The Volokh Conspiracy

Retraction: An earlier episode of the Cyberlaw Podcast may have left the impression that I think Google hates mothers. I regret the error. It appears that, in reality, Google only hates Republican mothers who are running for office. But to all appearances, Google really, really hates them. A remarkable, and apparently damning study disclosed that during the most recent federal election campaign, Google's Gmail sent roughly two-thirds of GOP campaign emails to users' spam inboxes while downgrading less than ten percent of the Dems' messages. Jane Bambauer lays out the details, which seem to refute most of the excuses Google might offer for the discriminatory treatment. Notably, neither Outlook nor Yahoo! mail showed a similar pattern. Tatyana thinks we should blame Google's algorithm, not its personnel, but we're all eager to hear Google's explanation, whether it's offered in the press, before the Federal Election Commission (FEC), in court, or in front of Congressional investigators after the next election.

Jordan Schneider helps us return to China's cyber policies after a long hiatus. Things have not gotten better for the Chinese government, Jordan reports. Stringent lockdowns in Shanghai are tanking the economy and producing a surprising amount of online dissent, but with Hong Kong's coronavirus death toll in mind, letting omicron spread unchecked is a scary prospect, especially for a leader who has staked his reputation on dealing with the virus better than the rest of the world. Among the results is hesitation in pursuing what had been an aggressive techlash regulatory campaign.

Tatyana Bolton pulls us back to the Russian-Ukrainian war. She notes that Russia Is not used to being hacked at anything like the current scale, even if most of the online attacks turn out to be pinpricks. She also flags Microsoft's report on Russia's extensive use of cyberattacks in Ukraine. All that said, cyber operations remain a minor factor in the war.

Michael Ellis and I dig into the ODNI's intelligence transparency report, which inspired several different takes over the weekend. The biggest story was that the FBI had conducted "up to" 3.4 million searches for U.S. person data in the pool of data collected under section 702 of the Foreign Intelligence Surveillance Act (FISA). Sharing a brief kumbaya moment with Sen. Ron Wyden, Michael finds the number either "alarming or meaningless," probably the latter. Meanwhile, FISA Classic wiretaps dropped again in the face of the coronavirus. And the FBI conducted four searches without going to the FISA court when it should have, probably by mistake.

We can't stay away from the pileup that is Elon Musk's Twitter bid. Jordan offers views on how much leverage China will have over Twitter by virtue of Tesla's dependence on the Chinese market. Tatyana and I debate whether Musk should have criticized Twitter's content moderators for their call on the Biden laptop story. Jane Bambauer questions whether Musk will do half the things that he seems to be hinting. I agree, if only because European law will force Twitter to treat European sensibilities as the arbiter of what can be said in the public square.

Jane outlines recent European developments showing, in my view, that European policymakers aren't exactly running low on crazy. A new EU court decision opens the door to data protection class actions, undermining the jurisdictional limits that have made life easier for big U.S. companies. I predict that such lawsuits will also mean trouble for big Chinese platforms.

And that's not half of it. Europe's Digital Services Act, now nearly locked down, is a mother lode of crazy. Jane spells out a few of the wilder provisions – only some of which have made it into legal commentary.

Orin Kerr, normally a restrained and professorial commentator on cyber law, is up in arms over a recent 9th Circuit decision holding that a preservation order is not a seizure requiring a warrant. Michael, Jane, and I explore Orin's agita, but we have trouble sharing it.

In quick hits:

• Jane makes short work of a report expressing shock that Amazon uses data from Alexa smart speakers pretty much exactly the way you'd expect it to.
• Michael and I unpack the latest move in the prosecution of Uber's former Chief Security Officer, Joe Sullivan.
• Jane lays out what's different in Colorado's new privacy law. Spoiler:  Just enough to make a federal privacy law with preemption look good to business.
• Michael and I wish the Biden administration well in its effort to get much-needed new authorities to address the risks of drone attacks here at home.

Download the 405th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

After my spate of blog posts from Monday evening (1, 2, 3, 4), I took the time to read the apparent Dobbs draft opinion. It is a tour de force. Justice Alito meticulously dissects, and forcefully responds to, every conceivable position in favor of retaining Roe and Casey. I could teach an entire law school seminar class on this opinion. It touches on nearly every facet of constitutional law. Moreover, the opinion carefully addresses the concerns of other members of the majority. Alito cites Justice Gorsuch's book. Alito discusses safe harbor laws, which seemed important to Justice Barrett. Alito repeatedly cites Justice Kavanaugh's Ramos concurrence, and calls on returning the issue to the democratic process. This is an opinion designed to hold five, as the saying goes.

Will this opinion, or a version of it, ever see the light of day? Who knows. We are now in uncharted territory. For all we know, the Court issues a one sentence per curiam opinion overruling Roe, and remanding the case to the Fifth Circuit for further proceedings.

Still, I think the penultimate paragraph in Part IV provides the course of action going forward:

We do not pretend to know how our political system or society will respond to today's decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly.

In a perverse way, due to the leak, the Court can foresee what will happen when the opinion is formally released. Turn on MSNBC and log onto Twitter. We know exactly what would happen. Still, that foresight should be irrelevant. The justices lacks "authority to let that knowledge influence [their] decision." Let the press do their job. And the Justices can will do their job.

And even more perversely, Justice Kagan's dissent became much more difficult to write. Predictably, she would warn about how this decision would harm the Court's institutional legitimacy, yadda yadda yadda. But that bandaid was already ripped off. Everyone knows how this decision will be received because--again--we can watch MSNBC and doomscroll through Twitter. It will be hard for Kagan to even address this issue without talking about the draft opinion that everyone has already seen. Josh Gerstein is the elephant in the room. Politico's leak deflated the inevitable Dobbs dissent.

I do not know what Tuesday will bring, but we should hear from Chief Justice Roberts shortly. As of Monday afternoon, all nine Justices were in the Court for Justice Stevens's memorial. They may be called back to duty right away. Here they were in happier times:

We've been told that Chief Justice Roberts is playing the long game. For the past two decades, he has been carefully moving pieces on a three-dimensional chess board. Indeed, Roberts has been setting the stage for this long-game since the Reagan administration. And, the crowning achievement of this plan--the White Whale!--would be overruling Roe v. Wade. Or so the story goes.

But in the interim, things did not go to plan. Justice Scalia suddenly died, and we almost had Justice Garland. But Senate Republicans refused to give him a hearing, Trump won, and we got Justice Gorsuch. Justice Kennedy retired, and we got Justice Kavanaugh. Then, Justice Ginsburg suddenly died, and we got Justice Barrett.

Tell me, can any "long game" possibly plan for all these eventualities? In 2017, I wrote that Roberts's "long game" suffers from what Hayek described as the "fatal conceit."

Fisher and Harris illustrate the fundamental problem with a long game. The notion that a single Chief Justice can single-handedly shape the law over the course of decades, as if he were moving pieces around on a three-dimensional chess set, suffers from what F.A. Hayek referred to as the "fatal conceit." Our society as a whole is infinitely more complex than any one person could ever possibly understand. It is the "fatal conceit" of central planners that they presuppose enough knowledge to control all aspects of human existence.

And Leakgate illustrates once again the problem with treating the Supreme Court like some chess match. No one--not even John Roberts--is omniscient enough to steward the Court as if it were a role-playing game. Indeed, I think many of the Court's current problems, including the leak, stem from Roberts's blatant attempt to rest his rulings on political currents. NFIB v. Sebelius established the playbook. It is not surprising that someone, no matter how poorly informed, though it would be a good idea to leak this draft.

I have now had a few hours to think through the apparent leaked Dobbs majority opinion. (My tentative thoughts are here). Let's play a game of whodunnit?

To begin, there are a few clues that can be derived from the document itself. First, at the top of the first page is the phrase "1st Draft." And it is highlighted in yellow. The rectangle around the phrase is perfectly angled. This was done with a digital highlight feature, and not a real highlighter. I can reasonably infer this document was printed on a color laser printer. Most people would simply print a 98 page document on a traditional black-and-white printer. Most high-quality color printers leave a watermark (tracking dots) on every page. Even though this document was scanned by Politico, the authorities can probably trace it.

Second, in the upper right-hand corner of the document is a distribution list. The document is from Justice Alito. It was circulated on February 10, 2022. Above Alito's name are the names of the other eight Justices. But none of those names are checked or highlighted in any way. It isn't clear to me that this specific document was ever actually distributed to the other chambers.

Third, Dobbs was argued on December 1, and this draft was circulated about two months later on February 10, 2022. Now, this draft is nearly three months old. There may have been changes. On quick skim, I found at least one typo. On page 61, the draft opinion cites Ferguson v. Schrupa; it is Ferguson v. Skrupa.

So whodunnit? I can think of three possible answers.

First, this leak may have come from the chambers of a liberal Justice. Under this theory, the leak was designed to create a backlash, and pressure a conservative Justice to defect from Alito's opinion. But this theory makes no sense. If anything, this leak from a liberal chamber will entrench the five-member majority to avoid the appearance that the pressure campaign worked.

Second, this leak may have come from the chambers of a conservative Justice. Under this theory, the leak was designed to prevent a conservative Justice from defecting from Alito's opinion. But this theory also makes no sense. If anything, this leak from a conservative chamber would infuriate a swing Justice, and push them out.

Any clerk must know that this sort of leak would ruin their careers, and lead to possible disbarment or criminal prosecution. And a Justice must know that authorizing this leak would probably lead to impeachment proceedings. I do not think this leak came from a chamber.

There is a third option: the leak did not come from a chambers. I hinted at that theory in my initial post.  Rather, the leak may have come from someone with access to the Supreme Court's draft opinions. And history suggests that this sort of leak is possible. Josh Gerstein (yes, that Josh Gerstein) wrote an essay for Politico tonight about past leaks from the Supreme Court:

In 1979, ABC News Supreme Court correspondent Tim O'Brien went on air with reports predicting the outcome of two decisions that were days away from release. Chief Justice Warren Burger launched an inquiry into whether anyone at the court had breached protocol, and a Government Printing Office employee involved in setting type for the court's rulings was transferred to a different division. The staffer denied leaking any information.

Here is my completely uninformed speculation. This document was typeset and printed in a formal fashion. This document was also likely not circulated to chambers, but was floating around. And whoever had this document does not yet have access to the more recent drafts, or draft dissents.

The Chief Justice should get to the bottom of this situation immediately, and be transparent about the investigation.

By now, you should have seen the Politico story that links to a purported majority opinion in Dobbs. Yes, there was a leak. No, I am not going to link to the story. Here are my tentative thoughts.

First, where did the leak come from? Most people are presuming this leak came from someone with access to the opinion, such as a Justice or a clerk. That presumption is probably correct, but it is also possible there was some illegal exfiltration of the document. I don't want to make light of the situation, but a person self-immolated on the steps of the Supreme Court to draw attention to environmental justice. People who are fanatical about abortion may go to great lengths to support their cause.

Second, Roberts has an absolute obligation to conduct a thorough and transparent investigation. And at the end of that investigation, Roberts must publicly identify the persons who are responsible for this leak--that includes Justices and clerks. Heads must roll. Clerks cannot fall on their swords to save their bosses. Anyone implicated in Leakgate (yes, I dubbed a term) should be referred to the Department of Justice for potential criminal activity, including theft of government property. And now there may actually be a need for impeachment proceedings. If Roberts cannot resolve this situation, he must resign. Yes, I said he should resign two years ago, but now I really mean it.  A resignation would mean giving Biden another Supreme Court nomination. So be it. I don't care. Roberts has been an utterly ineffective Chief, who will never fill the shoes of his predecessor, Chief Justice Rehnquist. It's time to hang 'em up, Johnny. Not even Warren Burger presided over such a dysfunctional building. Can anyone say Chief Justice Garland?

Third, we may not be done with leaks. Politico only published a purported majority opinion from Justice Alito. And per Politico, it was joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. We do not know how the Chief will vote. What if subsequent to this draft, one of the votes in the majority changed--as WSJ warned about? What if there is another circulating concurrence, or plurality opinion? If the majority opinion leaked, other separate writings may leak.

Fourth, Politico got the scoop. Not the Washington Post or New York Times or WSJ or NPR. Or, perhaps other outlets had a copy of the opinion, but only Politico was willing to run it. I still think WSJ had the opinion last week, in light of their editorial. The Supreme Court is in worse shape than I could have imagined.

Fifth, the Court should issue the Dobbs opinion as soon as possible. Do it tomorrow. Don't wait till Thursday, or next Monday, or the end of June. The longer this process drags on, the worse the Court will be.

Sixth, if any members of the majority changed their vote in response to the leak, that change will be seen as a direct response to this leak. I can't quote Chief Justice Rehnquist's admonition in Casey enough.

The joint opinion's insistence on preserving the form, if not the substance of the rule, can just as easily be viewed as a surrender to those who have brought political pressure in favor of that decision. Once the Court starts looking to the currents of public opinion regarding a particular judgment, it enters a truly bottomless pit from which there is simply no extracting itself.

At this point, the Court is stuck. The only way to escape the bottomless pit is to fight back against a campaign to alter votes.

My speculation that there was a leak in Dobbs looks stronger. Josh Gerstein and Alexander Ward of Politico have published a scanned document that purports to be a first draft of Dobbs that was circulated on February 10, 2022. No, I am not going to link to it. I will discuss the import of this leak in another post.

Last week during oral argument in Kennedy v. Bremerton School District, Paul Clement urged the Court to overrule Lemon. Even if American Legion effectively limited Lemon to a very narrow subset of cases, lower courts, and more importantly, government officials, continue to cite Lemon. But why? Justice Gorsuch's concurrence in Shurtleff offers a theory: Lemon allows government officials to reach the result they want. Lemon is like a video game!

Ultimately, Lemon devolved into a kind of children's game. Start with a Christmas scene, a menorah, or a flag. Then pick your own "reasonable observer" avatar. In this game, the avatar's default settings are lazy, uninformed about history, and not particularly inclined to legal research. His default mood is irritable. To play, expose your avatar to the display and ask for his reaction. How does he feel about it? Mind you: Don't ask him whether the proposed display actually amounts to an establishment of religion. Just ask him if he feels it "endorses" religion. If so, game over.

And, invariably, when playing the Lemon game, judges can select the "reasonable observer" that feels the utmost umbrage:

First, it's hard not to wonder whether some simply prefer the policy outcomes Lemon can be manipulated to produce. Just dial down your hypothetical observer's concern with facts and history, dial up his inclination to offense, and the test is guaranteed to spit out results more hostile to religion than anything a careful inquiry into the original understanding of the Constitution could sustain. Lemon may promote an unserious, results-oriented approach to constitutional interpretation. But for some, that may be more a virtue than a vice.

Perhaps the "reasonable observer" standard should be relabeled the "irritated secularist" standard.

Still, Gorsuch overdid the Lemon analogies a bit much. I counted three separate "grave" references.

Dragging Lemon from its grave may be your only chance.

Second, it seems that Lemon may occasionally shuffle from its grave for another and more prosaic reason. 

To justify a policy that discriminated against religion, Boston sought to drag Lemon once more from its grave. 

We got the point after the first disinterment. Sometimes, less is more.

Alas, only two Justices joined this concurrence. The lower courts have a green light to keep using Lemon. SCOTUS can't catch them all.

Whenever I read a new Justice Breyer majority opinion, I brace myself. Not because I will disagree. But because the decision will be impossible to teach. Breyer will identify a host of factors, that can be weighed in indeterminate ways, which yield a result that cannot be clearly explained. I will miss Justice Breyer's quirky questions from the bench, but I will not miss his confounding caselaw.

Breyer's majority opinion in Shurtleff v. City of Boston was true to form. It includes this paragraph:

In answering these questions, we conduct a holistic inquiry designed to determine whether the government intends to speak for itself or to regulate private expression. Our review is not mechanical; it is driven by a case's context rather than the rote application of rigid factors. Our past cases have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public's likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.

Justice Alito responds forcefully to Justice Breyer's "factorized" jurisprudence:

The factors relied upon by the Court are thus an uncertain guide to speaker identity. But beyond that, treating these factors as a freestanding test for the existence of government speech artificially separates the question whether the government is speaking from whether the government is facilitating or regulating private speech. Under the Court's factorized approach, government speech occurs when the government exercises a "sufficient" degree of control over speech that occurs in a setting connected with government speech in the eyes of history and the contemporary public, regardless of whether the government is actually merely facilitating private speech. This approach allows governments to exploit public expectations to mask censorship. . . .

And like any factorized analysis, this approach cannot provide a principled way of deciding cases. The Court's analysis here proves the point. The Court concludes that two of the three factors—history and public perception—favor the City. But it nonetheless holds that the flag displays did not constitute government speech. Why these factors drop out of the analysis—or even do not justify a contrary conclusion—is left unsaid. This cannot be the right way to determine when governmental action is exempt from the First Amendment.

If my math is right, this case will likely be Justice Breyer's final First Amendment decision. Regrettably, courts will have to struggle with the Shurtleff factors for years to come.

One other note on Justice Alito's concurrence. He flags an issue that may become important: do states have free speech rights with respect to the federal government?

That is because the government-speech doctrine is not based on the view—which we have neither accepted nor rejected—that governmental entities have First Amendment rights. FN2

FN2: The text of the First Amendment also seems to exclude the possibility that the Federal Government has a constitutional right to speak, since it prohibits "Congress" and other federal entities and actors from "abridging the freedom of speech." A different analysis might be called for in a case in which the Federal Government attempts to restrict the speech of another sovereign. If the States had First Amendment rights against the Federal Government at the time of ratification, it is not obvious why that right would be eliminated by the incorporation of the speech rights of private citizens against the States through the Fourteenth Amendment. 

Howard Wasserman writes at Prawfs:

A different issue--and possible future bomb--involves whether government has speech rights. Alito drops a footnote arguing the federal government does not have such a right, but that states might have free-speech rights against the federal government. The text of the First Amendment--prohibiting Congress from abridging--eliminates any free-speech right for the federal government against itself. But extending that restriction to state governments in the 14th Amendment as to private individuals does not answer the question of the speech rights of states as to the fed. So is the next line of lawsuit against anything policy from a Democratic administration going to be a claim that it violates Texas' free-speech rights?

Stay tuned.

Today, the Supreme Court decided Shurtleff v. City of Boston. Here, Boston allowed many private groups to raise flags at City Hall, but rejected a flag that included a cross. The city argued that the flag-raising program was government speech. The First Circuit agreed. The Supreme Court unanimously reversed.

Chief Justice Roberts assigned the majority opinion to Justice Breyer. This assignment makes sense. Breyer wrote the majority opinion in Walker v. Texas Division, Sons of Confederate Veterans. And Breyer is very much a son of Boston. He no doubt walked down Cambridge Street many times, and saw the flags flapping in the wind. That experience no doubt informed the first paragraph of Part I-A of the majority opinion:

The flagpole at issue stands at the entrance of Boston City Hall. See Appendix, infra. Built in the late 1960s, Boston City Hall is a raw concrete structure, an example of the brutalist style. Critics of the day heralded it as a public building that "articulates its functions" with "strength, dignity, grace, and even glamor." J. Conti, A New City Hall: Boston's Boost for Urban Renewal, Wall Street Journal, Feb. 12, 1969, p. 14. (The design has since proved somewhat more controversial. See, e.g., E. Mason, Boston City Hall Named World's Ugliest Building, Boston Herald (Nov. 15, 2008), https://www.bostonherald.com/2008/11/15/boston-city-hall-named-worlds-ugliest-building.)

Breyer no doubt has the expertise to comment on the architectural style of Boston City Hall. After all, he is a juror for the Pritzker Architecture Prize. But this passage has absolutely nothing to do with the legal issue at hand. Nothing. (Well, "brutalist style" may describe how Justice Gorsuch savaged the Lemon test--more on that concurrence later.) This frolic and detour has no place in the U.S. Reports.

These sentences remind me of Justice Blackmun's opinion in Flood v. Kuhn. This case upheld the antitrust exemption for Major League Baseball. (Former-Justice Goldberg argued on behalf of baseball player Curtis Flood.)  Justice Blackmun's opinion is perhaps most remembered for Part I, which paid tribute to famous baseball players. He even quoted Casey at the Bat. This lengthy discussion was completely gratuitous and irrelevant to the legal issues at hand. In response, Justices White and Chief Justice Burger dissented from Part I of the majority opinion:

MR. JUSTICE WHITE joins in the judgment of the Court, and in all but Part I of the Court's opinion.

MR. CHIEF JUSTICE BURGER, concurring. I concur in all but Part I of the Court's opinion . . .

I would have dissented from Justice Breyer's discussion of architecture.

Justice Breyer had one more reference from Fenway, that Justice Sotomayor may have considered dissenting from:

Boston could not easily congratulate the Red Sox on a victory were the city powerless to decline to simultaneously transmit the views of disappointed Yankees fans.