The Volokh Conspiracy

The twenty-first episode (Apple Podcasts link here and Spotify link here) of Strangers on the Internet with co-host and psychologist Michelle Lange features a conversation with married couple Prof. Talia Lerner and Phillip Nightingale. They are our first guest couple, and Phillip is our first male guest altogether on the podcast.

Northwestern University neuroscientist Talia did not think that a heavily tattooed former military sniper would be in her romantic future, and yet that is how the dating app process shook out in the end. Phillip proved to be the interesting, open-minded, poetry-writing partner that would turn into a capable stepdad to her son and involved father to their subsequent daughter together. Our Chicago-dwelling couple came from different socioeconomic classes, ethnic backgrounds, and religions, and via therapy and solid communication forged a path toward what became a happy second marriage for both of them.

How did Phillip abandon his plan to travel the world and instead navigate becoming an academic spouse? And what were the reasons Talia agreed to add a third child to their family when initially, Phillip criticizing her parenting of her oldest kid on a first zoo trip together almost led her to call it quits on the relationship? Follow us to the Midwest for this modern-day love story you don't want to miss!

The big cyberlaw story of the week is the Justice Department's antitrust lawsuit against Google and the many hats the company wears in the online ad ecosystem. Lee Berger explains the Justice Department's theory, which is not dissimilar to the Texas Attorney General's two-year-old lawsuit. When you've lost both the Biden administration and the Texas Attorney General, I suggest, you cannot look too many places for friends – and certainly not to Brussels, which is also pursuing similar claims of its own. So what is the Justice Department's late-to-the-party contribution to this dogpile? At least two things, Lee suggests: a jury demand that will put all those complex Borkian consumer-welfare doctrines in front of a Northern Virginia jury and a "rocket docket" that will allow Justice to catch up with and maybe lap the other lawsuits against the company. This case looks as though it will be long and ugly for Google, unless it turns out to be short and ugly. Still, Mark reminds us, for Justice, finding an effective remedy may be harder than proving anticompetitive conduct.

Nathan Simington assesses the administration's announced deal with Japan and the Netherlands to enforce its tough decoupling policy against China's semiconductor industry. Details are still a little sparse, but some kind of deal was essential for the U.S. campaign to work. For Japan and the Netherlands, the details are critical, and any arrangement will require flexibility and sophistication on the part of the US Commerce Department if it is to work in the long run.

Megan Stifel and I chew over the Justice Department/FBI victory lap after they put a stick in the spokes of The Hive ransomware infrastructure. We agree that the lap was warranted. Among other things, the FBI handled its access to decryption keys with more care than in the past, providing them to many victims before taking down a big chunk of the ransomware gang's tools. The bad news? Nobody was arrested, and the infrastructure can probably be reconstituted in the near term.

Here's an evergreen headline: "Facebook is going to reinstate Donald Trump's account." That could be the opening line of any Trump-Facebook story in the last few months, and that is probably Facebook's strategy – a long, teasing dance of seven veils so that, by the time Trump starts posting, it will be old news. If that is Facebook's PR strategy, it's working, Mark MacCarthy reports. Nobody much cares about the return of Trump, and they certainly do not seem to be mad at Facebook. So the company is out of the woods, but for the ex-President it's a blow to the ego that is bound to sting.

Megan has more good news on the cybercrime front: The FBI identified the North Korean hacking group that stole $100 million in crypto last year – and may have kept the regime from getting its hands on any of the funds.

Nathan unpacks two competing news stories. First, "OMG, ChatGPT will help bad guys write malware." Second: "OMG, ChatGPT will help good guys find and fix security holes." He thinks they are both a bit overwrought, but maybe a glimpse of the future.

Mark and Megan explain TikTok's new offer to Washington. Megan also covers Congress's "TayTay v. Ticketmaster" hearing after disclosing her personal conflict of interest.

Nathan answers my question: how can the FAA be so good a preventing airliners from crashing and so bad at preventing its systems from crashing? The ensuing discussion turns up more on-point bathroom humor than anyone would have expected.

In quick hits, I cover three stories:

• First, my complaint about Gen. Milley's egregious and self-admitted overclassification of January 6th records. And the prospect that he may be investigated for it.
• Next, the Iran-Iraq-War-style, pity-they-can't-both-lose fight between James Dolan, the owner of Madison Square Garden, and the lawyers he's barred from the Garden. In a tactic that reminds me of Donald Trump, Dolan is doubling down on confrontation despite the mounting legal troubles it's created. I blame Daddy issues.
• Finally, Google has won at least one victory in Washington this week: It outmaneuvered the Republican effort to score points over Gmail's partisan spam filtering

Download 440th Episode (mp3)

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I have just posted to SSRN a new draft article, Terms of Service and Fourth Amendment Rights.  Here's the abstract:

Almost everything you do on the Internet is governed by Terms of Service. The language in Terms of Service typically gives Internet providers broad rights to address potential account misuse. But do these terms alter Fourth Amendment rights, either diminishing or even eliminating constitutional rights in Internet accounts?  In the last five years, many courts have ruled that they do. These courts treat Terms of Service like a rights contract: By agreeing to use an Internet account subject to broad Terms of Service, you give up your Fourth Amendment rights.

This Article argues that the courts are wrong. Terms of Service have little or no effect on Fourth Amendment rights. Fourth Amendment rights are rights against the government, not private parties. Terms of Service can define relationships between private parties, but private contracts cannot define Fourth Amendment rights. This is true across the range of Fourth Amendment doctrines, including the "reasonable expectation of privacy" test, consent, abandonment, third-party consent, and the private search doctrine.  Courts that have linked Terms of Service and Fourth Amendment rights are mistaken, and their reasoning should be rejected.

And here's the first two pages of the Introduction:

When you use the Internet, you are using computer networks that belong to others. You are visiting computers around the country, and sometimes around the world, that are typically owned by large companies. Those companies have lawyers. And those lawyers want to make sure you can't sue them for how you use their services. So they do what lawyers do best: They put it in writing. As a condition of use, the services require users to agree to contractual language giving the company broad rights over your use of their machines. Those contractual terms, usually called Terms of Service, appear to users like an endless CVS-receipt of legalese that they click through on the way to setting up an account.

This essay considers the effect of Terms of Service on Fourth Amendment rights. In particular, it asks whether language in Terms of Service can limit or even eliminate user Fourth Amendment rights. If Terms of Service say you have no rights, or only limited or conditional rights, do those terms control? In Carpenter v. United States and Riley v. California, the Supreme Court has suggested that the Fourth Amendment applies broadly to computers and the Internet. The Fourth Amendment requires a warrant if the government wants to obtain the contents of your messages, or even certain non-content records. But Terms of Service threaten that conclusion. If such Terms can narrow or eliminate Fourth Amendment rights online, then those rights may be an illusion. What the Supreme Court has given, Terms of Service might take away.

This is a genuine and pressing problem. In the last five years, the effect of Terms of Service on Fourth Amendment rights has been frequently litigated in lower courts. Judges have divided sharply. A few opinions say the Terms make little difference. But a majority of courts have treated Terms of Service like a rights contract: By agreeing to use the service, they reason, you agree to whatever narrowing or elimination of rights that the contract implies. Using the service becomes a waiver of Fourth Amendment rights that gives up a reasonable expectation of privacy or consents to any future search. The caselaw is recent, and existing legal scholarship has not yet addressed, or even recognized, the problem. But the decisions suggest a troubling reality: Our Fourth Amendment rights online hinge on the effect of Terms of Service.

This Article argues that Terms of Service have little or no impact on Fourth Amendment rights. With limited exceptions, Terms of Service cannot reduce or eliminate Fourth Amendment protections. The courts that have held to the contrary are wrong, and their reasoning should be rejected. The explanation rests on the under-appreciated role of private contracts in Fourth Amendment law. The Fourth Amendment provides rights against the government, and agreements between private parties and the government can relinquish Fourth Amendment rights. But Terms of Service play a different role. They define legal relationships between private parties, between private network provider and private network user. Agreements among private parties do not relinquish rights. As private agreements, Terms of Service might help clarify relationships relevant to some Fourth Amendment doctrines. But it is the relationships, not the language found in Terms of Service, that matter.

This wasn't an Article that I was planning to write, but it seemed important to take on this topic as more and more cases have adopted the view that Terms of Service control Fourth Amendment rights.  Anyway, it's new draft, and comments are very welcome at orin [at] berkeley.edu.  No need to send on corrections to typos or stuff like that, but any reactions to the substance would be appreciated.

Anne Marimow has taken a deep dive on what I've called the second-most interesting court in the land. Sorry D.C. Circuit, you are fairly predictable at this point. Here is the intro:

Months before the Supreme Court overturned Roe v. Wade, the federal appeals court based in this Southern city cleared the way to ban most abortions in Texas. The same court appeared to jump the line to block the White House's signature coronavirus vaccination mandate and split from other courts to back restrictions on social media companies and constrain President Biden's immigration powers.

The U.S. Court of Appeals for the 5th Circuit in New Orleans has long leaned conservative. But the arrival of a half-dozen judges picked by President Donald Trump — many of them young, ambitious and outspoken — has put the court at the forefront of resistance to the Biden administration's assertions of legal authority and to the regulatory power of federal agencies. Their rulings have at times broken with precedent and exposed rifts among the judges, illustrating Trump's lasting legacy on the powerful set of federal courts that operate one step below the Supreme Court. Even some veteran conservatives on the court have criticized the newcomers for going too far.

Four of the six new judges have worked for Republican politicians in Texas, and some are seen as possible contenders for a future opening on the Supreme Court if a Republican is elected president. With their provocative, colloquial writing styles, the judges are elevating their profiles in far-reaching opinions and public appearances, calling out "cancel culture," wokeness and sometimes even one another.

There is a quote from me:

Josh Blackman, a professor at South Texas College of Law in Houston and close observer of the 5th Circuit, said the Trump appointees are "not going to sit and wait for the percolation that might happen otherwise" when they disagree with past rulings.

"They are more aggressive and willing to follow the law as they see it and let the chips fall where they may," Blackman said. "They don't care about being invited to elite parties in Georgetown."

From Aaron Streett:

Aaron Streett, a Houston-based lawyer who practices before the 5th Circuit and was a law clerk to Chief Justice William H. Rehnquist, said the new judges are at the "leading edge of originalist and textualist ideas percolating up in law reviews and conservative public-interest law firms."

"You've got really bright, creative judges who are talented writers and popularizers of these jurisprudential principles," Streett said, adding that they are willing to take what the Supreme Court has said in the past decade and "apply those decisions to their fullest logical extent."….

Streett, the Houston-based lawyer, said he believes that the judges are engaging in "strongly felt conversations about principles," without vitriol between the newcomers and the veterans. "I've seen zero evidence of any ill will or bad blood between any of the judges."

And from Alexa Gervasi:

Alexa Gervasi, a former 5th Circuit law clerk who directs the Georgetown Center for the Constitution at Georgetown Law, said it is no surprise that the court is issuing noteworthy rulings in so many significant cases. "The reason it seems like there's so much fire coming from the 5th Circuit is that they are getting really divisive cases," said Gervasi, who also has practiced before the court. "If you send controversial cases to the 5th Circuit, you're going to get controversial opinions." …

But the combination on the 5th Circuit of big personalities and aspirations — and the large volume of highly charged cases — makes the New Orleans bench a standout.

"Everyone wants to have their say. I don't think that's just posturing for the Supreme Court," said Gervasi, noting the number of judges writing separate dissents and concurring opinions.

Read the entire piece, which I think is a balanced take.

In three cases last term, the constitutional concepts of history and tradition played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women's Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Association v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the implementing doctrines for the First Amendment Establishment and Free Exercise Clauses.

Some who dislike these outcomes have characterized the cases as originalist. Others have suggested that the reasoning in these cases constitute a new "History and Tradition" alternative to original public meaning originalism, or even an alternative to originalism itself.

In a new paper now available on SSRN, UVA Professor Lawrence Solum and I take a deep dive into the methodology of these three cases. Each case raises important questions about the Court's approach to constitutional interpretation and construction. Do Dobbs, Bruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court's embrace of originalism?

In this paper, we do not express our agreement or disagreement with the outcomes in these cases. Instead, we take this opportunity to elucidate the constitutional concepts of history and tradition and identify four distinct roles that history and tradition can play: (1) as evidence of original meaning and purpose; (2) as modalities of constitutional argument within a constitutional pluralism framework; (3) as a novel constitutional theory, which we call "historical traditionalism"; and (4) as implementing doctrines. With these concepts in mind, we then investigate the roles of history and tradition in Dobbs, Bruen, and Kennedy. Lastly, we articulate a comprehensive strategy for the incorporation of history and tradition in constitutional jurisprudence.

The paper is Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition.

On Monday, Justice Kavanaugh spoke at Notre Dame Law School. I've transcribed his remarks. At the 38:20 mark, Dean Cole asked, somewhat in jest, if NCAA v. Alston would extend to law review editors.

Dean Cole: So since you're using sports analogies, next question is, do you think your concurrence in NCAA versus Alston could cover fields and bodies beyond college football, for example, like law journals, or the Notre Dame Law Review?

Kavanaugh, as he is wont to do, went far beyond the question presented. Indeed, that was precisely what he did in his NCAA v. Alston concurrence: go beyond the question presented to resolve the legality of other NCAA compensation rules. And Justice Kavanaugh explained why he decided to address questions that were not presented. Here is his answer, which lasts about two minutes.

Justice Kavanaugh: Definitely, you know, and I can I can't even understand the question. I will say, NCAA versus Alston. If you asked me, you know, you've been on the court four years. What's your favorite opinion? The opinion you think, you know, you'd like the most it's it would be no surprise that NCAA versus Alston, my concurrence, and that would be right at the top of my list, probably also with Flowers versus Mississippi majority opinion. Ramos versus Louisiana concurrences are the ones that I look back on so far, and say, you know, I think I think I made a contribution with those cases. And I think I did a reasonably decent job. In those cases, the concurrence and NCAA versus Alston. I thought it was important to say because I was concerned, it's probably be a question, but why do you write concurrences? I always ask myself the same question. Is this really worth it? And I've come on, I've got a good book of unpublished opinions sitting out there that I've never thought--that I've thrown away as not being worth it. That one I thought it was worth it because I thought there was a risk that you could read the majority opinion and think, "Well, everything else is hunky dory." And I did not think that, in terms of the restrictions on student athletes, and I thought that needed to be said, and I thought it needed to be said clearly and directly and succinctly and I spent a lot, it's five pages, but put a lot of time into the into exactly how to phrase the things they are. And I just thought, you know, when a group of organizations is coming together and making a lot of money and agreeing to suppress the money that goes to the people, who are the actual athletes generating all the money, many of whom are from low income families, many of whom are African American, that there's something really quite wrong with that picture, both legally and otherwise. And I thought it was important to say that in in the NCAA case.

I found this aside to be the most revealing aspect of the entire interview.

First, Kavanaugh says outright that NCAA v. Alston was his favorite opinion. I've long suspected this was his favorite opinion. We know he loves sports. And he loves antitrust law. And he was able to remedy what he saw as an injustice. It is a perfect blend for Kavanaugh.

Second, Kavanaugh questions internally whether a concurrence is "worth it." Why was his Alston concurrence "worth it"? Here, he says there was a risk that Justice Gorsuch's majority opinion could be interpreted too narrowly. Well, in his concurrence, he framed things a bit differently:

But this case involves only a narrow subset of the NCAA's compensation rules—namely, the rules restricting the education-related benefits that student athletes may receive, such as post-eligibility scholarships at graduate or vocational schools. The rest of the NCAA's compensation rules are not at issue here and therefore remain on the books. Those remaining compensation rules generally restrict student athletes from receiving compensation or benefits from their colleges for playing sports. And those rules have also historically restricted student athletes from receiving money from endorsement deals and the like. I add this concurring opinion to underscore that the NCAA's remaining compensation rules also raise serious questions under the antitrust laws. Three points warrant emphasis.

The concurrence then proceeded to explain why the NCCA would "lack such a justification" for its "remaining compensation rules." Kavanaugh did not simply express concerns about Gorsuch's opinion could be read to support the other rules. Rather, Kavanaugh reached out to decide the legality of these other rules. These rules were not presented in this case. I see nothing restrained or minimalist about this approach.

Third, why did Kavanaugh think it was "worth it" to decide questions that were not presented in Alston? Because he almost always does! His separate writings routinely decide questions not presented, most recently in Dobbs and Bruen. These concurrences, in my view, were not "worth it."

Fourth, we learn that Justice Kavanaugh may actually have a "a good book of unpublished opinions" that he never published. This is a smart practice. Believe it or not, I write lots of blog posts for which I never hit the "publish" button. I write lots of emails I never send. I often tear apart early drafts of my articles and briefs, to remove lines I know I'll regret. Some of the writings that I am most proud of are things you will never, ever see. If only the Bruen and Dobbs concurrences made it to the burn book.

Finally, I'm not so sure that Kavanaugh's opinion will actually help the overwhelming majority of student athletes. A recent profile in the New York Times Magazine suggests that the name-image-likeness deals (NIL) will predominantly benefit top basketball and football players. Now, boosters, who would otherwise donate money to schools, will give the money directly to the bluechip players through NIL deals. As a result, athletic departments will receive less money. And athletes on virtually all other sports will lose funding. How will the universities make up that shortfall? Look to another Supreme Court case, NCAA v. Murphy, which paved the way for online gambling. Now, casinos are working hand-in-hand with athletic departments to hook young, impressionable minds on gambling apps. I'll admit, I am not comfortable with the sudden shift towards facilitating an addiction that can destroy lives.