. Mundell is back again
And now for rebuttal.
Rebuttal from Mundell now!
I’m thinking he’s about to offer to literally draw a line.
Barron: we have to actual have some idea of what the guideline is to rule for you.
Justice Barron now equipped with a pen.
Barron: Is the persistence the problem? The precision? The volume of information?
Nathan: Is the three block radius an intrusion on the person?
There’s no line because the government can do anything. That’s not a quote, just a fact. =D
Barron: Don’t you want us to draw some line? What is the problem? The six months?
The justices are really seeking some sort of limiting principle.
One justice worried about the opinion; the other worried about line drawing. Stevens is silent.
Nathan: I’m just worried about the opinion we have to write.
Trusty: It would be a question of scale.
Nathan: give me the teeessssst!
Nathan: But give me the test! How do we articulate this test?
Trusty: it’s a matter of scale; of quality and quantity
Trusty: Pointing a heat wave gun at a house is a search, looking at a house is not.
Nathan: What’s the test for an intrusion here?
Nathan: Why isn’t what you’re saying akin to saying, finding out someone’s address is the same thing as searching the home itself?
Trusty: an individual movements are as much of an extension of their person as what an individual says.
Trusty: An individual’s movements are just as much an extension of them as what they say
Same justice, different bowtie: http://mediadownloads.mlb.com/mlbam/2016/10/30/images/mlbf_1210070483_th_45.jpg
Trusty: Today, it makes sense that the “person” extends beyond the physical. The court has always been recognizing this concept.
A papaya sounds delicious rn…
Trusty: it makes sense that the court hasn’t looked at the breadth of the person category; technology of that kind is new
Trusty: If you look at Smith, while the bright line wouldn’t apply here, the facts would come out the same under our two step test.
Trusty: We are asking for a 2 step analysis. 1. Does this implicate a protected category under 4A. 2. Is government’s conduct an intrusion into this category? The reasonableness inquiry that the government is trying to do is based on the assumption of a diminished expectation of privacy. That is not the case.
the real lesson here is the criminal justice system is f*cked.
Trusty: The balancing test doesn’t apply in this situation.
Trusty: seriousness of crime is not an exception to the warrant requirement
Barron: in a very serious case, with a serious law enforcement interest, even if the govt has reason to suspect that they can get information helpful to the investigation, they would be barred from getting it
Trusty: I’m actually not sure what the probable cause inquiry would involve… but either way they haven’t met that standard
Barron: Would it be probable cause that the information would be relevant to the investigation? Or probable cause that he committed or is committing a crime?
Barron: but there is reasonable suspicion?
Stevens: What is it you’re trying to find out? Probable cause to do what?
Stevens: probable cause to do what?
Nathan: Does Papaya share that concession? If you say that there is probable cause, then you could have a stronger argument for telling them to getawarrant
Nathan: Do you share that concession? Because if you do, it would be easier to say “go get a warrant”
Trusty: the government conceded that there’s no probable cause
Stevens: was there a determination that there is no probable cause?
Stevens: has there been a determination that there was no probable cause?
Trusty: The government is trying to go too far!! getawarrant aclu
Caroline Trusty begins her argument
Trusty begins with question 2
Nathan: The question of what goes into the calculus — don’t we decide de novo what goes into that calculus? Why should we defer to the District Court’s analysis?
Nathan: Shouldn’t we decide de novo what goes into the calculus? You want us to defer to the district court. Why is that?
Zou: Because it’s fact specific
Barron’s 3-4 question combos are devastating.
I mean, this is a staged competition, so.
Barron blames Papaya for the sparse record!
Barron: 3 engineers for 6 days… is that alone an undue burden?
Zou: Well those 3 engineers could have been indispensable to the business. Based on the sparse record we don’t know how much impact this would have on Papaya
Barron: well that’s the facts!
Barron: if we put aside the first amendment issue, and the branding issue, and further requests from other parties, and we just ask how burdensome is to have three engineers working to write new code in a week? Is that alone undue burden?
Zou: “Reasonably necessary” acts as a check that the provider is not doing anything more than is necessary for the government.
Zou: The distinction between actual and reasonable costs is unpersuasive. The language “reasonably necessary” acts as a check to make sure the provider is only doing the work that is necessary.
Zou: Undue burden analysis should not be as narrowly limited as government intends.
Barron: So we look at the government’s interest in the information. Unless they are requesting unusually voluminous information in which case we restrict.
Zou: it is relevant in an indirect sense, because the relevance is focused on the relevance of the specific information.
Stevens: this would be the same case, if we were looking for someone who was illegally pickpocketing?
Zou: It is not relevant.
Zou: Seriousness of crime is not directly relevant for the undue burden analysis.
Stevens: I’m not sure I’m getting the answer. is it relevant at all? yes or no?
Zou: District Court could have found that there was only a tenuous relationship between John Doe’s relationship and a future terrorist attack.
Stevens: Just as a general matter, is the seriousness of the crime relevant on the issue of undue burden?
Barron: are you saying your company is different from other encrypting companies?
Barron: how do we decide which companies are protected from the order: companies that brand themselves as being encrypted, or any company that uses encryption
Zou: we don’t want to limit willing parties from aiding the government
Zou: Congress would have wanted the government to obtain information if the third party wanted to provide it. But there is a limitation on what the government may compel of an unwilling company.
Barron: your argument reads that for companies that really don’t want to decrypt, they don’t have to
Barron: Is your argument that generally decryption is permissible, and we only restrict it if the company doesn’t want to? I would understand the argument that decryption just doesn’t fit under the statute, but that doesn’t seem to be what you’re arguing.
Nathan: Are you waiving an argument that you don’t need to engage in the act of writing the de-encryption software?
Nathan: are you not waiving an argument that the statute doesn’t require you to do anything that isn’t in the text, i.e. creating code rather than giving over existing data?
Zou: we believe that historic cell site data is included under the statute
Nathan: Seems to me looking at the statute, you only get the undue burden analysis upon an otherwise authorized order. Do you concede that what the government is requiring Papaya to do is authorized? Or do you contend that all you have to do is disclose?
Barron: If you have reasonable suspicion, why would we cut off the records you get?
Zou: without RS, no info can be gotten. BUT we want to balance interest of subscribers against the government, so we have levels above reasonable suspicion. In that spectrum, if you are requesting subscriber information that could still be unusually voluminous and should still be restricted.
Zou: Provider only comes in with respect to the second clause. Congress was worried about a balance between privacy interests of subscribers and government interests.
Barron: the voluminous request could address the burden on the provider
Zou: gov’t is construing this too narrowly (just resources and time).
the judges are a bit particular, eh?
Barron asks Ms. Zou to adjust the microphone
Lucy Stone team begins
Winn concedes that a remand may be appropriate
Nathan: Well the judge I clerked for told me to pay special attention to the record — shouldn’t we just remand to clarify that issue?
Who’d she work for? Stevens?
Nathan: Record question: I must be missing it. I read the district court order. I don’t see the six month limitation in that order. Is there actually a six month limitation to the order?
Nathan doesn’t see a six month limitation. is there actually a six month limitation?
Winn: Difference between direct government surveillance and getting the information from a third party
Barron: being out and about there IS a third party involved. So on your view, all information that anyone happened to collect about that is available. Even if you didn’t know that it was being collected.
Barron: So if it’s location information, there is never an expectation of privacy?
Barron: if there’s no privacy interest, then the government could back in this information until birth
Winn: the government didn’t want to know everything that Doe’s done. Just the six months of the terrorist attacks
Nathan: What length of time — why limit the length of time you sought here?
Winn: When you go out and about in public, you are exposing location information to the public… even if we want to think it’s private. For the purposes of the fourth amendment it’s not protected.
Nathan: As a matter of common sense, the government being able to know my location within a couple of blocks, that has a feeling of intrusiveness to it. Is there not some notion that where I’ve been and what I’ve done is not for the government to know?
This company is named Papaya right…?
Winn: Even if Doe has some expectation of privacy, the government doesn’t believe it’s a full and complete expectation — we think it’s a diminished one.
Barron: so there’s not probable cause, it’s not that useful to the government… but he has a privacy interest on the other side. Doesn’t that weigh in favor of Papaya and John Doe?
Winn: When the gov’t has a special law enforcement need, we do a case by case balancing approach.
Winn: When the government has a special law enforcement need, the court uses a special reasonableness case-by-case approach.
Barron: you think you can win without the third-party doctrine going your way?
Winn: we need this data to develop probable cause.
Winn: we don’t have probable cause, so we don’t believe we can seek an option. A warrant wasn’t an option.
Nathan: We’re proceeding with an anonymous name here, but we could do the same in another context, couldn’t we?
“there’s no taking the cat back out of the bag”
Nathan: Usually waiving an argument works to your disadvantage, but you’re trying to use it to your advantage, which is clever.
Winn: Papaya’s 4th Amendment rights and John Doe’s 4th Amendment rights are not the same.
Winn: Papaya raises John Doe’s Fourth Amendment rights; they do not become mixed
Barron: how do we apply the test in this particular context?
Winn: Papaya is proposing that we should overrule Katz reasonable expectation of privacy test. They are also proposing that we shouldn’t apply third party doctrine to digital communications.
Winn’s argument assumes that people read agreements from cellphone companies. That John Doe knew that Papaya must have location information and could use it as they please
Winn: Doe gave over information knowingly.
Winn: information about the exterior of a mailbox has been accessible to the government since 1877.
Winn: The exterior of a letter is available to see, while the content is not.
Nathan: Can you search my mailbox without a warrant?
Winn: The phone’s like a mailbox.
Winn: There is an affirmative action. Before anyone can transmit information to Papaya, they need to ensure they are connected to a network, and then make a call/text/otherwise use data
Nathan: the individual didn’t really make an affirmative action in giving over the data, right?
Winn says using a phone is an affirmative action; turning it on, that is.
Nathan: there’s a certain passivity involved here, right?
Nathan is concerned about the passivity of the information provided
Nathan: you say “give it over” but there is a certain passivity here.
Barron is pushing back on the idea of the expectation of privacy analysis covering commercial and noncommercial settings identically.
Winn: In US v. Miller, even when a person gives info to 3rd party and with confidence that it won’t be disclosed, they don’t retain a reasonable expectation of privacy
Secret Agent cases? Maybe I should have read the briefs….
Winn: We haven’t had a case just like this one.
Barron interrupts early
Winn: 4th Amendment balances privacy and security. But this person’s location information was never private in the first place. He voluntarily conveyed information to a third party
On the second question: Connor Winn
Barron: they aren’t making a first amendment challenge. but it’s an unusual request
Mundell: I’d like to shift to the First Amendment.
asking the hard hitting questions: “why isn’t this cover gray?”
Stevens asking about the color of the paper of the brief…
way to throw off the oralist!
asking about the cover of the brief
Stevens: do the rules provide for a preliminary statement?
Mundell: Government’s request is not based on mere speculation — it’s based on a credible tip, which adds to the government’s interest.
Barron: Gov’t using reasonable suspicion rather than probable cause; so in weighing the government’s interests, it’s not that weighty if there’s not enough evidence to get a warrant.
Barron: so you’re prepared to make a reasonable suspicion showing, and can’t make probable cause?
Barron: we have to decide this case on the assumption that the government couldn’t get a warrant?
Mundell: Papaya’s burdens are 3 engineers for a week of labor. Gov’t’s interest are weighty.
Mundell: government’s interest here is weighty.
Finally getting to the balance. If at first you don’t succeed….
Barron: you want the judge to do an all things considered reasonableness analysis, similar to what we would do in a warrant analysis?
Mundell: “undue” means the court must balance against the governmental interest.
Shifting to the balance of burden
Mundell: Congress chose the word “undue,” not “unusual” (which might not entail balancing). Undue requires a comparison to a baseline.
barron: “very burdensome things are too burdensome”
Mundell: inherent in the undue burden analysis is Papaya’s interest vs. gov’ts interests. Papaya has added burdens that don’t fit with the statute.
Barron’s not ready to move on.
Mundell is now discussing the legislative history to answer the decrypting question.
Barron: maybe we thinks what’s odd is reading a statute that doesn’t order people to decrypt things, to decrypt them.
Nathan: maybe we don’t even get to the undue burden because you’re seeking more than mere disclosure — you’re asking them to create software to decrypt.
Mundell: yes, we want more than disclosure. We need someone to build the code, too.
Nathan: you want them to do more than just disclose, right? Isn’t building a software more than just disclosure.
JPS channeling Thomas today?
barron: aren’t differences in kind undue burden?
Barron: If I took that logic, why wouldn’t we read the statute to mean that the record was THERE and it was simply a matter of amassing it?
Mundell is emphasizing the balancing of interests at stake; the government’s interests here are weightier.
Barron: Why is a voluminous request undue?
Nathan is really pushing back on this interpretation of “costs.”
Mundell: look to a neighboring provision for meaning of “unusually voluminous.”
Nathan: You say resources as to compliance focused only on the specific dollar cost of writing the code, but ignore the other costs like lost brand value. Why should “resources” w/r/t burden be limited in that way?
Mundell: “Voluminous” indicates that burden is w/r/t resources. So let’s extend that and balance against gov’t interest.
Barron: the only reference that gives us purchase as to what undue burden means, is about the volume of the records.
Nathan: asking where oralist is coming from with respect to the statute.
She’s good! Let’s cite to the comma next time.
1002(b)(3) … maybe… just a guess
FYI: the “undue burden” inquiry is with respect to the Stored Communications Act. Not necessarily the same as the Due Process analysis.
Barron: You’re making them actually build code. If getting voluminous records is burdensome, isn’t this?
Barron: how do we think about what an undue burden is?
She’s addressing the meaning of undue burden
Amanda Mundell approaches the podium
Is Stevens not the chief justice on this fictional court??
Oye, oye! The arguments begin!
The judges are walking in now.
No photos, please!
I’m already lost.
And we’re off. Introductions beginning now.
Looks like we’re getting ready to start!