The Volokh Conspiracy

Two weeks ago, in United States v. Rosenow, the Ninth Circuit handed down a decision that has a brief but truly stunning passage with major implications for the future of Fourth Amendment law. If the passage stays in the opinion, it's going to have a quite dramatic effect, perhaps inadvertently, on how the Fourth Amendment applies to computers and the Internet.  And in my view, those effects are bad. Really, really bad. In this post, I want to say why the passage in Rosenow is so important, and why it's so disturbing.  And I'll suggest a possible path forward to deal with it.

I.  An Overview of the Rosenow Case

Rosenow arose out of an investigation into child exploitation in the Philippines.  Two large Internet providers, Yahoo and Facebook, ended up being involved.  That led eventually to Rosenow's arrest on his return from the Philippines to the United States and a search through his computers pursuant to a warrant. The search revealed child sexual abuse material (CSAM), also known as child pornography, including some involving sexual acts between Rosenow and prepubescent Filipina girls. On the basis of the images found on his computer, Rosenow was convicted of sexual exploitation and CSAM possession.

On appeal, Rosenow made several different arguments in his merits brief.  A majority of the merits arguments were on Fourth Amendment law.  The primary Fourth Amendment claim was that Yahoo and Facebook had become state actors, and that their accessing account information was a government search that triggered the Fourth Amendment.  But Rosenow also challenged other parts of the investigation, including the validity of the warrant obtained and whether accessing basic subscriber information was a search.

The Ninth Circuit affirmed in a published opinion by Judge Forrest, joined by Judge Callahan, with a partial dissent by Judge Graber.  The Court ruled that Facebook and Yahoo were acting as private actors, not state actors; that the warrants were valid, and that accessing basic subscriber information is not a search under the Fourth Amendment.  Judge Graber dissented in part as to one aspect of the state action ruling.

So far, this seems like an interesting decision, although on the whole relatively minor in its significance.  It's mostly fact-specific issues (such as where the state action line is) or else pretty clearly correct (such as the ruling that accessing basic subscriber is not a search).  It also has a lot I very much agree with, such as the specific ruling that the Stored Communications Act doesn't make Internet providers state actors.

But that's not all.  There's more. And that "more" turns out to be really big -- much bigger in its importance, I think, than everything else in the Rosenow opinion.

II.  The Stunning Passage in Rosenow

What is that really big thing?  In his merits brief, Rosenow claimed that a set of other practices, including the preservation of his Internet account contents, violated the Fourth Amendment.  The argument is less than a page of the brief, see page 64, and the only material specifically about preservation is a single sentence saying that the preservations were seizures.

To my great surprise, Rosenow's merits opinion took on those claims and rejected them on the merits. And because Rosenow is a published opinion, its holding is now binding in the Ninth Circuit. In the 45-page published opinion, here's the totality of the discussion of preservation and the Fourth Amendment:

Were the preservation requests unconstitutional seizures?

Acting pursuant to 18 U.S.C. § 2703(f), which requires an ESP "to preserve records and other evidence in its possession pending the issuance of a court order or other process," the government directed Yahoo on three separate occasions to preserve records related to Rosenow's private communications. Rosenow contends that these requests were an unconstitutional seizure of his property.

A "seizure" of property requires "some meaningful interference [by the government,] with an individual's possessory interests in [his] property." Jacobsen, 466 U.S. at 113. Here, the preservation requests themselves, which applied only retrospectively, did not meaningfully interfere with Rosenow's possessory interests in his digital data because they did not prevent Rosenow from accessing his account. Nor did they provide the government with access to any of Rosenow's digital information without further legal process. It also is worth noting that Rosenow consented to the ESPs honoring preservation requests from law enforcement under the ESPs' terms of use. Thus, we agree with the district court that these requests did not amount to an unreasonable seizure in violation of the Fourth Amendment.

Yikes!

III.  Why the Passage Is So Important, and Why It's Really Bad.

Why is this passage so important?  There are two main reasons, I think.  The first is narrower, and the second broader.  Let me start with the narrower reason (although it's still pretty broad!).

First, as regular readers know, I think the Fourth Amendment makes most Internet content preservation unconstitutional.  You can see my full argument in this recent article of mine:  The Fourth Amendment Limits of Internet Content Preservation.  And you can see the argument fully written out as defense counsel might litigate it in this draft motion to suppress I recently wrote.  I think this is a hugely important issue, although it remained almost entirely unlitigated, much to my frustration.   No federal court of appeals has decided this issue until Rosenow.  The Ninth Circuit heard oral argument on this issue and had extensive briefing on it (with amicus oral argument participation, and briefing, from the ACLU) in United States v. Basey in 2019, but the panel did not reach the question in its decision.

For the Ninth Circuit to weigh in in this fashion when it wasn't fully briefed, and to reject these claims on the merits, is a big deal. It means that the government is free to pursue unlimited preservation, even though the major (and to my mind persuasive) arguments for why it shouldn't be able to do that have not been presented to the court that is saying this is permissible.

That's huge.  Under Rosenow, any government official can at any time order any Internet provider to run off a copy of anyone or even everyone's entire account contents.  The only authority on the question is now Rosenow, which rejects the claim. I think this is all wrong on the merits.  But more importantly, it's wrong on a vast scale: As explained in my article, there are hundreds of thousands of Internet preservations occurring every year.  This passage in Rosenow gives any government official a blank check to order any preservation of anyone or everyone's account without limit.  To decide this important a question in such a brief and unexplained passage is remarkable.

So that's the narrower (but again, pretty broad) problem.  Here's the even broader one.  The particular way that Rosenow rules for the government is incredibly far-reaching and deeply troubling.  Here's the key passage again:

A "seizure" of property requires "some meaningful interference [by the government,] with an individual's possessory interests in [his] property." Jacobsen, 466 U.S. at 113. Here, the preservation requests themselves, which applied only retrospectively, did not meaningfully interfere with Rosenow's possessory interests in his digital data because they did not prevent Rosenow from accessing his account.

This is a remarkably far-reaching ruling, and all in just two sentences.  Whether and when copying data is a Fourth Amendment seizure is one of the foundational questions of the future of Fourth Amendment law that has been in the background of the caselaw for years.  And it's also been a topic in scholarship for a long time, including stuff I have spent a lot of time on. As longtime readers may remember, in 2005 I initially concluded that copying wasn't a seizure.  By 2010, however, I had changed my mind, and I wrote an article explaining why copying ordinarily is a seizure, using preservation requests as an example: Fourth Amendment Seizures of Computer Data, 119 Yale Law Journal 700 (2010).

District courts have divided on the question.  And the one federal court of appeals ruling on it, which had held that copying is a seizure, was vacated when the court went en banc (presumably for reasons other than the seizure ruling, as there was a lot more going on in the case).  See United States v. Ganias, 755 F.3d 125, 137 (2d Cir. 2014) (holding that the Government's retention of electronic copies of the defendant's personal computer "deprived him of exclusive control over those files," which was "a meaningful interference with [the defendant's] possessory rights in those files and constituted a seizure within the meaning of the Fourth Amendment."), vacated by United States v. Ganias, 824 F.3d 199 (2d Cir. 2016) (en banc).  So until Rosenow, there was no circuit court precedent on this foundational question.

By ruling that copying is not a seizure, the Ninth Circuit becomes the first circuit court to have ruled on the question in a decision that is still on the books.  And the question is of dramatic importance, as the introduction to my 2010 article flags:

Imagine the police take away a suspect's computer, make a digital copy of its contents, and then give the computer back to the suspect. The police do not open the copy, but they keep it in their custody in case they need to access it later. Does the combined act of copying the files and retaining the copy trigger the Fourth Amendment?

Next imagine that FBI agents believe a particular person is using the Internet to commit a crime. Agents install a surveillance tool at the target's Internet service provider (ISP), and the tool generates copies of all of the target's incoming and outgoing email. The email is copied to a file, but no human being actually looks at the file. Instead, the agents keep the file in case they develop probable cause to look through it for evidence. Again, does the Fourth Amendment allow it?

The answer to both scenarios depends on whether copying computer files without looking at them constitutes a Fourth Amendment "seizure.  If copying a computer file amounts to a seizure, then the government cannot make and retain a copy absent special circumstances. On the other hand, if copying is not a seizure, then the government can make and retain the copy without restriction. The Fourth Amendment will limit looking through the copy because that is a Fourth Amendment "search. But what if the government wants to make a copy and hold it? Does that constitute a "seizure"?

Putting the preservation issue aside, a ruling that copying is not a seizure has extraordinary implications.  Whether you agree with that holding or disagree with it, I don't think it's a conclusion that is best reached in a precedential opinion in just two sentences.

And that's not all.  The Rosenow passage includes this sentence:

It also is worth noting that Rosenow consented to the ESPs honoring preservation requests from law enforcement under the ESPs' terms of use.

What were those terms of use?  Earlier in the decision, the court notes a fairly standard term in its privacy policy, here Yahoo's, that Yahoo may disclose information "to investigate, prevent, or take action regarding illegal activities . . . , violations of Yahoo's terms of use, or as otherwise required by law."  I assume that's the term they had in mind.

I'm not entirely sure how to read that "note." But read fully, it seems to be suggesting that agreeing to terms of use governing an Internet account can eliminate Fourth Amendment rights.  In particular, the provider telling you in the fine print when you register the account that they might end up giving your data to the government in some situations is treated as forever blanket consent to that as a matter of Fourth Amendment law.

As a matter of Fourth Amendment law, I think that would be wrong, for reasons I argued here.  But it's also about as far-reaching as you can get.  If agreeing to standard terms of service is consent to a possible seizure, then presumably it is also consent to a possible search.  That would mean that Fourth Amendment rights online can be reduced to zero through a standard online term no one reads, and that users can't avoid, that were created just to make sure no one can sue the providers for complying with valid legal process.  I don't want to be apocalyptic, but this seems really really bad.

IV.  A Possible Way Forward

What are the prospects for further review?  En banc review is possible. Counsel for Rosenow has received an extension for a petition for rehearing, until June 8.  When the petition for rehearing is filed, it's possible that the court could want an en banc panel to take a look at the preservation issue, which could lead to a new opinion. And I would certainly support a full look at the preservation issue by the en banc court.

But there's also a narrower way, should the court not want to go en banc on this or another part of the case.  It seems to me that another way forward would be for the panel to just amend the opinion, only changing that passage, to say the issue will not be addressed because it was not fully briefed and was therefore waived.

Here's some context.  Under Ninth Circuit practice, an issue is deemed waived unless 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). The appellant has to specifically and distinctly raise the issue, and it then has to be "supported by argument" in the opening brief, for the Ninth Circuit to rule on it. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir.1988).

As I read the opening brief, whether preservation is an unreasonable seizure was neither specifically and distinctly argued nor supported by argument in the opening brief.  Here's the full section from the opening brief:

The government's subpoenas and preservation requests were also illegal searches and seizures under Carpenter.

The recent Supreme Court case Carpenter v. United States, 138 S. Ct. 2206 (2018) also instructs that Rosenow had a legitimate right to privacy in his digital data, and that it violated the Fourth Amendment to interfere with that right without a warrant and probable cause. In Carpenter, the government obtained orders directing wireless carriers to provide cell-tower data regarding several criminal suspects. Id. at 2212. The Supreme Court reversed the resulting conviction, holding that warrantlessly obtaining this information violated the Fourth Amendment. In so doing, it rejected the notion that the third-party doctrine insulated this information from Fourth Amendment scrutiny, noting that thirdparty- doctrine cases did not deal with "confidential communications" and other private information. Id. at 2219. [FN158] The Court held that a warrant should have been required: "this Court has never held that the Government may subpoena third parties for records in which the suspect has a reasonable expectation of privacy" it observed. Id. at 2221 (emphasis provided). "If the choice to proceed by subpoena provided a categorical limitation on Fourth Amendment protection, no type of record would ever be protected by the warrant requirement." Id. at 2222.

Carpenter demonstrates that searches and seizures occurred here. The government seized Yahoo records through ongoing preservation requests, with no notice to Rosenow. And it both seized property and affirmatively prompted additional searches by issuing administrative subpoenas to Facebook. Under Carpenter, this should have required a warrant showing probable cause. Because the government had neither, this evidence should have been suppressed.

[FN158: Even the dissent seemed to concede that private communications—as opposed to mere location data—would not be governed by the third-party doctrine. See id. at 2230 (Kennedy, J., dissenting) ("Miller and Smith [the leading third-party cases] may not apply when the Government obtains the modern-day equivalents of an individual's own 'papers' or 'effects,' even when those papers or effects are held by a third party.") (citing Ex parte Jackson, 96 U. S. 727, 733 (1878) (letters held by mail carrier); United States v. Warshak, 631 F. 3d 266, 283-288 (6th Cir. 2010) (e-mails held by Internet service provider)).]

The claim here seems to be that, somewhere in the subpoenas and preservation requests, there were unreasonable searches and seizures.  Most of the passage seems to be arguing that the subpoenas were searches under Carpenter, a claim that in my view the Ninth Circuit properly rejected.

But here's the key.  As I read that passage, it doesn't seem to be separately and distinctly claiming that preservation is an unreasonable seizure, or offering a legal argument for why that might be.  The test for what is a seizure is not even mentioned. How the test might apply is not mentioned.  The test for the reasonableness of a seizure is not mentioned (much less applied) either, except to say that a warrant should have been required.  Compare that passage to the model brief I recently posted. It seems to me that the opening brief in Rosenow did not put the court on notice of the legal questions before it on the preservation issue.  You'd have to guess what the specific arguments were on the preservation issue, as the opening brief didn't flag them, much less make them.

I don't mean to criticize the hard-working counsel in the case. I believe Rosenow was the first case ever to get an opinion on the Fourth Amendment issues raised by preservation in the trial court decision.  To use an exam-grading analogy ('tis the season): The issue was spotted, unlike all the other cases where counsel have just missed it.  The opening brief raised a lot of issues, and went right up to the page limit, so it may not have been developed because of other issues in the case.  And I agree that the preservation issue was addressed in more detail in the Ninth Circuit reply brief.

But it seems to me that, if the court doesn't want to take this enormously important set of questions on en banc, it might be wise to amend the panel opinion to recognize that there's a lot more going on in the case than the panel realized given that the issue was not fully developed in the opening brief.  That would make no difference to the outcome. And it would just replace a single paragraph in the opinion, as the analysis paragraph would just become a waiver paragraph.  But it would mean that these critical and novel legal issues could wait for full briefing and decision in another case.

As always, stay tuned.

[UPDATE: I fiddled a bit with the post shortly after posting it.]

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Michigan friends, we're heading to Plymouth on Friday, May 20 for a forum on the Michigan Constitution, featuring litigators, scholars, and retired Michigan Supreme Court Justice Stephen J. Markman. It's not too late to register, RSVP today!

• Apparently, there's a whole industry based around Mexicans' crossing the border on business visas to sell blood plasma. Last year, Customs and Border Protection decided to put a stop to it. The plasma companies: This new visa rule will exsanguinate our industry. The district court: This isn't really about you. Dismissed for lack of standing. D.C. Circuit: No, it's definitely about them.
• Originally granted asylum at nine years old, Somali asylee faces removal after a slew of drug-related offenses. But wait, he argues, I still need protection, and the Board of Immigration Appeals erred when it held otherwise. First Circuit: It does appear that the immigration courts failed to consider all evidence of the risks of torture if deported, so this needs another look.
• John Doe: I want to marry either my biological parent or my adult child (unclear which), but the prudes in my home state of New York have criminalized incestuous marriages. Second Circuit: Dude. You haven't even proposed yet. Who knows if your child (or parent) will even say yes? No standing. (NB: Readers may recall Doe's lawyer as the practitioner who set the record for wildest (and possibly shortest) oral argument in the Second Circuit in 2019 and who has since enjoyed numerous run-ins with the Supreme Court's rules on amicus briefs.)
• Petersburg, Va. prison guard is convicted of making a false statement to law enforcement (but not for sexually assaulting a prisoner, for which he was also indicted). At sentencing, the court enforced the statutory maximum sentence for providing a false statement related to a sexual assault and varied upward, imposing the same 54-month sentence the guard would have received if convicted of sexual assault. Guard: That whole "related to a sexual assault" piece wasn't put before the jury, so the sentence can't stand. Fourth Circuit: Sure, that was a constitutional error, but the jury would have reached the same conclusion either way, so the error was harmless.
• Ecuadorian employees are demanding a fair share of their foreign employer's near-billion-dollar settlement check from the Ecuadorian government. Ecuador's law requires employer-employee profit sharing, after all. Fifth Circuit: The settlement came after a year of extreme loss caused by the government's expropriation, so the company didn't actually have profits and doesn't have to share nothin'.
• A grand jury indicts a Louisiana man for making one type of false statement on a firearm-purchase form, but at trial the judge instructs the jury that they can convict him for making either of two types of false statements. The man appeals—pro se. And wins a reversal. On plain-error review! What?! Yes. Fifth Circuit: The district court plainly erred by allowing a constructive amendment to the indictment.
• Fifth Circuit: Introducing testimonial hearsay of non-testifying witnesses violates the Confrontation Clause. And since we've had to say this a lot as of late, "we are concerned that the government has repeatedly failed to take the lesson."
• After Prentiss, Miss. man tells police officers he shot a guy, they arrest him. The man's aggravated-assault case is eventually nolle prossed, after which he sues. Man: The officers lacked probable cause because when I told them I shot that guy, I also told them I shot him in self-defense! District court: That is such a bad argument that you must pay the government $79,978.69 in attorney's fees. Fifth Circuit: Indeed.
• Is kicking a fellow legislator out of your caucus and cutting off party resources (because she accused the police of wrongdoing) a "legislative act"? Sixth Circuit: Sure is. The members of Ohio's House Democratic Caucus are absolutely immune from suit. (Eds. note: If accusing government officials of wrongdoing is cause for exile, you should start calling us Aristotle now.)
• Prisoners say that prison officials had a uniform policy of conducting prison-wide shakedowns that were deliberately punitive in violation of the Eighth Amendment. Prison officials say the uniform shakedown policy wasn't really all that bad. Is that enough to establish commonality for class certification? Seventh Circuit: Look, a "uniform policy" sounds pretty common to us. The district court can figure out which one of you is right on the merits.
• Responding to a 911 call for a robbery by a man carrying a large knife, a Lawrenceburg, Tenn. police captain comes across the man in a parking lot and says they need to talk. The man declines, unsheathes his knife, waving it as he walks around, and stops 30 feet from the captain. He repeatedly tells the cop to shoot him, which the cop does after the man takes a step. The man dies. District court: Qualified immunity. Sixth Circuit: Not so fast. No one was within 30 feet of the man, who had calmed down in the moments before he was shot, and the other officer at the scene testified that he didn't see a reason to shoot the man. A jury might find the captain used excessive force.
• Sunless, Inc. sells Mystic Tan Solution to be used in Mystic Tan booths, which it deems the Mystic Tan Experience. Indeed, the booths are designed to accept no solution other than its own. After growing tired of the Mystic Tan Solution, a salon chain jury-rigged the booths to operate with its own branded spray tan solution. Sunless: This will confuse customers who expect a genuine Mystic Tan Experience! Sixth Circuit: It seems that it will not, given that the chain doesn't sell the "Mystic Tan Experience." No preliminary injunction.
• In which the Seventh Circuit makes perfectly clear that standing is totally independent of the merits of a claim and that these would-be immigrant plaintiffs absolutely, positively, no doubt have standing. (Oh, and totally lose.)
• Seventh Circuit (en banc): Institutional liability under Title IX requires both actual knowledge of past sexual misconduct and deliberate indifference to it, which means the school's knowledge that a middle-schooler seemed infatuated with a security assistant doesn't make it liable for the assistant's subsequent sexual abuse of the girl. (Concurrence: There's an awful lot of potentially actionable misconduct that isn't "sexual misconduct," so maybe we should hold our horses on the broader holding here.)
• Arkansas man is sentenced to 40 years for threatening to assault and murder FBI agents, invoking white supremacy. If 40 years sounds like a lot, the defendant agrees. But the Eighth Circuit does not. While the punishment may exceed nationwide norms, the district court properly considered the sentencing factors and took the specific circumstances of the case into account, so it did not abuse its discretion.
• Foie-gras producers don't like the district court's ruling that California's foie-gras ban is constitutional. California doesn't like the district court's ruling that California law permits out-of-state foie-gras sales to Californians. But the Ninth Circuit (over a partial dissent) says the district court's ruling is good and the parties should both be forced to eat way, way more of it.
• California law prohibits adults under the age of 21 from buying long guns unless they first get a hunting license. It also bans young adults from buying semiautomatic centerfire rifles unless they are police or in the military. Firearms enthusiasts challenge the prohibitions under the Second Amendment, seeking a preliminary injunction. Ninth Circuit (over a dissent): No injunction as to the long guns, because the exception for hunting licenses is easy to satisfy. But the almost total prohibition on semiautomatic rifles is likely unconstitutional.
• After two Washington state hunters are caught with approximately $200k worth of animal trophies and meat illegally hunted across the border in Canada, Washington state officials offer them a deal: Forfeit the animal parts and stay out of trouble for a year, and we'll drop the charges. The brothers agree, but then sue for the return of the animal parts. Ninth Circuit: Estop right there.
• After being arrested for driving under the influence, Utah man twice asks police to kill him. Upon arrival at jail, he informs officials that he will kill himself if placed in a cell. When later asked if he was contemplating suicide, he says yes. Nevertheless, the man is removed from suicide watch and, the following morning, hangs himself in his cell. Tenth Circuit: Qualified immunity.
• It's true that the First Amendment generally protects the right to record police, but when police are dealing with a woman with an "altered mental status" who is freaking out specifically about your presence while filming, you'd better listen when police tell you to back off. So says the Tenth Circuit in a pro se lawsuit brought by "Stray Dog the Exposer."
• Last year, Florida enacted voting rules that were then challenged by the NAACP, the League of Women Voters, and other groups. District court: The changes were intended to make it harder for minorities to vote. Permanently enjoined. Eleventh Circuit: Un-enjoined. Legislatures are assumed to act in good faith, and federal courts really aren't supposed to change the law close to elections. So the changes remain in effect while an appeal is pending. [Eds. note: Spotted! A rare sighting of the neologism concurral—a concurrence in the denial of rehearing en banc.]
• In which a Florida attorney sues a non-existent corporation, gets a default judgment because the non-existent corporation can't respond, and then seeks a writ of execution against a real company. Eleventh Circuit: The arc of the moral universe is long, but it bends toward sanctions.
• And in en banc news, the Fourth Circuit will reconsider its characteristically cordial decision on the False Claims Act's scienter requirement.
• And in amicus appearance news, next week IJ will argue to the Nevada Supreme Court that ordinary people can sue the state government for violating their state constitutional rights, and that the court should decline the state's invitation to create new immunities under state law that would prevent a woman from suing prison officials who (against policy) subjected her to an unconsented, unproductive strip search while visiting her boyfriend, with no option to leave the prison instead. (An IJ case, involving Nevada Highway Patrol's confiscation of $86k in cash from a motorist, is on hold pending the outcome.)

This week, the Arizona Court of Appeals ruled in favor of IJ client Jerry Johnson. Jerry was traveling to Phoenix, Ariz. to buy a semi-truck for his transportation business when airport police stopped him, searched his belongings, and seized the $39,500 Jerry brought with him for his truck purchase. The trial court held that Jerry was not the owner of the money—and, therefore, could not challenge the seizure—because he had not shown his innocent ownership of the cash. This, the appellate court held, imposed a requirement on Jerry to prove his own innocence, violating due process and Arizona law. Jerry's case will now head back to the trial court where he will be able to defend against the government's unjust seizure of his lawfully earned cash.

Last week, I speculated that the Politico leak may have come from a cyberattack. Yesterday, the House Appropriations Subcommittee held a hearing on cyberattacks. Two judges warned that the judiciary is "vulnerable."

Judge Amy St. Eve (CA7) stated in her testimony:

In recent months we have discussed at length with the Subcommittee our need for additional resources to address the sharp increase in the number of cyber-attacks on Judiciary IT systems, and our need to modernize aging legacy applications critical to court operations and public access to court records. These cyber-attacks on the branch are increasing in both frequency and sophistication. Because of the sensitivity of the information, I am constrained in what I can say in this setting about vulnerabilities and cyber-attacks on the Judicial Branch, and we have shared some of that information with this Subcommittee's leadership. The Judiciary is clearly a high-value target for nation-state bad actors and cyber-criminals seeking to disrupt the administration of justice in the United States. 

I cannot overstate the gravity of the broad impacts across our society of cyber-attacks on the Judicial Branch. These attacks pose risks to our entire justice system, including civil and criminal court proceedings, law enforcement and national security investigations planned or underway, and trade secrets for businesses involved in bankruptcy proceedings or patent and trademark litigation. But more broadly, cyber-attacks on the branch are an attack on our democracy itself, seeking to sow distrust in the institutions of American government at home and abroad.

My post from last week made many of these similar points--in particular, highlighting how a cyberattack was a (successful) effort to "show distrust." Mission accomplished.

Reuters discussed the hearing.

"We are vulnerable," said St. Eve, a member of the Chicago-based 7th U.S. Circuit Court of Appeals and chair of the Judicial Conference of the United States' budget committee.

While St. Eve said she would not detail those vulnerabilities in a public setting, U.S. District Judge Roslynn Mauskopf, the director of the Administrative Office of the U.S. Courts, noted there had been a "sharp increase" in cyberattacks targeting the judiciary.

"I cannot overstate the gravity of the broad impacts across our society of cyber attacks on the judicial branch," she said. "These attacks pose risks to our entire justice system and more broadly are an attack on our democracy itself."

Mauskopf said that while the judiciary is not alone in needing to modernize its systems, it is a repository "for some of our nation's most sensitive law enforcement and national security information," which needs protection.

Judge Mauskopf addressed, indirectly, risks facing draft opinions:

She emphasized that point after Republican Representative Steve Womack of Arkansas asked about the judiciary's ability to guard against leaks like that of the U.S. Supreme Court draft opinion showing the court is poised to overturn the 1973 Roe v. Wade decision that protected abortion rights nationwide.

"Our systems house draft opinions," Mauskopf said. "That's another category of very sensitive, pre-decisional information that we house within our systems, which is yet another reason why we need to take steps to modernize our systems."

If the leak came from a cyberattack, the Supreme Court Marshal is out of her league. Her resources are insufficient. Only DOJ has the expertise to investigate such a sophisticated breach.

I still do not think a law clerk leaked this document. At this point, any law clerk willing to take on this burden would have confessed to his or her Justice, noisily resigned, and agreed to an interview on MSNBC to blow the whistle on our theocratic Supreme Court. Staying quiet now will simply put other clerks and staff through an unjustified inquisition. My thinking remains that this document likely came from some non-clerk who had access to the document, or some cyberattack.

From Tuesday's decision by Judge Cecilia Altonaga in Foronda v. DeSantis (S.D. Fla.) (for more on the substantive First Amendment question, see these posts):

Plaintiffs are Florida residents and taxpayers. They challenge the validity of a bill recently passed by the Florida legislature and signed into law, Senate Bill 4-C, that will allegedly "eliminat[e] a special legal status that allows Walt Disney World … to operate as an independent government[,]" known as the "Reedy Creek Improvement District[,]" in the Orlando area. {Although Plaintiffs filed suit in this District, the conduct at issue and the parties are more closely connected to the Orlando area, and the Complaint's caption treats this as a suit in the "Miami Division" of the "Middle District of Florida[.]" At the risk of stating the obvious, no such division exists, nor is the undersigned a judge in the Middle District.}

In total, Plaintiffs assert four claims against three Defendants, Florida Governor Ron DeSantis, Florida Secretary of State Laurel Lee, and Florida Director of the Department of Revenue Jim Zingale. In Count I, Plaintiffs allege that Senate Bill 4-C violates Florida's Reedy Creek Improvement Act and "contractual obligations" the state owes to Floridians (although the Complaint includes no attached contract). Count II alleges that the bill violates Florida Statute 213.015. Count III seeks relief under section 1983 for violations of "Disney's First Amendment rights[.]" …

At least three jurisdictional defects compel dismissal of the Complaint.

Read More

From Judge Beth Labson Freeman (N.D. Cal.) in Weiss v. Perez, decided Tuesday:

In this case, Elizabeth Weiss, a tenured professor of physical anthropology at San Jose State University, alleges that the University enacted Interim Presidential Directive PD 2021-03, which restricted access to and use of Native American remains housed at the University. The University claims the provisions in the Directive are required by recently amended state law and enacted as part of a process to prepare for repatriation of remains to a local Native American tribe, but Professor Weiss asserts that the policy was in fact promulgated in retaliation for her speech expressing opposition to repatriation of Native American remains. Professor Weiss brings two claims under 42 U.S.C. § 1983 for violation of her First Amendment rights and seeks an injunction barring the University from enforcing the Directive against her or retaliating against her for her views on repatriation….

The Court finds that the Muwekma Ohlone Tribe is a required party under Rule 19 to adjudication of Professor Weiss's claims about the Directive. Because the Tribe has sovereign immunity from suit and thus cannot be joined, Professor Weiss's claims regarding the Directive must be dismissed with prejudice.

The Court will, however, give Professor Weiss leave to amend her complaint as to her allegations about retaliation in the form of restricting access to and use of non-Native American remains and retaliation for her protected speech as it may pertain to her teaching and curational responsibilities….

You can read the (long) opinion, but here's the factual summary:

Professor Elizabeth Weiss is a tenured professor of physical anthropology at San Jose State University where she specializes in osteology, the study of human skeletal remains. Since 2004, she has served as the University's Collections Coordinator who is in charge of establishing protocols for and facilitating research on the University's collection of skeletal remains. The University's collection includes Native American remains, cultural items, and x-rays of these remains. This includes remains of ancestors of the Muwekma Ohlone Tribe, which comprises "all of the known surviving American Indian lineages aboriginal to the San Francisco Bay region who trace their ancestry through the Missions Santa Clara, San Jose, and San Francisco."

Read More