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Bold Justice: November 27, 2017

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Bold Justice: Smartphones, surveillance, and the SCA

Happy belated Thanksgiving! We hope that your holiday was spent with good family, good friends, and good food. With Congress, the president, and the Supreme Court back at work this week after the Thanksgiving holiday, we’re happy to shake off our tryptophan-induced nap with a jolt of Bold Justice!

This week, the U.S. Supreme Court will hear arguments in five cases, highlighted by Wednesday’s arguments in Carpenter v. United States. The case presents important questions of the government’s purview to acquire information from smartphone application data, without establishing probable cause or securing a warrant, under the authority of the Stored Communications Act.

The case

Based on information obtained from a suspect's cell phone, which was surrendered to the Federal Bureau of Investigation (FBI) by the suspect, the FBI arrested Timothy Ivory Carpenter and Timothy Michael Sanders. The information from the cell phone provided the FBI's basis to petition for judicial orders under the Stored Communications Act (hereafter, SCA) to obtain call and cell phone location data held by Carpenter's and Sanders' cellular service providers. The SCA did not require the government to show probable cause or to obtain a warrant in order to obtain the data. The FBI received the orders and arrested Carpenter and Sanders, in part, on the basis of the location data provided by the cell phone providers. Carpenter and Sanders moved to suppress the data before trial, which a federal district court denied. Both were convicted of multiple federal charges. A three-judge panel of the Sixth Circuit Court of Appeals upheld the convictions, holding that the use of the cell tower data did not constitute a search under the Fourth Amendment and, as such, no warrant was required in order to use the data.

The implications

The case has been seen by many as an important case for digital privacy rights. Professor Steve Vladeck, a Supreme Court analyst and professor of law at the University of Texas School of Law, said regarding the case, "We all share tons of data with third parties on a daily basis, from our cell phone carriers to our credit card companies to our financial institutions and so on. For decades, the Supreme Court has held that, once we voluntarily share that information with these firms, the government will usually not need a warrant for that data, no matter how personal or private it may be ... In this case, it looks like the justices are interested in revisiting that reasoning -- perhaps with an eye toward how technological advancements have dramatically changed the privacy calculus." Orin Kerr, the Fred C. Stevenson Research Professor at George Washington University, wrote regarding the case in The Washington Post that "it’s not an exaggeration to say that the future of surveillance law hinges on how the Supreme Court rules in the case.” The number of smartphones used in the United States is profound. Various reports have suggested there will be 270 million smartphone users in the United States by 2022. A report by the Pew Research Center indicated that, by November 2016, 77 percent of Americans owned a smartphone. Additionally, smartphone applications that record location data would be affected by the court's decision. Smartphone applications are commonly used by smartphone users. Scott Rasmussen of Ballotpedia noted in a May 18, 2017, report that "smartphone users now open an average of nine smartphone apps each day. Perhaps even more stunning is the fact that U.S. smartphone users spend an average of two hours and 15 minutes engaged in apps on a daily basis. On a monthly basis, smartphone users launch about 30 different apps on average."


We #SCOTUS, so you don’t have to

The U.S. Supreme Court returns for the first week of its two-week December argument session on Monday. As of 9 a.m. Monday, the court has agreed to hear arguments in 49 cases so far this term; of those 49, the court has heard arguments in 17 cases. The court will issue orders granting certiorari, the most common avenue to Supreme Court review, and will continue to hear arguments in cases this term through April of 2018.

The court will hear arguments this week in five cases.

  • On Monday, the court heard arguments in Oil States Energy Services v. Greene's Energy Group, an appeal of a judgment of the U.S. Court of Appeals for the Federal Circuit. In 2011, Congress, under the Leahy-Smith America Invents Act, created an administrative tribunal within the Patent and Trademark Office called the Patent Trial and Appeal Board (hereafter, PTAB), which hears reviews requested by an interested party regarding the validity of an existing patent. Though the PTAB is not a court, decisions of the PTAB can be appealed to the United States Court of Appeals for the Federal Circuit. Having been found by a federal district court to have violated a patent held by Oil States Energy Group, Greene's Energy Group petitioned the PTAB to invalidate Oil States' patent through a process known as inter partes review (IPR). In 2015, the PTAB invalidated Oil States' patent, and that decision was upheld by the Federal Circuit. Oil States is challenging the constitutionality of IPR conducted by the PTAB as a means of invalidating existing patents outside of a constitutionally-authorized judicial forum under Article III of the U.S. Constitution.
  • The court also heard arguments in a second appeal from the Federal Circuit addressing the PTAB on Monday. The case was SAS Institute v. Matal. Here, SAS Institute sought IPR of a patent held by ComplementSoft LLC. The PTAB issued a final, written decision, as required by a federal law, 35 U.S.C. §318, but only one some and not all of SAS Institute's claims. SAS Institute appealed the PTAB's decision, arguing that the plain text of the statute required a final, written decision on all of its claims and not just some of its claims. A three-judge panel of the United States Court of Appeals for the Federal Circuit composed of Judges Kara Farnandez Stoll, Raymond Chen, and Pauline Newman upheld the PTAB's decision. Writing for the panel majority, Judge Stoll held that SAS Institute's argument was foreclosed by a 2016 Federal Circuit decision, Synopsys, Inc. v. Mentor Graphics Corp.
  • On Tuesday, the court will hear arguments in Cyan v. Beaver County Employees Retirement Fund, an appeal of an order denying appellate review entered by the California First District Court of Appeal. In 1995, after Congress enacted new requirements related to the filing of class-action securities lawsuits, many such suits were filed in state courts in order to avoid the new requirements. In response, Congress passed the Securities Litigation Uniform Standards Act in 1998. The law modified the 1933 Securities Act to remove state court jurisdiction over most class action securities lawsuits seeking damages for more than 50 people, which the law defined as a covered class action. In 2014, the Beaver County Employees Retirement Fund et al. filed a covered class action in a California superior court against Cyan Inc. Cyan's parent company, arguing that the state court did not have jurisdiction, moved to dismiss the lawsuit. The state superior court judge, citing a California appeals court precedent, denied the motion, holding that the state appellate court decision did not mandate dismissal. Both California’s First District Court of Appeal and the California Supreme Court denied review of the judge's decision.
  • Also on Tuesday, the court will hear arguments in Digital Realty Trust v. Somers. The case comes on an appeal of a judgment of the U.S. Court of Appeals for the Ninth Circuit. In 2010, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act, which expanded existing protections for whistleblowers under Section 21F of the Securities Exchange Act of 1934. Under Section 21F, whistleblowers were defined as employees who reported possible securities violations to the Securities and Exchange Commission (SEC). A subsequent SEC regulation expanded protection to those who reported potential violations to senior management internally as well. Such internal disclosures were mandated by the Sarbanes-Oxley Act of 2002 and, in many instances, were required prior to an employee externally reporting to the SEC or another federal agency. Paul Somers was fired by Digital Realty Trust after internally reporting potential securities violations to senior management, but not to the Securities and Exchange Commission (SEC). Somers filed a lawsuit in a federal district court. Digital Realty, relying on Section 21F's statutory definition, moved to dismiss the case, arguing that Somers did not report externally to the SEC and, therefore, he was not afforded whistleblower protections. Such a view is consistent with a 2013 ruling of the Fifth Circuit. On appeal, a divided three-judge panel of the Ninth Circuit upheld the district court's denial of dismissal. Citing a 2015 precedent of the Second Circuit, the panel majority held that the SEC regulation was to be afforded Chevron deference and held that Section 21F's whistleblower protections must be extended to those who report possible securities violations internally to senior management as well as externally to the SEC.

SCOTUS trivia

In honor of Thanksgiving, this week’s trivia question focuses on the court and food. In which case did the U.S. Supreme Court determine that, for tax purposes, tomatoes were vegetables and not fruits? Your answer is below.

Judicial motions

Confirmations

The Senate did not conduct any legislative business last week. No nominees were confirmed.

This week, we expect the Senate to hold confirmation votes on at least two of President Trump’s nominees. The first of these votes is scheduled for Monday. The nominee is Dabney Langhorne Friedrich to the United States District Court for the District of Columbia. The Senate will also hold a confirmation vote on Greg Katsas later this week. Katsas is a nominee to the U.S. Court of Appeals for the District of Columbia Circuit.

Nominations

President Trump did not submit any judicial nominations to the U.S. Senate last week.

Vacancies

There was one new vacancy created last week by Judge David Cercone’s decision to take senior status. Cercone is now a senior judge on the U.S. District Court for the Western District of Pennsylvania. A native of Pittsburgh, Pennsylvania, Cercone graduated with his bachelor's degree from Westminster College in 1974 and from the Duquesne University School of Law with his J.D. in 1977. Cercone was nominated by President George W. Bush on March 21, 2002, to a seat on the United States District Court for the Western District of Pennsylvania vacated by Donald Lee. The American Bar Association rated Cercone Unanimously Qualified for the nomination. Hearings on Cercone's nomination were held before the Senate Judiciary Committee on June 13, 2002, and his nomination was reported by U.S. Sen. Patrick Leahy (D-Vt.) on June 20, 2002. Cercone was confirmed on a voice vote of the U.S. Senate on August 1, 2002, and he received his commission the next day. Cercone’s decision to take senior status created the fifth vacancy on the ten-member court. There are now three Republican-appointed and two Democratic-appointed judges serving on active status on the court.

Committee action

The Senate Judiciary Committee did not conduct any nomination hearings last week. The committee will meet on Wednesday to hold nomination hearings. At least two nominees will have hearings on Wednesday: Kyle Duncan, a nominee to the Fifth Circuit Court of Appeals, and David Stras, a nominee to the Eighth Circuit Court of Appeals. Additional nominees may be announced in advance of Wednesday’s hearings.

The committee will also meet later to vote on four nominations that were held over from a previous meeting. The nominees were held over under a Judiciary Committee rule that allows any item on the agenda for the first time to be held over until the next committee executive business meeting or for one week, whichever is later. The nominations that were held over were:

Current judicial vacancies

  • 141 judicial vacancies in life-term, Article III judicial positions*
  • 45 pending nominations to life-term, Article III judicial positions
  • 16 future vacancies to life-term, Article III judicial positions
    • This number includes judicial nominees who have been confirmed by the Senate, but have not received their judicial commissions.

Love judicial nomination, confirmation, and vacancies information? We figured. Our monthly Federal Vacancy Count, which is published on the last Wednesday of every month, monitors all of the faces, places, and spaces moving in, moving out, and moving on in the federal judiciary.

Need a daily fix? Our Federal Vacancy Warning System’s got you covered with continuing updates on the status of all federal judicial nominees.

Or, if you prefer, we maintain a list of individuals nominated by President Trump.

Riding circuit

Federal circuit courts are where over 99 percent of federal cases end. Here’s a sampling of what caught our eye in the circuit courts last week.

  • Peterson v. Islamic Republic of Iran et al. (Second Circuit): A unanimous three-judge panel of the Second Circuit revived a portion of a nearly $1.7 billion dollar lawsuit against Bank Markazi, which is Iran’s central bank. The suit was brought by families of servicemembers who were killed in a 1983 bombing of Marine barracks in Lebanon. In his opinion for the court, Judge Robert Sack upheld, reversed, and vacated portions of the lower court’s opinion. In his reversal, Judge Sack noted that recent court decisions related to federal laws regarding the sovereign immunity of foreign agents or entities has given federal courts in New York “to recall to New York extraterritorial assets owned by a foreign sovereign.” The case will be reconsidered in light of the Second Circuit’s opinion. In 2016, the U.S. Supreme Court held in a separate case that a federal law, the Iran Threat Reduction and Syria Human Rights Act of 2012, did not violate the Constitution in making Bank Markazi assets available for satisfying post-judgment damages to victims of terrorist actions by Iran.
  • EEOC v. Autozone Inc. (Seventh Circuit): The full Seventh Circuit denied rehearing in a case involving whether or not “a business’s policy of segregating employees and intentionally assigning members of different races to different stores ‘tend to deprive any individual of employment opportunities’ on the basis of race?” A three-judge panel of the court earlier held that Autozone’s arrangement was legal under Title VII of the Civil Rights Act so long as a Title VII plaintiff could not prove that the Autozone’s intentional maintenance of racially-segregated facilities diminished employees’ pay, benefits, or job responsibilities. The circuit court’s chief judge, Diane Wood, dissented from the denial for rehearing. She was joined in her dissent by Judges Ilana Rovner and David Hamilton.
  • Detroit International Bridge Company v. Government of Canada (D.C. Circuit): A three-judge panel of the D.C. Circuit upheld an agreement between the Michigan government and government of Canada to build what is commonly referred to as the Gordie Howe International Bridge, rejecting a challenge brought by the owner of a competing bridge, the Ambassador Bridge, which is owned by the Detroit International Bridge Company. The Company alleged that the agreement between Michigan and Canada was prohibited under Michigan law, but a lower federal court and the circuit panel agreed the challenges were unpersuasive.

Legal briefs

  • Judge William Orrick III of the Northern District of California issued a permanent injunction preventing enforcement of an executive order issued in January of 2017 by President Trump related to what are commonly referred to as sanctuary jurisdictions. The term refers to a city, county, or state that has enacted policies which limit the involvement of local officials in the enforcement of federal immigration law. Trump's January order stated that cities that did not cooperate with federal immigration officials would lose federal grants and other funding. Additional features of the order included prioritization of deportations based on public safety concerns and reinstatement of federal agreements with local law enforcement officials. The city and county of San Francisco and Santa Clara County filed to stop the order from taking effect shortly after the order was issued. On April 25, 2017, Judge Orrick issued a temporary injunction pending additional proceedings. Yesterday's decision by Judge Orrick makes that temporary injunction permanent. In his order, Judge Orrick noted that San Francisco and Santa Clara County were likely to win on the merits of the case and that "I concluded that the County of Santa Clara and the City and County of San Francisco had pre-enforcement standing to protect hundreds of millions of dollars of federal grants from the unconstitutionally broad sweep of the Executive Order."
  • Pursuant to a temporary injunction issued in August of this year, Judge Lee Yeakel of the Western District of Texas issued a permanent injunction of Texas Senate Bill 8, which outlawed an abortion procedure known as dilation and evacuation (D&E). In his opinion, Judge Yeakel wrote, “The court concludes the Act is an inappropriate use of the State's regulatory power over the medical profession to bar certain medical procedures and substitute others in furtherance of the State's legitimate interest in regulating the medical profession in order to promote respect for the life of the unborn. The State's valid interest in promoting respect for the life of the unborn, although legitimate, is not sufficient to justify such a substantial obstacle to the constitutionally protected right of a woman to terminate a pregnancy before fetal viability.” Texas’ Attorney General, Ken Paxton, filed a notice of appeal with the Fifth Circuit Court of Appeals after Judge Yeakel’s ruling.
  • Judge Richard Leon of the U.S. District Court for the District of Columbia dismissed two separate lawsuits related to the National Security Agency’s metadata program. Because the program is no longer in effect, the cases were considered moot. Judge Leon had previously held the metadata program was unconstitutional, but the D.C. Circuit reversed that original decision, holding that the plaintiff in the case lacked standing. The case was later amended to include a plaintiff with standing, but that case was in the appellate process when the metadata program was halted. In his order dismissing the suits, Judge Leon wrote, “This Court, in the final analysis, has no choice but to dismiss these cases for plaintiffs’ failure to demonstrate the necessary jurisdiction to proceed. … I do so today, however, well aware that I will not be the last District Judge who will be required to determine the appropriate balance between our national security and privacy interests during this never-ending war on terror."
  • Judge Marvin Garbis of the District of Maryland became the second federal judge to block President Donald Trump’s proposed ban on transgender individuals from enlisting or serving actively in the U.S. military. In issuing a preliminary injunction, Garbis joined Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia in holding that the plaintiffs were likely to prevail on the merits of their case. Garbis’ order was in reference to a presidential memorandum issued on August 25, 2017, in which President Donald Trump (R) indefinitely extended a prohibition against transgender individuals from entering the military and required the military to authorize the discharge of current transgender service members by March 23, 2018. The government was expected to appeal.

A judge you oughta know

  • Every week, we at Ballotpedia want to highlight a federal judge or judicial nominee. We’re in our review of President Donald Trump’s list of 25 individuals from which he indicated he would choose nominees to fill Supreme Court vacancies. As he is scheduled to have nomination hearings before the Senate Judiciary Committee on Wednesday, let’s get to know one of Trump’s potential Supreme Court nominees a little better. Meet Judge David Stras of the Minnesota Supreme Court and a nominee to the U.S. Court of Appeals for the Eighth Circuit, a judge you oughta know.

SCOTUS trivia answer

The answers to our SCOTUS trivia question this week is Nix v. Hedden. On May 10, 1893, Justice Horace Gray issued the court’s ruling that, for tax purposes, tomatoes were vegetables and not fruits. The case involved a question of whether tomatoes that had been imported could have duties imposed on them as “provisions” under an 1883 Tariff Act. Vegetables were subject to taxation, but fruits were not.

Writing for the court, Justice Gray proclaimed that “Botanically speaking, tomatoes are a fruit of the vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert. … As an article of food on our tables, whether baked or boiled, or forming the basis of soup, they are used as a vegetable, as well when ripe as when green. This is the principal use to which they are put.”

Looking ahead

Here’s what we’re looking ahead to this week:

  • We expect the U.S. Senate to confirm two of President Trump’s judicial nominees this week.
  • We expect the Senate Judiciary Committee to hold hearings and to vote to report nominees this week.
  • We expect the U.S. Supreme Court to hear arguments in five cases and to possibly issue some opinions this week.

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Why Bold Justice?

Well, there’s a story behind it, and we’re happy to credit Justice Samuel Alito for the inspiration. Back in October of 2014, Justice Alito joined his fellow Supreme Court Yale Law alumni, Justices Clarence Thomas and Sonia Sotomayor, for a panel as part of the law school’s alumni weekend (video below). During the discussion, the moderator asked the audience if they could guess which of the three justices on the panel served as the inspiration for a coffee house to name one of their blends of coffee, Bold Justice. Justice Alito responded, “Obviously, it’s me.”

He went on to tell the story of how, during his days as a Third Circuit judge, his law clerks participated in a Newark, New Jersey, coffee shop’s year-long promotion wherein if customers sampled every blend for one year, the customers could then create and name a blend of coffee. Justice Alito described Bold Justice as a blend that was “designed for about three o’clock in the afternoon if you’re working and you’re starting to fall asleep, if you have this, it will jolt you awake.” A blend of courts and coffee: sounds perfect to us!

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