Not sure how I missed the CA9 oral argument in hiQ Labs on the CFAA back in October, but interesting, for those following the case, that LinkedIn focused at oral arg on the IP address block question, arguing it is a code-based technological barrier. /1
I can understand why they focused on that, given the narrow ruling in Van Buren. But FWIW I don't see how blocking an IP address can count as a closed gate, for reasons below. /2 columbialawreview.org/wp-content/upl…
Either way, interesting to hear how Van Buren has focused the terms of the debate, at least based on the oral argument. And glad to hear the judges engaged so much with the case. (The opinion in hiQ isn't out yet.) /3
One more thought. If Judge Berzon's comment at oral argument is any sign, it seems very likely that the CA9 will say that the cease-and-desist letter is not relevant to authorization. (Which is right, in my view.) Verrilli largely gave up the contrary view at oral argument....
and Judge Berzon had a comment to the effect that this wise. And the oral arg left the impression that there was a majority for the view that bypassing an IP block for a website is not unauthorized. (If so, this is right, in my view.) If so, the case may end up a stronger CFAA
decision in support of an authentication-based view of the CFAA, and the open web, than the original panel op. As always, stay tuned.
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Interesting moment in this Linda Greenhouse interview, after she criticizes SCOTUS for being political and making up the law, when @samuelmoyn asks her, isn't that true of the left's views, too? Is it all just politics? And she agrees. (Q @ 41:45 mark) podcasts.apple.com/us/podcast/dig…
Here's the exchange:
Moyn: Earlier in the convo with David, you said that the problem with the 'major questions' doctrine is that it's made up. I just want to ask, isn't that true of constitutional law in general? And it gets to a deep issue.... /1
Moyn: ... Because many of us sort of say, when the Court does what I like politically, it's doing Law. And when conservatives win, they're doing Politics. That's one way of interpreting case after case. Maybe you put in a little balance by saying, for many years..... /2
Interesting opinion by MJ Faruqui on why he found probable cause in a case involving bitcoin transactions, although at times it seems to presuppose a power I don't think judges have: To do a 4A analysis to the investigation and ignore fruits. (Thread.) dcd.uscourts.gov/sites/dcd/file…
If I'm reading that part of the discussion correctly, it seems to me that MJ Faruqui is reading the facts that form the basis for probable cause as if there were an implicit motion to suppress as to those facts and the fruits they yielded.
I don't think judges have that power when they review warrant applications. As I see it, the task at that stage is just to see if the facts as alleged amount to probable cause, the warrant is particular, there is venue, etc.
One of those doctrinal distinctions that 1L Criminal Law courses often overlook: What exactly is the difference between Witchcraft in the First Degree and Witchcraft in the Second Degree? (From Hale's Pleas of the Crown, 1682). play.google.com/books/reader?i…
In my view, the history here is a mess but a stable mess; on stare decisis grounds, the Court would be smart to just leave this body of law alone. But I don’t know how many Justices are so inclined.
This may end up being a pretty big criminal procedure case; the first big Miranda decision in a few years. Worth watching.
On his latest podcast, Akhil Amar raises an interesting point about the contingency of the current Supreme Court. I'll elaborate on Akhil's point below, as I think it has some relevance for debates on court-packing.
Thread.
Amar notes that when McConnell decided not to bring up Garland for a vote, that was a major gamble. Garland was a surprising pick in some ways, as he was so centrist. And throughout 2016, Hillary was favored to win the election: it seemed unlikely Trump (Trump!?!?) would win.
In 2016, confirming Garland meant a centrist Supreme Court with a slightly left of center bent, as Garland would be the swing vote. But if they block Garland, good chance President Hillary picks a younger and more liberal person than the very-centrist Garland for the Scalia seat.