Orin Kerr Profile picture
Apr 27 18 tweets 4 min read
Holy crap: Although it was barely mentioned in the briefing, the CA9 just held in a single sentence, in a precedential opinion, that Internet content preservation isn't a seizure. And TOS eliminate all Internet privacy. Here's the entire discussion. Lordy.
Literally, that's it. No analysis. No citing anything. No discussion. And just a single sentence. So now, under 9th Circuit law, the government is free to order everyone's entire Internet account copied and held for it--with no cause at all. At any time, for no reason.
This is basically the nightmare: There's a major issue, but it's raised in passing by counsel that has no idea what it has; and then federal court of appeals has no idea what it has; and in passing the court decides a major issue, perhaps having no idea of its importance.
And then in the very next section, the Court goes into glorious detail rejecting the entirely silly argument that basic subscriber information is protected under the 4th Amendment. *That's* what you spend the time on?
I know the 9th Circuit has some doozies, but this one, sheesh.
BTW, this was me last week, wondering why that case hadn't come down yet -- wondering if perhaps the court might say something about preservation.
To be clear, if the court had actually taken this on, and showed some sign it understood the arguments, and concluded that yes, the government is always free to copy your private data b/c you still have your own copy, that would one thing. Stunning & jawdropping, but so it goes.
But this has the feel of a case where the defendant raised 20 issues, including a bunch in passing, and no one understood, hey wait, this one raised in passing is 100x more far-reaching than anything else in the case. So they just blew it off without even thinking about it.
Some may not think limits on Internet preservation are needed. And if you think that, that's fine. But note that the reasoning isn't limited to preservation: This just became the most important sentence in federal law on whether copying data is a seizure, holding it isn't.
Given that the CA2 went en banc in Ganias, which had held copying *is* a seizure (an issue the en banc court didn't reach), this is now the only federal appellate precedent on that foundational question. And it's a sentence!
And then there's the additional holding/suggestion that TOS amount to consent to eliminate all Internet privacy rights. I mean, maybe don't try to take on the most contentious issues, with the most extreme implications, in passing, without briefing, in a precedential opinion?
Also, my apologies if this thread is harsh. It's just hard, after having spent so much time, two articles, & a draft brief on this, to see it dismissed as an afterthought in circumstances that have remarkably far-reaching and troubling implications the court didn't seem to see.
(BTW, I feel extra double guilty criticizing this given that the court cited an article of mine elsewhere for a different issue. A little bit of an uncomfortable position to be in, but it seems better not to have that change my reaction.)
Looking a bit more closely, I wonder if there's an easy way out of this. If you read Rosenow's opening merits brief, it's not at all clear he raised the issue; he addressed it instead in the reply brief. Under CA9 precedent, wasn't the issue waived?
Here's the passage from the opening brief. The question is, did this sufficiently raise the question of whether preservation of Internet contents under 18 U.S.C. 2703(f) was an unreasonable seizure?
To be clear, I'm not arguing that it was waived in this opinion. It wasn't. I'm wondering if the court should have treated it as waived, which might be relevant to future proceedings.
The standard under CA9 precedent is whether the appellant "specifically and distinctly argue[d] the issue in his or her opening brief." United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005). I don't see how that was satisfied here.

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More from @OrinKerr

Apr 8
Too early to know what to make of KBJ's public endorsement of originalism. But if it's meaningful in terms of how she decides cases, it will only deepen the gap b/w the Supreme Court and the academic world on constitutional interpretation. Stay tuned.
Granted, one answer is to reply, "who cares?" But traditionally, the Court and public law academics have had an interesting relationship. In the past, public law academics have relied on the Court as they comment on the Court's work, teach it, and sometimes try to influence it.
And to a much lesser but still kinda interesting extent, Justices (several of whom are former profs) have sometimes relied on academics--for commentary, clerk recommendations, to teach the next generation of clerks and lawyers, etc.
Read 4 tweets
Mar 26
One secret of law school is that you take professors as much as you take courses.
Part of this is the open-ended nature of law school curricula. If a professor is assigned to teach a class on subject X, what subject X *is* becomes largely up to them. They can frame the class how they want, focus on or take out what they like, offer the themes they see, etc.
This is true even if you assume the readings and assignments are the same (which they aren't, but assume here that they are). You can teach specific material in vastly different ways.
Read 5 tweets
Mar 1
Petitioner's brief filed in Vega v. Tekoh, a very important Miranda case.

(I don't see how Vega's argument isn't that Dickerson should be overturned: How can you have a constitutional rule, but violating the rule doesn't violate the constitution?)
Maybe I'm just small minded, but I don't see how something can violate the constitution (admission of an unwarned statement requires suppression) but not be a violation of the constitution (thus creating a cause of action under a statute for constitutional violations).
To Vega, Dickerson decided nothing: When SCOTUS ruled Miranda was "a constitutional rule," that didn't mean there's any constitutional problem at all with violating the constitutional rule. p29: "As to the constitutional nature of the Miranda rule, Dickerson broke no new ground."
Read 6 tweets
Feb 28
Judge Readler, dissenting today in a qualified immunity case. opn.ca6.uscourts.gov/opinions.pdf/2… #N Image
Here are the facts of the case from the majority opinion, which began with a 911 call from the house about an "unwanted person" at the house who was suffering from mental health issues. ImageImage
The majority (per Judge Clay, joined by Judge Moore) focused on the fact that the officer knew that the man was suffering from mental illness and had no reason to think the man was armed. From the majority opinion: ImageImage
Read 4 tweets
Feb 28
Northwestern Law Dean John Wigmore pens a verse to celebrate the successful lateral recruitment of Roscoe Pound from Nebraska (1907).
From Kimball & Coquillette, The Intellectual Sword.
Decanal poetry is an understudied area of legal academia.
Read 4 tweets
Feb 22
Two years ago, I had a post at Volokh on the scholarly trajectories of PhD vs. non-PhD hiring of law profs: I asked, will the entry-level market's valuation of PhDs prove justified? It occurs to me we now have data slightly relevant to that. (Thread.)
It would take a lot of study of a lot of people to get a good sense of the answer. And of course there are lots of ways to try to measure that, all of which have their flaws. But there's one chart that is of possible interest: Fred Shapiro's list of most cited younger scholars.
The younger scholars were ones hired at the entry-level in an age of both PhD and non-PhD hiring. So one small way to get a small insight into the trajectory question is to ask, how many on the list have PhDs and how many don't? lawreview.uchicago.edu/sites/lawrevie…
Read 12 tweets

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