Executive Briefing December 1, 2017


Carpenter v. United States

Oral arguments in Carpenter v. United States drove a sizeable news cycle this week.   Supreme Court justices on Wednesday wrestled with how to apply Fourth Amendment privacy protections to cell phone location records.  A common theme across coverage is the belief that the court may rule in favor of Carpenter after several of the Supreme Court justices voiced concerns over law enforcement’s warrantless access to cell location data.  The ACLU is urging the Supreme Court to rule that the government can’t access these records without a warrant. But the government pointed to a 1979 Supreme Court ruling called Smith v. Maryland. In that case, the Supreme Court ruled that the government doesn’t need to get a warrant to obtain a customer’s dialing history because they are merely the business records of the phone company. The government argues that the same principle, known as the third-party doctrine, applies here: data about which cell phone towers a customer’s phone has talked to are merely the cell phone company’s business records and should be available to the government without a warrant.

Here are three articles that provide a perspective on the case:

Net Neutrality

The FCC announced that it will be voting to rescind “net neutrality” rules in December.  Below are two articles that explain the policy and the impact of the proposed change.


  • “Americans, I still think, want to avoid Big Brother. They want to avoid the concept that the government will be able to see and locate you anywhere you are at any point in time… So long as they’re limiting their search as related to a criminal activity, as opposed to a dragnet sweep of everybody’s intimate details”

Supreme Court Justice Sonia Sotomayor

  • “Of course, the framers were concerned with the protection of physical rather than virtual correspondence. But a more obvious analogy from principle to new technology is hard to imagine.”

Supreme Court Justice Neil Gorsuch

  • “Microsoft believes in preserving the open internet & opposes weakening net neutrality protections. Our previous FCC comments are available here: http://bit.ly/2vBTS5a  #NetNeutrality

Brad Smith, Microsoft President and Chief Legal Officer, Tweet on net neutrality


Reuters House intel panel advances NSA spying bill despite privacy objections

The House Intelligence Committee voted today (Friday, Dec 1) to approve its bill reauthorizing Section 702 for another four years in a partisan, 13-8 vote. Politico noted that “the party-line vote increases the chances the bill will be attached to other, must-pass legislation.” The bill would allow warrantless query of the Section 702 database but would codify a decision by the NSA earlier this year to terminate “about” collection.


Lawfare  Microsoft Challenged the Wrong Law. Now What?

Lawfare published a blog by Orin Kerr, professor of law at George Washington University, examining Microsoft’s arguments in the warrant case. Kerr argues that rather than challenging its compliance with a warrant for extraterritorial data under the Stored Communications Act (SCA), Microsoft should be challenging its compliance under the All Writs Act (AWA). Kerr analyzes that a challenge under the SCA gives the Court no good avenues for action, while a challenge under the AWA would allow the court to craft a sensible rule in the case, such as requiring U.S. providers to assist with the production of foreign-stored data, but only if it belongs to U.S. persons. Kerr details several possible options the court could consider, including potentially requesting both parties in the case file additional briefs addressing AWA compliance.

Bloomberg How to Tame Google, Facebook, Amazon and Apple

It’s harder to fix a problem than to identify it. That goes quadruple for Apple Inc., Alphabet Inc.’s Google, Amazon.com Inc., and Facebook Inc. On the upside, these U.S. tech giants provide some of the world’s best-loved products and services. Investors love them, too. They’re the first-, second-, fourth-, and fifth-most-valuable companies. (Microsoft Corp. places third.)  Yet the four, taken together, also stand widely accused of the sins associated with corporate bullies: crushing competition, avoiding taxes, undermining democracy and invading privacy. Russian operatives have used American social media companies as a playground. Executives of Facebook, Google, and Twitter Inc. told Congress on Oct. 31 that they can’t even measure the extent of Russia’s manipulation of the U.S. presidential election and don’t yet have the tools to stop it the next time.

Washington Post Supreme Court Justices Seem Divided on Patent Dispute

One side of the argument says that if the government can grant patents, surely it should be able to review its work to see if it made a mistake in doing so. The other side says that once a patent is granted, only a court should be able to take away the right that an inventor has come to rely upon. Both perspectives were vigorously represented by Supreme Court justices Monday, and that made it difficult to predict the outcome of a constitutional challenge to a process set up by Congress in 2011 to review the validity of some patents.

The Hill Veterans and Military Families Need Internet to Connect to Our Economy

Less than a week after Veterans Day this month, the Federal Communications Commission voted to restructure the Lifeline Program, which provides a discount on phone service and broadband internet for qualifying low-income consumers. This is a timely reminder of how many military service members and veterans utilize these government programs. According to the FCC, 12 percent of Lifeline Program beneficiaries in the United States are veterans. That’s 1.3 million veterans.

BuzzFeed News Facebook and Twitter Say They’re Ready to Cooperate With the UK Inquiry Into Russian Meddling in Brexit

US social media giants have said they’re ready to cooperate with a UK probe into Russian meddling in the 2016 EU referendum. In letters released by the House of Commons culture, media, and sport committee, Facebook and Twitter confirmed they’ll cooperate with the UK inquiry into what happened on their platforms around the time of Brexit and the 2017 general election. According to Facebook’s letter to the inquiry, the US company had also been asked by the Electoral Commission to look at Russian interference, adding that it’ll aim to report back to both probes by the second week of December.

New York Times How a Radio Shack Robbery Could Spur a New Era in Digital Privacy

WASHINGTON — The case that could transform privacy law in the digital era began with the armed robbery of a Radio Shack store in Detroit, a couple of weeks before Christmas in 2010. In the next three months, eight more stores in Michigan and Ohio were robbed at gunpoint. The robbers took bags filled with smartphones. Their own phones would help send them to prison. On Wednesday, the Supreme Court will consider whether prosecutors violated the Fourth Amendment, which bars unreasonable searches, by collecting vast amounts of data from cellphone companies showing the movements of the man they say organized most of the robberies.

CNBC Here’s Why Apple, Big Pharma Are Paying Close Attention to a Supreme Court Case Over a Fracking Patent

IPR resides among the intricacies of patent law that generally don’t surface outside legal circles — but the system has been steadily increasing in popularity since it was introduced in 2011, championed by giants of the technology industry, such as Apple, Google and Facebook. They see it as a more efficient way of dismantling bad patents, often held by so-called patent trolls. It’s come to be despised by many big pharmaceutical companies. It’s also now the subject of a case before the U.S. Supreme Court, where oral arguments took place Monday morning. The outcome, experts say, is worth billions — in one estimate, even trillions — of dollars, and holds implications for the scope of power of federal agencies. For the Saint Regis Mohawks, a tribe of about 16,000 people along the St. Lawrence River in northern New York, it represents a potential new source of much-needed revenue. But only if the Court rules IPR doesn’t violate the Constitution.

Reuters China Must Enhance Protection of Intellectual Property Rights: Premier Li

SHANGHAI (Reuters) – It is strategically important for China’s economy that the country enhances protection of intellectual property rights, the state news agency Xinhua quoted Premier Li Keqiang as saying, as the cabinet promised to improve regulations. Inadequate protection of intellectual property had contributed to the decline in private investment, he added. Companies and foreign business lobbies have often accused China of doing too little to rein in risks related to intellectual property rights, despite having anti-piracy laws.


American Enterprise Institute (AEI)

  • Blog post on net neutrality: Visiting fellow Daniel Lyons wrote, “Despite the rhetoric, the FCC’s decision to return to the light-touch regulation of pre-2015 does not pose an existential threat to the internet.” He added, “Ultimately, the net neutrality debate boils down to a discussion about whether existing antitrust law is sufficient to guard against the anticompetitive harm of vertical foreclosure, and if not, whether the FCC’s additional prophylactic rules do more harm than good.” (AEI BLOG – Net neutrality: A primer, By Daniel Lyons, November 28, 2017)

Brookings Institution

  • Blog post on broadband: Fellow Adie Tomer and senior research assistant Ranjitha Shivaram wrote, “Lifeline may not be the best-designed program to promote subscription, but these new reforms only project to deepen the crisis. Instead, it’s time for federal legislators, the FCC, and the Department of Commerce to initiate a real effort to address digital disconnect. It’s too important to leave untouched.” (BROOKINGS BLOG – Rollback of the FCC’s Lifeline program can hurt households that need broadband the most, By Adie Tomer and Ranjitha Shivaram, November 27, 2017)

Center for American Progress (CAP)

  • Podcast on net neutrality: Vice president Michele Jawando and Igor Volsky sat “down with FCC Commissioner Jessica Rosenworcel, one of the five people who will be deciding the fate of net neutrality, to break down the importance of open internet access.” (CAP PODCAST – Your Internet Access Is at Risk, November 30, 2017)

Competitive Enterprise Institute (CEI)

  • Blog post on Carpenter v. U.S.Harper also wrote, “The ‘reasonable expectation of privacy’ test invites courts into difficult line-drawing exercises when they try to apply the Fourth Amendment in hard cases.” He added, “In short, the outcome of [Carpenter v. U.S.] will probably go the right way for Fourth Amendment privacy and the security of our digital data. Whether it uses the right rationale is very much up in the air.” (CEI BLOG – Supreme Court can Strike a Victory for Privacy in Carpenter v. United States, By Jim Harper, November 29, 2017)
  • Op-ed on Carpenter v. U.S.Vice president Jim Harper argued, “Cellphone privacy policies give consumers many rights to control their telecommunications data…Essentially these are property rights, which on their own should require that the government obtain a warrant before searching and seizing digital records.” (THE WALL STREET JOURNAL – Is It Unreasonable to Expect Cellphone Privacy?, By Jim Harper, November 28, 2017)

New America

  • Blog post announcing apprenticeship initiative: National Skills Coalition and New America announced “the launch of the Apprenticeship Forward Collaborative, a network of national, international, and regional organizations committed to expanding American apprenticeship. The Collaborative will collect and share information on emerging trends and best practices in apprenticeship from across the country. In particular, we will highlight how apprenticeship can break into new industry sectors and serve a more diverse population of learners and workers.” (NEW AMERICA BLOG – Announcing the Apprenticeship Forward Collaborative, By Mary Alice McCarthy, November 30, 2017)


  • “It’s 2017, not 1977, but people have the right to expect that their everyday movements and thoughts will not be freely available to the government without a warrant.”

Nathan Wessler, staff attorney, American Civil Liberties Union

  • “There are a few possible ways to apply traditional AWA principles to the Microsoft case. But one particularly appealing and sensible approach is to adopt this rule: U.S. providers can be ordered to assist with the production of foreign-stored data belonging to U.S. persons but not the foreign-stored data of foreigners. The starting point underlying this rule is that the search warrant power is traditionally domestic, as Microsoft emphasizes in its briefs.”

Orin Kerr, professor of law, George Washington University

  • “The third-party doctrine never made a lot of sense. Just because I share an intimate secret with my spouse, friend or doctor doesn’t mean that I no longer consider it private. It makes even less sense in today’s hyper-connected world. It’s long past time the Supreme Court recognized that a months’-long history of my movements is private, and my emails and other personal data deserve the same protections, whether they’re on my laptop or on Google’s servers.”

Bruce Schneier, security technologist, Kennedy School of Government at Harvard University

  • “This is taking the Smith precedent way too far, in a vastly different technological age. When the Supreme Court decided Smith, in the pre-dawn of the digital age, we didn’t know about the Internet, smartphones, cloud computing, Facebook or Twitter. No one involved in the case could foresee the digital revolution that was to come. That new world is defined by the rapid increase in sophisticated — and invasive — technology. It is also defined by a relentless and pervasive assault on privacy.”

Stephen H. Sachs, former attorney general, Maryland

  • “Here’s why [Carpenter] matters to journalism: Reporters need confidentiality to do their work, and they need to be able to promise it to sources. At a time when President Trump has expressed the desire to crack down on sources and journalists, it’s not hard to imagine the implications. A journalist’s cellphone location data can reveal “the stories a journalist is working on before they are published, where a journalist went to gather information for those stories, and the identity of a journalist’s source,” said the brief filed by the Reporters Committee for Freedom of the Press. Exposing those sources and journalistic methods “can put sources’ jobs and lives at risk, compromise the integrity of the newsgathering process, and have a chilling effect on reporting.”

Margaret Sullivan, media columnist, The Washington Post

  • “We must be clear, anything less than a pure warrant requirement for any search on American persons in the 702 database is a failure of this body to protect the constitutional rights of American citizens… In recent years the perception around the world is that the U.S. is no longer the leader in privacy. The ideals that were born in this country are now are weaker here than in other areas of world.”

Rep. Ted Poe

  • “The court could not have imagined the technological landscape today… [In the future] highly sensitive digital records like search queries entered into Google, a person’s complete Web browsing history showing everything we read online, medical information or fertility tracking data from a smartphone . . . would be vulnerable.”

Nate Wessler, staff attorney, American Civil Liberties Union

  • I support the adoption of the mosaic theory because, as a practical matter, if it isn’t adopted then the likely alternative result is the rejection of the third party doctrine altogether…  Elimination of the third party doctrine wholesale for digital evidence would be a massive sea-change with untold consequences on investigative possibilities… I can’t say for sure, but my instinct is that this cure might well be worse than the disease.”

Paul Rosenzweig, senior fellow, R Street Institute

  • The Carpenter case may not produce the next Magna Carta, but if property rights are to be respected, the Supreme Court should find that telecommunications data is owned in part by telecommunications providers and in part by cell phone users based on the contracts between them. To the extent digital data are the papers or effects of suspects, as defined in valid contracts, the government should not be able to require it to be handed over without a warrant.”

Jim Harper, vice president, Competitive Enterprise Institute

  • “Critics of Section 702 note that the NSA’s intelligence operations targeting foreigners could sweep in millions of Americans’ private communications. It is possible that under the UKUSA Agreement, the NSA both shares this information with foreign governments and receives U.S. persons’ communications that foreign agencies collect… This lack of transparency weakens the oversight and accountability mechanisms available to check global intelligence sharing.”

Scarlet Kim, legal officer, Privacy International & Diana Lee and Paulina Perlin, students of law, Yale University

  • “First, biometric passwords are afforded fewer constitutional protections. Second, and more importantly, the application, if accessed by the government, would present law enforcement with an entire catalog of a user’s character-based passcodes. The act of producing the passcodes contained in the application wouldn’t require the user to produce any testimonial information and thus the traditional Fifth Amendment implications concerning the compelled production of the stored passcodes would be limited… these types of applications may provide users the least amount of protection against the government.”

Kendall Howell, student of law, Harvard University

  • “What the Constitution cannot tolerate is the government’s routine mining of Section 702 data, obtained without a warrant based on a promise that only foreigners would be targeted, for the communications of specific Americans. There is no analogy or precedent for such a practice anywhere outside the four corners of Section 702. It is time to end it.”

Elizabeth Goitein, co-director & Michael German, fellow, The Brennan Center for Justice