Ames Final Round – November 2016

Ames Final Round Results:

Best Brief: Daniel J. Meltzer Memorial Team

Best Overall Team: Daniel J. Meltzer Memorial Team

Best Oralist: Amanda Mundell

The Teams:

The David J. Meltzer Memorial Team (Petitioner):

Connor Winn, Oralist
Benjamin Burkett
William Ferraro
Luke Beasley
Amanda Mundell, Oralist
Trenton Van Oss

The Lucy Stone Memorial Team (Respondent):

Michelle Adler
Victoria Hartmann
Helen Rave
Caroline Trusty, Oralist
Stefanie Tubbs
Mengjie Zou, Oralist

The Bench:

The Honorable John Paul Stevens
Associate Justice (Ret.)
Supreme Court of the United States

The Honorable David J. Barron
United States Court of Appeals
First Circuit

The Honorable Alison J. Nathan
United States District Court
Southern District of New York

The Case:

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.

The Record:

Joint Appendix

The Briefs:

Opening Brief for the United States (The David J. Meltzer Memorial Team)

Respondent Brief for Papaya Cellular (The Lucy Stone Memorial Team)

Reply Brief

 The Liveblog:

Adam Mills November 1, 20161:54 pm

And we’re done.

Emma Rekart November 1, 20161:54 pm

Congratulations to everyone!!

Emma Rekart November 1, 20161:53 pm

Stevens: Im grateful for my former clerks who came appropriately attired. Also buy Barron’s new book!

Adam Mills November 1, 20161:51 pm

Judge Barron is giving a shoutout to the non-oralist team members.

Emma Rekart November 1, 20161:51 pm

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”

Adam Mills November 1, 20161:51 pm

Barron: This is scary for oralists.

Adam Mills November 1, 20161:47 pm

Nathan: This was better than most of what I see in a courthouse everyday.

Adam Mills November 1, 20161:46 pm

Stevens: A very fine performance by both teams. I think the government got it right on the merits.

Adam Mills November 1, 20161:43 pm

Stevens: I have a bit of trouble hearing so I didn’t speak up.

He’s now talking about Clarence Thomas and his famous courtroom silence.
Emma Rekart November 1, 20161:43 pm

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.

Leena Charlton November 1, 20161:43 pm

Stevens admits to bad hearing. Literally the most adorable!

Leena Charlton November 1, 20161:42 pm

Stevens says he enjoyed being here and intended to ask more questions. Both sides were awfully good!

Leena Charlton November 1, 20161:41 pm

Are those tears from the winning team?

Adam Mills November 1, 20161:40 pm

SWEEP.

Emma Rekart November 1, 20161:40 pm

Best oralist: Mundell

Best Brief: Gov’t
Best overall team: Gov’t
Adam Mills November 1, 20161:40 pm

Best Brief: Meltzer Memorial Team.

Adam Mills November 1, 20161:40 pm

Best Oralist: Mundell.

Adam Mills November 1, 20161:39 pm

Also, now all three justices are in bowties.

Emma Rekart November 1, 20161:39 pm

Announcements now!

Leena Charlton November 1, 20161:39 pm

Both Barron and Nathan clerked from Stevens back in the day. Shout out to Stevens.

Adam Mills November 1, 20161:38 pm

And one more time:

Emma Rekart November 1, 20161:37 pm

test test

http://time.com/4548507/chicago-cubs-world-series-john-paul-stevens/

Emma Rekart November 1, 20161:33 pm

Lucy Stone team is maybe the first all female team to make it to Ames finals in history? Someone fact check me

Leena Charlton November 1, 20161:31 pm

Predictions:

Oralist: Mundell
Team: Meltzer
Brief: Lucy Stone
Really want the ladies to win everything because feminism leanin
Adam Mills November 1, 20161:31 pm

Predictions:

I actually agree with Emma.
Emma Rekart November 1, 20161:28 pm

In a week, we might not have a fourth amendment at all!!

Leena Charlton November 1, 20161:27 pm

This camera work for the live feed is pure public television gold.

Leena Charlton November 1, 20161:25 pm

The Fourth Amendment is full of holes, so really, we can’t blame the oralists here.

Emma Rekart November 1, 20161:25 pm

The Supreme Court hates the fourth amendment yall

Emma Rekart November 1, 20161:23 pm

My predictions

Best oralist: Mundell
Best overall team: Gov’t
Best brief: Papaya

Adam Mills November 1, 20161:21 pm

And the judges are off.

Leena Charlton November 1, 20161:21 pm

Arguments are done.

Emma Rekart November 1, 20161:21 pm

Predictions???

Adam Mills November 1, 20161:21 pm

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.

Leena Charlton November 1, 20161:21 pm

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

Emma Rekart November 1, 20161:20 pm

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?

Emma Rekart November 1, 20161:19 pm

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??

Adam Mills November 1, 20161:19 pm

Mundell: In this case, it’s not about that kind of stuff. We’re not requesting that kind of information?

Nathan: But doesn’t GPS information reveal that kind of information?
Leena Charlton November 1, 20161:19 pm

Mundell: you won’t find Doe’s personal, sexual, or political interests.

Emma Rekart November 1, 20161:19 pm

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?

Mundell: No because the info requested is not akin to GPS or to content
Adam Mills November 1, 20161:18 pm

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?

Leena Charlton November 1, 20161:18 pm

Mundell: the answer is no.

Adam Mills November 1, 20161:17 pm

Mundell: The question is, “is there an intrusion?”.

Adam Mills November 1, 20161:16 pm

“I’ll lean in, your honor.”

Leena Charlton November 1, 20161:16 pm

“I’ll lean in, your honor.”

Emma Rekart November 1, 20161:16 pm

leanin

Leena Charlton November 1, 20161:16 pm

Ms. Mundell is back again

Adam Mills November 1, 20161:16 pm

And now for rebuttal.

Emma Rekart November 1, 20161:16 pm

Rebuttal from Mundell now!

Adam Mills November 1, 20161:15 pm

I’m thinking he’s about to offer to literally draw a line.

Leena Charlton November 1, 20161:15 pm

Barron: we have to actual have some idea of what the guideline is to rule for you.

Adam Mills November 1, 20161:15 pm

Justice Barron now equipped with a pen.

Emma Rekart November 1, 20161:15 pm

Barron: Is the persistence the problem? The precision? The volume of information?

Adam Mills November 1, 20161:14 pm

Nathan: Is the three block radius an intrusion on the person?

Trusty: It might be. Cell phones are small and you carry them everywhere you go. It’s possible that the government could follow you everywhere.
Leena Charlton November 1, 20161:14 pm

There’s no line because the government can do anything. That’s not a quote, just a fact. =D

Emma Rekart November 1, 20161:14 pm

Barron: Don’t you want us to draw some line? What is the problem? The six months?

Trusty: That is one of the problems. Another is that the info sought is down to a specific city block.
Adam Mills November 1, 20161:13 pm

The justices are really seeking some sort of limiting principle.

Leena Charlton November 1, 20161:13 pm

One justice worried about the opinion; the other worried about line drawing. Stevens is silent.

Adam Mills November 1, 20161:13 pm

Nathan: I’m just worried about the opinion we have to write.

Adam Mills November 1, 20161:12 pm

Trusty: It would be a question of scale.

Leena Charlton November 1, 20161:12 pm

Nathan: give me the teeessssst!

Adam Mills November 1, 20161:12 pm

Nathan: But give me the test! How do we articulate this test?

Leena Charlton November 1, 20161:12 pm

Trusty: it’s a matter of scale; of quality and quantity

Emma Rekart November 1, 20161:12 pm

Trusty: Pointing a heat wave gun at a house is a search, looking at a house is not.

Nathan: So what is the test for an intrusion?
Trusty: It’s a matter of scale. It is the quality and quantity of information.
Adam Mills November 1, 20161:11 pm

Nathan: What’s the test for an intrusion here?

Adam Mills November 1, 20161:11 pm

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?

Leena Charlton November 1, 20161:10 pm

Trusty: an individual movements are as much of an extension of their person as what an individual says.

Emma Rekart November 1, 20161:10 pm

Trusty: An individual’s movements are just as much an extension of them as what they say

Adam Mills November 1, 20161:10 pm

Same justice, different bowtie: http://mediadownloads.mlb.com/mlbam/2016/10/30/images/mlbf_1210070483_th_45.jpg

Adam Mills November 1, 20161:10 pm

Trusty: Today, it makes sense that the “person” extends beyond the physical. The court has always been recognizing this concept.

Emma Rekart November 1, 20161:09 pm

A papaya sounds delicious rn…

Leena Charlton November 1, 20161:09 pm

Trusty: it makes sense that the court hasn’t looked at the breadth of the person category; technology of that kind is new

Emma Rekart November 1, 20161:08 pm

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.

Adam Mills November 1, 20161:07 pm

Trusty: ??

Emma Rekart November 1, 20161:07 pm

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.

Adam Mills November 1, 20161:05 pm

Relevant: http://www.supremecourtpress.com/supreme_court_rules.html

Leena Charlton November 1, 20161:04 pm

the real lesson here is the criminal justice system is f*cked.

Adam Mills November 1, 20161:04 pm

Trusty: The balancing test doesn’t apply in this situation.

Emma Rekart November 1, 20161:03 pm

Trusty: seriousness of crime is not an exception to the warrant requirement

Leena Charlton November 1, 20161:03 pm

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

Emma Rekart November 1, 20161:02 pm

Trusty: I’m actually not sure what the probable cause inquiry would involve… but either way they haven’t met that standard

Emma Rekart November 1, 20161:02 pm

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?

Trusty: the latter
Leena Charlton November 1, 20161:00 pm

Barron: but there is reasonable suspicion?

Emma Rekart November 1, 20161:00 pm

Stevens: What is it you’re trying to find out? Probable cause to do what?

Trusty: Whether there’s probable cause that someone has committed or is committing a crime
Leena Charlton November 1, 20161:00 pm

Stevens: probable cause to do what?

Adam Mills November 1, 201612:59 pm

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

Emma Rekart November 1, 201612:59 pm

Nathan: Do you share that concession? Because if you do, it would be easier to say “go get a warrant”

Leena Charlton November 1, 201612:59 pm

Trusty: the government conceded that there’s no probable cause

Emma Rekart November 1, 201612:59 pm

Stevens: was there a determination that there is no probable cause?

Trusty: No, but the gov’t has conceded that.
Leena Charlton November 1, 201612:59 pm

Stevens: has there been a determination that there was no probable cause?

Emma Rekart November 1, 201612:58 pm

Trusty: The government is trying to go too far!! getawarrant aclu

Leena Charlton November 1, 201612:58 pm

Caroline Trusty begins her argument

Adam Mills November 1, 201612:58 pm

Trusty begins with question 2

Adam Mills November 1, 201612:57 pm

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?

Emma Rekart November 1, 201612:57 pm

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

Adam Mills November 1, 201612:55 pm

Barron’s 3-4 question combos are devastating.

Leena Charlton November 1, 201612:55 pm

I mean, this is a staged competition, so.

Leena Charlton November 1, 201612:54 pm

Barron blames Papaya for the sparse record!

Emma Rekart November 1, 201612:54 pm

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

Leena Charlton November 1, 201612:54 pm

Barron: well that’s the facts!

Leena Charlton November 1, 201612:53 pm

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?

Adam Mills November 1, 201612:53 pm

Zou: “Reasonably necessary” acts as a check that the provider is not doing anything more than is necessary for the government.

Emma Rekart November 1, 201612:53 pm

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.

Adam Mills November 1, 201612:52 pm

Zou: Undue burden analysis should not be as narrowly limited as government intends.

Emma Rekart November 1, 201612:52 pm

Barron: So we look at the government’s interest in the information. Unless they are requesting unusually voluminous information in which case we restrict.

Emma Rekart November 1, 201612:51 pm

Zou: it is relevant in an indirect sense, because the relevance is focused on the relevance of the specific information.

Leena Charlton November 1, 201612:51 pm

Stevens: this would be the same case, if we were looking for someone who was illegally pickpocketing?

Emma Rekart November 1, 201612:50 pm

Zou: It is not relevant.

Stevens: So this would be the same case if we were trying to decide if someone was guilty of pickpocketing?
Adam Mills November 1, 201612:50 pm

Zou: Seriousness of crime is not directly relevant for the undue burden analysis.

Leena Charlton November 1, 201612:50 pm

Stevens: I’m not sure I’m getting the answer. is it relevant at all? yes or no?

Adam Mills November 1, 201612:50 pm

Zou: District Court could have found that there was only a tenuous relationship between John Doe’s relationship and a future terrorist attack.

Emma Rekart November 1, 201612:49 pm

Stevens: Just as a general matter, is the seriousness of the crime relevant on the issue of undue burden?

Leena Charlton November 1, 201612:49 pm

STEVENS!

Leena Charlton November 1, 201612:48 pm

Barron: are you saying your company is different from other encrypting companies?

Leena Charlton November 1, 201612:48 pm

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

Emma Rekart November 1, 201612:47 pm

Zou: we don’t want to limit willing parties from aiding the government

Adam Mills November 1, 201612:47 pm

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.

Leena Charlton November 1, 201612:46 pm

Barron: your argument reads that for companies that really don’t want to decrypt, they don’t have to

Emma Rekart November 1, 201612:45 pm

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.

Adam Mills November 1, 201612:45 pm

Nathan: Are you waiving an argument that you don’t need to engage in the act of writing the de-encryption software?

Zou: Papaya would agree that this decryption software is questionable.
Leena Charlton November 1, 201612:45 pm

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?

Leena Charlton November 1, 201612:44 pm

Zou: we believe that historic cell site data is included under the statute

Adam Mills November 1, 201612:44 pm

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?

Emma Rekart November 1, 201612:43 pm

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.

Adam Mills November 1, 201612:42 pm

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.

Leena Charlton November 1, 201612:41 pm

Barron: the voluminous request could address the burden on the provider

Emma Rekart November 1, 201612:41 pm

Zou: gov’t is construing this too narrowly (just resources and time).

Leena Charlton November 1, 201612:39 pm

the judges are a bit particular, eh?

Leena Charlton November 1, 201612:39 pm

Barron asks Ms. Zou to adjust the microphone

Leena Charlton November 1, 201612:39 pm

Lucy Stone team begins

Leena Charlton November 1, 201612:39 pm

Winn concedes that a remand may be appropriate

Emma Rekart November 1, 201612:38 pm

Called it!

Adam Mills November 1, 201612:38 pm

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?

Emma Rekart November 1, 201612:38 pm

Who’d she work for? Stevens?

Adam Mills November 1, 201612:38 pm

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?

Leena Charlton November 1, 201612:38 pm

Nathan doesn’t see a six month limitation. is there actually a six month limitation?

Emma Rekart November 1, 201612:37 pm

Winn: Difference between direct government surveillance and getting the information from a third party

Leena Charlton November 1, 201612:37 pm

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.

Emma Rekart November 1, 201612:36 pm

Barron: So if it’s location information, there is never an expectation of privacy?

Leena Charlton November 1, 201612:36 pm

Barron: if there’s no privacy interest, then the government could back in this information until birth

Leena Charlton November 1, 201612:35 pm

Winn: the government didn’t want to know everything that Doe’s done. Just the six months of the terrorist attacks

Adam Mills November 1, 201612:35 pm

Nathan: What length of time — why limit the length of time you sought here?

Emma Rekart November 1, 201612:35 pm

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.

Adam Mills November 1, 201612:34 pm

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?

Leena Charlton November 1, 201612:34 pm

An interruption!

Emma Rekart November 1, 201612:34 pm

This company is named Papaya right…?

Adam Mills November 1, 201612:33 pm

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.

Emma Rekart November 1, 201612:33 pm

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?

Emma Rekart November 1, 201612:32 pm

Winn: When the gov’t has a special law enforcement need, we do a case by case balancing approach.

Barron: How broad does that go? Can you go into his house?
Winn: No
Barron: So why? Because it’s a terrorist case?
Adam Mills November 1, 201612:32 pm

Winn: When the government has a special law enforcement need, the court uses a special reasonableness case-by-case approach.

Leena Charlton November 1, 201612:31 pm

Barron: you think you can win without the third-party doctrine going your way?

Emma Rekart November 1, 201612:31 pm

Winn: we need this data to develop probable cause.

Leena Charlton November 1, 201612:31 pm

Winn: we don’t have probable cause, so we don’t believe we can seek an option. A warrant wasn’t an option.

Adam Mills November 1, 201612:31 pm

Nathan: We’re proceeding with an anonymous name here, but we could do the same in another context, couldn’t we?

Leena Charlton November 1, 201612:31 pm

“there’s no taking the cat back out of the bag”

Adam Mills November 1, 201612:30 pm

Nathan: Usually waiving an argument works to your disadvantage, but you’re trying to use it to your advantage, which is clever.

Emma Rekart November 1, 201612:30 pm

Winn: Papaya’s 4th Amendment rights and John Doe’s 4th Amendment rights are not the same.

Leena Charlton November 1, 201612:30 pm

Winn: Papaya raises John Doe’s Fourth Amendment rights; they do not become mixed

Leena Charlton November 1, 201612:29 pm

Barron: how do we apply the test in this particular context?

Emma Rekart November 1, 201612:28 pm

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.

Leena Charlton November 1, 201612:28 pm

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

Adam Mills November 1, 201612:27 pm

Winn: Doe gave over information knowingly.

Adam Mills November 1, 201612:27 pm

Winn: information about the exterior of a mailbox has been accessible to the government since 1877.

Emma Rekart November 1, 201612:27 pm

Winn: The exterior of a letter is available to see, while the content is not.

Adam Mills November 1, 201612:27 pm

Nathan: Can you search my mailbox without a warrant?

Winn: No
Nathan: But I put it out there.
Leena Charlton November 1, 201612:26 pm

Winn: The phone’s like a mailbox.

Emma Rekart November 1, 201612:26 pm

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

Adam Mills November 1, 201612:26 pm

Nathan: the individual didn’t really make an affirmative action in giving over the data, right?

Leena Charlton November 1, 201612:26 pm

Winn says using a phone is an affirmative action; turning it on, that is.

Adam Mills November 1, 201612:25 pm

Nathan: there’s a certain passivity involved here, right?

Leena Charlton November 1, 201612:25 pm

Nathan is concerned about the passivity of the information provided

Emma Rekart November 1, 201612:25 pm

Nathan: you say “give it over” but there is a certain passivity here.

Adam Mills November 1, 201612:25 pm

Barron is pushing back on the idea of the expectation of privacy analysis covering commercial and noncommercial settings identically.

Emma Rekart November 1, 201612:24 pm

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

Leena Charlton November 1, 201612:24 pm

Secret Agent cases? Maybe I should have read the briefs….

Adam Mills November 1, 201612:23 pm

Winn: We haven’t had a case just like this one.

Leena Charlton November 1, 201612:22 pm

Barron interrupts early

Emma Rekart November 1, 201612:22 pm

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

Adam Mills November 1, 201612:22 pm

On the second question: Connor Winn

Leena Charlton November 1, 201612:22 pm

Connor’s up!

Leena Charlton November 1, 201612:21 pm

Barron: they aren’t making a first amendment challenge. but it’s an unusual request

Adam Mills November 1, 201612:21 pm

Mundell: I’d like to shift to the First Amendment.

Leena Charlton November 1, 201612:21 pm

asking the hard hitting questions: “why isn’t this cover gray?”

Emma Rekart November 1, 201612:20 pm

Stevens asking about the color of the paper of the brief…

Leena Charlton November 1, 201612:20 pm

way to throw off the oralist!

Leena Charlton November 1, 201612:20 pm

asking about the cover of the brief

Leena Charlton November 1, 201612:20 pm

Stevens: do the rules provide for a preliminary statement?

Adam Mills November 1, 201612:20 pm

Mundell: Government’s request is not based on mere speculation — it’s based on a credible tip, which adds to the government’s interest.

Leena Charlton November 1, 201612:19 pm

HE SPEAKS

Leena Charlton November 1, 201612:19 pm

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.

Emma Rekart November 1, 201612:19 pm

Barron: so you’re prepared to make a reasonable suspicion showing, and can’t make probable cause?

Leena Charlton November 1, 201612:18 pm

Barron: we have to decide this case on the assumption that the government couldn’t get a warrant?

Emma Rekart November 1, 201612:18 pm

Mundell: Papaya’s burdens are 3 engineers for a week of labor. Gov’t’s interest are weighty.

Barron: Not so weighty that you could get a warrant?
Adam Mills November 1, 201612:18 pm

Mundell: government’s interest here is weighty.

Leena Charlton November 1, 201612:18 pm

Finally getting to the balance. If at first you don’t succeed….

Emma Rekart November 1, 201612:17 pm

Barron: you want the judge to do an all things considered reasonableness analysis, similar to what we would do in a warrant analysis?

Adam Mills November 1, 201612:17 pm

Mundell: “undue” means the court must balance against the governmental interest.

Leena Charlton November 1, 201612:17 pm

Shifting to the balance of burden

Emma Rekart November 1, 201612:16 pm

Mundell: Congress chose the word “undue,” not “unusual” (which might not entail balancing). Undue requires a comparison to a baseline.

Leena Charlton November 1, 201612:16 pm

barron: “very burdensome things are too burdensome”

Emma Rekart November 1, 201612:15 pm

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.

Leena Charlton November 1, 201612:15 pm

Barron’s not ready to move on.

Adam Mills November 1, 201612:15 pm

Mundell is now discussing the legislative history to answer the decrypting question.

Leena Charlton November 1, 201612:14 pm

Barron: maybe we thinks what’s odd is reading a statute that doesn’t order people to decrypt things, to decrypt them.

Adam Mills November 1, 201612:14 pm

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.

Leena Charlton November 1, 201612:13 pm

Mundell: yes, we want more than disclosure. We need someone to build the code, too.

Adam Mills November 1, 201612:13 pm

Nathan: you want them to do more than just disclose, right? Isn’t building a software more than just disclosure.

Emma Rekart November 1, 201612:13 pm

JPS channeling Thomas today?

Leena Charlton November 1, 201612:13 pm

barron: aren’t differences in kind undue burden?

Emma Rekart November 1, 201612:12 pm

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?

Leena Charlton November 1, 201612:12 pm

Mundell is emphasizing the balancing of interests at stake; the government’s interests here are weightier.

Emma Rekart November 1, 201612:11 pm

Barron: Why is a voluminous request undue?

Adam Mills November 1, 201612:11 pm

Nathan is really pushing back on this interpretation of “costs.”

Adam Mills November 1, 201612:10 pm

Mundell: look to a neighboring provision for meaning of “unusually voluminous.”

Adam Mills November 1, 201612:10 pm

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?

Emma Rekart November 1, 201612:09 pm

Mundell: “Voluminous” indicates that burden is w/r/t resources. So let’s extend that and balance against gov’t interest.

Leena Charlton November 1, 201612:09 pm

Barron: the only reference that gives us purchase as to what undue burden means, is about the volume of the records.

Adam Mills November 1, 201612:08 pm

Nathan: asking where oralist is coming from with respect to the statute.

Leena Charlton November 1, 201612:08 pm

She’s good! Let’s cite to the comma next time.

Emma Rekart November 1, 201612:08 pm

1002(b)(3) … maybe… just a guess

Adam Mills November 1, 201612:07 pm

FYI: the “undue burden” inquiry is with respect to the Stored Communications Act. Not necessarily the same as the Due Process analysis.

Emma Rekart November 1, 201612:07 pm

Barron: You’re making them actually build code. If getting voluminous records is burdensome, isn’t this?

Leena Charlton November 1, 201612:07 pm

Barron: how do we think about what an undue burden is?

Leena Charlton November 1, 201612:06 pm

She’s addressing the meaning of undue burden

Leena Charlton November 1, 201612:06 pm

Amanda Mundell approaches the podium

Emma Rekart November 1, 201612:05 pm

Is Stevens not the chief justice on this fictional court??

Leena Charlton November 1, 201612:05 pm

Oye, oye! The arguments begin!

Adam Mills November 1, 201612:04 pm

The judges are walking in now.

Leena Charlton November 1, 201612:04 pm

No photos, please!

Emma Rekart November 1, 201612:03 pm

I’m already lost.

Adam Mills November 1, 201612:02 pm

And we’re off. Introductions beginning now.

Leena Charlton November 1, 201611:59 am

Looks like we’re getting ready to start!

Written by

Leena is a 3L at HLS. She is from Tennessee. She received her B.A. in sociology and human rights from Columbia University. Prior to law school, Leena worked in communications at the NYCLU.

Latest comments
  • This is mad rude… The man is 96

  • This has been great. THanks emma and leena! adam did fine too.

LEAVE A COMMENT