Ames Moot Court Competition 2016

JOSEPH POSIMATO: Good afternoon,
and thank you for being here. My name is Joseph
Posimato and on behalf of the Board of
Supervisors and Dean Minow, I want to welcome you to the
final round of the Ames moot court competition. The case before
the court tonight is United States
v. Papaya cellular and was written by [INAUDIBLE]
and Elizabeth [INAUDIBLE], both graduates of
this law school. The case presents two questions. First, where the Court
of Appeals erred, concluding that would cause an
undue burden in Papaya Cellular within the meaning of the
Stored Communications Act to require it to write
software to override encryption technology and just aggregate
a particular subscriber’s historical cell site
information to assist in an ongoing terrorism
investigation. And second, where
the Court of Appeals erred in concluding
the disclosure of the historical
cell site information would violate the
Fourth amendment. Petitioner, the
United States is, represented by the
Daniel J Meltzer memorial team, Luke Beasley, Benjamin
Burkett, William Ferraro, Amanda Mudell, Trenton
Van Oss, and Connor Winn, comprise this team. Amanda Mundell and
Connor Winn will present petitioner’s argument. Respondent, Papayas Cellular,
is represented by the Lucy Stone memorial team. Michelle Adler, Victoria
Hartmunn, Helen Rave, Caroline Trusty, Stephanie
Tubs, and Mengjie Zou make up this team. Caroline Trusty and
Mengjie Zou will present respondent’s argument. This afternoon we are
fortunate to be joined by three extraordinary jurists,
the Honorable John Paul Stevens, associate justice
of United States Supreme Court, the Honorable
David J Barron, judge on the 1st circuit
court of appeals, and the Honorable
Allison J Nathan, judge in the district
court for the Southern District of New York, will
preside over today’s case. A few house rules
before we get started. No photography of any kind
is allowed at any point before, during, or
after the argument. We ask that you
please remain seated while the oralist is
speaking, and turn off all cell phones at this time. Please hold your applause
until all oralist have finished speaking, and remember
that the petitioner will make rebuttal arguments
after the respondent has spoken. Again, on behalf of
Dean Minow and the Board of student advisors, welcome. Good luck to both teams, and
please enjoy the argument. SPEAKER: All rise. the Honorable,
the Chief Justice, and the associate
justices of the Supreme Court of the United States. Welcome. CHIEF JUSTICE BARRON:
You may be seated. SPEAKER: Oyez, oyez, oyez. All persons having business
before the Honorable, the Supreme Court of
the United States, are admonished to draw near
and give their attention for the court is now sitting. God save the United States
and this Honorable court. CHIEF JUSTICE BARRON:
OK, today we’re going to hear number 16611,
United States of America versus Papaya Cellular. We’ll hear first
from the petitioner. AMANDA MUNDELL: Thank
you, Mr. Chief Justice, and may it please the court. My name is Amanda Mundell and
I along with my colleague, Mr. Connor Winn, represent
the United States of America. Today I will be
addressing the first issue before the court, the meaning
of the phrase undue burden. And my colleague, Mr.
Winn, will be addressing the fourth amendment issue. To protect the government’s
legitimate law enforcement needs, the Stored
Communications Act requires a cellular provider to
disclose customer information upon a court order, unless doing
so would pose an undue burden. We are here today because
a 650 person company refuses to disclose
that information, even though it
might help prevent a fourth terrorist
attack on Ames. For three reasons this court
should hold that Papaya Cellular cannot claim compliance
would pose an undue burden here. First, the burdens contemplated
by the SCA are resources, and Papaya admits it faces few. Second, Papaya’s other claims
burdens relating to its brand or the future
consequences of compliance are not cognizable
burdens under the SCA. And finally, balancing
Papaya’s burdens against the
government’s interests weighs in favor
of the government. CHIEF JUSTICE BARRON: How
are we supposed to think about what an undue burden is? So the statute tells
us that if it’s voluminous records that
are being requested that’s too burdensome, right? AMANDA MUNDELL: That’s
exactly right, your honor. We believe that’s– CHIEF JUSTICE BARRON:
OK, so then here you’re doing something
relatively unusual. You’re making them actually
build out code to solve it. Why wouldn’t we just say, if
getting lots of records that are already there and amassing
them can be too burdensome, certainly requiring
three engineers to sit in a room for a
week and figure out code would seem– I don’t
know how to measure that. Why is that not
just as burdensome? AMANDA MUNDELL: Well,
Mr. Chief Justice, Papaya has actually
admitted that spending three of its engineers in
less than a week of work here would not be unduly
burdensome under the SCA. It challenges the burdens
in different forms, but it’s also worth noting that
Congress actually envisioned that a company may be required
to do some type of decryption to comply with
government investigation. JUSTICE NATHAN: I’m
sorry some type of? AMANDA MUNDELL:
Decryption, your honor. To comply with government
investigations with amendments. JUSTICE NATHAN: Where
do you see that? AMANDA MUNDELL: That’s in
the CALEA, the Communications Assistance for Law
Enforcement Act, which amended the SCA in 1994. Congress wrote that, I believe
it was section 1002(b)(3). In that instance,
your honor, we can think about the burdens
related to the resources spent on compliance and assess– CHIEF JUSTICE BARRON: I don’t
recall that in your brief. JUSTICE NATHAN: Nor I. AMANDA MUNDELL: No, your honor. JUSTICE NATHAN: I
thought you said that. I thought– I thought I’d– AMANDA MUNDELL: No, your honor. This jurisdiction has
a very strict word limit, and that’s just another
reason why, in this instance– CHIEF JUSTICE
BARRON: But, I guess, I don’t quite follow the
significance of that. So we have a statute
here which is talking about an undue
burden in these terms. And the only reference
that gives us purchase as to what that
means is the sort of lead into that, which
talks about the volume of the records being requested. How do you get from that
to, oh, well, obviously they meant you could also force
people to actually write code to decrypt? AMANDA MUNDELL: Well
certainly, your honor, at the time that
Congress crafted that act it didn’t include
that as an example of something that’s burdensome. But what we can
do is we can look at what unusually
voluminous does to the meaning of the
phrase, undue burden, by limiting it to the
resources spent on compliance. And then in Congress’s
own way balancing that against the
government’s interests here when we assess
how long it would take to comply, what resource
it would take to comply, and weigh that. JUSTICE NATHAN: You say
resources as to compliance focused only on the specific
dollar costs of the labor to write the code, and you
say ignore Papaya’s arguments as to other expenditures,
including lost value to the brand and the like. I mean, those are resources. It’s all– one could put
dollar signs on them, no? But you have an argument
which I don’t quite track as to why resources
as we think about burden should be so limited to
what you’ve pointed out, labor and the like. AMANDA MUNDELL: Well
your honor for that we can turn to the
text of the SCA itself in a couple of provisions. For one, Congress wrote
compliance with such order would cause an undue burden. And when we look
at that phrase we know it’s that the
resources spent on complying with the order. Now a company doesn’t really
spend its brand on compliance the same way it would spend
its personnel or its time. But knowing that
unusually voluminous hints at the meaning of undue
burden, to limit it at resource specific
costs, we can actually look to a neighboring
provision of the SCA where Congress used those exact
pairing of phrases, unusually voluminous, and undue burden,
in an unquestionably resource specific section. That’s section 2706, the
cost reimbursement section. There again Congress
wrote that an exception for reimbursable costs
would be in cases where the records requested
are unusually voluminous or where compliance would
pose an undue burden. JUSTICE NATHAN: On your reading
of the cost reimbursement section there can
be no undue burden. The costs are the same, so
if we reimburse the costs it can never be
unduly burdensome. Isn’t that right? AMANDA MUNDELL:
Respectfully, your honor, we would disagree with that, and
that’s for a couple of reasons. For one, the cost
reimbursement section only looks to reasonable
reimbursement. So there certainly
is a circumstance where a company may spend
a lot of time or money, but not get reimbursed fully
for the amount that they spent, and the gap might actually
pose an undue burden. CHIEF JUSTICE BARRON:
Could you explain why a voluminous request is undue? AMANDA MUNDELL:
Well, your honor, there are certainly
some circumstances where courts have
found that production of 39,000 e-mail accounts
would be unduly burdensome. CHIEF JUSTICE BARRON: But, why? I mean, so you would pay
them the reasonable cost of doing that. Obviously the drafters
of the statute thought, even though
you could give them reasonable compensation for the
labor and the effort of doing it, it was still
too much of a burden on the company to
make them do them. Well, why? AMANDA MUNDELL: That
actually leads me to the second point I wanted to
point out with Justice Nathan’s question, which
is, it’s not just that they might get reimbursed. It’s still the balancing
of the interests at stake. And here in that
circumstance courts have looked to the
government’s interests to decide whether that
was weightier than forcing a company to produce so
many voluminous records. CHIEF JUSTICE BARRON:
But if I took that logic, why wouldn’t it make sense
to read the statute this way, it refers to records
or information that the company had? And that it talks about
voluminous production of records. So the contemplation,
at least as I read it, was that the record was
there and it was simply a matter of amassing it. AMANDA MUNDELL: That’s
certainly possible. CHIEF JUSTICE BARRON:
Why wouldn’t we say that this is different
in kind in that you’re now effectively making them
create the information, which is not otherwise
available to them at all, even to the company. And in that circumstance
why don’t we say a difference in kind
like that is an undue burden? AMANDA MUNDELL: Well
respectfully, your honor, the information does
exist in Papaya’s servers. All it has to do is unlock
the key– unlock the door and open it to
those information. In fact, Papaya admits
that that is something that would be easy to do
in these circumstances, it just hasn’t done it yet. JUSTICE NATHAN: But you do want
them to do more than disclose the information you have. You want them to do something
more than that, right? AMANDA MUNDELL: Well,
your honor, in this case it would require Papaya to build
the type of software program to unlock it. That’s right. JUSTICE NATHAN: And that’s
more than disclosure? AMANDA MUNDELL: That’s
right, your honor. That’s a necessary step. JUSTICE NATHAN:
So it seems to me that perhaps we’re
focusing on the wrong part of the statutory text. You get to the unreasonable
burden question only upon it being
authorized by the court. Looking at the language
of the statute, what the statute
specifically authorizes is the disclosure of records. And so maybe we don’t
even get to undue burden because you’re seeking more
than the disclosure of records. AMANDA MUNDELL:
Well it certainly would be odd, Justice
Nathan, to allow a company to adopt a business
strategy that prevents it from disclosing
information simply because it has decided
it wants to keep that information hidden. CHIEF JUSTICE BARRON: What? Why would it be odd? Unless– maybe we
think what’s odd is to read a statute
that didn’t contemplate ordering people to decrypt
things to decrypt them. AMANDA MUNDELL: Well that’s
because, Chief Justice Barron, we can look to Congress’s
intent when section 2703 was enacted in 1986. And looking at the
legislative history, it’s clear that
Congress intended to allow the government to
seek this type of information. And that it didn’t
want companies to prevent it from
accessing it, unless it would be unduly burdensome. In fact, really, the only
burden that Congress discussed in that legislative history
was producing overly broad– was overly broad request,
produce so many records it would overwhelm
and become burdensome. So here, because these
types of resources that Papaya would be devoting
to decrypting those information are minimal, we
believe that this order would not be unduly burdensome. And for that we can really
turn to the balancing of the interests at stake. Because both sides have
admitted that inherent in the meaning of
undue burden is a balance between Papaya’s
burdens one side of the ledger and the government’s
interests on the other. Now Papaya has added several
other burdens to this analysis that we don’t believe
fits with the SCA. And I’d like to
address those in turn. CHIEF JUSTICE BARRON:
Before you get to that, I’m not sure I
follow why we would think that there is a
balancing based in the statute. And that it goes to
the point that they’ve carved out voluminous requests
as being kind of per se burdensome. So I don’t really follow what–
the statute could have easily been written as a general
test of if there’s a really strong interest, then
maybe even very burdensome things are permitted. But they seem instead
to have written the statute that very burdensome
things are just too burdensome. No matter the interest,
which is the case for a voluminous
records request. So if we thought that requiring
you to decrypt is of that type, why would it matter how
strong the interest was? After all, the fallback is
you just get a warrant, right? AMANDA MUNDELL:
Well, your honor, I will address those several
points perhaps in turn. But first, to get
to the difference between the unusually voluminous
exception and the undue burden one, Congress chose
a different word for the undue burden exception,
and that’s the word undue. That’s different, say,
from the word unusual, which is just something that’s
out of the ordinary, something that wouldn’t necessarily
entail balancing. But the word undue has the
meaning of inappropriate, unacceptable, unwarranted,
and that requires a comparison to some baseline. And Congress
answers the question of what baseline that should
be in the legislative history of the SCA when
Congress indicated that we should be looking
at the appropriateness of the government’s request. That deals with the
government interests, whether the information is
necessary to the government’s investigation, whether
it’s critical or important, and whether the government
has shown enough. And that’s not true just of
the legislative history, that also comes again from
the texts of the SCA, which requires the government
to make some showing initially before it can even
get the order. But turning then to what the
balance would look like then in undue burden, we believe that
that does entail a balancing of the government’s interests. Because the SCA also
allowed the government to seek this information under
an order, not under a warrant. And I know that Mr. Winn may
be addressing the warrant issue later in his argument. Let’s go back for a moment
to Papaya’s claimed burdens. CHIEF JUSTICE BARRON:
If that’s right, you want the judge
to effectively do an all-scale, all
things considered, reasonableness
analysis of the kind that we would normally
do under the warrant. AMANDA MUNDELL:
Well, your honor, we think it’s a little bit
more limited than that. CHIEF JUSTICE BARRON: How so? AMANDA MUNDELL: It
would be looking at the government’s interests in
the information requested here. And that’s a little
bit more narrow than just say the
government’s interest generally in prosecuting crime
or investigating terrorism. It’s tied to the information. That seems clear from the
fact that the government does have to make some
type of showing initially that the information sought
is relevant and material to an ongoing investigation. So let’s look at
that balance then. Putting Papaya’s claimed
burdens on the ledger, it’s three engineers,
less than a week of work. Even its brand, or its future
hypothetical consequences, of compliance. The government’s
interest here is weighty. It’s based– CHIEF JUSTICE BARRON:
But not so weighty that you could get a warrant? AMANDA MUNDELL:
Well, your honor, we don’t think that
we necessarily– or that at least the
government had probable cause. CHIEF JUSTICE
BARRON: Well don’t we have to decide the
case on the assumption that you couldn’t get a warrant. Because there’s no
reason for use– to use this statute if you
have probable cause, is there? AMANDA MUNDELL:
Well no, your honor. Actually the SCA
authorizes the government to seek this information
under a warrant, in the same provision that
authorizes the government to seek it under– CHIEF JUSTICE BARRON: But
the provision you’re relying? AMANDA MUNDELL: I think the
court’s asking about section 2703(d) specifically? CHIEF JUSTICE BARRON: Correct. AMANDA MUNDELL: That’s
right, your honor. That section pertains only to
the order, the undue burden analysis there. That, of course, would
not come into play– CHIEF JUSTICE BARRON: But
you’re trying to use, I thought, the authority to get in under
the reasonable suspicion test, as opposed to
probable cause test. Is that wrong? AMANDA MUNDELL: Well
that is the showing that is required under section 27– CHIEF JUSTICE BARRON: And
that’s the only showing you’re representing to us
that you’re prepared to admit. AMANDA MUNDELL: That’s
right, your honor. CHIEF JUSTICE BARRON: Right. So that’s what I’m saying. That you could– in weighing the
weightiness of the governments interest, don’t we have to
discount the fact that it’s not so weighty an interest. Given you don’t have
enough to get a warrant? AMANDA MUNDELL: Well
your honor, it’s true that if the government had
probable cause showing, or even knowing certainty, that
this information would lead to the fourth attack
being stopped upon Ames that that would make the
government’s interests paramount. But here there are a
confluence of factors that render the government’s
interest strong here, and stronger still
than Papaya’s burdens. That’s because the
government’s request is not based on mere speculation. It’s based on a credible
tip from a source who allegedly has
involvement in this type of terrorist organization. That adds to the government’s
burden here– or, I’m sorry, the government’s interest. JUSTICE STEVENS: May I ask you
a question about your brief? Did your brief comply with
the Supreme Court rules? AMANDA MUNDELL: We believe
it did, your honor. JUSTICE STEVENS:
Does the rule provide for a preliminary statement? AMANDA MUNDELL:
Your honor, there’s no provision against it. And we thought it
was appropriate given the length of the
brief and the issues here to include something ahead of
just the statement of facts. JUSTICE STEVENS: And what do
the rules provide with respect to the color of your brief? AMANDA MUNDELL: Your
honor, again, the rules provide that we have to have
a blue cover for our opening brief, a yellow one for
our reply brief, and text– JUSTICE STEVENS: I’m sorry. I didn’t hear that. AMANDA MUNDELL: I’m
sorry, your honor. We have to have a blue
cover for our opening brief, yellow cover for the
reply, and then text– JUSTICE STEVENS: Shouldn’t there
have been a gray cover on it? AMANDA MUNDELL:
Well, your honor, apparently in this jurisdiction
for the Supreme Court it’s required to be blue. JUSTICE STEVENS: Oh. CHIEF JUSTICE BARRON: We’ll
reconsider it for next year, though. AMANDA MUNDELL: Perhaps we may
change it to gray, your honor. I’d like to take a moment
and just address briefly another argument that Papaya
has raised before I sit down, and that’s a First Amendment
challenge to this order. And we don’t believe
that this order violates the first amendment
for a couple of reasons. That’s because the order seeks
a specific result, unlocking those location information. And not specific content or
specific code to get there. And, in fact, Papaya admits
that there are several ways that this code could be
written in order to effectuate the government’s request. CHIEF JUSTICE
BARRON: But they’re not making a first amendment
challenge to the statute. I take it this is in service
of their general argument, that this is a unusual kind
of requested disclosure. And one of the ways
that’s unusual about it is that compel somebody
to actually produce code. And that’s just another
way in which they’re making the argument that it’s undue. So viewed in that context what’s
wrong with what they’re saying? AMANDA MUNDELL:
Well your honor, it doesn’t seem that
first amendment would stand as a burden under the SCA
because Congress didn’t need to include that as a
burden when it could just be a simple challenge under
the constitutional law to the face of the act
or to a particular order. I see that my time has
expired, your honor. Thank you, and we request
that this court reverse. CHIEF JUSTICE BARRON: Thank you. Please go ahead. CONNOR WINN: Mr. Chief Justice
and may it please the court. The fourth amendment balances
privacy and security. Yet the focus of this
case, John Doe’s location information, that was never
private to begin with. And even if it
had been, and even if there had been a
government search, that search would
have been reasonable. Those conclusions follow
for three reasons. First, Doe voluntarily conveyed
his location information to Papaya cellular,
a third party. Second– CHIEF JUSTICE BARRON: Have we
ever decided the third party case in which the
recipient of the record vigorously opposed
the disclosure? CONNOR WINN: Your
honor, I don’t believe that this court has ever dealt
with a case similar to that. And that’s because
generally there would be a fourth
amendment standing challenge that the
government would raise. We’ve waived that
challenge here for purposes of our investigation. So we haven’t confronted
a case just like this. Now there’s two
additional reasons why this court should reverse
the judgment of the Ames circuit. CHIEF JUSTICE BARRON:
But doesn’t that make it then a little
hard for you to rely on the third party disclosure? Because as the case
comes to us we’ve got the recipient
of the companies not cooperating with the
government, which sort of adds to the notion that the person
who disclosed the information thought they were giving
it to somebody who wasn’t going to disclose it. And in fact, that person
isn’t disclosing it. I mean, the secret
agent cases/ you know, you give it to somebody you
think isn’t going to disclose it, but they do disclose it. But, you know, it’s
pretty clear there you’ve lost your interest. But when you give
it to somebody you think isn’t going
to disclose it, and they don’t,
now the government is trying to force them to. Why does it make sense
to say in that event that there’s no fourth
amendment problem? CONNOR WINN: Mr. Chief
Justice, this court’s precedent in the United
States versus Miller actually helps to clarify
the reason why that is. Because in Miller,
this court held that even when a person
confides their information to a third party for a limited
purpose and with confidence that that information won’t be
disclosed to the government, that doesn’t mean that they
retain a reasonable expectation of privacy in that information. CHIEF JUSTICE BARRON: Was
that in a commercial setting? CONNOR WINN: Yes, your honor. That dealt with– CHIEF JUSTICE BARRON: So
the most analogous case we have is Smith, which
is a personal setting. CONNOR WINN: Yes, your honor. That’s correct. CHIEF JUSTICE
BARRON: In that case, wasn’t the phone
company cooperating with the government? CONNOR WINN: Yes, your honor. In Smith, the company
did cooperate. CHIEF JUSTICE BARRON:
So we never held that individual person who’s
conveys personal information outside of a commercial setting
has no expectation of privacy when the company they give it
to doesn’t want to disclose it to the government. CONNOR WINN: Your
honor, I don’t believe this court has ever confronted
a situation just like that. But the federal courts
of appeals have. CHIEF JUSTICE BARRON:
Why would Miller– why would it make sense to
extend Miller to this case? Why would we want to take a
rule designed for accountants and commercial
business and make it apply to every citizen
in the country? CONNOR WINN: Because
the underlying logic of the third party
doctrine at play in Miller is equally applicable here. The key is when you give
over this sort of information to a third party
you’ve surrendered your expectation of privacy. You recognize that
it’s no longer a matter just for yourself. That’s equally
true in Miller when you give it in the
commercial context to a bank. JUSTICE NATHAN: You
say, counsel, you say give it over but there’s
a certain impassivity to the information being
provided to the third party here, right? I mean, if you receive
a call, for example, your location information
is being provided. So when you say
give over it sounds as though there is an
affirmative action taken that I think is lacking here. CONNOR WINN: Justice Nathan,
we think that there actually is an affirmative action here. And that action comes
into play in a variety of different formats. First, before anyone can ever
transmit their location data to Papaya Cellular, they have
to turn on their cell phone, insure that it’s connected
to a cellular network, and then they either have to
make or receive a phone call, send or receive a
text, or otherwise use their cellular data. CHIEF JUSTICE BARRON: What’s
the affirmative action receiving a phone call? CONNOR WINN: The affirmative
action in that case is– CHIEF JUSTICE BARRON:
Turning on the phone. CONNOR WINN:
Turning on the phone and ensuring that
you’re connected to– CHIEF JUSTICE BARRON: Or
forgetting to turn it off? CONNOR WINN: With respect,
Justice Barron, once you’ve turned on your phone
it’s like the mailbox. You’re indicating that
you’re open to the receipt of information
from a third party. And at that point
you’ve signaled that you’re willing to surrender
at least some expectation of privacy in your
personal information– JUSTICE NATHAN: Can you search
my mailbox without a warrant? CONNOR WINN: No, your
honor, the government could never search your mailbox. JUSTICE NATHAN: But I put
that mailbox out there, so I’m open to the
receipt of information. CONNOR WINN: Well consider
this court’s jurisprudence in ex-parte Jackson. There, this court
noted that when you put a letter in the mail,
the contents of that letter, those are private. A postal inspector
can’t look into those and convey it to the government
for use in prosecution. But the exterior of that letter,
the routing address, the return address, that’s always been
accessible to the government ever since 1877. So that’s the instance
in how it would come into play with the mail there. During the transmission
from one party to another that address
non-content information would be available
to government agents. Now, John Doe also disclosed his
location information to Papaya knowingly. You see, Papaya tells each
and every one of its customers in its advertising and its
privacy policy that not only do they have the capacity to
locate this sort of location information, they
actually need to do it in order to provide service. So Doe knew far more than
the defendant in Smith or even the defendant in Miller. He was aware that
Papaya would be obtaining this
information every time he made use of his cell phone. Because this affirmative
requirement which Justice Nathan and
I just spoke about, and the knowing requirement
suggested by Papaya is met, Smith controls this case and
it falls within the third party doctrine. Thus no fourth amendment
search occurred. Perhaps that’s why
Papaya has proposed that this court deviate
from it’s fourth amendment jurisprudence in two ways. The first, it suggested that
this court should overrule the Katz reasonable
expectation of privacy test, emanating from Justin
Harland’s concurrence in 1967. And second, it suggests
that this court shouldn’t apply the
third party doctrine to digital communications. The government respectfully
thinks that neither suggestion are sound. First as to the Katz reasonable
expectation of privacy text, when we’re determining
whether or not this court should
overrule its precedent generally we look
to considerations of stare decisis, the
workability of the doctrine, the reliance interest
generated by that doctrine, as well as whether
that doctrine has become an outlier among
our fourth amendment jurisprudence– CHIEF JUSTICE
BARRON: Even if you don’t jettison
the entire test, I think that question
is how do we apply the test in this
particular context in light of the unusual nature of
the amount of information that’s being requested
by the government? Given that what
you’re talking about is information that–
I think this is true, you’re assuming every
person necessarily is giving up all the time. Correct? CONNOR WINN: Mr.
Chief Justice, we think that that’s an
assumption that this court is safe in making, because it’s
made that assumption before in Smith versus Maryland. CHIEF JUSTICE BARRON:
Well– but in Smith, as I was saying before, the
company to whom you gave it up to was willing to itself give it
up to the government, correct? CONNOR WINN: Yes,
that’s correct. CHIEF JUSTICE BARRON:
Well when the company isn’t willing to give
it up to the government why does the
government nonetheless have the right to say,
well you willingly disclosed it to somebody? It’s true, I
willingly disclosed it to somebody who told me
they wouldn’t give it up, and who now is trying
not to give it up. CONNOR WINN: Because,
Mr. Chief Justice, the key is that Papaya
is asserting John Doe’s fourth amendment rights. CHIEF JUSTICE BARRON: But you
waived any concern about that. You said he’s entitled to waive
John Doe’s fourth amendment right. CONNOR WINN: We’ve waived
prudential standing as to allow them to
raise this challenge now, but that doesn’t mean that
Papaya’s fourth amendment rights and John Doe’s
fourth amendment rights somehow become mixed and– CHIEF JUSTICE BARRON: No,
but what they are raising is the fourth amendment
interest that John Doe has. JUSTICE NATHAN: Usually
waving an argument works to your
disadvantage, but you’re trying to use it
to your advantage here, which is clever. CONNOR WINN: And we had to waive
it, your honor, because if we go and secure John Doe’s
location information and there’s a later motion to
suppress we’ll have already declassified our
investigation in a highly sensitive terrorist case. At that point there’s no taking
the cat back out of the bag. So it’s a choice that
we had to make here. But we don’t– JUSTICE NATHAN: We’re proceeding
with an anonymous name here. You could proceed just as well
in that context, anonymously, couldn’t you? CHIEF JUSTICE BARRON: Or you
could have sought a warrant. CONNOR WINN: Well actually,
Chief Justice Barron, we don’t believe
that we could have sought a warrant in this case. Because we don’t believe
that we have probable cause as to John Doe’s
involvement with redemption. We do have a reasonable
and articulable suspicion, but a warrant wasn’t
an option in this case. Indeed, that’s why we’re
seeking the location data, to further our
individualized suspicion and therefore develop
probable cause. CHIEF JUSTICE BARRON:
So– but I take it you’re not conceding even though
you waived the fourth amendment prudential standing point. You’re not conceding that
the government– in order for the government
to win you think you can win even
without the third party doctrine going your way? CONNOR WINN: That’s absolutely
true, Mr. Chief Justice. CHIEF JUSTICE BARRON: Not
withstanding the fact that you don’t have probable cause. CONNOR WINN: That’s correct. CHIEF JUSTICE BARRON:
And how can that be? CONNOR WINN: The
reason for that is even if the third party doctrine
didn’t apply to this case– CHIEF JUSTICE BARRON: So he
has a fourth amendment interest that he can still assert. He has an expectation of
privacy in this information. You nonetheless can get
it without probable cause, because? CONNOR WINN: Because this
court’s jurisprudence teaches us that a reasonableness
analysis would make it appropriate in this case. You see, when the government
has a special law enforcement need this court reaches a
sort of reasonableness case by case individual
balancing approach. And here there’s a special
law enforcement need, preventing a terrorist
attack, the fourth one in the state of– CHIEF JUSTICE BARRON: So
how broad does that go? You can go into his house just
with reasonable suspicion? CONNOR WINN: No, Mr.
Chief Justice Barron– CHIEF JUSTICE BARRON:
What’s the difference? It can’t be just because
it’s a terrorism case. CONNOR WINN: No, it can’t. And the reason that this
location information should be available is because
it’s not precise, and it doesn’t reveal the
personal or intimate details of Doe’s life, like an
invasion of the home would. CHIEF JUSTICE BARRON:
In other words, it’s not that helpful
to the government. CONNOR WINN: That’s not
quite right, Chief Justice. It is helpful to the government
because it will show us Doe’s– CHIEF JUSTICE BARRON: I said not
that helpful to the government. CONNOR WINN: It’s not as helpful
as, say, GPS tracking would be, but that would
certainly constitute an unconstitutional
fourth amendment search. CHIEF JUSTICE BARRON: So
in the balance of interest, you have something
where you don’t have that strong of
evidence that you need it, because you don’t
have probable cause. And it’s not that
good of information because it’s not that precise. Yet he’s got a privacy
interests on the other side. So how am I supposed to do
that balance in a way that comes out for you? CONNOR WINN: Well Mr.
Chief Justice Barron, even if Doe didn’t
have– even if he does have some
expectation of privacy, enough to call this a
fourth amendment search, the government doesn’t believe
that it is a full and complete expectation of privacy. Indeed, we think it’s
a diminished one. And that’s because even if the
third party doctrine didn’t apply Doe has knowingly
exposed his location movements to another individual. Now he does that when
he goes out and about and walks through
the streets, but he’s taken an extra step
here and conveyed it to a third party,
Papaya Cellular. So even if the third party
doctrine’s considerations aren’t taken into account
in the front hand, they should be taken in account
here with the reasonableness. And when defendants have
diminished expectations of privacy this
court has approved searches that can be
reasonable as long as they’re minimally intrusive. Let me give an example of what
the government’s thinking here. We have a special
law enforcement need, and this location data isn’t
seriously intrusive in any way. That sort of circumstances
calls to mind this courts– JUSTICE NATHAN: Just, I
have to pause you there. That it’s not
seriously intrusive, the notion, just as a
matter of common sense, of the government being able to
know my within a couple blocks radius location. Historically, that
certainly has a feeling of intrusiveness to it. I mean, is there
not some expectation even of subjectively
reasonable expectation that where I’ve been
and what I’ve done is not for the
government to know? CONNOR WINN: Justice
Nathan, this court held in the United States
versus Karo and United States versus Knotts, that when you
go out and about in public and you’re conducting the
activities of your daily life you’re exposing location
information to the public. Now even though we might
want to think it’s private, and maybe that’s good cause
to have Congress amend a statute or enact a
statute making it that way, in a sense allowing them to
supplement fourth amendment protections, for the purposes
of the fourth amendment it’s not protected, even
though it might seem intrusive. JUSTICE NATHAN: Let me ask
you a tailoring question then. What length of time would–
why limit the length of time that you sought here? CONNOR WINN: Well we
limited the length of time we sought here
because the government didn’t want to learn
everything that Doe’s ever done over the course of
his entire service with Papaya? We’re specifically interested
in these six months, because these six
months are the period in which the terrorist
attack, and conceivably the planning that would
lead to those attacks– CHIEF JUSTICE BARRON: But
to judge Nathan’s point, if I follow what you’re
saying, if being out and about is something you have no
privacy expectation in there’s no reason for you to limit it as
a constitutional matter, right? You could go back from birth. CONNOR WINN: We don’t
know how true that is. Because if we’re proceeding in
a reasonableness analysis, Chief Justice– CHIEF JUSTICE BARRON: What– you
don’t get to the reasonableness unless they have an expectation
of privacy, I thought. CONNOR WINN: That’s true. I was speaking to the
reasonableness analysis, but with a third
party doctrine, no, we wouldn’t reach that point. So there is no constitutional– CHIEF JUSTICE BARRON: Even aside
from the third party doctrine, which is the
directly [INAUDIBLE]. I thought you said the
government’s position is being out and about
is something you have no privacy interest in. CONNOR WINN: That’s certainly
correct, Chief Justice. CHIEF JUSTICE BARRON:
So then you’re saying location
information is something that whenever the
government asks for it there’s just no fourth amendment
analysis to do, no matter how much of it it wants. Is that the position
of the government? CONNOR WINN: Well,
your honor, we think that depends
on whether or not there’s a third party involved. This court’s decision– CHIEF JUSTICE BARRON: So, no. Being out and about there
is a third party involved. Because you’re out and about. CONNOR WINN: That’s
correct, your honor. And so it matters here how– CHIEF JUSTICE BARRON:
So on your view anytime you leave the house
all information that anybody happened
to collect about that? CONNOR WINN: That’s true. And we– CHIEF JUSTICE BARRON: Even
if you didn’t know they were collecting it, because
you knew you were out. Is that the
government’s position? CONNOR WINN: Almost,
Chief Justice Barron. We do think there’s an
important limitation on that. And that is that the government
cannot collect this location through direct
government surveillance when a person is out and about. This court’s decision in the
concurrences in the United States versus Jones suggests
that such direct government surveillance is a fourth
amendment problem. But that’s why it’s critical
that the information in this case is coming from a
third party, Papaya Cellular. And even if this court doesn’t
conclude that the third party doctrine should remain
intact or should apply to the facts of this
case, those considerations can come in on the
reasonableness analysis. JUSTICE NATHAN: Can I ask
your record question, counsel? Just on the tailoring issue? Certainly your application
limited it to six months. I must be missing it. I’ve read the
district court order, which is what’s on appeal
here, are a number of times. I don’t see the six month
limitation in the order– if I’m looking at the
right order it’s pages 22 and 23 of the joint appendix. Is there actually a six
month limitation to the order that in fact issued here? CONNOR WINN: Justice
Nathan, I’d have to go back and
look at the order, but I don’t believe the order
made an explicit limitation. I think the order said that the
government’s motion is granted, and in the government’s
original motion, in an appendix, we’ve requested that that
information be for six months. JUSTICE NATHAN:
The judge I clerk for told me to pay
special attention to the record in the case. And if you look
at the record here it orders all of the information
that 2703(d) provides. There is no temporal limitation. Seems to me we should at least
remand to the district court to get that order amended. CONNOR WINN: I see that
my time has run out. May I answer the question? CHIEF JUSTICE
BARRON: Yes, you may. CONNOR WINN: Justice
Nathan we don’t believe that a remand
is necessary here on those grounds. Because the third party
doctrine would make even that long and expansive
a request for information permissible under
the Fourth Amendment. But if this court
chose not to do so then a remand may be appropriate. We think that this court should
reverse the Ames circuit. Thank you for your time. CHIEF JUSTICE BARRON:
Wait, did you reserve time for rebuttal or not? CONNOR WINN: Yes, your honor. Time has been reserved. CHIEF JUSTICE BARRON: OK. Thank you. Please begin. MENGJIE ZOU: Mr. Chief Justice
and may it please the court. CHIEF JUSTICE BARRON: Can
you lift up your microphone so it’s right– you’re
speaking right into it. MENGJIE ZOU: Sorry. Is this better
Little better. Could you get a
little closer to it. There you go. MENGJIE ZOU: How about this? CHIEF JUSTICE BARRON: Excellent. JUSTICE NATHAN: Great. MENGJIE ZOU: Perfect. Well Mr. Chief Justice and
may it please the court. This court should affirm
the lower court’s finding of undue burden. The government is
limited in what it may compel a private
party to do in order to aid an ongoing investigation. This limitation is recognized
in section 2703 of the Stored Communications Act, which allows
courts to quash any order that imposes an undue burden on
a private telecommunications provider. The government reads this
undue burden analysis narrowly, as encompassing only resource
in order specific concerns. However, neither
the text of 2703, nor common law case law
in analogous context, supports such a
narrow interpretation. First, the text of 2703 sets out
two categories, which addresses two different concerns. It states that an
order may be quashed if the information requested
is unusually voluminous, or if compliance with
such order would otherwise cause an undue burden
on the provider. The first part, the unusually
voluminous limitation, addresses more of
Congresses concerned in protecting an
individual subscribers privacy, which is the only
legislative history we have here. The legislative history says
nothing about the Congress limitation on how
much can be imposed on a telephone provider. And that is addressed through
the undue burden limitation. In addition, section– CHIEF JUSTICE BARRON: I’m
not sure I follow that. The voluminous request could
be talking about the burden on the provider? MENGJIE ZOU: Yes, Mr.– CHIEF JUSTICE BARRON: And how
much stuff you have to gather, and how time consuming
that would be. And I had thought that if
that’s too voluminous then, OK. It’s too much, and that’s
too much of a burden to put on the carrier. Why wouldn’t it make sense to
say that where otherwise undue burden, we would then be looking
for similar types of burdens on the carrier? MENGJIE ZOU: Mr. Chief Justice,
the unusually voluminous is directed at the
information with no reference to the provider. The provider only comes
into the second clause, which is whether or not
there is an undue burden. And the otherwise just implies
that this is a separate concern from unusually voluminous. As the legislative
history states, Congress was worried
when passing the Stored Communications Act about a
balance between the privacy interests of phone
subscribers and the interest in the government being
able to obtain information. And therefore, Congress
wrote that unusually voluminous language
in to make sure that the government can’t
get too much information about the subscriber,
even if that wouldn’t oppose an undue burden. For example, you
can think of a case in which the
government asked for 30 years worth of information. And the cell phone
provider says, that’s fine. We have that all on one tape. CHIEF JUSTICE BARRON: Why
wouldn’t that been taken up by the concern you’re
raising about the privacy interest of the individual? I would have thought
would be handled by the reasonable
suspicion requirement? You have to have a
clear articulable facts of a reasonable suspicion. If you do, why would we
arbitrarily cut off the records that you could get, save for
a concern about the burden that it imposes on the provider? MENGJIE ZOU: Mr Chief Justice,
the reasonable suspicion is a minimum bar. So Congress has decided that
without reasonable suspicion no information can be
gotten, but Congress also recognized that it
did want to balance the interests of the
privacy of phone subscribers against how much information
the government could get. And that’s why they also set
levels in terms of content, for example, would
require additional beyond reasonable
suspicion, a warrant here. And in that spectrum
Congress also wanted to make sure that
if you’re requesting even subscriber information
30 years or for 100 people, then in that case that could
still be unusually voluminous and should still be restricted. JUSTICE NATHAN:
Counsel may I ask the government this– just
maybe you can see this argument. It seems to me looking
at the statute you only get to the undue burden
analysis upon an otherwise authorized order. Do you concede that this is
a– that all they’re asking is for a disclosure of a record. That that is to say that what
the government is requiring Papaya to do is authorized? Or would you argue that, in
fact, as a statutory matter, all you’re required to do is
to disclose an existing record, not engage in other verbs
that aren’t in the statute? MENGJIE ZOU: Justice Nathan,
we believe that historical sale sight data is covered
under section 2703, or at least Congress
intended it to be covered, and similar orders have
been issued under 2703. Not necessarily
requiring decryption, but for historical
cell site data. JUSTICE NATHAN: OK, that’s fair. What I’m asking is whether
there’s an argument that perhaps you’re
waiving that you don’t need to engage in the act of writing
the encryption software, because that’s not authorized
by the Stored Communication Act. What the Stored
Communication Act requires under
certain circumstances is the disclosure of
an existing record, not the engaging by the
provider in other conduct that’s not explicitly
provided for in the text? MENGJIE ZOU: Yes,
Justice Nathan, Papaya would agree that the
decryption code is questionable under 2703,
but even if Congress did intend a decryption
to be authorized under a 2703(d) order, that
should definitely be considered as a burden on Papaya. CHIEF JUSTICE BARRON:
But the problem is if you say generally
decryption is permissible, then you want us to set a
rule in which decryption is only permissible
if the company really doesn’t want to do it. That’s surprising
that Congress would have written a statute
that contemplates companies choosing at their
election whether to comply with the order. Where as I understand if
the argument is per se, decryption requirements were
not in the contemplation of the statute,
so this provision doesn’t authorize
this kind of order. But your argument reads as
if what you’re really saying is, for companies
that really want not to decrypt they don’t have to. Everybody else must. MENGJIE ZOU: Mr. Chief
Justice, if a company is willing to aid the government
and disclose its information, for example, Google
has built their brand and hired people to help
government investigations. And they’re very
open about that. CHIEF JUSTICE BARRON:
But suppose I’m just a company that I
do, you know, encryption. I just don’t make
a big deal of it. But Papaya, you make
a big thing of how Papaya’s brand is that it’s
got super duper encryption. But suppose, you know,
it’s mild encryption. Is that going to be
a different case? MENGJIE ZOU: Yes,
Mr. Chief Justice. Because Congress- CHIEF JUSTICE BARRON: But see,
why would we read the statute to have Congress intending to
draw that kind of distinction and having judges make
that kind of analysis? MENGJIE ZOU: Chief
Justice, Congress would have wanted to
have the government be able to obtain information
if the third party, a different company was
willing to provide it. Perhaps Congress wanted that
as part of the balancing. However, Congress
also recognized that there is a limitation on
what a government may compel a third party to do if
they’re unwilling to aid the government, or
provide this decryption. And in that that’s why they put
in this undue burden analysis, to make sure that
the government is not overreaching and compelling
private parties to do things they’re not willing to
do, without limiting willing parties from aiding. CHIEF JUSTICE BARRON:
Just so I understand the scope of your argument. Your argument is
that any company that has encryption
software in place, such that compliance with that
order would require decryption, is protected from this order? MENGJIE ZOU: No,
so what is the argument? Is the argument that
only those companies that brand themselves as
ones with that encryption are protected? MENGJIE ZOU: No,
Mr. Chief Justice. Our position is that the
undue burden analysis is a broad analysis
that includes all of the factual situations,
including the government’s interest on one
side and the burdens imposed on Papaya on the other. So including the damage
to Papaya’s brand you would also need to consider
the resources, the three engineers, as well as the
possibility of future orders, or the possibility of hackers
in the situation as well. So all of those factual
circumstances are considered. So if a company had none
of those other burdens, or the first amendment
implications here, that company would
not necessarily– even with a vast
amount of branding– CHIEF JUSTICE BARRON:
Won’t every company that decrypts– that
encrypts this information be in the same position
as your company? Or are you saying that
your company is differently positioned than other
companies that encrypt location MENGJIE ZOU: Mr.
Chief Justice, Papaya is different because it
is the only company that built its own cell towers. It is also the only company that
aggregates all of its location for information and doesn’t
keep individualized data. However, these are very
factual specific findings, and the undue burden
analysis is a factually based determination. And so, just because a
different company may brand, does not necessarily
mean that in those cases there would be an undue burden. JUSTICE STEVENS: May I ask you
a question on another issue? Just as a general matter,
is the seriousness of the crime relevant on
the issue of undue burden? MENGJIE ZOU: Justice Stevens– JUSTICE STEVENS: I think
that’s a yes or no question. MENGJIE ZOU: No,
Justice Stevens. The seriousness of
the crime is not of consideration in the
undue burden analysis, because there is a difference
between the government’s interest in obtaining this
particular information versus the government’s
general interest. And Ames here has
suffered tragic attacks and is rightfully fearful,
but the government has conflated the two. The district court could
have reasonably found that there was only a tenuous
relationship between John Doe’s location information
and preventing future terrorist
attacks in Ames. And similarly,
the district court could have found that it wasn’t
necessary for the government to get this information in
order to investigate John Doe, or to further this
investigation. There are other
traditional surveillance methods, such as
calling witnesses, or pulling traffic cams. And if the district court
did make those factual findings it was
completely reasonable for it to determine
that they heavy– JUSTICE STEVENS: I’m not
sure I’m getting your answer. Is it relevant at all on
the issue of undue burden? Yes or no? MENGJIE ZOU: Justice Stevens, no
it is not relevant in the sense that directly the
seriousness of the crime– JUSTICE STEVENS: So this
would be the same case if we were trying to
find out if a person was guilty of pick-pocketing? MENGJIE ZOU: Justice
Stevens, the more– it is relevant in the sense
that the connection between John Doe
and the information requested is relevant. How relevant and how
close that connection is is relevant on the
government interest side. And so, Judge Stevens, it
is relevant in that sense. The important– the
importance of the crime, or the height of the crime, is
relevant in an indirect sense on the government
side, but not directly. Because the relevance is
focused on the relevance of the specific information. JUSTICE STEVENS: Thank you. CHIEF JUSTICE BARRON:
So just to follow up, we do look at the
government’s interest in the information on
one side of the ledger in determining whether
the burden is undue. MENGJIE ZOU: Yes,
Mr. Chief Justice. However, the government– CHIEF JUSTICE BARRON: Unless
what they’re requesting is an unusually voluminous
amount of information. In which case the statute
tells us we don’t care what interest the
government has? MENGJIE ZOU: Yes,
Mr. Chief Justice. However, in that case
the court can just modify to resolve the
unusually voluminous question if it believes that
the government should get some of that information. In addition, section 2706 of
the Stored Communications Act also shows that this
undue burden analysis should not be as
narrowly limited as the government contends. Because section 2706 creates
automatic cost shifting and costs reimbursement
for all 2703 orders, only excluding certain
subscriber information requests, which we
don’t have here. That means that if undue
burden is interpreted to only deal with resource
specific concerns that would basically write that
limitation out of the statute since all costs are
already reimbursed. The government’s
contention that there’s a difference between
actual and reasonable costs is also unpersuasive. The text of 2706 actually
reads that cost reimbursements are limited to reasonably
necessary costs. So the reasonable there
describes necessary. And reasonably necessary
acts as a check to make sure that
the provider is only doing the work that’s
necessary, and not conducting extra work for
extra pay by the government. CHIEF JUSTICE BARRON: If we
put aside the first amendment issue that you raise, and we
put aside the branding issue that we raise– that you raised. And if we put aside
the issue about how other people will request
similar orders that you also raised. And we just ask,
how burdensome is it to have three engineers
working to write new code over the course of a week? Is that alone an undue burden? Or are you, as the
government suggested, waiving the contention that
that alone is an undue burden? MENGJIE ZOU: No,
Mr. Chief Justice, we are not waiving
that contention. That would be a very fact
specific inquiry and it would have been– CHIEF JUSTICE BARRON: Well
that’s the facts, right? So we’ve got three
engineers for what? A week. MENGJIE ZOU: Right. CHIEF JUSTICE BARRON: Five days. I forget exactly which– MENGJIE ZOU: Six days. CHIEF JUSTICE BARRON:
Your contention is that alone is an undue burden? MENGJIE ZOU: Mr. Chief
Justice, the district court could have determined that
those three engineers– CHIEF JUSTICE BARRON:
No, I’m asking you. Do you think that alone
is an undue burden? MENGJIE ZOU: Well
those three engineers could have been indispensable
to the business. So six days for them could
have imposed an undue burden. Unfortunately, based
on the sparse record we have here we have no way of
knowing how much impact those three engineers away from
their work for six days would have on Papaya. CHIEF JUSTICE
BARRON: And who’s got the obligation to produce
the full record that would be helpful? MENGJIE ZOU: Mr. Chief
Justice, the obligation would have been on
the district court to make those factual
determinations and to see– CHIEF JUSTICE
BARRON: And who would have been obliged to give the
information to the district court so it could make
that determination? MENGJIE ZOU: Papaya
would have needed to give that information. CHIEF JUSTICE BARRON: So the
sparseness of the record, we could say that’s
Papaya’s fault, right? MENGJIE ZOU: Well
the record here is very sparse in the
sense that it only includes joint stipulations
and a couple of affidavits. Clearly Papaya wasn’t
allowed to bring up all the affidavits
and factual experts that it would have
been able to bring up in the district court
contesting and asking for a quash of this order on– CHIEF JUSTICE
BARRON: On the facts that we have in
the record, which is that it would take three
engineers five days to produce it, is Papaya’s contention
that that– just on that record suffices to demonstrate
that it’s an undue burden? Or do we need to also find
the first amendment interest? The branding interest? The repeated orders in
order for you to win? Or can you win alone
on the argument that your decryption order
of this significance itself is an undue burden just because
of the time and unusual nature of the work that
would need to be undertaken to comply with it? MENGJIE ZOU: Mr. Chief
Justice, Papaya’s position is that alone could constitute
an undue burden given– CHIEF JUSTICE
BARRON: And so, why? How would we think
through why that would be? MENGJIE ZOU: Mr. Chief Justice,
because the government interest here is diminished given
that the only relationship between John Doe is
this anonymous caller, and no one is sure how
this anonymous caller got this information. And because the
three engineers here could be indispensable
to Papaya’s business here in that the six
days they’re away from their ordinary work would
have a significant impact on Papaya’s running
smoothly as a business and as a phone provider. Given this balancing it
would have been reasonable for the district court–and
Papaya contends it is reasonable for the district
court to have found that given this balancing of interests
there was an undue burden imposed on Papaya. And this court generally
reviews such fact specific determinations under a
deferential standard. And the undue burden question– JUSTICE NATHAN: Let me ask
you about that, counsel. The question of what
goes into the calculus, for example, you’ve
made an argument that we should
consider the floodgates of future orders coming to
you as part of that analysis. Does it– shouldn’t–
don’t we decide [INAUDIBLE] novo the question
of what goes into the calculus? You want us to defer to the
district court’s decision, for example, to include that. Why is that appropriate? MENGJIE ZOU: Justice Nathan
I see my time has elapsed– CHIEF JUSTICE BARRON: You
can go ahead and answer. MENGJIE ZOU: Justice Nathan,
the undue burden question has always been
reviewed differentially because it’s heavily intertwined
with factual determinations. The fact that undue burden
is determined generally based on a balancing
of the government’s interests against burden’s
imposed is well settled. And in that all
of the case law– there’s no case
law that forecloses any consideration, including
future considerations or branding considerations. And because of this it is
a well-settled principle and everything underneath
that are really based on the specific
facts of this instance, and the district court is the
best place to determine that. And the court has held that when
making all of these discovery motions and requests for
information decisions a matter within the
discretion of the trial court. And for these forgoing
reasons this court should affirm the district
courts finding of undue burden. Thank you. CHIEF JUSTICE BARRON: Thank you. Go ahead. CAROLINE TRUSTY:
Mr. Chief Justice and may it please the court. This case is about how
far into a person’s life the government may go. Here the government is
trying to go too far. The government wants six
months of John Doe’s cell site location information. That’s six months of a detailed
and comprehensive record with approximately 18,000
references to John Doe’s location, both in
public and in private, down to a specific
city block any time he carried his cell phone. The government wants this
information without a warrant, without probable cause. The fourth amendment
prohibits such an intrusion and so should this court. Now Papaya would like– JUSTICE STEVENS: You say
without probable cause. Has there been a
determination that there was no probable cause? CAROLINE TRUSTY:
Justice Stevens, there has not been a
determination that there was no probable
cause in the record. However, the petitioner
has just conceded that it does not believe it has
probable cause in this case. So– and the fact that
the petitioner has not asked for a warrant means that
there has been no demonstration of probable cause. JUSTICE NATHAN: Does Papaya
share the concession? I mean, it’s an
interesting question. If you didn’t concede
that there’s prob– if you say there
is probable cause, then it would be
easier for you to say they should go get a warrant. So I’m curious if
you could share that concession that
there’s not probable cause? CAROLINE TRUSTY:
Justice Nathan, Papaya believes that the
government does not have probable cause in this case. But in truth, Papaya’s
belief doesn’t really matter because the
government has not tried to ask for
a warrant, which means it has not demonstrated
probable cause in this case. JUSTICE STEVENS: On the
probably cause issue, what is it you’re
trying to find out? Probable cause to do what? CAROLINE TRUSTY: Justice
Stevens, the probable cause inquiry is whether
it’s likely or not that the individual has
committed, or is in the process of committing, a crime. So more probable
than not, that’s the probable cause question. And here, because
there was no warrant, the government has not
demonstrated that bar. And thus, it is executing a
search that is presumptively unreasonable without a warrant. Now Papaya would like
this court to recognize that what the government
is trying to do is intrude into John Doe’s
person, a protected– CHIEF JUSTICE
BARRON: I take it you do concede that they’ve met
the 2703(d) standard of having clear and articulable
facts sufficient to give reasonable suspicion that
they’ve committed the crime? Is that right? CAROLINE TRUSTY: Well Justice
Stevens, that’s partly– or Justice Barron, excuse
me, that’s partly correct. The government has demonstrated
reasonable suspicion that this information
would be relevant to their ongoing criminal investigation. But that’s not the
same thing as saying they have reasonable
suspicion that John Doe is in fact a member of redemption. CHIEF JUSTICE BARRON: Right. OK. Got it. CAROLINE TRUSTY: So this court
should recognize that when the government– CHIEF JUSTICE BARRON: But that’s
all they would need to– would they need to show more than
that under the probable cause standard? In other words, if
they showed that it was probable cause that
this information was relevant to their ongoing
terrorism investigation, would that be enough under
the Fourth Amendment? CAROLINE TRUSTY:
Mr. Chief Justice, no, I don’t believe that
that would be enough. They would need to
show– they would need to show probable cause
in order to intrude into John Doe’s fourth amendment rights. CHIEF JUSTICE BARRON: But this
was Justice Stevens question. Probable cause of what? Would it be probable
cause that the information would be relevant to the
ongoing terrorism investigation? Or probable cause
that this person whose information they’re
trying to collect committed the terrorist act? CAROLINE TRUSTY: Mr.
Chief Justice, it’s the latter, because the
fourth amendment protects John Doe and his person. It’s not necessarily about– I
don’t believe it’s necessarily about the on– JUSTICE STEVENS:
You said they needed to show probable cause
that this person was the perpetrator of the bombing? CAROLINE TRUSTY:
Well, Justice Stevens, either way– to be honest,
I’m not quite sure. But either way–
either way if they have to show probable
cause into– it they have to show
probable cause determining about the criminal
investigation, or they have to show
probable cause about John Doe as an individual,
either way they have failed to show probable
cause here by failing to ask for a warrant. And that failure to
ask for a warrant renders this search– renders
the search unreasonable. And thus it cannot happen
without violating John Doe’s fourth amendment rights. CHIEF JUSTICE BARRON:
But if that’s right, it does raise the concern
that in a very serious case involving a very
serious law enforcement interest, such as the
case before us, even though the government has clear
and articulable facts showing reason to suspect that there is
information that would be quite helpful to the
pursuit of that very important criminal
investigation, they’d be barred from
getting it, right? CAROLINE TRUSTY: Well
Mr. Chief Justice, they would be barred from
getting in on these facts that we have in front of us. As this court
recognized in Mincey, the seriousness of
the crime doesn’t mean that the warrant–
is not an exception to the warrant requirements. So while Papaya recognizes
the weight of the government’s interests in– CHIEF JUSTICE BARRON:
But they’re not trying to get into his house. They’re just trying
to get– I mean, if it was the case in which
there was saying because it’s a terrorism case
we can go ransack his house without a
warrant that’s one thing. But what they’re
saying is when you weigh the government’s
interest, which is supported by clear
and articulable facts that there is reason to suspect
the information they’re trying to get is relevant to this
serious criminal investigation, and you weigh the nature
of the information that they’re trying to
obtain, why doesn’t it make it reasonable for
Congress to have struck the balance where it did? CAROLINE TRUSTY: Well
Mr. Chief Justice, that is a balancing test. And because this is a
generalized law enforcement criminal investigation,
this court doesn’t apply the balancing test
in this type of a situation. General law enforcement
is not an exception to the requirement,
nor is it a reason to apply a balancing
test in this case. So that is the
reason why it still unreasonable without a warrant. And just to go to
that first point– CHIEF JUSTICE BARRON:
But those cases don’t involve this
kind of information. I mean, that’s
what’s tricky here. Because this was
information conveyed to a third party,
which was information that was disclosed by
that party by virtue of what they were doing. And it’s held by
a company that’s just holding business records. Normally we think
that the company doesn’t have much of
a fourth amendment interest in the business
records that it holds. So when you put those
two things together we don’t have the typical
case in which we say, gee, the government’s interest
in the criminal investigation is not sufficient
to make an exception to the [INAUDIBLE] requirement. That’s true. But here I think for you
to even get in the door on the fourth
amendment you’ve got to say there’s some
expectation of privacy in a situation in which a
person has disclosed information to a company and the company
has that information. So that’s the real balance. Is that relatively
diminished privacy interest as against the
government’s interest in pursuing a serious
criminal investigation. CAROLINE TRUSTY: Mr.
Chief Justice, John Doe doesn’t have a
diminished expectation of privacy in this case. The government,
as I said earlier, is trying to intrude into
his person in this case. The government is seeking
to intrude into his person without a warrant. His person is a
protected category under the Fourth Amendment. By trying to see everywhere
that John Doe has been over the past six
months the government is able to gain access to
private aspects of his identity as Justice Sotomayor stated
in her concurrence in Jones. Now the government argues that
Papaya’s approach to this case has no limiting principle. But that argument
ignores the fact that Papaya is asking
this court to do essentially a 2-step analysis. So the reasonableness inquiry
that the government is trying to do here, that
assumes that John Doe has a diminished expectation
of privacy, but he doesn’t. Now the 2-step inquiry that
Papaya is suggesting this court perform, the first step
would be to determine whether the government’s conduct
implicates an aspect of John– implicates a protected category
under the Fourth Amendment. The second step would be
to determine whether or not the government’s conduct is an
intrusion into that protected category, CHIEF JUSTICE BARRON: But
to ask it another way, have we ever decide the case
in which the information that sought is information
held by a business that it obtained from
the individual asserting the fourth amendment interest
just giving it to that company? We’ve never held in
any of those cases that there’s even a fourth
amendment expectation of privacy, have we? CAROLINE TRUSTY:
Your honor, I’m not quite sure I understood
your question. CHIEF JUSTICE
BARRON: In all the– this case is, the information
you’re claiming is his person, is in fact information that
was disclosed to a company by that person that that
company now holds, right? CAROLINE TRUSTY: Yes. That– CHIEF JUSTICE
BARRON: And they’re trying to get that information,
which the company holds, from the company. CAROLINE TRUSTY:
Yes, your honor. CHIEF JUSTICE BARRON:
And we’ve never held in any of those cases
that the fourth amendment bars the government from getting it. So I understand you’re now
saying we should hold that, but to say it’s just like these
other cases in which the person was in their house,
or was their papers in their own personal office
space, it’s pretty different. CAROLINE TRUSTY: Well I
have two points in response to that, Mr Chief Justice. The first point is that it’s
not as different as it may seem. If you look at Smith under the
test that Papaya is asking this court to apply, while the bright
line wouldn’t– the bright line in Smith wouldn’t apply here,
the facts of Smith would come out the same. So in Smith, the government was
using very limited technology, a pen register, and it was
only using it for two days. And so looking at that–
looking at those facts under an intrusion analysis
you would get the same result. So what papaya is
asking for here is not radically different. The only difference is that
we are asking this court to look at whether
there was an intrusion into a protected
category, rather than an intrusion
into an individual’s reasonable expectations. So, Mr. Chief Justice,
the second thing that I would like to say in
response to your question is that it makes sense that
this court hasn’t looked at the breadth of the
person category the way it’s looked at a house
or an individual’s papers and effects. Because until recently–
electronic surveillance has just only recently
made it possible to gather large amounts of information
about a person without touching or physically intruding
on that person. So as this court
stated in Johnson, because one of the underpinnings
of the fourth amendment is the freedom
from surveillance, it makes sense that
the person would extend beyond the
tangible physical person and into the intangible
parts of the person that are subject to surveillance,
like the person’s movements. Here the government
is trying to track John Doe’s movements,
which would be an intrusion into his person. So while this court
hasn’t explicitly held that, if you look at
this court’s fourth amendment jurisprudence it
has already been protecting an individuals person
under this type of analysis. So take Katz, for example,
where– to take Katz, for example. There the court protected
the individuals person by protect– by limiting the
way the government could monitor an extension of that person, the
contents of that individual’s communication. And this is a
protection that has lasted notwithstanding
the third party doctrine– not notwithstanding the
third party doctrine. CHIEF JUSTICE
BARRON: But you want us to extend that protection
beyond the contents of communication? CAROLINE TRUSTY:
Well, your honor, it wouldn’t be an extension
beyond the content of a communication. It would be
protecting the person by protecting an extension
of the individual’s person. And we would argue that an
individual’s movements are just as much of an extension
of their person as what an individual says. Which makes sense
when you look at– JUSTICE NATHAN: Why isn’t that
akin to saying finding out the address where
somebody’s lives is akin to searching the home? CAROLINE TRUSTY: Your honor
it’s not the same thing because that information doesn’t
give you any insight to what is inside the home. So an important
distinction to make is that not every inspection
of an extension of a person is in fact an intrusion. That goes to the
limiting principle of this rule, where there is no
intrusion there is no search. So, for example, in
Kyllo, this court held that pointing
a gun at a home that measures heat waves coming out
of the home that is a search. But if the government had just
been looking at the house, looking at the
exterior of the house, that would not
have been a search because there was no intrusion. Just looking at a house
doesn’t give you any insight. JUSTICE NATHAN: So what’s the
test for an intrusion now? What words should we put
on that page that explain what the boundary is here? CAROLINE TRUSTY:
So Justice Nathan, the test for an intrusion
is the same here as it is in all of this
court’s tracking cases. It’s a matter of scale. So it’s the quality and the
quantity of the information that the government is able to
gather based on its conduct. So for example, in
Knots, this court found that while there
might be– this court found that while following
someone’s public movements wouldn’t be an intrusion,
following someone for 24 hours constantly might
be an intrusion. JUSTICE NATHAN: But give
me the test then that– you’ve outlined what
isn’t and what is, but how do we articulate
this– I would say new rule, but you want to
say old rule, that allows us to know what counts as
an intrusion and what doesn’t? CAROLINE TRUSTY: So
Justice Nathan, it would be a question of scale. So that would be a
case by case analysis. And if this– sounds
like, perhaps, this court is worried about the
line drawing issue that this potentially
would pose, but this court doesn’t
need to worry about it. JUSTICE NATHAN: I’m just
worried about the opinion we have to write. CHIEF JUSTICE
BARRON: I’m worried about the line drawing issue. CAROLINE TRUSTY:
Well, Justice Nathan– JUSTICE NATHAN: He’s going
to assign me the opinion. CAROLINE TRUSTY: Justice
Nathan and Mr. Chief Justice, in the opinion all
you would have to say is that this court is just
putting words to what it is essentially already doing. CHIEF JUSTICE BARRON: No. No. But you want is
to draw some line. So what are the
features of this case that make that line too much. Is it the six months? Is that the problem? CAROLINE TRUSTY: That’s one
of the problems, your honor. This case– CHIEF JUSTICE BARRON:
What’s another problem? CAROLINE TRUSTY: So this case
goes beyond what this court has already said was the line. So the problems
are, first of all, they’re asking for information
that gets John Doe down to a specific city block. It’s worth noting that the
map the petitioner supplies in its reply brief isn’t
helpful in this case because it shows a
three block range. But that only shows
what the government might be looking for. It doesn’t nearly get too close
to what the government could actually find upon obtaining
an individuals cell site location information. The government– the government
would be able to see- JUSTICE NATHAN:
So the information that is captured on the
map of the reply, that wouldn’t be an intrusion? CAROLINE TRUSTY: It might
very well be an intrusion, but it’s well beyond what
the government could get. JUSTICE NATHAN: But
again, where’s the line and how do we
articulate the standard? Is that three block radius
an intrusion on the person? CAROLINE TRUSTY: Your
honor, it might be. It might be. Given how small cell phones
are, and that you carry them everywhere you go– given how
small cell phones are and that you carry them
everywhere you go, it’s very possible that
the government will be able to follow an individual
in and outside of– CHIEF JUSTICE BARRON:
But you’re not saying you can get location
information only so long as it doesn’t show where you are? CAROLINE TRUSTY:
Mr. Chief Justice, what Papaya is saying is
that location information, especially added up over
six months, can show very– can show details– CHIEF JUSTICE BARRON: Well,
again, that’s what I’m asking. What is the feature of it that
you want us to draw the line? Is it the persistence of it? Because the
government says, look, this is not precise
moment by moment tracking. It’s a little bit random. So, you know, that– I’m
sure they’re disappointed that that’s true,
but you’d say, well, that’s a point in their favor. Right? Because it’s not that
great of information. So then you say, but
there’s too much of it. So how little of
it should there be? A week of doing
that would be OK? I mean, we have to actually have
some idea what the guideline is in order to rule for you. CAROLINE TRUSTY:
So one data point of sale site location
information, that wouldn’t show very much at all. However, the six months that
the government is asking for ends up showing a detailed
and comprehensive picture of an individual’s life. So if this court
feels like it needs to draw a line, which
it doesn’t in this case, but if you wanted
to draw a line, you could say one data point of
sale site location information, that doesn’t show very much. But just as one trip
to the doctor’s office wouldn’t show very much, but
several trips to an OBGYN, followed with trips
to a baby store, followed with trips to a
maternity clothing shop, that would show a very detailed
and comprehensive picture. I see my time has
expired, so we would ask this court to affirm
the lower court’s decision. Thank you. CHIEF JUSTICE BARRON: Thank you. AMANDA MUNDELL:
Mr. Chief Justice, there are two points
I’d like to raise– CHIEF JUSTICE BARRON: Pull it
up just a little bit higher, the microphone. AMANDA MUNDELL:
Sorry, your honor. Is that better? CHIEF JUSTICE BARRON: Well
if it’s not cooperating don’t get– AMANDA MUNDELL: I’ll
lean in on your honor. CHIEF JUSTICE BARRON: Good. Good. [LAUGHTER] AMANDA MUNDELL: There’s
two points I’d like to– CHIEF JUSTICE BARRON:
We’re supposed to have the good lines. [LAUGHTER] AMANDA MUNDELL: Your honor,
both of the points I’d like to raise, the first with
respect to the fourth amendment and then the second with respect
to the undue burden issue, stem from respondent’s
argument that the government is trying to go too far here. So I want to pick up on
where respondent left off with respect to
extending the person category of the fourth amendment
to include their actions. Setting aside the
fact that that would be entirely unprecedential. That this court would have
never done that before. It’s also far too broad. It would allow a
fourth amendment challenge any time
someone observes someone’s public movements. So if I understand respondent’s
argument today correctly, it’s that really their
test is two steps. The first is to look at whether
it’s an invasion on a protected category, so if we treat
person to encompass actions, we’d still need to move
to their second step. But at that step I think
Papaya’s arguments still fails here, because the question
is, at least in their frame, is there an intrusion? And really the
answer to that task that I think they were
trying to get at in response to Justice Nathan’s
question was really just, is there a reasonable
expectation of privacy in this information? Does it reveal too much private
information about a person? And the answer to
that question is no. JUSTICE NATHAN: But it’s–
and at some point, though, in the aggregate, doesn’t it? Right? I mean, it reminds me
of our decision in Rylie where you say,
well, all of this– you might have a picture of
your kids in your wallet. And you might have your
diary in your pocket. And you might have
notes in your briefcase. But when you search a phone
you put all of that together. You put all of that
together, and it’s too much. Yes, you might be able
to observe somebody out on the street. And we might know certain
things about their movements, but when you–
and really I think your argument is that there
need not be a time restriction. And, in fact, the order you
got from the district court doesn’t include one. But when you put all
of that together again, isn’t that just too much? Isn’t that an
intrusion and upsetting of our reasonable
expectations and privacy? AMANDA MUNDELL:
Your honor, we don’t believe that’s the case
here because the information requested is not akin to GPS
tracking technology, or even akin to the types
of content someone might put in their phone. Instead, even on
that map of Portland that we included, if you were
to look at just a one block radius, which the government
isn’t even requesting here, you would still struggle to
find those personal, sexual, political preferences like– JUSTICE NATHAN: Well what if I’m
not supposed to be in that area at all? If I’m meant to be at work
during that time, but there I am in that three block radius. Isn’t that an
invasion of privacy? AMANDA MUNDELL: Your honor, I
see my time’s about to run out, may I respond? CHIEF JUSTICE BARRON: You can. Then I have one last
question for you. AMANDA MUNDELL: Well
your honor, no, again, because of course that
leaves still some questions. Were you taking
a break from work to pick up a gift
for your daughter? Were you driving to a
doctor’s appointment? Were you voting in
the upcoming election? Those questions don’t
have clear answers, and that’s why we
don’t think that’s so heavy of an intrusion. CHIEF JUSTICE BARRON:
OK, so the argument you’re making on the fourth
amendment I understand. And the risks of us trying to
constitutionalize all of this. But then that just leaves
us to the statutory issue. And I guess what
I’m wondering is, given that there is
a, as you can see, a circumstance in which
one could be worried about government
effectively tracking your every moment, every
movement at every moment. Why does it make sense
to read a statute like this with as many
vague terms as it has in it? Disclosure, we’re not
quite sure what they meant. Undue burden, we don’t
know whether they really meant just burdens
like voluminous or exactly what they
were getting at. There’s nothing in the
legislative history that talks about decryption. Why wouldn’t it make
sense as a principle that if we’re not going to
have a robust fourth amendment protection we should at least
be making Congress actually make these choices, rather than
reading statutes which are vague like this in the
government’s favor each time? AMANDA MUNDELL: Well your honor
there is a lot to unpack there, but I know I’m over time so
I will try to keep it brief. The first instance
is that we don’t believe that the SCA really
isn’t ambiguous on those terms, for reasons I’ve
addressed earlier. And that’s why
this court doesn’t need to engage in a type
of constitutional avoidance analysis on the
fourth amendment. But we do believe that Congress
did strike a balance here when it required the government
for non-content information, like the location information
that Papaya has admitted today falls within the SCA order. For that information
the government can seek an order with
a reasonable suspicion standard and not a warrant. Congress made that choice
clear in the listed enumerated alternatives
in section 2703C. We’d ask that this
court reverse. Thank you. CHIEF JUSTICE BARRON:
Thank you very much. OK. We’ll be back with our decision. [APPLAUSE] SPEAKER: All rise. All rise. CHIEF JUSTICE BARRON:
You can be seated. So this is a pale
act of imitation. But it’s an effort at emulation. For Judge Nathan
and I, it’s an honor to be at Harvard Law
School and an honor to hear the terrific
arguments from the students, but for us a particular
honor to sit with a justice whom we each clerked for
and who we greatly admire. And we want to make
sure to say, thank you. [APPLAUSE] OK, so what we’re
going to do is we’re going to announce the
winners and the prizes from today’s arguments. And then Justice Stevens
will say a few words, Justice Nathan will
say a few words, and I’ll say a few words. You know, all of us
do these moot courts, because as Dean Minow said
at the brunch this morning, we are committed to our justice
system and the role of advocacy in it. And there’s really no
better way I can think of to both restore one’s faith that
the next generation is going to be strong in continuing that
tradition then coming to these. And particularly
on a day like this when we see such stellar
arguments, both in the briefing and from the presentations
that you made to us. It doesn’t make it
easy for us to decide, but I suppose it at
least beats having to decide the case itself. So for best oralist,
Amanda Mundell. [APPLAUSE] For best brief, the Daniel
J. Meltzer Memorial team. [APPLAUSE] For best overall team,
the Daniel J. Meltzer Memorial team. [APPLAUSE] I want to say one thing before
Justice Stevens speaks, which is that, although the
prizes all went to one side, it was by no means an
easy decision on each one. And to get to this
competition I know firsthand, my wife was an oralist in
the semifinalists round in a moot court competition
several years ago, and the amount of effort that
you put into it and the talent that you reflect
means that there truly are only winners when you get
to this level of competition at this law school. So we really appreciate
all the work you’ve done. Justice Stevens? JUSTICE STEVENS: First of all,
I’d like to say I’ve enjoyed being here, and I intended
to ask more questions, but I’ll explain why I didn’t. And I also wanted to say
before I say anything more, that both sides
were awfully good. And it was a very
difficult decision, but we did agree on the outcome. But I want to compliment
the losing team for the fine presentation
that you made. You really were very fine. The second thing
I want to say is that my hearing is
not as good as it used to be a few years ago. And when I was younger than
anybody in the audience, I remember my father
telling me one time that when you’re faced with
the question as to whether you should speak up and perhaps
make a fool of yourself, you’re better off to be
quiet and read– and not– and– and not– I’m sorry. I can’t even explain this. You’re better to be
silent so you will not remove all doubt on the issue. So I was following that advice. And I was also thinking as I
was listening that sometimes my good friend Clarence Thomas
is very wise in his practice, you know? For years he’d go along without
answering any questions. And many people in the audience
sometimes were critical of him, and assumed that he wasn’t
very well prepared at the time. But I can assure you
from firsthand knowledge and actual knowledge
he knew what was going on in the courtroom. And his general
philosophy was he’d rather listen to the
lawyers than to have them listen to him. Because they were there in order
to educate him rather than vice versa. And I’ve always thought
there’s a lot of sense to his point of view, because
often the questioners tend to dominate an argument
more than letting the advocates say what
they want to say and get the point across. But then there’s a second
incident that affected my silence this afternoon. I think I may have mentioned
it in a book I wrote a few years ago, but in my last
couple of years on the court there was a change in
the conference room. The conference table used
to be at the end of the room and it was pointed
in– it went east/west when the room went north/south. And then a couple
of years before I left the– I think
Justice Kennedy was the chairman of
the committee that decided to move the
conference table to the center of the conference
room in the courthouse. And that had a change. It made everything look better. It was a very,
very handsome room with the move from
the end of the tab– end of the room to the middle. But it had an effect on
the acoustics in the room, because it had kind
of a high ceiling. And when you’re sitting
at the end of the table, as I did in my last couple
of years on the court, I used to hear very
easily when the table was where it used to be. But when it was placed
in the middle of the room I had difficulty
hearing Ruth Ginsburg at the other end of the table,
because she tends not to speak very highly– very loudly. And even at times I couldn’t
even hear the Chief Justice as clearly as I liked
to, because he’s very articulate when he speaks. But anyway, I suggested
that perhaps thought should be given to the fact
that those whose hearing is not as good as it used to be might
rather have the table moved back to where it was. Well I prevailed on
that issue about as well as I prevailed on an awful
lot of other opinions that I wrote over the years. But I will say that I
did achieve one convert, Nino Scalia tended to agree
with me because he was down at my end of the table. So that was one issue on which
we may have seen eye to eye, even though we had
other issues we didn’t. But I want to just
end by saying it’s a very fine performance by all
four of the advocates today. And it was a very interesting
issue on the merits. And of course, I would like
to discuss the merits rather than the merits
of the arguments, because I happen to think on
the merits the government got it right on that side too, which
I think is another reason it’s kind of hard on the other
side when you have the tougher side of a case to present. It makes the writing the briefs
and all a little bit harder. But I’ve enjoyed
it very much, and I wish I had had more to
say during the argument. But I think maybe
you’ll understand with this explanation. [APPLAUSE] JUSTICE NATHAN: first
let me thank you for inviting me and
including me here. I think I’ve basically had
one thing on my bucket list, and that was to sit on a
bench for Justice Stevens and judge Barron,
and so I’m done. So thank you. I mean this without
any exaggeration that both sets of briefs and
both sides of the argument were as good or better
than most of what I see in the
courthouse every day, and that is without
exaggeration. You should be phenomenally proud
of the work that you’ve done, and what you’ve accomplished,
and how far you’ve come. And we have to pick a winner. We have to decide cases. I can tell you that
when I see resumes it makes no difference
to me whether you’re a semi-finalist or a
finalist in this competition. I know the level
of skill, and work, and diligence that went into it. And you all have surpassed
my expectations of what this competition would be like. So you should be very
proud of yourself. I think at an– I’ll make
some general comments, which is that oral
argument at it’s best is a conversation with
your decision makers. I think judges do oral
argument well when they have genuine
questions that they’re trying to get answers to. Certainly that’s something
that judge Barron and I learned clerking
for Justice Stevens. He says that he wasn’t
particularly active today. In my experience, because he
did care what the lawyers had to say, he always
came with one or two questions that inevitably
was something not quite what the litigants expected, and yet
went to the core of the case. And I actually thought
he did that today despite the challenge
of the acoustics. But what you did as oralists
was answer those questions. And this is a moot court
and sometimes the problem can be artificial and
you can get boxed in, but you dealt with that
and you dealt with it well. When you were
pushed into a corner you did give direct responses
to the questions, which is what we’re looking for. And yet you told us where you
wanted to take us after that. And that conversation,
that responsiveness, that not just reading from
a checklist on your notes, is truly what oral argument
is about and what we as judges gain from the
process of argument. And that was done
phenomenally well. I thought the briefing,
both sides was exceptional. There was creativity
in the arguments. There was muscularity
in the writing. There was organization
in the structure. You took me with you. And I have to say,
even to the extent that I found the government’s
arguments more persuasive, there were some that I had
given up on by Papaya’s side that you brought me
back to in the course of the oral argument. And that again at its best is
what our argument is about. So your attention to the
nature of the writing project, and your attention to the
craft of oral argument was exceptional. And I’m delighted to be here. CHIEF JUSTICE BARRON:
Well two thoughts. One is just for the– are there
parents here of the oralists? Yeah, well you should all be,
as I’m sure you are, proud. But for you and for the
students who are here, who probably know this,
but just to reinforce it, it’s scary, you know, to get up. Particularly with all
these people here, people that you
care about, knowing that you’re being judged, and
then having judges judge you. And question you
vigorously, that they’re trying to look for flaws
in the argument, right? And you’re aware that there
will be flaws in the argument. And in front of everybody
you have to on your feet be prepared for that. So just the ability
to do it with as much poise as all of you were able
to do it, that’s quite a gift that you’ve either developed
here or had to begin with and then honed here. But it’s going to stand you very
well in whatever aspect of law that you pursue. The second thing is just
the teams as a whole. So the oralists are the
stars of the show today, but they know, and
I know the family members of the other
people on the team, and the other people
on the team know, that these are team efforts. You’ve all mooted each other
more than we mooted you. You probably think they didn’t
ask half the harder questions as we asked each other. And if you did your
job right as teammates, that’s probably true. And of course you
all participated in the brief writing
and it reveals it. And what’s nice to
see is, at least was evident to me,
as it always is when I go to these, it to see
the other teammates really pulling for the oralists
who are participating. Because increasingly
in law practice, in any kind of practice that
you engage in policy work, your ability to
work as a team is going to be as important
as your ability to be outstanding as an
individual participant. And all that you’ve learned
about how to be a team together are skills you
should not by any means forget or think are
secondary to what the product that you produced. But it was a great privilege to
be back at Harvard Law School. Particularly a privilege to
be with Judge Nathan who I worked in the government with. And, of course, with
Justice Stevens. So congratulations. Justice Stevens? JUSTICE STEVENS: Let
me say one more thing. I’m very grateful for
my former law clerks who came in appropriately attired. CHIEF JUSTICE BARRON: At last. JUSTICE STEVENS: At last. And I also should
mention that all you should know that our chief
judge has a book that’s just been published. It’s well worth reading. And it’s definitely
There’s nothing wrong with telling them the title. [LAUGHTER] JUSTICE STEVENS: And of
course I’m– and with the winner of the Morris P.
Lucian award from her law school. And one of the many
things that made me pick Allie as a law
clerks was the fact that I knew Morris P Lucian. He was a very good lawyer. So she had an advantage. JUSTICE NATHAN: I always joke
that winning that award– I joke that it was what
got me out of the pile and in front of Justice Stevens. It was true. So you never know. CHIEF JUSTICE BARRON:
Congratulations to everybody. [APPLAUSE]

49 Responses

  1. John Miles says:

    If john doe just use Signal on a Ipod with a handheld wifi (the little one) Activating the ipod with a prepaid phone (verifying) there would be no case.

  2. Ecuador 03 says:

    John Paul Stevens was so cool! 🙂 First 20 minutes only asked that one question, and I loved it!

  3. Jay Pinho says:

    Just a note that the title card says 2015, not 2016.

  4. IndianClassical97 says:

    How does this happen, A Supreme Court Justice is sitting on the bench, but a junior judge (in comparision to the Justice) is the Chief Justice?

  5. Dr. Barbie Reese lady mahogany says:

    ⁄(⁄ ⁄•⁄ω⁄•⁄ ⁄)⁄

  6. Clara Giménez Soler says:

    As a second year law student from a small spanish university, this definitely intimidates me! I hope to achieve this speaking level one day! Congratulations!

  7. Mike Barberry says:

    I think Caroline was the best oralist by far.

  8. MarrowEternal says:

    Amanda was fantastic! I could listen to her for hours

  9. The Piper Report says:

    I liked Scalia's in 2014.. All the judges talked in that one too.. This one is like one judge…

  10. Tyler Potts says:

    Why are these things always all women?

  11. Cintia Verdades says:

    I'm a British student, aspiring to attend Harvard university or an American university to study law and these females' confidence, formality, posture and flow truly do intimidate me. The way that they answer in so much detail and speak so precisely seriously just makes me want to give up law school. Especially having a completely different vocabulary and accent. I seriously didn't understand a lot of it because of the language used

  12. Boniebabbyy says:

    Someone please explain to me what is happening ive always been a science person and law never made sense to me what are they competing? What is going on what are the students talking about is it all the same thing?

  13. Pelham Didier says:

    "No taking the cat back out of the bag?" Does he mean he has an intention to put the cat into the bag and remove it twice, but he is so limited that he may only be able to do it once? I think he misspoke. I think he meant no putting the cat back into the bag. I see the three attorneys to the far right laughing when the impulse of his statement is created on them. See 29:06 – 29:15

  14. Neha Banny Gadwal says:

    In favor of the petitioner – I think the case is not just regarding government interest and how much it weighs but also of public interest as well, because in the end it it affect the mass. And if the terrorist attack happens who is to be blamed ?

  15. Roger Thornhill says:

    a confident speaker , a future a star in the making .

  16. johnosandra says:

    just put on rage against the machines: killing in the name and rule it's an undue burden

  17. johnosandra says:

    You shouldn't be intimidated by anyone. You should be concerned with good law.

  18. Stephanie Nelson says:

    They cut the second counsel off in favor of Defendant (Cell Company) so much. They actually made her start stuttering. What a hot bench, but almost unruly. Let the counsel complete a sentence GEEZEEEEE!

  19. Stephanie Nelson says:

    Amanda did not flench! Go girl! This was an extremely hard bench!

  20. Random Me says:

    Damn! Why Americans are really good in english? trololol

  21. FloridaKitchen says:

    At the beginning did the judge David Barron get bothered when the presented kind of screamed: O yay O yay

  22. tammylovesmakeup says:

    At the beginning did Judge David Barron get bothered when the presenter kind of screamed: O yay O yay

  23. Dani Mendez says:

    She is amazing! Could listen to her for hours!

  24. Matt Skelton says:

    Can someone explain the case and their arguments please?

  25. liquidpersuasion says:

    i watch this video to listen to amanda's voice because i have no life 😞 🔫

  26. x0captainblack0x says:

    This is not about the individual right to the 4th amendment this falls under UCC this was a business contract witch does not make the 4th amendment applicable when the contract singing happened it was between two corporate factions …… Using a social security number in the contract and a signature as the authorized. Agent and acknowledgement of the tax code ……. This makes it a business agreement …. Furthermore this agreement is enforced by UCC regulations between Corporation and corporate faction (with authorized agents signature) when it comes to the contract it sounds like there trying to play both sides of the fiddle.

  27. Michael Chan says:

    I understand the words but don't understand the sentences.

  28. Mike Watkins Jr says:

    The 2nd guy was very articulate but he didn't come across as being a very good speaker though… maybe just comparing him to the others I guess though. He still speaks well just didn't stand out like the last speaker for example

  29. Sean Harman says:

    Look at all those people who don't come from any background below upper class

  30. Themis Vespucci says:

    Id really like to see former Pres Obamas ames

  31. Timothy Jones says:

    Black woman all angry even black female lawyers lmaooo!

  32. Oliver S says:

    Mengjie did an amazing job

  33. silvia martinez says:

    Wow I am amazed by Amanda.. I wish to one day be able to speak and present my arguments like her.

  34. Prince Kingori says:

    the first oralist ought to have stioulate the time she and her colleague would have spent

  35. marc bell says:

    I am so pleased Amanda used the word minimal. Knew a lawyer who had to use "diminimus'. In addition to being Latin it's pretentious' as was she.

  36. Suman Mitra says:

    Amanda is a god.

  37. Jessica S says:

    I have a competition on Wednesday. Just watching this makes me sweat.

  38. Harry Kirk says:

    From this you can see why allowing American law school graduates to work in government has destroyed the country. The lawyers have really perfected the revolving door merry-go-round out of government back in government then out of government money sucking greed motivated corporate practices at places like banks. They work in the private side a while then work as government regulators then the banks again over and over. Of course this happens in many fields, not just banking. These lying law school graduated hypocrits only care about stuffing cash in their pockets. Soon , they have lost their humanity and become mindless monsters.. Then there are the probate sharks, the ambulance chasers – the small time chistlers. They're all just crooks and thugs. All Americans know and hate attorneys. But we should hate them much , much more. What a fucking worthless education or non-education. They just turn into self serving crooks, and it doesn't take long either – first chance they get. This is not an honorable profession.

  39. Mariana Ramos says:

    Amanda is out of this world!

  40. Pete Fernandes says:

    Amanda did not ask for rebuttal !!!

  41. Maria Callous says:

    what are they arguing today? whether or not a 5 year old has to wear his pants to school cause he doesn't want to? ok

  42. tumpes tipis says:

    Well articulated

  43. Jessica S says:

    Anybody watching this in preparation for the UNLV Gaming Law competition???

  44. Stephen says:

    The perfect girl doesn't exi-

  45. Paige Goins says:


  46. SMRITI Dreamer says:

    Please next video upload with English subtitles,,, cause, we don't understand your pronounce

  47. mickeyme 2013 says:

    Very interesting

  48. write4ever says:

    Damn, I get a headache from watching this!

  49. nahashon nginyi says:

    Well explained…..I got it

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