SCOTUS Nominee Brett Kavanaugh Problematic Opinion On Anti-SLAPP Laws

from the bad-for-free-speech dept

So Tim Cushing has just taken a peek at Supreme Court nominee Brett Kavanaugh's 4th Amendment rulings and Karl already looked at his questionable opinion concerning net neutrality (in which he argued (bizarrely) that what blocking content and services on a network is a 1st Amendment "editorial" decision by broadband providers). Of course, that's just one of his 1st Amendment cases. I wanted to look over some of Kavanaugh's other free speech related opinions. Ken "Popehat" White has done a pretty good job covering most of them, noting that for the most part, Kavanaugh takes a fairly strong First Amendment approach in the cases that come to him, and seems unlikely to upset the apple cart on First Amendment law in any significant way (if you want to see more of his opinions, this is a good place to start).

As Ken notes, there really isn't that much to comment on on most of those decisions, and Karl already wrote about the weird net neutrality one, but I did want to focus in on another First Amendment-adjacent case where I think Kavanaugh was incorrect: on the question of whether or not state anti-SLAPP laws apply in federal court. To be clear, by itself, this is really not a First Amendment question on its own, it's a question about what laws apply where. The case is Abbas v. Foreign Policy Group and Kavanaugh wrote the majority opinion which said that DC's anti-SLAPP law can not be used in federal court.

Ken is correct that this ruling does not suggest that Kavanaugh is not interested in protecting First Amendment rights. But, that still does not mean that Kavanaugh's ruling is correct. Ken notes that some other judges have agreed with Kavanaugh, but it's also worth pointing out that even more judges have disagreed with Kavanaugh. Indeed, most other circuits that have taken up this issue have ruled in the other way, and said that state anti-SLAPP laws can be used in federal court. The debate over this does not come down to a First Amendment issue, but rather the issue of whether or not an anti-SLAPP law is mainly "substantive" or "procedural." Substantive state laws apply in federal court, while procedural ones do not. Anti-SLAPP laws have elements of both procedural and substantive laws, which is why there are arguments over this. But for a variety of reasons, it seems clear to us (and to many other judges) that the substantive aspects of most anti-SLAPP laws mean they're perfectly valid in federal court.

If you read Kavanaugh's ruling, his explanation for his reasoning is... minimal. He calls the arguments in favor of the other side "creative," and some of them were. But on the meat of the question -- is DC anti-SLAPP law more procedural or substantive -- he basically just says he disagrees with courts that found otherwise, and agrees with the judges that agree with him:

...the defendants cite some other courts that have applied State anti-SLAPP acts’ pretrial dismissal provisions notwithstanding Federal Rules 12 and 56. See, e.g., Godin v. Schencks, 629 F.3d 79, 81, 92 (1st Cir. 2010); Henry v. Lake Charles American Press, L.L.C., 566 F.3d 164, 168-69 (5th Cir. 2009); United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999); see generally Charles Alan Wright et al., 19 Federal Practice & Procedure § 4509 (2d ed. 2014). That is true, but we agree with Judge Kozinski and Judge Watford that those decisions are ultimately not persuasive.

Yes, but why? Kavanaugh does not really explain. And that's too bad, because the reasoning in those other courts is something that I do find pretty damn persuasive. Anti-SLAPP laws do have a procedural component, but they are primarily substantive in protecting the First Amendment rights of speakers. In particular, the Godin v. Schenks ruling gets into the weedy details of why the anti-SLAPP statute in that case does not bump up against or contradict federal procedures, while the Henry v. Lake Charles American Press ruling goes even further in highlighting the importance of protecting free expression:

Anti-SLAPP statutes such as Article 971 aim to curb the chilling effect of meritless tort suits on the exercise of First Amendment rights, and as the Supreme Court stated in Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Indeed, the Supreme Court has time and again emphasized the importance of First Amendment rights. See, e.g., Curtis *181 Publ'g Co. v. Butts, 388 U.S. 130, 165, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (Warren, C.J., concurring in the result) (noting "the fundamental interests which the First Amendment was designed to protect").... Article 971 thus provides for the avoidance of a trial that would imperil a substantial public interest. Indeed, as Article 971 embodies a legislative determination that parties should be immune from certain abusive tort claims that have the purpose or effect of imperiling First Amendment rights, "there is little room for the judiciary to gainsay its `importance.'"

Again, multiple courts have ruled this way as well.

At best, Kavanaugh argues that anti-SLAPP laws basically cover the same ground as federal procedure rules concerning motions to dismiss and motions for summary judgment. As he summarizes:

Federal Rules 12 and 56 answer the same question as the D.C. Anti-SLAPP Act, and those Federal Rules are valid under the Rules Enabling Act. A federal court exercising diversity jurisdiction therefore must apply Federal Rules 12 and 56 instead of the D.C. Anti-SLAPP Act’s special motion to dismiss provision.

But in the Godin case, the 1st Circuit does (what I believe is) a much more thorough analysis of the (admittedly different, but still similar) anti-SLAPP law in that case, and its relationship to Federal Rules 12 and 56, basically noting that the anti-SLAPP law covers different ground, and doesn't displace federal procedure:

Federal Rules 12(b)(6) and 56 are addressed to different (but related) subject-matters. Section 556 on its face is not addressed to either of these procedures, which are general federal procedures governing all categories of cases. Section 556 is only addressed to special procedures for state claims based on a defendant's petitioning activity. In contrast to the state statute in Shady Grove, Section 556 does not seek to displace the Federal Rules or have Rules 12(b)(6) and 56 cease to function. Cf. Morel, 565 F.3d at 24. In addition, Rules 12(b)(6) and 56 do not purport to apply only to suits challenging the defendants' exercise of their constitutional petitioning rights. Maine itself has general procedural rules which are the equivalents of Fed.R.Civ.P. 12(b)(6) and 56. See Me. R. Civ. P. 12; Me. R. Civ. P. 56. That fact further supports the view that Maine has not created a substitute to the Federal Rules, but instead created a supplemental and substantive rule to provide added protections, beyond those in Rules 12 and 56, to defendants who are named as parties because of constitutional petitioning activities.

Crucially, as the Godin ruling notes, anti-SLAPP laws change the burden of proof, and that is "substantive," meaning should be allowed in federal court:

Neither Fed.R.Civ.P. 12(b)(6) nor Fed. R.Civ.P. 56 determines which party bears the burden of proof on a state-law created cause of action. See, e.g., Coll v. PB Diagnostic Syst., Inc., 50 F.3d 1115, 1121 (1st Cir.1995). And it is long settled that the allocation of burden of proof is substantive in nature and controlled by state law. Palmer v. Hoffman, 318 U.S. 109, 117, 63 S.Ct. 477, 87 L.Ed. 645 (1943); Am. Title Ins. Co. v. E.W. Fin. Corp., 959 F.2d 345, 348 (1st Cir.1992).

Further, Section 556 provides substantive legal defenses to defendants and alters what plaintiffs must prove to prevail. It is not the province of either Rule 12 or Rule 56 to supply substantive defenses or the elements of plaintiffs' proof to causes of action, either state or federal.[16]

Because Section 556 is "so intertwined with a state right or remedy that it functions to define the scope of the state-created right," it cannot be displaced by Rule 12(b)(6) or Rule 56

Even in the recent 10th Circuit ruling that says that New Mexico's anti-SLAPP law shouldn't apply in federal court (which Cathy Gellis argues convincingly was incorrectly decided), that case was very specific to the language of New Mexico's fairly weak anti-SLAPP law -- which didn't shift the burden of proof (taking away one of -- though not all -- of the key arguments that the crux of the anti-SLAPP is substantive rather than procedural).

Admittedly, this is deep deep into the weeds on issues around federal procedure, but it is still disappointing that Kavanaugh went the other direction on the case and seems to wave off the fairly persuasive arguments that other judges have made by suggesting that somehow anti-SLAPP laws replace federal procedure. They do not.

Of course, the best away around even having this question be an open question is to have a federal anti-SLAPP law, but tragically Congress has so far failed to even seriously explore that whenever such bills have been introduced (and President Trump has certainly shown absolutely no interest in signing such a bill should it pass). As Ken notes in his piece, Kavanaugh does seem generally appreciative of anti-SLAPP laws in general, but feels that he can't allow DC's to be used in federal court for procedural reasons. That doesn't suggest that he is bad on free speech -- indeed, in that very same ruling he upholds the dismissal (with prejudice) of the defamation case at issue, just using the 12(b)(6) motion to dismiss process, rather than the DC anti-SLAPP rule.

And thus, I disagree with Kavanaugh's ruling on using DC's anti-SLAPP in federal court (as I disagree with his ruling on the 1st Amendment's applicability to net neutrality), but neither of those appear to diminish his general record as being strong on First Amendment issues.

Filed Under: anti-slapp, brett kavanaugh, first amendment, free speech, scotus, supreme court

Trump's Supreme Court Pick: Not Great On The 4th Amendment, But His Take On The Third Party Doctrine Has Already Gone Out Of Style

from the entirely-possible-all-civil-liberties-won't-vanish-immediately dept

Donald Trump gets to roll the Supreme Court dice twice this term (so far!) and he's chosen Judge Brett Kavanaugh of the DC Circuit Appeals Court for the position. Gallons of digital ink have been spilled speculating about his impact on abortion rights, gun control, and immigration. We're also concerned about Kavanaugh's take on two of our favorite amendments: the First and Fourth.

Mike Masnick is taking on the First Amendment implications of Kavanaugh's seat on the Supreme Court bench (Karl Bode has also taken a shot here), so I'll be taking a look at Kavanaugh's record on the Fourth. The most famous case Kavanaugh delivered a ruling on pertaining to the Fourth Amendment also pertains to the Deep State NSA and its bulk collection of phone records.

In denying Larry Klayman's challenge of the Section 215 program, Kavanaugh wrote:

I vote to deny plaintiffs' emergency petition for rehearing en banc. I do so because, in my view, the Government';s metadata collection program is entirely consistent with the Fourth Amendment.

Why is it "entirely consistent?" Because Third Party Doctrine.

The Government's collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment, at least under the Supreme Court's decision in Smith v. Maryland...

Also, because National Security:

[T]he Government's metadata collection program readily qualifies as reasonable under the Supreme Court's case law. The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient "special need" – that is, a need beyond the normal need for law enforcement – that outweighs the intrusion on individual liberty.

This take on the Third Party Doctrine is now outdated, thanks to both the restructuring of the Section 215 program via the USA Freedom Act and the Supreme Court's recent Carpenter decision. All third party records are not created equal. While the Supreme Court did not roll back the Third Party Doctrine established with Smith v. Maryland, it did remove its coverage of cell site location info, ruling that warrantless acquisition of these records allows law enforcement to use citizens' cellphones as government tracking devices via records collected and stored by service providers. This is going to cause a bit of friction is national security is implicated again, given Kavanaugh's past ties to President Bush II and natsec program authorization as in-(White)house counsel.

It's not all bad news. This paper by Orin Kerr, discussing the "mosaic" approach to privacy expectations and the Fourth Amendment, notes Justice Scalia borrowed language from another rehearing denial by Kavanaugh to determine the placing of a GPS tracking device on someone's vehicle was a trespass necessitating the use of a warrant.

The Supreme Court unanimously agreed that Jones had been the subject of a Fourth Amendment search but divided sharply on why. Writing for a five-justice majority, Justice Scalia followed Judge Kavanaugh's suggestion and held that the installation of the GPS device was a search because it was a trespass on the "effects" of the car.

This perhaps suggests Kavanaugh will follow the other Trump appointee, Justice Gorsuch, in viewing Fourth Amendment issues dealing with tech advancements in a more traditional manner. Not necessarily a bad thing and definitely an interesting tack to take -- terming records generated by devices (but stored by third parties) as "property" still at least partially owned by device users. This approach could continue to carve away at the Third Party Doctrine in the coming years if adopted in other cases.

Other than that, Kavanaugh's position in the DC Court of Appeals gave him the chance to handle a number of cases dealing with the Fourth Amendment, but there doesn't appear to be many pertaining to issues the Supreme Court hasn't already addressed. PoliceOne did hunt down a few of his takes on Terry stops. In both cases, Kavanaugh came down on the side of law enforcement.

In a 2007 case, U.S. v. Bullock, 570 F. 3d 342, Judge Kavanaugh wrote the majority opinion upholding the frisk of a motorist who was stopped for an illegal U-turn and could not produce a vehicle registration or provide the name of the vehicle's owner. The driver was ordered to step out of the vehicle and when the officer frisked him for weapons, he felt a hard object in the driver's pants that the officer believed to be a weapon. When the officer searched the pants, he found crack cocaine and a scale. Judge Kavanaugh's majority opinion considered the nature of the initial stop, the officer's founded belief that the vehicle was stolen and the risk factor involved in vehicle stops to uphold the initial frisk and subsequent search of the driver.

In a subsequent stop-and-frisk case before the D.C. Circuit Court of Appeals, U.S v. Askew, 529 F. 3d 1119 (2008), Judge Kavanaugh wrote a dissenting opinion when the court held that police officers violated the Fourth Amendment when they unzipped a suspected armed robber's jacket and found a gun. The police action of unzipping the coat was done to facilitate eyewitness identification, but Judge Kavanaugh wrote that the unzipping of the coat could be justified as a protective measure under the contours of Terry v. Ohio.

While these are a concern, various courts have already tangled with stop-and-frisk policies, finding it's not so much the stop itself that's problematic, but how the programs are carried out. In every case, courts (and the DOJ itself) have determined the programs disproportionately target minorities. Without reasonable suspicion, these stops are unconstitutional. That's been the crux of the issue. The tendency to engage in biased policing only compounds the problem.

Kavanaugh's appointment probably won't stack the deck in favor of law enforcement on these issues. He's not going to be anyone's idea of a black-robed civil liberties activist, but he's also headed to a court that has surpassed expectations on Fourth Amendment protections in recent years. Old precedent on tech-focused Fourth Amendment issues is no longer undisturbable, thanks to the far-reaching implications of the Supreme Court's Riley decision. Hints of a property-based rationale in a Kavanaugh decision suggests he may find alternate ways to protect privacy without having to disturb the Third Party Doctrine. That would be unfortunate, but better than allowing prior Doctrine-based precedent to remain undisturbed along with the doctrine itself.

Filed Under: 3rd party doctrine, 4th amendment, brett kavanaugh, privacy, scotus, supreme court

SCOTUS Nominee Kavanaugh Bought Verizon's Silly Argument That Breaking Net Neutrality Is A 1st Amendment Right

from the not-a-good-sign dept

Back when Verizon sued to overturn the FCC's fairly tepid 2010 net neutrality rules, the telco's lawyers threw every legal argument at the wall they could find, no matter how ridiculous they might be. One of those claims was that the FCC's rules somehow violated the company's First Amendment rights, a claim that Mike (and numerous other reporters at the time) properly eviscerated:

"Verizon is effectively arguing that if it chooses not to allow a certain service to exist online that is a form of expression. Think of it this way: say Verizon decided to block Skype, because Skype is eating into its local telephone business. According to Verizon, that decision is a form of expression and the government can't block that, since that "expression" is protected. The "newspaper" analogy that Verizon offers is completely specious, because the internet isn't a newspaper where there's a single publisher who chooses what goes in. The whole argument is ludicrous."

Telling Verizon that it can't abuse a lack of broadband competition to hinder certain services from working online is not a free speech issue, full stop. That said, painting Verizon as the victim when it's the company's own anti-competitive actions that were threatening small businesses and legitimate expression gives you a pretty solid grasp of the hubris of large, incumbent telecom operators.

Ultimately Verizon won the 2010 fight and had the rules scuttled due to FCC over reach (which is why Wheeler ultimately embraced Title II in 2015), but it had absolutely nothing to do with the ISP's First Amendment argument. Still, that argument played a starring role when ISPs again sued to overturn the FCC's tougher, 2015 rules. Comcast, AT&T, Verizon, and other major ISPs all again clung tightly to the flimsy First Amendment claim, despite even they knowing it was absurd and fundamentally unsound.

And again that didn't work out well for ISPs, with the U.S. Court of Appeals for the D.C. Circuit fully upholding the FCC's rules in 2016, the majority once again shooting down ISP claims that net neutrality protections violated ISPs' First Amendment rights. From the ruling (pdf):

"Because a broadband provider does not— and is not understood by users to—"speak" when providing neutral access to internet content as common carriage, the First Amendment poses no bar to the open internet rules."

ISPs lost again during their en banc appeal of the rules, where the same argument was shot down yet again by the majority. Again, because ISPs, which provide connectivity between the end user and the sites and content they want to access, are not speaking or exercising editorial control when they transmit data.

It should be reiterated that even ISPs like Comcast don't actually believe their argument that net neutrality tramples their First Amendment rights; the entire effort was just a "let's try everything and see what works" sort of affair. All ISPs have ever cared about in this argument is their ability to fatten revenues by further abusing an obvious lack of competition in broadband in creative new ways.

But it's worth noting at least one judge bought into the ISPs' flimsy claims that their First Amendment rights had been trampled, and that man was a certain Brett Kavanaugh (pdf), who Trump just nominated for the Supreme Court. In his dissent (pdf), Kavanaugh displays an absolutely stunning lack of fundamental common sense in parroting large ISP claims on the subject:

"Absent a showing of market power, the Government must keep its hands off the editorial decisions of Internet service providers. Absent a showing of market power, the Government may not tell Internet service providers how to exercise their editorial discretion about what content to carry or favor any more than the Government can tell Amazon or Politics & Prose what books to promote; or tell The Washington Post or the Drudge Report what columns to carry; or tell ESPN or the NFL Network what games to show; or tell How Appealing or Bench Memos what articles to feature; or tell Twitter or YouTube what videos to post; or tell Facebook or Google what content to favor."

Again, that's not just wrong it's aggressively incorrect. Something his fellow judges again made clear in their majority ruling:

"[N]o Supreme Court decision supports the counterintuitive notion that the First Amendment entitles an ISP to engage in the kind of conduct barred by the net neutrality rule—i.e., to hold itself out to potential customers as offering them an unfiltered pathway to any web content of their own choosing, but then, once they have subscribed, to turn around and limit their access to certain web content based on the ISP's own commercial preferences."

To be more explicit about the problems here, you can tell that Kavanaugh went wrong in the way he constantly refers to Verizon blocking services as "editorial" decisions, as if Verizon curates what internet you can and cannot see. That completely misunderstands the nature of an end-to-end internet, where access providers, such as Verizon, are merely connecting you to the wider network, not "editorializing" over what you get access to. All of the comparisons that Kavanaugh trots out -- Amazon, book stores, YouTube, etc. -- are entirely different. Those are all platforms in which those sites are literally hosting the content and thus have the right to allow or refuse how it is used. Verzion, on the other hand, is merely connecting people and not making "editorial" choices.

Kavanaugh's dissent was cribbed nearly word for word from large ISP lobbying efforts, including his proclamation that the rules weren't necessary thanks to "vibrant competition” in the broadband sector. And while few will focus much on net neutrality as the debate over Kavanaugh's nomination heats up, his willingness to mindlessly parrot false claims from one of the most-disliked and anti-competitive industries in America does speak well to overall character and likely future voting patterns.

And should Kavanaugh be officially confirmed, that obviously spells some serious trouble for all future efforts to restore net neutrality.

The Trump FCC's ham-fisted repeal is facing some legitimate looming legal challenges from small companies, consumer groups, and numerous state attorneys general, and given the FCC's bizarre and unethical behavior during the repeal, the legal assault has a good chance of succeeding. Granted that also means it has a non-insubstantial chance of this or other net neutrality fights landing before the Supreme Court, where it should be pretty obvious that Kavanaugh is likely to side with giant ISPs, the overwhelming, bipartisan public support for the rules be damned.

Filed Under: brett kavanaugh, first amendment, free speech, net neutrality, scotus, supreme court
Companies: verizon

The Supreme Court Makes A Federal Case Out Of South Dakota's Inability To Collect Taxes From Its Residents And Thus A Big Mess

from the aereo-for-ecommerce dept

In some ways the Supreme Court's decision last week in South Dakota v. Wayfair may seem like a small thing: it simply overturned an earlier decision, Quill Corp v. North Dakota, which had concluded that states could not impose requirements to collect sales tax on businesses with no physical presence in the state. But in dispensing with that rule, the decision invited broader effects that may not be so small, thanks to the alarming reasoning the Court used to justify it.

The Court was prompted to reverse its earlier decision – something that the Supreme Court does but rarely, thanks to the principle of stare decisis that ordinarily discourages the Court from messing with an earlier precedent – for a few reasons. In particular it was concerned that Internet businesses without a physical presence in the state had an advantage over those with one [p.12-13], and it accepted South Dakota's claims that it was losing out on millions of dollars in sales tax revenue when South Dakotans bought things from out-of-state Internet businesses who were not collecting the sales taxes that normally would have been owed [p.2].

These assumptions, if true, would raise reasonable policy concerns. But even if they were valid worries, it doesn't follow that the Supreme Court should be the organ of government to address them, especially not when its doing so threatens to create additional policy concerns of its own.

First, South Dakota may be heavily dependent on sales tax to generate revenue, but that's its choice. If consumption taxes turn out to be an inadequate way of filling its coffers, it could choose to impose other forms of taxation, like an income tax, as many other states have. It is not dependent on the United States Supreme Court to help it balance its budget.

Second, like other states, South Dakota requires its residents to independently submit to the state the sales tax that would have been collected, had they bought their goods from an Internet business with a physical presence there. ("If for some reason the sales tax is not remitted by the seller, then instate consumers are separately responsible for paying a use tax at the same rate." [p.2]). The Court may have been correct in observing that enforcing these sorts of payment requirements may be difficult [p.2], but just because it is difficult does not mean that it should fall to the United States Supreme Court to relieve the state of its enforcement burden – especially not an enforcement burden against parties over whom the state already had undisputed jurisdictional reach. This case essentially seems to boil down to South Dakota complaining, "We can't make our residents, who are clearly subject to our laws, pay their taxes, so please make sure that out-of-state residents, who are not clearly subject to our laws, do instead." And the court was amenable to this plea. [p.13]

As for whether the physical presence rule truly gave an advantage to out-of-state businesses, if the state could manage to get its residents to pay the taxes they owe the answer would be no, since any price advantage an out-of-state business could offer would have been negated by the subsequent payment obligation. But the problem with the Supreme Court having now changed the rule is that it's placed its thumb firmly on the other side of the scale and disadvantaged out-of-state businesses in favor of those with a physical presence.

In terms of sales tax collection, in and of itself it's no small task. States rarely have one tax rate applicable to the whole state, or to all types of goods. True, as the Court notes, South Dakota "is one of more than 20 States that have adopted the Streamlined Sales and Use Tax Agreement."

This system standardizes taxes to reduce administrative and compliance costs: It requires a single, state level tax administration, uniform definitions of products and services, simplified tax rate structures, and other uniform rules. It also provides sellers access to sales tax administration software paid for by the State. Sellers who choose to use such software are immune from audit liability. [p.23]

Such an agreement may certainly aid in minimizing compliance costs. So might the reasonably-priced software that the Court glibly assumes may eventually "make it easier for small businesses to cope with these problems." [p.21]. But in the here and now, compliance is still not so simple. This decision will still reach the other 30 states that have not adopted the Streamlined Sales and Use Tax Agreement, and figuring out how to comply will be more feasible for some businesses than others. Larger companies, for instance, will have more resources to manage complex compliance requirements. Companies large enough, or local enough, to have a presence in these states will also be more familiar with the state and its compliance requirements generally, since they will need to comply with the state's other laws as well.

Which leads to a more significant question raised by this decision, whose holding won't be confined to sales tax collection: what about these other state laws? Per the logic of the decision, can states impose other compliance obligations on Internet businesses, in addition to tax collection ones? As we've seen in recent discussions around Section 230, including in the cases involving Airbnb/Homeaway and Armslist, states love to apply local law to the Internet. In fact, even before the Internet states liked to impose local law whenever they could. The "long-arm" reach of states to impose their regulatory power on out-of-state parties has traditionally been limited by the requirement that the foreign party at least have some minimum contact with the state before they can be exposed to its jurisdiction. Which is why the physical presence rule made sense: being physically there suggested there was a significant enough contact between the party being regulated and the state doing the regulating. It also seemed more fair: in-state companies will also likely have in-state employees able to wield political pressure on the state government if the laws it passes to apply to their employers starts threatening their employment. Whereas out-of-state companies have no such political leverage to wield over the regulators they are nonetheless beholden to.

What the Court seems to be saying now is that lesser contact with a state than physical presence may be sufficient to establish minimum contact. In and of itself, such an assertion may not be controversial, and if the decision's rationale had been focused on those indicia it might not be so disquieting. In terms of the South Dakota taxation law itself, the law does incorporate some limitations so that it won't apply to Internet businesses with only incidental connections to South Dakota.

The Act applies only to sellers that, on an annual basis, deliver more than $100,000 of goods or services into the State or engage in 200 or more separate transactions for the delivery of goods or services into the State."[p.3]

But the Court is not specific as to what sort of lesser contact will be sufficient to subject an Internet business to state jurisdiction for taxation or otherwise, and it is going to be really expensive for out-of-state Internet businesses to find out.

Furthermore, the hostility that the Court showed to these out-of-state businesses is worrying. First, it is unjustifiably dismissive to the utility of the physical presence requirement.

The argument, moreover, that the physical presence rule is clear and easy to apply is unsound. Attempts to apply the physical presence rule to online retail sales are proving unworkable. States are already confronting the complexities of defining physical presence in the Cyber Age. For example, Massachusetts proposed a regulation that would have defined physical presence to include making apps available to be downloaded by in-state residents and placing cookies on in-state residents’ web browsers. Ohio recently adopted a similar standard. Some States have enacted so-called “click through” nexus statutes, which define nexus to include out-of-state sellers that contract with in-state residents who refer customers for compensation. Others still, like Colorado, have imposed notice and reporting requirements on out-of-state retailers that fall just short of actually collecting and remitting the tax. Statutes of this sort are likely to embroil courts in technical and arbitrary disputes about what counts as physical presence. [p. 19-20]

Of course, far from impugning the physical presence rule, these examples demonstrate the wisdom of it, because in all the examples described any dispute that might arise would arise because the states are trying to target businesses that aren't actually physically present in their states.

In fact, in general the Court seems to have an uneasy notion of what constitutes physical presence by an Internet business:

For example, a company with a website accessible in South Dakota may be said to have a physical presence in the State via the customers’ computers. A website may leave cookies saved to the customers’ hard drives, or customers may download the company’s app onto their phones. Or a company may lease data storage that is permanently, or even occasionally, located in South Dakota. Cf. United States v. Microsoft Corp., 584 U. S. ___ (2018). [p.15]

The Court also cannot imagine how limiting a company's physical presence might be of value to it:

But the administrative costs of compliance, especially in the modern economy with its Internet technology, are largely unrelated to whether a company happens to have a physical presence in a State. For example, a business with one salesperson in each State must collect sales taxes in every jurisdiction in which goods are delivered; but a business with 500 salespersons in one central location and a website accessible in every State need not collect sales taxes on otherwise identical nationwide sales. [p. 12]

Worse, to the extent that the Court can imagine why a 500-person company might choose not to have boots on the ground in every state where it might happen to have an online customer, it is inexplicably hostile:

In effect, Quill has come to serve as a judicially created tax shelter for businesses that decide to limit their physical presence and still sell their goods and services to a State’s consumers—something that has become easier and more prevalent as technology has advanced. [p. 13]

Later it in the decision the Court further describes Quill as allowing out-of-state companies to aid and abet customers in "evad[ing] a lawful tax that unfairly shifts to those consumers who buy from their competitors with a physical presence that satisfies Quill—even one warehouse or one salesperson—an increased share of the taxes." [p. 17]

What is concerning is that in using these pejorative assessments the Court is essentially declaring, "How dare you do something legal to avoid liability." Which is sadly an admonition we've heard the Court make before in trying to substantiate a questionable holding in another case: Aereo.

As the Court continues, the comparison with Aereo becomes even more apt:

"Distortions caused by the desire of businesses to avoid tax collection mean that the market may currently lack storefronts, distribution points, and employment centers that otherwise would be efficient or desirable." [p. 13]

In other words, the Court has concluded, "Our jurisdictional rule is deterring investment in the state, so therefore it's a bad rule."

This sort of contorted reasoning is exactly what happened in Aereo, where the Court looked at who was making money, unilaterally decided it was the wrong people, and then tied itself in knots to write new law, indifferent to how much settled precedent it displaced or the full extent of its likely effects, in order to justify reallocating the financial gains.

Then, as now, it was a decision predicated on a series of questionable assumptions. We can only hope that this latest result won't be as seriously catastrophic for online innovation as Aereo has been.

Filed Under: sales tax, scotus, south dakota, supreme court, taxes

Supreme Court Says Warrants Are Needed For Cell Site Location Info

from the 4th-Amendment-Bonus-Content! dept

The Supreme Court -- in a narrow decision (both in scope and votes) -- has restored a little more of the Fourth Amendment. The long-awaited decision [PDF] in the Carpenter case has been released and the Supreme Court finds, in a 5-4 decision, that cell site location info (CSLI) is technically a third-party record but worthy of the Fourth Amendment's protection.

The defendant challenged the government's warrantless acquisition of 127 days of CSLI, arguing that the constant location records generated (without proactive assistance from phone users) by cell providers raised enough of a privacy issue the Fourth Amendment was implicated. Somewhat surprisingly -- given the long history of expansive readings of the Third Party Doctrine -- the Supreme Court agrees.

[W]hile the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records. After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.

We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search.

The court notes simply venturing out into the public does not erase all privacy expectations. The pervasive tracking engaged in by phone companies for business reasons should not undo a person's reasonable expectation of privacy. While the government tried to compare it to tracking vehicles with GPS devices, the court notes that cars cannot go everywhere people go. Long-term tracking -- made possible by provider recordkeeping -- provides the government with detailed depictions of cellphone users' lives. And all of this was -- up until this decision -- only a subpoena away.

[H]istorical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones. Unlike the bugged container in Knotts or the car in Jones, a cell phone—almost a “feature of human anatomy,” Riley, 573 U. S., at ___ (slip op., at 9)—tracks nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.

[...]

Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.

The ubiquity of cellphones has changed the Third Party Doctrine dynamic. The court isn't willing to give the government warrant-free access to the personal lives of millions of Americans.

Critically, because location information is continually logged for all of the 400 million devices in the United States—not just those belonging to persons who might happen to come under investigation— this newfound tracking capacity runs against everyone. Unlike with the GPS device in Jones, police need not even know in advance whether they want to follow a particular individual, or when.

That's the substance of the decision, but the whole thing is worth reading in full. Even the dissents are worth a read, if only to see how many justices would prefer the government treat long-term tracking as no different than bank records people voluntarily create with every transaction. The court will extend the Third Party Doctrine to cover historical CSLI. However, it does not extend that coverage to cover tower dumps, real-time CSLI (ping orders/Stingray use) or any other records otherwise covered by the Third Party doctrine. But this is still a significant Fourth Amendment win -- and law enforcement agencies using CSLI subpoenas to cover Stingray use will now need to craft warrant requests specifying what they're doing, which will make just a little bit tougher to engage in parallel construction.

More than half the page total is given over to the dissent. Justices Kennedy and Alito have written separate dissents that say pretty much the same thing:

1. The records were obtained from a third party so no warrant should ever be needed.

2. This will law enforcement's work more difficult.

Even if the latter is true, Constitutional protections protect the citizens from their government. If they're an obstacle, they're meant to be. The court isn't there to ensure easy government access. It's there to act as a check against any government overreach it observes.

Justice Thomas' dissent is perhaps the most infuriating read. Much like his dissent in other law enforcement-related cases, Thomas sides with the government while claiming he's siding with the Constitution. His main argument here is that the Fourth Amendment says nothing about privacy or reasonable expectations, therefore the court's decision is wrong. It guards people and papers, not stuff obtained from third parties, no matter how invasive these records can potentially be.

Justice Gorsuch's dissent, however, is an entertaining read. It's really not even a dissent. He agrees with the majority's decision but doesn't think it goes far enough. If Gorsuch had his way, he would also return to a more originalist view of the Fourth Amendment -- the property rights theory he pitched during oral arguments. But unlike Thomas, his would eliminate the court-erected Third Party Doctrine and grant privacy to records created by customers/users and held by third parties. These decisions (Smith, Miller, Katz) would instead be replaced with a property-based treatment of records, giving customers/users more ownership rights to third-party records they create, making them part of the "houses and papers" Fourth Amendment interpretation even if the the "papers" are held by others.

I cannot fault the Sixth Circuit for holding that Smith and Miller extinguish any Katz-based Fourth Amendment interest in third party cell-site data. That is the plain effect of their categorical holdings. Nor can I fault the Court today for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed, I agree with that. The Sixth Circuit was powerless to say so, but this Court can and should. At the same time, I do not agree with the Court’s decision today to keep Smith and Miller on life support and supplement them with a new and multilayered inquiry that seems to be only Katz-squared. Returning there, I worry, promises more trouble than help. Instead, I would look to a more traditional Fourth Amendment approach. Even if Katz may still supply one way to prove a Fourth Amendment interest, it has never been the only way. Neglecting more traditional approaches may mean failing to vindicate the full protections of the Fourth Amendment.

This is a big ruling and it will definitely affect how law enforcement approaches investigations. It will not be well-received by those used to tracking people via subpoena (rather than tail cars and surveillance teams). But it likely won't do much for Carpenter, who will almost certainly find good faith awarded to law enforcement's acquisition of his CSLI records. It will help going forward, but Carpenter will not be a beneficiary.

Filed Under: 3rd party doctrine, 4th amendment, carpenter, csli, location info, privacy, scotus, supreme court

It's Over: The Podcast Patent Troll's Patent is Officially And Completely Dead

from the podcast-away,-folks dept

Going back many years now we've written about the company Personal Audio, which built itself up as a patent troll for digital audio. Back in 2011, it won a patent lawsuit against Apple over patents on playlists. In 2013, as podcasting was starting to take off, Personal Audio decided that one of its other patents actually covered podcasting as well and sued some top podcasters while threatening many others. EFF stepped in to use the valuable inter partes review process to seek to invalidate the patent, which worked. Though, in the process the company sought to intimidate EFF donors.

While all of this was happening, the company also realized that podcasters don't make any money, and figured out how to dump its lawsuits against individual podcasters... while still going after large companies like CBS.

After the Patent Office's appeals board (PTAB) invalidated the patent, Personal Audio went to court to overturn the ruling. Last year, an appeals court rejected that attempt, noting that the PTAB was correct in invalidating the patent. Personal Audio still kept fighting, and asked the Supreme Court to hear it's appeal.

Thankfully, on Monday, the Supreme Court denied that request, meaning that Personal Audio's podcasting patent is finally, truly and completely, dead.

Still, the fact that this process took about five years and a ton of time in court should demonstrate just what a drag bogus patents can be on the economy and innovation. It also shows just how valuable a bogus patent can be for the trolls that hold them. Even after Personal Audio realized that all the podcasters it was trying to shakedown had little money to hand out, it still fought to the bitter end in trying to keep the patent alive, knowing that it could successfully get larger media companies to pay up. So this is a victory, but also a demonstration of just how broken the patent system is. Personal Audio did nothing to help podcasts become a thing. It did nothing to help podcasts move forward or become popular. Its only contribution to the podcast world was to wreak havoc on a bunch of podcasters, scaring many of them and costing them a ton of money in legal fees. That's all a dead weight loss to the economy, that could have gone into making more and better content.

Filed Under: inter partes review, ipr, patents, podcasting, ptab, scotus, supreme court
Companies: eff, personal audio

Supreme Court Hears Arguments In Cell Site Location Info Case

from the no-love-for-The-Man dept

The Supreme Court's review of the Carpenter case -- dealing with the warrantless collection of cell site location info -- kicked off yesterday. Oral arguments featured Nate Wessler of the ACLU facing off against the DOJ's Michael Dreeben in a case that could drastically alter the Third Party Doctrine.

From the early going, it sounds a bit like the court is leaning towards a drastic alteration. There's a lot that can be read from the arguments presented by the justices -- especially those by Trump appointee Neil Gorsuch. After some of the expected arguments -- the Third Party Doctrine, the post-facto privacy invasion that is 100+ days of location tracking, etc. -- Gorsuch wades into pretty novel theory based on the property… um… properties of location data gathered by service providers.

Referencing the privacy protections statutorily mandated by 47 USC § 222 (and the Supreme Court's 2012 decision on GPS tracking devices), Gorsuch goes after the DOJ's lawyer, asking him why records considered by law to be the property of carrier customers aren't afforded the same protection as the Fourth Amendment "papers and effects" they keep in their houses.

GORSUCH: [O]ne thing Jones taught us is -- and reminded us, really, is that the property-based approach to privacy also has to be considered, not just the reasonable expectation approach. So, if we put aside the reasonable expectation approach for just a moment, Katz, Miller, Smith, and ask what is the property right here, let's say there is a property right. Let's say I have a property right in the conversion case I posited with your colleague. So that if someone were to steal my location information from T-Mobile I'd have a conversion claim, for example, against them for the economic value that was stolen. Wouldn't that, therefore, be a search of my paper or effect under the property-based approach approved and reminded us in Jones?

This wasn't much fun for the DOJ's representative:

MR. DREEBEN: I suppose that if you are insisting that I acknowledge that it's a property right, some consequences are going to follow --

JUSTICE GORSUCH: Right.

MR. DREEBEN: -- from that.

JUSTICE GORSUCH: Okay.

[...]

JUSTICE GORSUCH: In my -- in my hypothetical, if there were a property interest, you're not here to deny that that would be a search of my paper and effect?

MR. DREEBEN: I'm not here to concede it either.

JUSTICE GORSUCH: Okay.

MR. DREEBEN: And the reason that -­-

(Laughter.)

JUSTICE GORSUCH: Okay.

MR. DREEBEN: The reason that I can't concede it is it's a property right that resembles no property right that's existed.

Justice Alito pitched in to point out the likelihood there's no property interest in location records because customers don't ask for it to be collected, can't prevent it from being collected, can't keep the provider from destroying records and, in some cases, can't even demand a copy of these records. But while that may have briefly lit a fire of hope in the DOJ's rep, Gorsuch did his best to extinguish the flame.

MR. DREEBEN: So, Justice Alito, those are a lot of good reasons on why this should not be recognized as a property interest. I can't think of anything that would be characterized as a property interest with those traits. And it would be a -- really a watershed change in the law to treat transferred information as property.

JUSTICE GORSUCH: Well, what does Section 222 do, other than declare this customer proprietary network information --­

MR. DREEBEN: So that -­-

JUSTICE GORSUCH: -- that the carrier cannot disclose?

MR. DREEBEN: It -- it does that in conjunction with a provision that it shall be disclosed as required by law.

JUSTICE GORSUCH: So -- so, let me ask you that. So -- so the government can acknowledge a property right but then strip it of any Fourth Amendment protection. Is that the government's position?

MR. DREEBEN: No, no, but I think that the -­

JUSTICE GORSUCH: And so -- so could we also say maybe that they also get this property right subject to having a non-Article III judge decide the case, or quartering of troops in your home?¹ Could we strip your property interests of all constitutional protection?

MR. DREEBEN: Well, those are pretty far afield. I -- I think what's going on here -­-

JUSTICE GORSUCH: Are they?

^{1 Shout-out to the least hardest working legal advocates in the nation.}

After some discussion about this statute protecting the privacy of info gathered by cell phone companies, along with the government repeatedly pointing to the Third Party Doctrine, the justices discuss the sensitivity of the information being obtained without a warrant, pushing the argument back from the property side Gorsuch proposed to the detailed data being gathered daily (bank records are mentioned) by a variety of third parties. Again, the DOJ argues that no warrants are needed because the "search" isn't performed by the government, but rather by the third parties themselves and the results handed over to law enforcement.

Justice Kagan had some problems with this particular approach.

JUSTICE KAGAN: I understand what you're saying, you're basically saying, well, because the government is going to a third-party here and doing it by subpoena, it doesn't matter how sensitive the information is. It doesn't matter whether there's really a lack of voluntariness on the individual's part in terms of conveying that information to the third-party. And we could go on and we could give, you know, other factors that you might think in a sensible world would matter to this question. And you're saying that all of that is trumped by the fact that the government is doing this by subpoena, rather than by setting up its own cell towers.

Which the government can certainly do. (See also: Stingray devices. This is why this case about historical cell site location info will have a ripple effect on Stingray usage no matter which way it's decided.)

Justice Gorsuch takes this assertion and brings it full circle to the creation of the Constitution and its resulting amendments.

JUSTICE GORSUCH: Mr. Dreeben, it seems like your whole argument boils down to if we get it from a third-party we're okay, regardless of property interest, regardless of anything else. But how does that fit with the original understanding of the Constitution and writs of assistance? You know, John Adams said one of the reasons for the war was the use by the government of third parties to obtain information forced them to help as their snitches and snoops. Why -- why isn't this argument exactly what the framers were concerned about?

MR. DREEBEN: Well, I think that those -- those were writs that allowed people acting under governmental power to enter any place they wanted to search for anything that they wanted.

JUSTICE GORSUCH: Isn't that exactly your argument here, that so long as a third party's involved, we can get anything we want?

MR. DREEBEN: Well, I think the search is being carried out under a writ of assistance by a government agent, operating under government authority; whereas here, we -- the -- if there's a search in the acquisition of cell site information, then it's the cell site company that is acquiring that information without governmental instigation, without --­

JUSTICE GORSUCH: The subpoena --­

MR. DREEBEN: -- governmental agency -­-

JUSTICE GORSUCH: -- being, though, the equivalent of a writ of assistance?

MR. DREEBEN: Oh, I don't think a subpoena is an equivalent of a writ of assistance. A writ of assistance allowed the agent to go into any house, to rip open anything looking for contraband, no limitations.

JUSTICE GORSUCH: Yeah. And you can subpoena anything that any company has anywhere in the globe regardless of any property rights, regardless of any privacy interests, simply because it's a third-party?

The Chief Justice didn't appear too impressed by this line of reasoning either.

MR. DREEBEN: So I -- I think that, as Justice Alito was explaining, there is a traditional understanding that dates back to the time of the founding that subpoenas stand on a different footing from search warrants. And they do that because they are less intrusive, since they do not require the government going into private property and searching itself.

CHIEF JUSTICE ROBERTS: Why does that --­

MR. DREEBEN: And -­-

CHIEF JUSTICE ROBERTS: -- why does that make a difference? The subpoena tells the person who gets it: this is what you have to do.

MR. DREEBEN: Well, I think that most --

CHIEF JUSTICE ROBERTS: Why is that less intrusive? The whole question is whether the information is accessible to the government.

But that's exactly the argument the DOJ is making. No matter how long the records go back, no matter how accurate cell tower location data is, no matter how many points of data each citizen carrying a cell phone creates each day, it should all be no more than a subpoena away because the data is being held by a third party. This is Nate Wessler's summation of the government's assertions:

I just want to highlight that the -- the government, Mr. Dreeben, as I heard him, conceded that the precision of these records doesn't matter at all to the government's theory here. They could be precise, I take it, to within a single inch. And the fact that a third party has custody of them would, in the government's view, vitiate any expectation of privacy, which we think would be a very destructive rule.

It's too early to say how this will turn out, but the with the exception of Justice Alito, very little sympathy was shown for the government's arguments. The justices also had problems with differentiating between short-term collection of CSLI and lengthier collections. It did raise this question in the Jones case -- suggesting long-term monitoring was more invasive than short-term tracking, but did not come to a bright line conclusion. Carpenter's reps are suggesting a 24-hour limit for warrantless CSLI access.

This will be a tough line to draw, especially as courts have pointed out before rights do not spring into existence out of nowhere. If 24 hours isn't a Fourth Amendment violation, why should three months be a problem? Or half a year? What then would stop the government from serving successive subpoenas to gather multiple days of location info, thus rendering the bright line irrelevant? If a decision is going to be made -- one that "fundamentally changes the application of the Fourth Amendment to subpoenas" (as Justice Alito put it) -- it really has to be all or nothing.

But the early skepticism of the government's arguments expressed here is a positive development. This shows the court isn't interested in rubber stamping an extension of the Third Party Doctrine nearly 40 years after the Smith v. Maryland decision. Given the amount of information gathered by third parties, it's time for some fundamental change.

Filed Under: 4th amendment, carpenter, privacy, property rights, scotus, supreme court, third party doctrine

Law Prof Argues Cell Location Records Shouldn't Need Warrants Because Cell Phones Have Encryption

from the towards-a-more-government-friendly-reading-of-the-4th-Amendment dept

As the Supreme Court readies itself for an important Fourth Amendment decision, the supporting briefs are beginning to trickle in. At stake is a potential redefining of the expectation of privacy under the Fourth Amendment, something that was diminished by the 1979 Supreme Court decision that created the so-called Third Party Doctrine.

In Carpenter's case, the third party records in question are something gathered by all cell phone companies: location data. The government used months of cell site location data to retrace Carpenter's movements, all without a warrant. This warrantless access turns cell phones into proxy tracking devices for the government. The government is perfectly fine with this turn of events and is asking the Supreme Court to uphold the lower court's decision.

A brief [PDF] siding with the government has been submitted by George Washington University law prof (and Volokh Conspirator) Orin Kerr. In it, Kerr makes some strange arguments.

The least weird argument is Kerr's assertion cell site location records shouldn't be covered by the Fourth Amendment because they are the equivalent of "observation in a public space." This is undoubtedly true, but it does allow the government to perform these "observations" without actually having to use its own eyeballs. Instead of tracking someone's movement through direct, in-person surveillance, the government can serve a subpoena to phone companies and use constantly-collected data to perform retrospective tracking.

Kerr goes on to serve up an analogy to buttress his assertion the Fourth Amendment should provide no protection for ostensibly "public" activities. And that's where the arguments start going off the rails.

[I]magine a world without communications networks. If Alice wants to communicate with Bob, Alice has to leave her home and travel to Bob’s house. If the police suspect that Alice and Bob are conspirators planning a crime, and they assign an officer to watch Alice’s whereabouts, the police can collect only some information without triggering the Fourth Amendment. The police cannot learn the contents of what Alice and Bob said inside Bob’s home without a warrant. On the other hand, the police can observe Alice and see what she did in public – when she left home, where she traveled, when she arrived at Bob’s house, and where they both live – without triggering the Fourth Amendment.

Next imagine that Alice calls Bob on her cell phone instead of meeting him in person. Alice no longer has to travel to meet Bob. The cell phone network delivers the call from Alice to Bob, making a remote transfer that eliminates the need for a public trip. But, critically, the same information exists. What was previously the contents of the conversation in Bob’s house is now the contents of the phone call between Alice and Bob. And what was previously Alice’s publicly observable trip from her house to Bob’s house is now a record that the phone provider generated and may keep about when the call was made, to and from what numbers, and what cell towers were used to deliver it.

What's glossed over in this analogy is the existence of landlines. This middle step is instructive and its absence from Kerr's brief seems almost disingenuous. For years, criminal collaborators used landlines and payphones to converse. This is what the Third Party Doctrine is predicated on: phone records. The Supreme Court's 1979 decision forced companies to comply with (and provide technical assistance for) pen register/trap-and-trace orders. These captured numbers dialed and length of conversations. The only location of interest was already known: the residence/phone booth containing the targeted phone. If law enforcement wanted information on suspects' movements, they still needed to deploy some form of additional surveillance.

Kerr is arguing law enforcement should have access to people's public movements without having to do the actual legwork. And he starts this argument by ignoring the fact law enforcement has -- for years! -- been unable to do anything more than collect phone records sans location data. But now phone records also contain information about people's movements, and Kerr believes they should be inseparable and easily-accessible. This assertion is made despite Kerr attempting to draw a straight line from the good old days of walking from house to house directly through CSLI and email header info.

To maintain the balance of the Fourth Amendment, courts should treat the same information in the same way in both the physical and network contexts. The contents of phone calls should be protected, as they are the telephone equivalent of protected inside space. This means, in the Internet context, that the contents of e-mails, text messages, and files that users place in cloud storage should receive full Fourth Amendment protection. On the other hand, non-content records generated by network providers – the business records they generate about how they delivered the communications – should not be protected because they are the network equivalent of the publicly observable trip that is outside such protection in the physical world.

Going on from there, Kerr says the court -- along with legislators -- must maintain an "equilibrium" between expectations of privacy and lawful access. But in this case, the equilibrium must shift towards the government. Why? Because criminals use cell phones.

The ways that cell phones can facilitate crime and avoid detection counsels against creating new Fourth Amendment protections for cell phone records. Obviously, most people don’t use their phones to commit crimes. But most people don’t have their records collected by court order under the Stored Communications Act, either. The key point is that the effect of cell phone technology on the “often competitive enterprise of ferreting out crime,” Johnson v. United States, 333 U.S. 10, 14 (1948), operates as a two-way street. The ability of cell phone companies to deliver communications quickly and silently over any distance cuts both ways. It can lead to records about the delivery that helps the police, and it can aid in the commission of crime that helps wrongdoers. Both should be considered.

He's right that both should be considered. But his argument doesn't suggest both should be considered. Kerr believes the government's view should be given priority -- a view that allows for no narrowing of the Third Party Doctrine. No one should be granted a higher expectation of privacy because criminals use cell phones. That's basically the argument. And it leads directly to this argument, which isn't any better. The Third Party Doctrine should remain intact because people -- including criminals -- use encryption.

It is too early to tell how far encryption will interfere with government investigative powers. But because users generally can’t encrypt non-content records such as historical cell-site records, the collection of such records may take on a more important role in future surveillance practices. The Court should be reluctant to introduce new constitutional protections for non-content records when the existing constitutional framework for access to contents may be impeded by new encryption technology.

I'm honestly unsure what to make of that argument, which seems to imply the Court should only view the Fourth Amendment as an avenue for law enforcement access, rather than its true purpose: protecting citizens from their government. Kerr talks about maintaining a balance, but posits that relevant technological advancements should work for the government, rather than against it. If people can have encryption and little metal-and-glass rectangles that allow them to hold private, long distance conversations, then the government should have uninterrupted, warrantless access to anything the government deems to be a "third party records."

This isn't the way to maintain balance. The Fourth Amendment isn't the government's enabler. And it never has been. It was written to curb government overreach and abuse. The government has been dealing with unobservable conversations for decades now. That it can now track people without ever leaving the office may be handy, but it doesn't necessarily follow it should always be able to do this without a warrant. The Supreme Court should take a close look at the implications of allowing the status quo to remain in place. Thousands of electronic devices generate millions of third party records every day, all less than a warrant away. Ignoring these implications in favor a simplistic rehashing of a forty-year-old decision is only going to cause further difficulties down the road.

Filed Under: 4th amendment, cell site location info, csli, encryption, location info, orin kerr, scotus, third party doctrine

Supreme Court Agrees To Hear Case Involving US Demands For Emails Stored Overseas

from the spending-locally,-thinking-globally dept

The Supreme Court has granted the government's request for review of Second Circuit Appeals Court's decision finding Microsoft did not have to turn over communications stored overseas in response to US-issued warrants.

This is a pretty quick turnaround as far as tech issues go. The Supreme Court is finally willing to take a look at the privacy expectation of third party phone records (specifically: historical cell site location info), following years of courtroom discussion... which follow years of Third Party Doctrine expansion.

That being said, a resolving of sorts is needed to clarify the reach of US law enforcement going forward. The Second Circuit twice shut down the DOJ's requests to extend its reach to offshore servers. Even as the Microsoft case was still being litigated, other courts were coming to contrary decisions about data stored overseas.

The target in these cases was Google. Google's data-handling processes contributed to the adverse rulings. Unlike Microsoft -- which clearly delineated foreign data storage -- data and communications handled by Google flow through its servers constantly. Nothing truly resides anywhere, a fact the DOJ pressed in its arguments and the one two judges seized on while denying Google's warrant challenges.

The Supreme Court's ruling will be needed to tie these disparate decisions up into a cohesive whole.

Or not. Rule 41 changes that went into effect at the beginning of this year remove a lot of jurisdictional limitations on search warrants. On top of that, the DOJ has been angling for expanded overseas powers, pushing Congress towards amending the Stored Communications Act.

This, of course, is what the Second Circuit Appeals Court told the government to do: take it up with legislators. But if litigation is a slow process, legislation can be just as time-consuming. The DOJ wants permission now and the Supreme Court gives it the best chance of being allowed to grab communications stored outside of the United States using a warrant signed by a magistrate judge anywhere in the US.

In the meantime, the DOJ will continue to pursue amendments to the Stored Communications Act -- a law it's already taken advantage of, thanks to it being outdated almost as soon as it was implemented. Further rewriting of the law in the DOJ's favor would allow US law enforcement to become the world's police, serving warrants in the US to gather documents stored around the globe.

While this may seem like a boon to law enforcement, it should be approached with extreme caution. If this becomes law (rather than just a precedential court decision) the US government should expect plenty of reciprocal demands from other countries. This would include countries with far worse human rights records and long lists of criminal acts not recognized in the US (insulting the king, anyone?). The US won't be able to take a moral or statutory stand against demands for US-stored communications that may be wielded as weapons of censorship or persecution against citizens in foreign countries. Whoever ends up handing down the final answer -- the Supreme Court or Congress -- should keep these implications in mind.

Filed Under: domestic, ecpa, emails, foreign, sca, scotus, stored communications act, subpoena, supreme court, warrants
Companies: microsoft

Supreme Court Leaves Troubling CFAA Rulings In Place: Sharing Passwords Can Be Criminal Hacking

from the congress-fix-this-shit dept

For many, many years now, we've talked about problems with the CFAA -- the Computer Fraud & Abuse Act -- which was passed in Congress in the 1980s in response to the Hollywood movie War Games (seriously). It was a messed up moral panic back then, and over the years it's been abused widely in both civil and criminal cases to define almost anything as hacking. Over the past few years we've been following two cases in particular related to the CFAA: the David Nosal case and the Power.com case. Both involved fairly twisted interpretations of the CFAA -- and, unfortunately, the 9th Circuit found both to be okay. And, unfortunately, this week, the Supreme Court declined to review both cases, meaning they remain good (if stupid) law in the 9th Circuit (which will likely influence cases elsewhere).

I won't go into all of the background in both cases, but the super short version is that under the Facebook v. Power ruling, it's a CFAA violation for a service to access a website -- even if at the request of users -- if the website has sent a cease-and-desist. That shouldn't be seen as hacking, but the court said it's "unauthorized access." Power was a service that tried to help consolidate different social networks into a single user interface for users -- and lots of people found that valuable and signed up for the service. But, Facebook didn't like it and sent a cease-and-desist to Power. Power figured that since users were asking it to continue and they were the ones who had the accounts, it was okay to continue. The court, unfortunately, claimed that it was a CFAA violation -- the equivalent of "hacking" into a system (despite having legit credentials) just because of the cease-and-desist.

In the Nosal case, the court said that merely sharing your passwords can be a CFAA violation. In that case a guy looking to compete with his old firm had someone still there share a password so he could log in and get customer info. That may be unethical and problematic -- but should it be the equivalent of computer hacking? While the 9th Circuit had rejected an even broader interpretation of the CFAA that would say merely violating a terms of service became "unauthorized access" it said okay to the password sharing one.

There was some hope that the Supreme Court would hear these cases and explain that these rulings stretched the CFAA to dangerous degrees. Unfortunately, that's not the case.

And so we're back where we've been for a few decades now: talking about why Congress needs to reform the CFAA and fix these problems that leave the law wide open to abuse -- especially in an era where so many people use dozens of services, and sometimes do things like share passwords or ask others to log into sites for them. These should never be seen as "hacking" violations, but in the 9th Circuit, they are.

Filed Under: cease & desist, cfaa, david nosal, passwords, scotus, supreme court
Companies: facebook, power