Justice Alito On Digital Vs. Hard Copy Data

In Riley v. California, SCOTUS held that police need a warrant before they can search through an arrestee’s cell phone. Justice Alito’s concurring opinion makes the same point that I made in a recent law review note: He argues that there should be no difference in how we treat data in hard copy and digital form. He writes:

The Court strikes this balance in favor of privacy interests with respect to all cell phones and all information found in them, and this approach leads to anomalies. For example, the Court's broad holding favors information in digital form over information in hard-copy form. Suppose that two suspects are arrested. Suspect number one has in his pocket a monthly bill for his land-line phone, and the bill lists an incriminating call to a long-distance number. He also has in his a wallet a few snapshots, and one of these is incriminating. Suspect number two has in his pocket a cell phone, the call log of which shows a call to the same incriminating number. In addition, a number of photos are stored in the memory of the cell phone, and one of these is incriminating. Under established law, the police may seize and examine the phone bill and the snapshots in the wallet without obtaining a warrant, but under the Court's holding today, the information stored in the cell phone is out.

Slip op. at 4-5 (Alito, J., concurring).

Justice Alito nevertheless concurs in part and in judgment because “[w]hile the Court's approach leads to anomalies, I do not see a workable alternative.” Id. at 5.

I made my argument in the context of electronic discovery in a note called Self-Storage Units and Cloud Computing, 102 Geo. L.J. 247-269 (2013). I criticized the federal Stored Communications Act because:

First, it draws a distinction--where none should exist--between e-discovery and traditional discovery. If a civil litigant sought to subpoena a third party for information contained in the “real world,” rather than in the digital sphere, the courts would allow it. Yet courts have applied the SCA to prohibit requesting parties from subpoenaing third parties, such as cloud computing providers, to acquire the same information that would be discoverable were the information stored in the real world. This is a problem.

Id. at 248.

I went on to say that

The only distinction between a real world storage unit and a server farm belonging to a cloud computing service provider is that the former's storage space is physical, rather than digital. But this is a distinction without a difference, because the content stored in those spaces--that is, the ideas conveyed by the hard copy or ESI materials--is the same. For instance, the meaning of a document does not change whether it is stored as a PDF on a server or printed in paper form. The content, or substance, of the document remains unchanged when it gets printed, and it is the content that matters

Id. at 254-55.

Obviously, I think this is an important point. As our world becomes increasingly digital, courts will need to navigate the implications of that development for existing legal doctrines. In the Fourth Amendment setting, courts can make that adjustment (as the Riley Court did) through Kerr's theory of "equilibrium adjustment." But for the Stored Communications Act and other pieces of legislation, Congress will have to take up that mantle.

REPOST: Posner, Chilton, And Jiang On SCOTUS vs. Rappers

I came across this terrific Slate post today comparing the vocabularies of SCOTUS Justices and rappers. This gem by authors Eric Posner, Adam Chilton, and Kevin Jiang is worth reading. I especially enjoyed their citation to Justice Jackson's opening remarks in the Nuremberg trials.

Paul Clement Word Of The Day: Speculative

People often cite Paul Clement’s briefs as good examples of thematic brief writing. Part of the reason is that, as Ross Guberstein has pointed out, Clement seizes on powerful words that capture his theme and repeats them throughout the brief. In honor of those briefs, I’ve instituted the “Paul Clement Word of the Day,” which admittedly will not be a daily, weekly, or even monthly feature of this blog.

Today’s word of the day: Speculative.

That’s the thematic buzzword that appears repeatedly in Clement’s cert petition in Exxon Mobil Corp. v. City of New York, in which Clement argues that NYC’s tort suit against Exxon wasn’t ripe because the claim was merely “contingent” and “speculative.” Some form of the word “speculative” (ex. “speculate,” "speculation") appears 33 times in the 36-page petition.

Here’s my favorite part of the petition:

This problem is self-evident in the jury instruction asking if the plaintiff “will be” injured—without any imminence requirement. App. 22. In an Article III court, the proper answer to such a question is not yes or no, but come back when the injury is ripe. E.g., Lujan, 504 U.S. at 560.

Making the suit even more clearly premature, this future-tense instruction stacked speculation upon speculation. The jury speculated:

• whether the City will fulfill its good faith intention to start building a treatment plant in the next 15 years;

• whether, if as speculated the City actually builds a treatment facility, the City will use Station Six as a backup supply within 15 to 20 years;

• whether, if the City uses Station Six, the “pumping scenario” that it actually employs—i.e., the frequency and extent of that speculated backup use, which in turn depends on unpredictable factors including “presently unforeseen infrastructure repairs” and the pumping scenario of other nearby wells causes the Station Six Wells’ “capture zone” to encompass otherwise remote MTBE spills; and

• whether, depending on the size and shape of the speculated capture zone, enough otherwise remote MTBE will be drawn into the Station Six Wells so as even to require treatment.

See App. 15–16, 18–20; App. 22; 189. The District Court thus did not merely allow the jury to find a future injury sufficient, it asked the jury to make a string of predictions about what might (or might not) occur more than 15 years from now, depending on how the City uses wells that it cannot use unless and until it addresses PCE contamination. Indeed, the word “prediction” and its variants appear more than a dozen times in the District Court’s opinion. App. 125, 126, 127, 136, 166, 167, 168, 169, 176, 177. And the jury’s central finding on injury was that MTBE concentrations would peak at 10 parts per billion in the year 2033. App. 23. The consequence of all these predictions was that the City walked away with $104 million to redress an injury that has not yet occurred and may never occur.

Pet. at 21-22 (my emphasis). 

In the underlined/boldened sentence, Clement actually does his own word study, this time of the district court's opinion. It was an effective technique: The court's own reliance on the word "prediction" underscored just how "speculative" the whole suit really was.

SCOTUS Grants Cert In Elonis, Adds A Statutory Out

The Supreme Court today granted cert in Elonis v. United States. It didn't grant the case entirely on the parties' terms, however, and instead added an additional Question Presented. Here's the petitioner's version of the Question Presented:

It is a federal crime to “transmit[] in interstate or foreign commerce any communication containing * * * any threat to injure the person of another,” 18 U.S.C. § 875(c). Numerous states have adopted analogous crimes. The question presented is: 

Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

As contemplated by the petitioner, Elonis was therefore a First Amendment challenge to petitioner's conviction. The Court added this question:

Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant's subjective intent to threaten.

The Court thus gave itself a way to resolve the case in petitioner's favor without needing to address the constitutional question. This should be a fun case to watch. Petitioner is represented by John Elwood, an experienced SCOTUS practitioner and partner at Vinson & Elkins, so we can expect that the briefing and argument will be excellent.

Ilya Somin: Obama's Bergdahl Trade Worse Than Bush Use Of Torture

I depart for a moment from the usual appellate-law theme of this blog to point out a very interesting remark that Professor Ilya Somin recently made on the National Constitution Center's "We the People" podcast. Somin and Chicago professor Eric Posner were comparing the Bush administration's torture tactics with the Obama's administration's decision to trade five terrorist prisoners for U.S. Army Sergeant Bowe Bergdahl. 

Somin argued that "while neither is justified and both are severe problems, if I had to choose, I think the abuse of prisoners who very likely are themselves terrorists, although wrong and illegal, in some ways is less bad than endangering the lives of innocent civilians." Podcast at 16:08.

He explained that the release of those five terrorists was likely to result in the death of civilians and therefore the trade could not be justified.

While I don't think this is necessarily a radical claim, there are reasons to think it is wrong. Chief among them is a point about cause-and-effect and direct versus indirect liability. Whereas torture is an act that directly hurts people, the Bergdahl trade only indirectly hurts people in the event that the released Guantanamo detainees choose to directly hurt people. In my view, it is less wrong to allow bad to happen than to create the harm yourself. This harkens to the debate over proximate cause: How comparably responsible must a person be for an outcome before we say they were the cause of the outcome? 

If the detainees go on to hurt people, those actions fall immediately on their heads. If U.S. agents torture people, that likewise is on them. But Somin obviously believes that it's a pure numbers game: At the end of the day, did you play a role in hurting more people than would have been hurt if you did nothing? 

That is pure utilitarian thinking of the sort that is actually pretty useful in justifying torture. Even if you occasionally torture an innocent person (or if there are less direct effects of torture, like the enemy being less willing to surrender or torturing your own guys), an actor could easily decide that--in the long run--torture is more helpful than harmful.

D.C. Circuit On Overuse Of Acronyms In Appellate Briefs

The Volokh Conspiracy has this post today by Jonathan Adler discussing a recent D.C. Circuit order that required the parties in a case to refile their briefs without extensive use of "uncommon acronyms." Here's an excerpt from a Judge Silberman concurrence in a different case, criticizing a party for its overuse of acronyms:

The use of obscure acronyms, sometimes those made up for a particular case, is an aggravating development of the last twenty years. Even with a glossary, a judge finds himself or herself constantly looking back to recall what an acronym means. Perhaps not surprisingly, we never see that in a brief filed by well-skilled appellate specialists. It has been almost a marker, dividing the better lawyers from the rest.

Delaware Riverkeeper Network v. FERC, No. 13-1015, slip op. at *1 (Silberman, J., concurring).

Judge Silberman also suggested that parties may be using these acronyms so heavily in order to come under the word limits. Id.

Of course, this was an admin case, where acronyms are frequent. The majority opinion itself makes frequent use of acronyms. Take, for instance, this sentence: "In 

preparing an EA or EIS, an agency need not foresee the 

unforeseeable, but . . . [r]easonable forecasting and 

speculation is . . . implicit in NEPA, and we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as ‘crystal ball inquiry.’" Id. at 8 (majority op.) (emphasis added). 

If the majority opinion was written like that, I shudder to think how much more acronym-ridden the briefs must have been to prompt a complaint from Judge Silberman.