Thoughts on the Oral Argument in the Fifth Circuit Cell-Site Case

The Fifth Circuit held its oral argument in its Fourth Amendment cell-site case today; the audio is here. On the whole, I thought the argument was pretty unilluminating. The judges spent a lot of time trying to figure out the statute and the facts, but they had surprisingly few questions about the Fourth Amendment questions DOJ and the amici argued. Here’s a quick run-down of the argument, followed by my thoughts:

I. A Summary of the Argument

A) Nathan Judish of DOJ goes first. The first 10 minutes or so are spent just trying to understand how the Stored Communications Act works, and exactly what records the government is seeking. DOJ apparently found out that the phone company doesn’t have some of the records it asked for in the original 2703(d) order applications. If the phone company doesn’t have the records, DOJ can’t get them, so the facts are different now than they were before. As a result, DOJ wants a ruling on the assumption that it is going to get less information than it asked for originally.

B) After about 10 minutes, Judish gets to merits of his Fourth Amendment argument. The reaction of the first judge — Judge Dennis, I think — is that perhaps the magistrate judge shouldn’t have reached the Fourth Amendment issue but should have instead read the statute to give him the discretion to either demand a warrant or instead issue the 2703(d) order on statutory grounds. Perhaps they should remand and tell the judge just to say that he is demanding a warrant because the statute lets him demand a warrant if he wants to, as the Third Circuit has held. Judish responds that the statute doesn’t give the judge that discretion, and the Third Circuit’s decision is wrong. The same judge then asks if that means the court needs to reach the Fourth Amendment issue. Judish expresses DOJ’s view on that although the statute doesn’t give the magistrate judge the discretion to demand a warrant on statutory grounds, DOJ does believe that the statute gives magistrate judges the discretion to consider the constitutionality of the statute in an ex parte hearing if the magistrate wants to, subject to the presumption of constitutionality. So as I understand it, DOJ’s position is that the Fifth Circuit doesn’t have to reach the constitutionality of the statute if it doesn’t want to reach it (as it has the same discretion as the magistrate judge to rule or not rule on the constitutional issue), but DOJ think that it should reach it in this case.

C) A second judge — Judge Reavley, I think — asks if we know exactly what records the government will get back when the order is executed. He expresses concern that we don’t know exactly what records DOJ is going to get, so we can’t be sure how the Fourth Amendment will apply. In particular, the technology is changing quickly, so maybe DOJ will end up getting more information today than it would have in the past. This sounds like a ripeness argument, but the judge doesn’t suggest that; to the contrary, he seems to be thinking that perhaps the uncertainty of what records the government might get is reason for the magistrate to be extra cautious and require a warrant just in case the government gets a lot more information than it is expecting.

D) There’s surprisingly little engagement with the DOJ’s substantive Fourth Amendment argument. Judish makes the pitch largely based on Smith v. Maryland, but the judges didn’t seem to have much of a reaction one way or the other.

E) Susan Freiwald goes next representing herself. Freiwald points out that the 2703(d) applications in this case are asking for more information than DOJ is now saying it wants. Freiwald then makes her Fourth Amendment argument that cell-phone tracking should always be protected by the Fourth Amendment. She speaks mostly uninterrupted for almost 10 minutes, with only a few questions (on some minor points) from Judge Clement. At one point Judge Clement suggests that perhaps Magistrate Judge Smith was not exactly a “neutral” magistrate in this case, as he pretty clearly has strong views on the issue and has been speaking and writing about it.

F) Hanni Fakhoury of the EFF speaks next on behalf of the privacy groups. He wants a broad ruling on cell-site data always requires a warrant. As with the arguments of Freiwald and Judish, though, there is surprisingly little questioning of Fakhoury on the Fourth Amendment issue. Two questions/comments stood out. First, Judge Reavley chimes in that he can’t see the court entering a broad ruling that a warrant is required for cell-site data, and suggests that the Court should take more of a case-by-case approach. Second, Judge Clement points out that you’re not required to carry a cell-phone: if you’re up to no good, you don’t have to use one.

G) In his rebuttal, Judish points out that the statute already regulates historical cell-site data. Judge Clement asks why the government can’t just get a warrant; how much harder is it to get a warrant as compared to a 2703(d) order? Judish responds that the two standards are different, and it’s easier to satisfy the lower threshold.

II. My Thoughts on the Argument

A) It’s hard to know how the judges are going to rule. The judges asked a lot of questions about how the statute works and what the facts were, and yet relatively few questions on the Fourth Amendment merits: All three advocates spoke at length on the Fourth Amendment merits with little interruption. So it’s hard to know what the judges were thinking.

B) DOJ’s position at the oral argument was puzzling in a number of ways. First, I’m confused as to what the facts are under DOJ’s view. Do we assume DOJ is going to get everything it asked for in the application, or just what DOJ says it wants now? What records are we to assume that DOJ will get? I was also puzzled by DOJ’s view that magistrate judges have the discretion to rule on constitutional questions if they feel like it, but they don’t have to if they don’t want to. Based on my experience at DOJ, this sounds like the kind of a position DOJ adopts less because they think it’s right and more because DOJ knows that DOJ has to play nice with magistrate judges as a repeat player; nothing annoys judges like telling them they lack the power to do something, so it’s safer to just say that the issue is discretionary.

C) I was of course disappointed that no judge mentioned the ripeness concerns that I raised in my amicus brief. I wasn’t particularly surprised, though: Raising an issue in an amicus brief not briefed by the parties is an uphill battle, especially when the case involves new technologies and a complicated statute that themselves present a challenge for judges to understand. With that said, much of the argument was spent grappling with the issues that makes this dispute not ripe for adjudication, such as the uncertainty about what DOJ is asking for and what records DOJ will get back. I don’t know how the judges will deal with these uncertainties, but the ripeness problems didn’t make an express appearance. We’ll see if the issue ends up playing into the opinion. As always, stay tuned.