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  1. Iterate 67: Denys Zhadanov of Readdle talks marketing and the App Store | iMore

    Iterate is our designer-focused podcast where we discuss interfaces, icons, and experience. It’s like DVD extras for apps! On this episode Denys Zhadanov of Readdle talks to Marc, Seth, and Rene about their suite of iPhone and iPad productivity apps, how they got them all talking to each other, the challenges unifying a brand, and making business work in the App Store. Subscribe and listen along!

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    http://www.imore.com/iterate-67-denys-zhadanov-readdle-talks-marketing-and-app-store

    —Huffduffed by davidr

  2. 5by5 | 5by5 Specials #4: Kindacritical

    Dan Benjamin is joined by Merlin Mann and Marco Arment for a very special show. In this Hypercritical-like episode, the trio discuss a wide-range of topics, from Google to Apple to software development, and the relationship between consumers and the compa

    http://5by5.tv/specials/4

    —Huffduffed by davidr

  3. Riley v. California - Cell Search 2

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    Transcript: 

    ORAL ARGUMENT OF JEFFREY L. FISHER ON BEHALF OF PETITIONER

    Chief Justice John G. Roberts: We’ll hear argument first this morning in Case 13-132, Riley v. California.

    Mr. Fisher?

    Jeffrey L. Fisher: Mr. Chief Justice, and may it please the Court:

    This case involves applying the core protection of the Fourth Amendment to a new factual circumstance.

    It has always been the case that an occasion of an arrest did not give the police officers authority to search through the private papers and the drawers and bureaus and cabinets of somebody’s house, and that protection should not evaporate more than 200 years after the founding because we have the technological development of smartphones that have resulted in people carrying that information in their pockets.

    Justice Anthony Kennedy: Just — just to test the principle for why the police can search and seize some — some objects.

    Consider a gun.

    The arrestee has a gun on his person and the police take the gun.

    Is part of the reason for that seizure to obtain evidence of the crime or is it just for the safety of the officer and the safety of the community?

    Jeffrey L. Fisher: Well, what this Court said in Robinson at Page 235 is the reason supporting the authority for a search incident to arrest are the two Chimel factors, which are gathering evidence to prevent its destruction, and officer’s safety.

    Now—

    Justice Anthony Kennedy: What about gathering evidence in order to make the case?

    For instance, with the gun, could they take fingerprints?

    The — the gun is in the police station where the arrestee is being booked.

    A, could they take fingerprints?

    B, could they copy the serial number?

    C, could they see how many shells were left in the chamber?

    They obviously have to empty it for safety purposes.

    All for the purpose of building the case, of — of obtaining evidence?

    Jeffrey L. Fisher: —Yes, of course that’s done every day.

    Once the gun is in the police — the police department’s lawful possession, I think Edwards says that they can do all that.

    Justice Anthony Kennedy: So — so if — if the proposition then, if the principle then is that some objects that are obtained from the arrestee can be examined in order to build the State’s case, is that at least a beginning premise that we can accept in your case, although, obviously, there are problems of the extent and intrusiveness of the search that are — are your case, but not in the gun hypothetical.

    Jeffrey L. Fisher: Well, Justice Kennedy, the Court has never described that as one of the things.

    If you want to think about this case the way you thought about the automobile search in Gant, it would be a beginning premise; but I think you’re right, that even if that were a beginning premise, it would be only that, a beginning.

    In Footnote 9 in Edwards, this Court said that any search incident to arrest still has to satisfy the Fourth Amendment’s general — general reasonableness.

    Justice Anthony Kennedy: I think you’re right that Gant is probably the best statement in support of the principle that I’ve — I’ve suggested, and then you might say, well, that’s limited to automobiles—

    Jeffrey L. Fisher: Right.

    Justice Anthony Kennedy: —and then we’re back where we started.

    Jeffrey L. Fisher: Right.

    And there’s important things to understand if you want to start thinking about Gant, because both in terms of its history and its modern application, it’s dramatically different from what we have here.

    Justice Samuel Alito: Well, Mr. Fisher, before we do that, have you been accurate in what you said about Robinson and about the Court’s cases?

    In Weeks, which was quoted in Robinson, the Court said:

    "The right, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. "

    Is that historically inaccurate?

    Do you want us to repudiate that?

    Jeffrey L. Fisher: No, Your Honor.

    What Weeks said, you quoted it, fruits and instrumentalities of the crime have always been something that could be seized from a person.

    Now, Weeks, of course, as this Court said in Robinson itself, was dicta.

    And there was that historical authority to take fruits and evidence — I’m sorry — fruits and instrumentalities of the crime.

    Justice Antonin Scalia: Did it say instrumentalities or evidence?

    Which did it say?

    Jeffrey L. Fisher: Weeks used—

    Justice Antonin Scalia: Because Justice Alito said evidence.

    You — you changed it to instrumentality.

    Is one of you wrong?

    Jeffrey L. Fisher: —Weeks uses the word “ evidence ”, but, Justice Scalia, because it was not at issue in that case, the — the Bishop treatise that you cited in your Thornton concurrence talks about tools and instrumentalities.

    Now, I don’t think we have to debate that here, because even if we’re in a world where the police can seize some evidence and keep it and use it for the prosecution simply for that reason, even if they don’t fear destruction, there are still very, very profound problems with searching a smartphone without a warrant, because even under the Robinson rule, this Court has recognized, for example, when it comes to blood draws, search — something like a strip search that might occur at the scene, there are limits even to the Robinson rule.

    So it brings us—

    Justice Samuel Alito: Well, smartphones — smartphones do present difficult problems.

    But let me ask you this: Suppose your client were an old-school guy and he didn’t have — he didn’t have a cell phone.

    He had a billfold and he had photos that were important to him in the billfold.

    He had that at the time of arrest.

    Do you dispute the proposition that the police could examine the photos in his billfold and use those as evidence against him?

    Jeffrey L. Fisher: —No.

    That’s the rule of Robinson, that any physical item on a arrestee can be seized and inspected and then used as evidence if it’s useful evidence.

    We draw a line.

    Justice Samuel Alito: Yes.

    What is the difference between looking at hardcopy photos in a billfold and looking at photos that are saved in the memory of a cell phone?

    Jeffrey L. Fisher: The difference is digital information versus physical items.

    Physical items at the scene can pose a safety threat and have destruction possibilities that aren’t present with digital evidence.

    What is more, once you get into the digital world, you have the framers’ concern of general warrants and the — the writs of assistance.

    Justice Samuel Alito: Well, how does that apply — how does that apply to these hardcopy photos in the billfold?

    They don’t present a threat to anybody.

    And I don’t see that there’s much of a difference between — the government argues there’s a greater risk of the destruction of digital evidence in a cell phone than — than there is in the photos.

    So I don’t quite understand how — how that applies to that situation.

    Jeffrey L. Fisher: Well, let me take those one thing at a time.

    I take it the theory of Robinson, this is the theory the government itself propounded, is that any physical item, because it contained a razor blade or a pin or anything, needs to be inspected to be sure.

    And so you have a categorical rule because of the ad hoc nature of arrests that police don’t have to distinguish physical items one from the other.

    Justice Anthony Kennedy: Well, but the — but in the wallet — we’ll just stick with Justice Alito’s hypothetical — they find a business card or something which shows a car rental service.

    Can they turn the card over and read it?

    They’re not looking for a pin or an explosive.

    They’re trying to read what’s on the card.

    Can they do that?

    Jeffrey L. Fisher: I think they can, if nothing else, under plain view once it’s in their hand, Justice Kennedy.

    But I really don’t want to fight—

    Justice Anthony Kennedy: No, they turn — they turn the card over.

    Jeffrey L. Fisher: —I think that is fine under the categorical rule.

    I think what you have in Robinson is a categorical rule that obviates these exact difficult case-by-case determinations.

    You can make an argument, and if I needed to, if it were a diary case or a billfold case, you might be able to make an argument, but I think the Court wisely decided under Robinson that we need a categorical rule that’s easily administrable in the field.

    Now, when you have digital evidence, the categorical rule, we submit, cuts exactly in the opposite direction.

    Because digital information — even the notion of flipping through photos in a smartphone implicates vast amounts of information, not just the photos themselves, but the GPS locational data that’s linked in with it, all kinds of other information that is intrinsically intertwined in smartphones.

    Chief Justice John G. Roberts: Including information that is specifically designed to be made public.

    I mean, what about something like Facebook or a Twitter account?

    There’s no real — there’s no — any privacy interest in a Facebook account is at least diminished because the point is you want these things to be public and seen widely.

    Jeffrey L. Fisher: Well, Mr. Chief Justice—

    Chief Justice John G. Roberts: So I guess my question would be: Could you have a rule that the police are entitled to search those apps that, in fact, don’t have an air of privacy about them?

    Jeffrey L. Fisher: —I think that would be extraordinarily difficult to administer that rule.

    And let me tell you why.

    Because most of the information on smartphones is private.

    Much of it is just, like the photos in this case, just kept on somebody’s phone and not shared with anybody.

    Even a Facebook account is a limited universe of people who have access to it.

    You’re right that—

    Chief Justice John G. Roberts: More — more or less limited.

    I mean, you know, maybe it’s 20 people; maybe it’s a hundred people.

    But it’s certainly not private in the sense that many of the other applications are.

    Jeffrey L. Fisher: —I think it’s fair to say you have a sliding scale and there’s some stuff on a phone that might be posted on the Internet, for example.

    The difficulty with that case, if you wanted to address it in a future case, would be the intertwined nature of information on a phone.

    So looking at those photos in a smartphone account will be linked to the contacts inside the phone; it will be linked to GPS information inside the phone.

    All of this information is intertwined and I think you’d have a difficult administrability problem if you wanted to create some sort of rule like that.

    Now, remember, the government might try to deal with that problem differently by saying information in the cloud, so to speak, is not accessible to officers.

    We submit that just further would compound the difficulty of applying a rule in this circumstance.

    Justice Samuel Alito: But do you think in this case we have to decide whether all the information that may be available in a smartphone can be examined by the police when the owner of the phone is arrested or can we just focus on the particular evidence that was admitted in your client’s trial?

    Jeffrey L. Fisher: Well, the way you’ve phrased the question, I think that’s what — that’s the first cut at this, is looking at the particular pieces of evidence here, which are photos and videos.

    But we don’t think you can write an opinion that would distinguish those from anything else on a — almost anything else on a smartphone.

    I mean, the State’s argument here is that those are not, quote, “ fundamentally different ” from other things that people would carry around.

    Justice Anthony Kennedy: Do you think you could have obtained a warrant — or that the police could have obtained a warrant in this case?

    Jeffrey L. Fisher: In all likelihood, yes, Justice Kennedy.

    Justice Anthony Kennedy: All right.

    Jeffrey L. Fisher: They had plenty of time to do so.

    Justice Anthony Kennedy: Well, then the evidence that’s seizable under the warrant is — is reasonable, and Justice Alito points out the fact that some of this evidence is — is reasonable.

    If there’s a — there’s a limitation with reference to the way the police behaved, as Justice Alito points out, it’s limited just to this evidence.

    Jeffrey L. Fisher: Well, let me say a couple important things about the warrant requirement and return to Justice Alito’s question.

    This Court has said time and again that the mere fact the police could have gotten a warrant but didn’t does not excuse a Fourth Amendment violation.

    Let me say a couple things about the warrant requirement and then return to Justice Alito.

    Justice Anthony Kennedy: Well, but it — it just goes to the fact that this — that this is searchable under Fourth Amendment standards.

    Jeffrey L. Fisher: With a warrant, Justice Kennedy.

    And let me talk about why a warrant is so important.

    First of all, it interposes a neutral observer in between the citizen and the police officer.

    Perhaps more importantly, it does two very big things.

    One is it can trigger the Fourth Amendment’s particularity requirement so that the magistrate can say: This is what you can look at and what didn’t.

    Remember, in this case the prosecution ultimately introduced photos and videos, but that’s not what the detective testified to at trial as to the scope of his search.

    He said, at JA-11, we looked at a whole lot of stuff on the phone and that’s just what, in his words, “ caught his eye ”.

    Justice Ruth Bader Ginsburg: So how — how would it work with a magistrate?

    You recognize — you just told Justice Kennedy — that a warrant could be obtained.

    A warrant for what?

    What would the police have to show?

    And let’s take your very case.

    So they — they have seized, which is proper, seized the phone, they’ve secured it, and now they want to search it.

    So they apply for a warrant.

    And what would the warrant have to say?

    Jeffrey L. Fisher: We give an example of a warrant in the footnote in our reply brief.

    I believe it’s footnote 3, Justice Ginsburg.

    And there are many more available on the web from States that already require warrants.

    What they do is they say — the police officer testifies, perhaps somewhat like he testified here at the suppression hearing, I suspected this fellow was in a gang and — and I believe gang members keep certain kinds of things on their phone, this is the kind of crime that we’re investigating, and therefore these particular files within the phone are likely to obtain evidence.

    And then what happens is the warrants say with particularity: Here’s the things you can look at; here’s what you can’t.

    More importantly, Justice Ginsburg, a warrant requirement—

    Justice Antonin Scalia: Well, I thought you say that’s very — you’ve told us that that’s — that’s hard to figure out, what you can and what you can’t.

    But it’s easy for a magistrate, but — but impossible for a — for an arresting officer?

    Jeffrey L. Fisher: —I think much easier for a magistrate at some remove than an officer under the — under the stresses in the field.

    Now, Justice Scalia—

    Justice Antonin Scalia: Well, but—

    Jeffrey L. Fisher: —I agree, it’s not going to be perfect.

    And so let’s look at what happens under our world—

    Chief Justice John G. Roberts: If I could just—

    Jeffrey L. Fisher: —Yes.

    Chief Justice John G. Roberts: —on the same lines as — as Justice Scalia.

    The point you make elsewhere in your brief and argument is that the cell phone or the — the smartphone has everything.

    Jeffrey L. Fisher: Right.

    Chief Justice John G. Roberts: It’s got the person’s whole life.

    Well, if you’re arresting somebody on the grounds of suspicion that he’s a gang member and you have evidence to support that, what part of the smartphone is not likely to have pertinent evidence?

    What application is not?

    I mean, here you’ve got pictures, you’ve got videos, you’ve got calls.

    I just — I guess it’s similar to what other issues have been raised.

    I don’t know what a magistrate is supposed to put in the warrant.

    Jeffrey L. Fisher: I would say his banking app, his online dating app—

    Chief Justice John G. Roberts: You don’t think his banking app — his banking app is going to say on this day he deposited $10,000 into his account, and then that’s going to coincide with a particular drug deal.

    Jeffrey L. Fisher: —Well, Mr. Chief Justice, those arguments can be made on an app-by-app basis.

    But what happens is — this is the benefit of our rule as opposed to the government’s.

    What the government says is let the officer look and then have a back-end hearing where you just suppress all the stuff that he wasn’t supposed to look at once you apply particularity requirements.

    Under our rule, once the officer has the warrant, Leon kicks in and so you don’t have to have all these hearings in district courts, because once an officer does a proper search according to the corners of a warrant, you don’t have to have the kind of suppression here.

    And there’s one other very important thing that goes into a warrant which might have been glossed over too quickly in the briefs.

    It’s not just what can be looked at; it’s how it can be kept.

    The retention of information raises extraordinary Fourth Amendment concerns.

    My understanding in California is, at least for some crimes, it’s not just that they’re downloading the information and looking at it for the crime of arrest, but they’re keeping this information in databases, ever-growing databases of every cell phone that they’ve ever seized.

    Chief Justice John G. Roberts: What if you have a device that doesn’t have the broad information that a smartphone has, but only a very limited, like a Fitbit that tells you how many steps you’ve taken, and the defendant says, I’ve been in my house all afternoon, and they want to check and see if he’s walked 4 miles.

    It’s not his whole life, which is a big part of your objection.

    Is that something they can look at?

    Jeffrey L. Fisher: I think probably not.

    And I think this is the way the categorical rule in Robinson, where it sweeps in the kind of hypotheticals we were talking about in one direction.

    I think a categorical rule in the other direction for digital information would sweep in the Fitbit.

    I mean, obviously, I don’t have to win that argument today, but I think that’s how you would approach that question.

    Remember, the Fitbit — and this is true even more so of smartphones — tells you just the kind of information the Court was very concerned about in Kyllo.

    It tells you — modern smartphones work the inside of people’s house.

    They work the appliances and — and they have cameras.

    They also monitor the inside of people’s bodies.

    Justice Samuel Alito: What if the phone in this case was an old-fashioned flip-phone?

    So it had the capacity to take pictures, but a much more limited memory.

    Would it — would it be a different case?

    Jeffrey L. Fisher: Well, I think you may want to — that will be part of your conversation in the next case perhaps.

    I think the easiest way to decide the case right now in 2014 is simply say: Digital evidence kept on modern cell phones are different than physical items.

    I don’t think it’s really worth going back in time to the most rudimentary device and having that argument.

    Justice Samuel Alito: What if the person had on his person a compact disk with photos saved on that?

    Jeffrey L. Fisher: I think that might be the same kind of case as you have now.

    Remember, the — the phone in this case had a removable memory card, as many still do, which by the way we were going to talk about the destruction of evidence.

    That’s one answer to the destruction of evidence problem.

    It couldn’t possibly have arisen with respect to the evidence at issue because it was on a removable memory card that couldn’t be erased remotely or password protected.

    Now, we’ve given lots of arguments in the brief that explain why the government’s arguments as to wiping simply don’t stand up.

    And—

    Justice Sonia Sotomayor: Mr. Fisher, would you — an earlier question, you didn’t finish the answer.

    You were describing a difference between the downloading by police into databases that they keep forever.

    What happens with materials that are returned pursuant to a search warrant?

    Are they precluded from doing that?

    Jeffrey L. Fisher: —No.

    Justice Sonia Sotomayor: I wasn’t sure I understood your—

    Jeffrey L. Fisher: Right.

    So I take it that the ordinary rule is if the police lawfully seize evidence in the physical world, if it’s a — if it’s a physical item, it might at some point have to be returned to the owner of it.

    But if it’s something that can be made a photocopy of or a photo, it remains in police files as lawfully obtained information they can use indefinitely into the future.

    You have real problems, however, when you apply that typical rule to digital information, because now — again, what I understand — and the government itself — the Federal Government in Footnote 3 of its reply brief in Wurie acknowledges that it’s keeping in an ever-growing Federal database at least some of the information seized from smartphones.

    Justice Sonia Sotomayor: —I’m sorry.

    I don’t know that you’ve answered my question.

    Jeffrey L. Fisher: I’m sorry.

    Maybe I didn’t understand it.

    Justice Sonia Sotomayor: Which — can they do the same thing once a search warrant is—

    Jeffrey L. Fisher: Oh.

    No.

    Well, not necessarily, because the beauty of a search warrant is it can delineate retention rules.

    It can say here’s — here’s how long you’re allowed to keep the information, here’s who’s allowed to look at it and who’s not.

    And it can—

    Justice Sonia Sotomayor: —Frankly, I have to tell you, I don’t ever remember a prosecutor coming to me with that kind of delineation.

    Jeffrey L. Fisher: —Well, I think that, Justice Sotomayor, that is what is starting to now happen in the digital world, because we just have new and different concerns that had arisen — than had arisen in the past.

    Justice Elena Kagan: Mr. Fisher, would there be exigencies that would allow police to look at cell phones?

    And if so, what would those exigencies be?

    Jeffrey L. Fisher: Absolutely.

    There — there would be times at the scene where exigencies would allow it.

    First of all, the two officer safety arguments the other side makes about a hypothetical bomb or a confederate ambush, as this Court already recognized in Chadwick, would give exigent circumstances.

    The concern about remote wiping we think, and as the experts have described in the amicus brief filed by EPIC and many others, we don’t think would ever arise — give rise to a situation where that was a legitimate concern, but in a very odd world, yes.

    Justice Antonin Scalia: —I don’t understand your first exigent circumstances.

    When there is a bomb, but you can’t — you don’t know whether there’s a bomb until you look in the phone.

    Whether — whether his associates are on the way to, you know, to kill the officer and — and release their confederate, you don’t know until you look into the phone.

    So how — you know, how can that possibly be an exigent circumstance?

    Jeffrey L. Fisher: Well, I think surrounding facts and circumstances — in Footnote 9 in Chadwick, what the Court said, dealing with a locked briefcase where you’d have the same problem, Justice Scalia, surrounding facts and circumstances might indicate.

    There’s a hypothetical, I believe it’s on page 1 of the amicus brief filed by the State investigative agencies, that I think gives a classic textbook example of how exigent circumstances might apply.

    Justice Antonin Scalia: It seems to me it would almost never — you would never be able to say, you know, surrounding circumstances give me reason to suspect that there’s a bomb in the phone.

    Jeffrey L. Fisher: No.

    I—

    Justice Antonin Scalia: Give me reason to suspect that his confederates are on the way.

    Jeffrey L. Fisher: —I think you’re right that that’s going to be an extraordinarily rare circumstance.

    All I’m saying is if you had that extraordinarily rare circumstance, you would not need to get a warrant.

    Justice Anthony Kennedy: There — there is not much authority that I could find, if the lawyer is arrested and — and they want to read his whole briefcase or you want to read a year’s diary.

    And you cite — I think it’s page 7 of your brief — the Learned Hand 1916 case.

    Is that about the best discussion you — you can find?

    I didn’t find anything much different.

    Jeffrey L. Fisher: Justice Kennedy, we looked high and low as well—

    Justice Anthony Kennedy: Right.

    Jeffrey L. Fisher: —and did not find cases involving briefcases full of documents.

    And there’s only one or two stray mentions of a diary.

    Judge Friendly also mentions the diary situation.

    Justice Anthony Kennedy: Because it’s important if we’re going to try to formulate some standard which limits the extent of the search, and that’s one of — that’s one of the problems in this case.

    If — if say we rule for the government in its case, maybe it’s not quite fair to ask you, but if we rule for the government in its case in Wurie, in the Federal case—

    Jeffrey L. Fisher: Yes.

    Justice Anthony Kennedy: —and there’s no — it’s not an exigent circumstances, is there some standard where we could draw the line which would still result in a judgment in — in your favor?

    Maybe that’s not quite a fair question.

    You’re not — you’re not answering — you’re not arguing the — the government’s case.

    Jeffrey L. Fisher: I don’t want to tread on both lawyers in that case, but certainly in my case, we have an exploratory search where not even the State has contended the amount of information looked at is equivalent to what somebody could have carried around in the old days.

    Can I say something?

    Chief Justice John G. Roberts: I’m going to say something first.

    Jeffrey L. Fisher: Okay.

    [Laughter]

    Chief Justice John G. Roberts: If — if the phone rings, can the police answer it?

    Jeffrey L. Fisher: There are cases on that, Mr. Chief Justice.

    Obviously, this Court hasn’t addressed them.

    All the cases we’ve found are cases where the police already had a warrant in hand and they’ve been held that, yes, the police officers can answer the phone in that circumstance.

    Unquestionably, the police officers could look at the screen.

    Justice Antonin Scalia: Excuse me.

    A warrant for what?

    A warrant for examining the phone?

    Jeffrey L. Fisher: For somebody’s arrest.

    Justice Antonin Scalia: For somebody’s arrest.

    Well, how does that extend to your ability to answer his phone?

    Jeffrey L. Fisher: No, I’m sorry, Mr. Justice Scalia.

    I think also in — to — to effectuate an arrest and — and an immediate search of the area.

    Now, certainly you could look at the caller ID coming through because that would be in plain view.

    But if I can return to Justice Kennedy’s question about the diary.

    Because there’s a couple of important aspects to that I hope to be able to draw out.

    The reason I think that you don’t find diary cases when you look for them is because people hardly ever carry a diary outside the home with them.

    It was kept in a private drawer in the bedroom or wherever it might be kept, and in the highly, highly unusual circumstance where somebody did, you might have a hard case.

    This is an — this is the opposite world.

    The modern reality of smartphones is that it is an indispensable item for everyday life of a modern professional and, indeed, most anyone.

    You can’t leave the house without it and be — consider yourself to be responsible and safe.

    And so you take — to take a world where the police might try to say, we can get the stray diary because of the importance of the categorical rule under Robinson and try to apply that into a world where everybody has everything with them at all times—

    Justice Anthony Kennedy: Well, including the criminals who are more dangerous, more sophisticated, more — more elusive with cell phones.

    That’s the — that’s the other side of this.

    Jeffrey L. Fisher: —Well, Justice Kennedy, the Fourth Amendment has — has a balance already built in in that respect.

    We’re not saying they can’t look at digital information.

    We’re just saying that when they seize it, they can freeze the contents and then go get a warrant and search what they’re allowed to search and keep it under the rules of that warrant.

    Chief Justice John G. Roberts: Is it significant in — in this case that the information was not protected by a password?

    Jeffrey L. Fisher: No, I don’t think either side—

    Chief Justice John G. Roberts: That doesn’t — that doesn’t affect the expectation of privacy?

    Jeffrey L. Fisher: —If the other side were making an argument that this wasn’t even a search, then I think that might be an argument they would deploy.

    But I think, and I don’t want to speak for the government, but I think that they also agree that password protection doesn’t matter.

    And it certainly doesn’t matter under their argument as to what information they get.

    I mean, their position is if we seize a corporate executive’s smartphone at the scene that is locked and protected under password, if we can get that information out back at our lab, we get it all and we don’t have to ask for a warrant and we can keep it as long as we want.

    Chief Justice John G. Roberts: No.

    I know they argue that it doesn’t matter, but I’m just wondering if your position is weakened by the fact that the individual did not seek the greater protection of a password.

    Jeffrey L. Fisher: No, I don’t think so.

    People don’t lock their homes, they don’t lock their briefcases.

    Simply having it inside the smartphone protected on the person is enough to trigger the Fourth Amendment, and I think to sustain the arguments I’ve advanced.

    If I could reserve the rest of my time.

    Chief Justice John G. Roberts: Thank you, counsel.

    Mr. Dumont.

    ORAL ARGUMENT OF EDWARD C. DUMONT ON BEHALF OF RESPONDENT

    Edward C Dumont: Thank you, Mr. Chief Justice, and may it please the Court:

    As Mr. Fisher has said, if Mr. Riley had been carrying physical photographs in his pocket at the time of his arrest, there’s no dispute that arresting officers could have looked at those photographs to see whether they contained evidence of crime.

    Now, what would have been reasonable in that situation does not become constitutionally unreasonable simply because Mr. Riley instead carried his photographs in digital form on a smartphone.

    The shifted digital format does not make the photographs any less his papers or effects—

    Justice Sonia Sotomayor: Counsel, in one of our Court decisions in the past, a series of justices asked — or noted that many of our rules were based on practical considerations.

    Practically speaking, a person can only carry so much on their person.

    That is different because carrying a billfold of photographs is a billfold of photographs.

    It’s, you know, anywhere from one to five generally and not much more.

    But now we’re talking about potentially thousands, because with digital cameras people take endless photos and it spans their entire life.

    You don’t see a difference between the two things?

    What — what has now become impractical.

    A GPS can follow people in a way that prior following by police officers in cars didn’t permit.

    Edward C Dumont: —We certainly see a distinction, and we certainly see the possibility that in some cases there could potentially be a constitutional difference.

    What we don’t see is that in this case — on the facts of this case or anything like it, like the ordinary case, there is a constitutional difference from those phenomenon.

    The theory—

    Justice Sonia Sotomayor: By the way—

    Edward C Dumont: —The theory, even if I’m carrying only five photographs or if I’m carrying two letters as was the case in the Chiagles case, for instance, that Judge Cardozo decided in the ’20s, they are likely to be very personal, very private photographs.

    So I’m not sure that the expansion of volume increases the invasion of privacy.

    Justice Elena Kagan: Mr. Dumont, on your argument and on the government’s — the Solicitor General’s principal argument, too, a person can be arrested for anything.

    A person can be arrested for driving without a seat belt.

    And the police could take that phone and could look at every single e-mail that person has written, including work e-mails, including e-mails to family members, very intimate communications, could look at all that person’s bank records, could look at all that person’s medical data, could look at that person’s calendar, could look at that person’s GPS and find out every place that person had been recently because that person was arrested for driving without a seat belt.

    Now, that strikes me as a very different kind of world than the kind of world that you were describing where somebody has pictures of their family in a billfold.

    Doesn’t it strike you that way?

    Edward C Dumont: I think the answer that one can always think of marginal cases where there might be concern.

    It is not the core case, it is not the typical—

    Justice Elena Kagan: I don’t know why this is a marginal case.

    Edward C Dumont: —It is not the—

    Justice Elena Kagan: Your argument and the Solicitor General’s principal argument applies to any arrest.

    And it applies to everything on a cell phone.

    People carry their entire lives on cell phones.

    That’s not a marginal case.

    That’s the world we live in, isn’t it?

    Edward C Dumont: —We hear that repeatedly.

    The facts of this case are not somebody’s entire life on a cell phone.

    This cell phone had a handful of contacts.

    I don’t think it’s in the record, but what we understand is there were 250-some odd contacts, there were about 59 photos and there were perhaps 42 videos that ranged from 30 to 45 seconds.

    Maybe a minute each.

    Justice Ruth Bader Ginsburg: The Court is to make a rule not for this particular case, but for this category of cases.

    And I think what Justice Kagan pointed out is very nervous concern.

    That is, take an offense like failing to buckle up, even driving under the influence, not gang crimes, which is what we have in this case.

    It’s your rule, then, that the cell phone is fair game no matter what the crime, no matter how relatively unimportant the crime.

    Is it all misdemeanors, all misdemeanors and that opens the world to the police.

    Edward C Dumont: It is true that the Court typically and properly, in this area, draws categorical lines and that is what the Court said in Robinson it was doing.

    Now, it also is true the Court has repeatedly said that those lines are drawn based on the generality of cases.

    They are not drawn based on the marginal case where the hypothetical potential problematic — and this case is in the heartland.

    It’s a violent crime.

    Justice Elena Kagan: Well, Mr. Dumont, I guess what I’m trying to suggest to you is that you call it marginal, but, in fact, most people now do carry their lives on cell phones, and that will only grow every single year as, you know, young people take over the world.

    [Laughter]

    I mean, that’s not a marginal case.

    That’s what — they’re computers.

    They have as much computing capacity as — as laptops did five years ago.

    And — and everybody under a certain age, let’s say under 40, has everything on them.

    Edward C Dumont: I think you need to look at the generality of cases.

    And in the generality of cases, first of all, you will not be dealing with minor crimes.

    You’ll be dealing with serious crimes.

    And second, you’ll be dealing with police who are — undo their job by booking—

    Justice Anthony Kennedy: Are you saying we’re just resting on the discretion of the officer?

    Because if that’s so, then that leads to the next question.

    Well, if that’s so, then we’ll get a warrant.

    Edward C Dumont: —I’m saying that you’re — you are trying to draw lines that can be applied by the officer in the field and often when there’s not time to get a warrant either because there’s a need to know the information now or because—

    Justice Anthony Kennedy: Well, let’s leave — let’s leave exigent circumstances out of it.

    That — that’s an easy case.

    You’re not arguing for exigent circumstances here.

    Edward C Dumont: —What I’d say is that — to go back to Justice Scalia’s point — our argument is that the same things that Mr. Fisher concedes, the same interests that Mr. Fisher, I think, concedes justify the search of the person and the seizure of the phone, which are the exigent circumstances type arguments.

    In other words, they are the need to protect officer safety and the need to preserve evidence.

    And the fact is you don’t know with a phone.

    The officer doesn’t know with a phone whether there’s a safety concern or whether there’s an evidentiary concern without looking at the phone.

    Chief Justice John G. Roberts: Have there ever been — is there any basis for the generality that there’s a safety concern?

    Do you have a case where the — certainly not where the phone exploded, but when the phone was used to trigger a device or anything like that?

    Edward C Dumont: We don’t have a specific case.

    What I can point you to—

    Chief Justice John G. Roberts: Do you have a general case?

    Edward C Dumont: —Well, I can point you to, here’s a case from California.

    I don’t think it’s cited in the briefs.

    It’s called Natoli.

    There’s one where there’s a late night arrest.

    It — it starts with a speeding ticket, and it — off the highway late at night.

    It develops that, you know, maybe there’s more going on and the person looks to be under the influence.

    Taken out of the car.

    Then it looks like there might be a gun.

    The officer looks at the cell phone.

    The first thing he sees when he turns the phone on is a picture of what appears to be the driver standing with two assault rifles, arms akimbo like this, posing with his assault rifles.

    Now, I would say that that changes the situational awareness of the officer in that situation and provides valuable information that was necessary at the time and could not have been gotten later at the station house.

    Chief Justice John G. Roberts: What does that have to do with my question about a bomb?

    Edward C Dumont: I’m merely saying that it has to do with safety.

    So no, I can’t point you to a case where they stopped Timothy McVeigh, looked at his phone and saw some notes about bomb making.

    I can’t give you that case.

    Justice Sonia Sotomayor: —I would assume you need to operate the phone to set off the bomb, so that once the police have the phone the bomb is not going to be set off.

    Edward C Dumont: That is true.

    It’s also true of all the objects in all the Court’s prior cases.

    In other words, once in Robinson the police had secured the cigarette pack, there was no question, whether there was a razor blade in it or just heroin—

    Justice Sonia Sotomayor: Could I just ask you—

    Edward C Dumont: —that neither the evidence — the evidence was not going to be destroyed and the weapon was not going to be used.

    Justice Sonia Sotomayor: —Could I ask you a question about the extent of your theory?

    We’re talking about smartphones, which are minicomputers.

    But your theory would apply to iPads, computers, anything that’s, for example, sitting next to a person in a car, at their desk if they are arrested at their desk, anywhere if they are carrying it in their hand because you see a lot of people carrying the iPad or something comparable, a tablet of some sort.

    Your theory would permit a search of all of those things.

    Edward C Dumont: Our theory extends to objects that are on the person or immediately associated with, for instance in a purse.

    It doesn’t necessarily extend to things that are sitting nearby.

    The Court has drawn a clear line there.

    It’s—

    Justice Ruth Bader Ginsburg: Well, how would you?

    What is the rule?

    You’re saying on the person.

    Suppose it’s in the car in a holder or suppose it’s in the passenger’s seat?

    Are you saying that’s — you don’t want to express an opinion about that?

    You only want to talk about what’s in somebody’s pocket?

    Edward C Dumont: —I’ll say I think the Court has drawn different rules for that situation.

    If it’s on the car seat and if the person’s been removed from the car, then under Gant if there’s reason to think there might be evidence of the crime of arrest on the phone they can search it and if there’s not they can’t.

    That’s the rule the Court drew, but it’s a different rule Under Robinson.

    Justice Elena Kagan: Well, suppose I’m carrying my laptop in my backpack.

    Edward C Dumont: And if your backpack is on your back when you’re arrested, yes, we think that’s — we think that’s included.

    So let me go back to this volume question, because there are two things about a cell phone that might justify some sort of a special rule.

    There’s the volume question and then there’s the connectivity and networking question.

    Now, as to the volume question, first of all we don’t clearly have it here, but I concede that we could have it in other cases.

    And what they seem to be really concerned about is the idea that if you have enough information of enough different kinds on this device and the police spend enough time looking at it, they could build the kind of near-remarkable portrait that some of the Justices alluded to in Gant, or, sorry, in Jones, that — that really would be qualitatively different from what has ever been done before.

    Now, there are differences from Jones.

    That was government surveillance and this is some choice the person has made to keep a certain amount of information on a phone and then to have it in his pocket.

    We think there’s a possibility you could get to that kind of qualitatively different search, but it is miles away from this kind of case and from the heartland case.

    Justice Stephen G. Breyer: So there are three possibilities: Possibility one, smartphone, no, get a warrant, unless exigent circumstances.

    Possibility two, yes, it’s just like a piece of paper that you find in his pocket.

    Or possibility three, sometimes yes, sometimes no.

    All right, which of those three is yours?

    Edward C Dumont: Our possibility — our position is that the core information like this — that is contacts, photographs—

    Justice Stephen G. Breyer: No, no, I mean of my three choices.

    I mean, call the first choice never except exigent without a warrant; always, you don’t need a warrant; or three, somewhere in between.

    Which of the three choices is yours?

    Edward C Dumont: —It’s in between with an explanation.

    Justice Stephen G. Breyer: In between.

    Okay.

    Now we’re in between.

    Then I get to my follow up question.

    Edward C Dumont: The explanation—

    Justice Stephen G. Breyer: My follow up question is, please tell me what your in-between rule is?

    Edward C Dumont: —Right.

    And my in-between rule with the explanation is that for information that is of the same sort that police have always been able to seize from the person, that includes diaries, letters, all other kinds of evidence, purely evidentiary, photographs, address books, for evidence of that same sort, the same rule should apply.

    Justice Elena Kagan: Well, I don’t understand that, Mr. Dumont.

    Everything—

    Edward C Dumont: The digital format should not make a difference, and I would leave for — I would leave for a different day — sorry, but the last explanation to this is I would leave for another case—

    Justice Elena Kagan: —Mr. Dumont—

    Edward C Dumont: —the question of whether the volume—

    Chief Justice John G. Roberts: I’m sorry.

    Justice Kagan has a question.

    Justice Elena Kagan: —Mr. Dumont, I guess I just don’t understand.

    You said if it could be.

    I mean, everything could be reduced to a piece of paper.

    All your bank records, you could have them on you.

    All your medical records, you could just happen to have them on you.

    I mean, that would be so of absolutely everything, wouldn’t it?

    Edward C Dumont: —The bank records, of course, the police can get from the bank because they’re the bank’s records, right, with a subpoena, not with — not with a search warrant.

    So to the extent that a lot of people—

    Justice Elena Kagan: Well, I think that the notion that you could get them legally in some other way has never justified an illegal search otherwise.

    Edward C Dumont: —No, but I think it goes to the question of how sensitive is this information that we’re being told is now routinely stored on—

    Justice Stephen G. Breyer: Your rule is sometimes.

    So I say: Sometimes; what’s that?

    And you say if it is the kind of thing that the police could have searched for if it wasn’t on the computer, then they can search for it on the computer.

    Now, since they can search for everything in your pockets before when it isn’t the computer, then why isn’t yours everything?

    I mean, by the way, they don’t know whether a call is or is not going to turn out to be evidence when it’s in your trash box if that’s, or wherever you put it, I don’t know.

    They don’t know that ‘til they read it.

    So I guess what you’re saying is I thought it was category two, sometimes, but really it’s category three, always.

    Now, why am I wrong?

    Justice Antonin Scalia: I think he inverted two and three, but—

    Justice Stephen G. Breyer: That gives you time to think.

    Edward C Dumont: —If the police are looking for — have a legitimate investigative purpose, they’re looking at the information on the — to see whether there is evidence of the crime of arrest or of another crime, it seems to us that they should, at a minimum, be able to look at the same kind of information they could have looked at in any other previous context, the address book, the contacts, the phone numbers.

    Chief Justice John G. Roberts: So but that’s a significant concession on your part, isn’t it, because the smartphones carry a lot of information that would not have been the sort of thing police could look at before.

    GPS tracking information, the police could never have gotten that before.

    So you are saying that is protected?

    Edward C Dumont: I’m not saying it’s protected.

    I’m saying I think it raises a different set of issues.

    Justice Anthony Kennedy: It seems to me that in order to try to give some answer to Justice Kagan’s concerns that maybe the distinction ought to be between serious and nonserious offenses — offenses.

    I don’t think that exists in our jurisprudence.

    Correct me if I’m wrong.

    Edward C Dumont: I think that’s correct.

    The Court has previously declined to draw that line.

    Now, another—

    Justice Stephen G. Breyer: By the way, GPS information, I don’t want to admit it, but my wife might put a little note in my pocket,

    "Steven, remember, turn right at the third stoplight, proceed three blocks forward. "

    Of course you could have looked at information that showed where you had been and where you were going as long as it was on paper.

    Now it’s in a GPS.

    So how does your rule help?

    Chief Justice John G. Roberts: The GPS would see if he did, in fact, turn right at the thing or had gone somewhere else.

    Edward C Dumont: —I think the — again, we can conceive of situations in which the amount of information and the kind of search would lead to a qualitatively different result.

    We think that it—

    Justice Samuel Alito: You could amend your answer and it’s — the answers are for you, not for us.

    But you could amend your answer to say not just anything that somebody could have had.

    The person could have had a diary that records every place the person has ever gone in the last year, it’s theoretically possible.

    But you could say something that has a realistic analogue in the predigital era.

    We have a similar — a problem here that’s similar to the problem in the Jones GPS case.

    You have a rule of law that was established in the predigital era and now you have to apply it in the digital era or you’re asked to apply it in the digital era where the technology changes a lot of things.

    But if there is a close analogue in the digital era to something that would have been allowed in the predigital era, that may be a different story.

    Edward C Dumont: —We certainly think that’s right and we think that that covers, you know, the information that was at issue here, the photographs, the short videos.

    It certainly covers address information, contact information, messages, text messages.

    Justice Antonin Scalia: —But you’re not willing to limit — you’re not willing to limit your position to searches that either are in order to protect the officer or in order to preserve evidence or, number three, in order to find evidence of the crime of arrest.

    You’re not willing to limit it that way?

    You would say whatever is on the person, you can — you can search.

    Edward C Dumont: We think of the available limits that is by far the best historically based and the most plausible one.

    So to say that — and because the cases, the old cases, you pointed out that—

    Justice Antonin Scalia: But that gets you into the arrest for, you know, for not wearing a seat belt, and it seems absurd that you should be able to search that person’s iPhone.

    And you can avoid that if you — if you say, look, at the vast majority of cases, this is not going to be a problem, unless the officer can reasonably be looking for evidence of the crime of arrest.

    That will cover the bad cases, but it won’t cover the — you know, the seat belt arrest.

    Edward C Dumont: —We think that that could be a perfectly reasonable ruling, and there’s precedent in the Court, obviously, for that rule.

    There’s two things we would say about that.

    First, it ought to be an objective standard in line with all of this Court’s Fourth Amendment jurisprudence.

    It shouldn’t depend on what exactly was written down on the — on the booking sheet.

    It should be was there probable cause to arrest or what crimes was there probable cause to arrest for, and it also should include a plain view concept—

    Justice Stephen G. Breyer: Or how — there’s an analogue with photos.

    The arrested person has photos, pre-digital age.

    Of course you can look at them.

    On the phone there are photos.

    Absolutely analogous, except there are 10,000.

    It’s indeed his entire life history in photos.

    Edward C Dumont: —All right.

    Justice Stephen G. Breyer: On your rule, can the policeman look at the photos by analogue or not, because there are 10,000.

    Okay?

    What’s the answer?

    Edward C Dumont: In theory, yes, the police can look.

    In practice—

    Justice Stephen G. Breyer: What we have is, by the way — you understand where I’m going.

    I think there are very, very few things that you cannot find in analogue to in pre-digital age searches.

    And the problem in almost all instances is quantity and how far afield you’re likely to be going.

    Why is that your rule?

    Edward C Dumont: —The fundamental doctrinal basis, rational basis of the Robinson rule, I think, is that the fact that arrests — this is what Justice Powell said and Justice — well, the fact of the arrest necessarily and legitimately largely abates the privacy interest of the individual and his person and anything he or she has chosen to carry on the person.

    Now, modern technology makes it possible for people to choose to carry a great deal of information.

    But that doesn’t change the fact that the reasonable expectation, if a person is subject to custodial arrest, is that the police will search the person and look at things that they find—

    Justice Elena Kagan: Mr. Dumont, is — are you saying, essentially, that nobody has any expectation of privacy, or that somebody has a dramatically reduced expectation of privacy in anything that the person actually wants to keep on them at all times?

    In other words, one has to keep one’s cell phone at home to have an expectation of privacy in it?

    Edward C Dumont: —No, we’re not saying that at all.

    But what we are saying is that people do make choices, and those choices have consequences.

    And the consequence of carrying things on your person has always been that if you are arrested, the police will be able to examine that to see if it is evidence of crime.

    Chief Justice John G. Roberts: Thank you, counsel.

    Mr. Dreeben?

    ORAL ARGUMENT OF MICHAEL R. DREEBEN FOR UNITED STATES, AS AMICUS CURIAE SUPPORTING RESPONDENT

    Michael R. Dreeben: Mr. Chief Justice, and may it please the Court:

    I think that it may be helpful to the Court, before exploring possible alternatives to a categorical Robinson rule, to at least briefly understand why there is a categorical Robinson rule and how cell phones implicate many of those concerns.

    The categorical Robinson rule responded to the fact that when a person is carrying something on their person and they are subject to a legitimate probable cause arrest, their expectations of privacy are considerably reduced.

    Not eliminated, but considerably reduced.

    And the government, on the other hand, has several very compelling interests at the moment of arrest that are vindicated by conducting a thorough search of the person and the things he has.

    It avoids the destruction of evidence.

    It protects officer safety.

    And it allows the discovery of evidence that’s relevant to the crime of arrest to enable prosecution.

    Justice Ruth Bader Ginsburg: But, Mr. Dreeben, if the — the understanding was, when there’s time, get a warrant.

    So here, you can seize the phone and you can secure the phone, and you could go to a magistrate and within an hour get permission to search.

    But what is the reason for cutting out the magistrate here?

    It’s not — the instrument itself is not going to be in any danger because the police have taken it and they’ve disabled it.

    So I don’t understand why we cut the warrant out of this picture.

    Michael R. Dreeben: So several answers to that, Justice Ginsburg.

    The first is that you could probably say the same thing about almost everything that is seized under Robinson and Edwards.

    Once it’s in the police’s hands, they can throw it in the back of the patrol car in the trunk, and it would be safe and they could go get a warrant.

    But the balance has always been struck at the moment of arrest to allow the officers to fulfill the compelling interests in the matters that I’ve previously described.

    The second, and I think very critical thing about cell phones is they do differ in the amount of information that a person can carry on them and the amount of revelation about a person’s life.

    That is true.

    They also differ in that they greatly facilitate criminal activity.

    They contain a great deal of evidence, and most critically, they are subject to destruction in a way that ordinary physical items are not.

    Even if an officer has a cell phone in his hand, he cannot guarantee, unless it’s disconnected from the network or somehow protected from the network, that there won’t be a remote wipe signal sent to the phone that will wipe its data.

    Chief Justice John G. Roberts: Do you have cases where that has happened?

    Michael R. Dreeben: I have anecdotal reports from the F.B.I. that that has happened, that they have looked into the question of to what extent can you protect a phone through the use of things like Faraday bags.

    I think one of the important things to notice, if you throw a phone into a Faraday bag, which is supposedly going to be able to block network signals, when you open it up, it has to be similarly shielded or it will pick up a signal from a cell tower, and that will wipe the phone.

    And the F.B.I. tried to build a Faraday room in a building that they later discovered Verizon had put up a cell tower on it, and that cell tower put out a strong enough signal to go right through the Faraday room.

    Justice Stephen G. Breyer: We’ve had a couple of States where this has been so, where they’ve had a rule that you can’t search, for Michigan, I think, and Vermont.

    And are there any instance out of those States where these scenarios have taken place?

    Michael R. Dreeben: I can’t speak, Justice Breyer, for the experience in those States.

    Justice Stephen G. Breyer: You don’t know then.

    I take it you don’t know.

    Michael R. Dreeben: I don’t have any access to the information about that.

    Justice Stephen G. Breyer: All right.

    So isn’t this a problem that might be postponed because we have warring technologies, et cetera?

    And is it — you’re saying now we should allow searches of all cell phones because there might be a technology that hasn’t yet in fact been used in any of the States that have this rule.

    That sounds a little hypothetical.

    I’m not quite sure how to handle it.

    Michael R. Dreeben: Well, I think that there is clearly the technology available and growing technology to wipe phones remotely.

    But the other critical problem that comes back to Justice Ginsburg’s point about getting a warrant is encryption technology is increasingly being deployed in cell phones.

    That is something that clearly is on the rise.

    And when a phone is turned off or the lock kicks in and the phone encrypts, it can be almost impossible to get into it.

    Justice Sonia Sotomayor: How about putting — let me stop you, because you were making that argument in your brief, and I have three related questions.

    Okay?

    Why can’t you just put the phone on airplane mode?

    Michael R. Dreeben: Can I answer that one first?

    Justice Sonia Sotomayor: Yes.

    Michael R. Dreeben: First of all, it is not always possible to find airplane mode on all the 500, 600 models of phones that are out there.

    The officer has a lot of things to do when he arrests suspects.

    Say he arrests five suspects in a car and they each have three cell phones.

    Trying to find and put each one of them into airplane mode and then go the further step and—

    Justice Sonia Sotomayor: You’re — you’re confusing me, because if you haven’t searched on the scene, then the wipe is going to happen.

    If you’ve had enough time at the precinct to put it on airplane mode, the wipe hasn’t happened.

    Michael R. Dreeben: —Well, that’s not necessarily true, Justice Sotomayor.

    Justice Sonia Sotomayor: I’m a little confused about what this argument is.

    Either you do it at the scene and you protect the phone—

    Michael R. Dreeben: Yes.

    Justice Sonia Sotomayor: —or you do at the station, and you have enough time to get the warrant by putting it on airplane mode.

    Michael R. Dreeben: Well, you don’t necessarily have enough time to get the warrant if you do it at the scene.

    That — that’s certainly true.

    I think even—

    Justice Sonia Sotomayor: I don’t disagree.

    Put it on airplane mode.

    Michael R. Dreeben: —Even if you bring it back — the assumption that we’re going to have airplane mode and that the Court should craft a constitutional rule around airplane mode assumes that cell phones are not going to be able to be used in airplanes in the next five years and that manufacturers will continue to make an easily available button for airplane mode.

    I don’t think the Court should found a constitutional ruling on that assumption.

    Justice Sonia Sotomayor: I — I don’t disagree with you, but you’re asking us for constitutional principle based on technology that might or might not do something in one or more cases, but not in the general—

    Michael R. Dreeben: I think what I’m trying to suggest, Justice Sotomayor, is the traditional justifications for search-incident-to-arrest include the potential for destruction of evidence.

    That is very real today.

    It’s Petitioner who’s asking for a new rule.

    We’re asking for the application of the Robinson rule, and if the Court is not willing to apply the Robinson rule, then primarily, I think the best rule to apply would be the—

    Justice Anthony Kennedy: Well, but that’s not — that’s not quite accurate.

    What would you do under the Robinson rule with an attorney’s briefcase?

    Michael R. Dreeben: —The attorney’s briefcase may present particularized problems because of attorney-client privilege.

    Justice Anthony Kennedy: And — and doesn’t that present the exact problem that every cell phone has?

    Michael R. Dreeben: No.

    I was referring—

    Justice Anthony Kennedy: So I don’t think that quite works for you.

    Michael R. Dreeben: —I was referring to the privilege rule.

    The lower courts that have looked at it; this Court has not.

    Lower courts that have looked at the question have said that if a person is arrested holding a briefcase, the police can open the briefcase, whether locked or unlocked, and look at its contents.

    They can’t just go through the contents for prurient interest.

    They can look, however, for evidence that’s relevant to criminal activity, and they do that in a way that is minimally invasive of privacy.

    They’re not just doing it for the sake of doing it.

    They’re looking for evidence.

    Justice Anthony Kennedy: Well, the tax return that’s on — some — some cell phones have tax returns, so you have the tax return of the jaywalker, looking for a crime.

    Michael R. Dreeben: Yes, and I — and I — I would acknowledge, Justice Kennedy, that if the Court is looking for a rule that limits the ability of police to search cell phones, because cell phones are different from paper items in some respects, but not all, that the most reasonable rule to apply would be one that says when there is reason to believe that there’s evidence of the crime of arrest on the phone, the officers can look for that.

    When there is not, they can’t.

    That will—

    Justice Elena Kagan: Can I ask you a question about that, Mr. Dreeben, because given the variety of things that these cell phones have in them, it seems as though that’s — you know, it sounds good as a limiting principle, but it ends up you can imagine in every case that the police could really look at everything.

    So I’ll give you an example.

    It’s sort of like this case.

    Somebody is arrested for a gun crime and now we’re going to look at all the various things that might be related to a gun crime.

    So whether he’s bought guns, whether — you know, what — what — whether he’s done searches for gun stores.

    His e-mails might something say something about gun possession or gun purchase.

    He might have photographs of him with a gun.

    You know, the whole range of things could relate to that crime, couldn’t it?

    Michael R. Dreeben: —Justice Kagan, I would acknowledge that your reasoning is correct in certain circumstances and for certain crimes.

    It would not be the case for a jaywalking crime or a bar fight or many other of the minor crimes, seat belt violations, that are posited on the other side of the equation for Respondent’s or Petitioner’s narrower approach to cell phone searches.

    But I do think that a couple of things are worth thinking about.

    First, in a serious offense like a firearms offense in this case, a drug offense in Wurie, if the police didn’t — went, got a warrant, they would be looking at all the same things, because the only way to execute the warrant on the phone would be to engage in at least a cursory search of everything on the phone to see whether it related.

    Justice Elena Kagan: Well, they would be looking at the same things, but the whole idea of a warrant is that a neutral magistrate tells you that you can look at those things and has an opportunity to limit it in whatever way the neutral magistrate feels is appropriate—

    Michael R. Dreeben: Well, I—

    Justice Elena Kagan: —and that’s a protection.

    Michael R. Dreeben: —I — I’m not sure that I would go so far as to say the neutral magistrate can narrow the warrant in any way that he sees appropriate.

    This Court’s decisions in Grubbs and Dalia say that it’s not appropriate for the magistrate to prescribe the manner of executing the search.

    But I think the more fundamental point, and this is why I tried to start with the basic bedrock of Robinson, is that there is a different balance—

    Chief Justice John G. Roberts: Go ahead, please.

    Michael R. Dreeben: —There is a different balance at the moment of the arrest.

    At that moment society’s interests are at their apogee in locating

    —Huffduffed by davidr

  4. SCOTUS Cell Search

    Print this transcript

    Transcript: 

    ORAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF PETITIONER

    Chief Justice John G. Roberts: We’ll hear argument next in Case 13-212, United States v. Wurie.

    Welcome back.

    [Laughter]

    Michael R. Dreeben: Thank you, Mr. Chief Justice, and may it please the Court:

    The facts of this case, United States v. Wurie, I think, illustrate why any categorical rule that would preclude searches of cell phones incident to arrest would be inconsistent with historical practice and detrimental to law enforcement.

    This is a case where what the officers did was see a phone ringing.

    On the outside screen, the caller was identified as ‶ my house ″.

    The officers opened up the phone, pressed one button to see that the call came in from ‶ my house ″ and pressed another to see what the phone number was.

    That’s all they did.

    That kind of a search serves valid, time-honored functions in the search situation of helping to ascertain the identity of the offender.

    This was a crucial fact because a few minutes later, Wurie lied about where he lived, which was relevant to the police ultimately obtaining a warrant to search his house.

    They didn’t know where he was.

    They would not be able to—

    Justice Sonia Sotomayor: I’m not — I’m not so sure.

    If he was at the precinct, they could have gotten a warrant, and once he lied about his arrest, they would have known he wasn’t living there and would have gotten a warrant.

    Michael R. Dreeben: —Justice Sotomayor, you could almost always say in search-incident-to-arrest cases that the police could have gotten a warrant.

    It’s — I’m not talking about cases where somebody is carrying a gun and the police take the gun off them and — and they secure it that way.

    But in all of the other cases that you could imagine that involve searches for evidence, letters, which occur in the historical cases; billfolds, which have been discussed here, once the officer has it, you could say the officer shouldn’t be able to look in it because that could be done under a warrant.

    There’s no time constraint.

    There’s no destruction of evidence constraint.

    Here, in fact, there actually is a destruction-of-evidence threat with respect to the general category of cell phones, and that’s what this Court has been asked to look at, the general category, cell phones and smartphones.

    We discussed earlier the threat of remote wiping and whether airplane mode is an effective counter to that.

    There is the other threat that I think is even more critical to law enforcement today, and that is encryption.

    Because if the phone turns off and becomes encrypted, officers can go to the magistrate and ask for a warrant, but it may be months or years or never if they can break through the encryption and actually obtain the evidence.

    So to the extent that the traditional destruction-of-evidence rationale justified the search of a cell phone or justified the search of traditional items, it applies even more strongly with respect to cell phones than it does with most of the items that might be seized from a person.

    So Wurie, I think—

    Justice Sonia Sotomayor: Please tell me about encryption, because I know people can encrypt, but I thought they had to do that when they put the information in the phone.

    Michael R. Dreeben: —No.

    As best I understand it, Justice Sotomayor, many smartphones today are equipped with built-in encryption.

    Apple has hardware encryption and software encryption.

    Samsung and HTC and other brands are quickly following with strong encryption.

    The encryption is deployed in a way that if you don’t have the key, the data that’s on the phone is useless.

    The key is often stored in memory and it’s accessible only when you can get into the phone.

    Now, if the phone is on and functioning because the person has been arrested while they are, for example, making a phone call, you can get access to the phone and you can attempt to get information from the phone without the encryption key being an obstacle.

    But if the encryption is deployed, that can sometimes be an insuperable barrier even to the manufacturer.

    Justice Sonia Sotomayor: I’m not sure how on the scene the police are going to look at everything in a cell phone anyway.

    They’ve got to be doing something to save it.

    If the encryption can be—

    Michael R. Dreeben: Well, no.

    The — the evidence is — the information on the phone is encrypted — this is my understanding, Justice Sotomayor — but the phone itself has the key to decrypt it because the user obviously wants to get access to the information.

    Justice Stephen G. Breyer: I mean, you have a problem.

    Apparently, neither you nor I actually have this on their phone, as far as I know.

    So I’m imagining something.

    Maybe you have it.

    There is some kind of system that once it goes ‶ bzzz ″, you never can get the stuff again except after eight months, and when this ‶ bzzz ″ happens, is it happens at least ten minutes after the arrest and not before, so the policeman would have time to look at it.

    But the — by the time you get to the stationhouse, the ‶ bzzz ″ has already happened, so now nobody else can.

    Maybe there is such a thing.

    I’ve never heard of it before this minute or before the briefs.

    Well, why wouldn’t — you see I’m similarly incredulous about it from my tone of voice because I don’t see why somebody who wanted to ‶ bzzz ″ actually to keep the police away wouldn’t do it after 30 seconds.

    Michael R. Dreeben: So if you have an iPhone, Justice Breyer, and I don’t know what kind of phone that you have—

    Justice Stephen G. Breyer: I don’t either because I can never get into it because of the password.

    [Laughter]

    Michael R. Dreeben: —It’s encrypted.

    And that’s the problem.

    The phones are set up to protect the data and I think this is something also revealing about—

    Justice Stephen G. Breyer: My point is, somebody who really wants to go to all that trouble will surely have it turn off after 30 seconds and the policeman won’t be able to look at it either.

    Michael R. Dreeben: —Not all criminals are so clever that they manage—

    Justice Stephen G. Breyer: Yeah.

    Well, but the dim criminal who is thinking about the magistrate at the station but not thinking about the policeman.

    I mean, you see what I’m doing with my questions?

    Michael R. Dreeben: —I think—

    Justice Stephen G. Breyer: I’m casting a little cold water on this as a rationale.

    Michael R. Dreeben: —Yeah.

    And I — my response to you is that having tried to ascertain the empirical reality of this problem, it is greatly feared by law enforcement.

    We’ve documented that by the numerous studies, the National Institute of Standards and Technology study that talks about the grave concerns that encryption’s raised.

    It’s not the biggest problem if you get the phone in an active state and you can begin to look through it.

    It does have unpredictable capabilities of becoming encrypted if it’s turned off or if certain apps are deployed on it.

    And for that reason—

    Justice Sonia Sotomayor: —But you have to keep the phone going anyway till you can get to a place where you do something with it.

    Michael R. Dreeben: —A lot of these searches occur, Justice Sotomayor, at the side of the road where the officer opens — in the Riley case, the officer opened the phone right on the heels of the arrest and he immediately saw evidence that the individual was a gang member, something that he hadn’t had personal knowledge of before, because every letter K was preceded by a C, which indicated to him it meant Crip killer, which indicated he was a member of the Bloods gang.

    So it’s a very common thing for officers to take advantage of the information that’s on a phone just the way that they would take advantage of the information that’s on a person to find out who they are dealing with.

    And I think it was asked in the Riley argument whether there were instances in which phones have been used to trigger dangers.

    And there are instances in which people have used their cell phones right before an arrest to call in a posse of their accomplices to basically attack the police.

    And by looking at the cell phone quickly, if it’s available to the — to the officers, they can look quickly and see if there was a text sent in the last five minutes or a phone call that might actually protect their safety, which is another one of the traditional justifications of search incident to arrest.

    That this is a categorical exception, as the Court recognized twice last term, both in Maryland v. King decision and in the McNeely decision, the Court recognized that search incident to arrest was a categorical exception to the normal warrant requirement.

    Justice Ruth Bader Ginsburg: Mr. Dreeben, something that you said about the encryption.

    What — what is the experience of the police?

    Isn’t it so that most cell phones when they’re found on a person are not open, that — that they are locked?

    Michael R. Dreeben: Justice Ginsburg, I would not be able to answer a question about what condition most cell phones are found in.

    The fact that this issue has arisen repeatedly in cases across the country indicates that at least in a significant number of cases, the phones are not locked and the officers are able to obtain access to the information.

    Now, if they are not able to obtain access to the information, I want to tie this back to things that could give the Court some comfort if the Court were concerned about the possibility for police searching too much evidence in cell phones that’s not relevant to the crime for which the person is arrested or his identity.

    Now, we talked earlier about the crime of arrest limitation, which I think would screen out a great many, not all, minor crimes.

    The Court has, at least in the Welsh v. Wisconsin case, talking about exigent circumstances justifying an entry into the home, distinguished between serious and minor crimes.

    That’s another possible line that the Court could explore.

    I’m not as much in favor of that one because I do think that the officers have an interest in determining, no matter who they have arrested, who that person is, because the person could pose an unknown threat even if they are stopped only for a traffic violation.

    Ascertaining their identity through their cell phone is a useful way to do that.

    There are also potential duration limits on a search incident to arrest.

    As its name indicates, it’s incident to the arrest, and this Court’s decisions have described the lowering or reduction of expectation of privacy of an arrestee as occurring for a reasonable time and to a reasonable extent after the arrest, then other Fourth Amendment doctrines kick in.

    So to the extent that most of these searches are going to occur either at the scene of the arrest—

    Justice Sonia Sotomayor: Once we put in that limit, you’ll just download the phone at the station and everything, their medical records, their tax returns, even when they’re not relevant to the crime, will be part of your database.

    Michael R. Dreeben: —Okay.

    Well, that — that is my last potential limiting principle.

    This Court need not consider in this case the consequences of downloading the entire contents of a cellphone to a UFED, a universal forensic extraction device which the briefs have talked about.

    That didn’t happen in either of these cases.

    These cases involve manual searches of the information that’s available to the user of the phone.

    Once the information has been captured into an electronic database separately in an extraction device, there is at least an argument that at that point the evidence is preserved and potentially the warrant requirement would have a different application, at least if the search of that forensic database was going to go beyond ascertaining identity and verifying officer safety considerations.

    The Court does not need to examine that in this case.

    It may well be that expectations of privacy do not exist as to information that the user himself can quickly access on a phone, the kind of thing the police are likely to look at when they make an arrest because they are interested in developing evidence that relates to the crime, protecting their safety and ascertaining identity.

    They are not really interested in going through all an arrestee’s medical records and photographs and so forth.

    Justice Sonia Sotomayor: Your brief suggested a limitation with respect to access to the iCloud.

    Michael R. Dreeben: Yes.

    Justice Sonia Sotomayor: Could you tell me how you tell the difference?

    Michael R. Dreeben: Well, I think that would be something that officers would have to develop protocols based on changing technology to address.

    We do not claim here the authority to use the phone to access data that is not on the phone, in the cloud, and it may well be that in the future more information will migrate to the cloud, less will be on the phone, and that may shift what the officers can actually do.

    Justice Elena Kagan: But I thought the whole ideas of smartphones, Mr. Dreeben, and increasingly so, was that even the user doesn’t know what’s on the cloud or not.

    Michael R. Dreeben: So to the extent that that is true, Justice Kagan, law enforcement officers, to ensure they’re complying with the Fourth Amendment, would have to take the phone off the network.

    And that is best practices.

    It’s discussed in all of the forensic manuals that we cited to the Court.

    You want to take the phone off the network to avoid the remote wiping problem, to avoid corruption of data through new data coming in.

    It’s sound forensic practice to do that and it also serves what we think is a limiting principle.

    Again, the Court doesn’t have to decide that limiting principle in this case.

    There’s no claim that any cloud data was accessed in this case.

    We’re only saying that the search-incident-to-arrest doctrine serves a valuable function, serves a particularly valuable function with cellphones, because they are so commonly used as the medium of the commission of crimes.

    They are carrying the same kind of information that the individual previously would have carried in paper and it seems somehow a little odd to say that because information has migrated from paper onto a smartphone that the officers have a critical need to obtain—

    Justice Anthony Kennedy: I don’t think it’s odd to say that we’re living in a — in a new world.

    Justice Kagan’s questions point out the fact that someone arrested for a minor crime has their whole existence exposed on this little device.

    From your argument, you want us just to adopt a categorical rule, it’s in the custody of the police, they can search it.

    Do you have — do you have any limiting principles that we should considerate at all as a fallback position?

    Michael R. Dreeben: —Yes, Justice Kennedy, I do.

    The first one that I think has been discussed in both arguments and Justice Scalia has brought it up as well, is that the evidence to be searched, unless there’s some exigency, should be relevant to the crime of arrest and the Court can articulate that in a way that would prevent roving searches or speculative searches.

    Justice Anthony Kennedy: Well, that — that was for an expired license.

    Michael R. Dreeben: So I don’t think it’s necessarily—

    Justice Anthony Kennedy: —or is it the guns that were under the hood in the other case?

    Michael R. Dreeben: —In the Riley case, the guns were under the hood and the arresting officers found a green bandana and some red and white Converse shoes, I believe.

    Justice Anthony Kennedy: The crime of arrest was the expired license.

    Michael R. Dreeben: No.

    The crime of arrest was the firearms in Riley.

    It was only after they found—

    Justice Anthony Kennedy: That’s correct, after the stop, yes.

    Michael R. Dreeben: —the firearms in the impound search did they actually conduct the arrest.

    And at that point the ultimate search that occurred was because there was a known propensity of gang members to document their use of firearms in pictures.

    And so that’s what the arresting officer was looking for.

    It’s no different than what he would have looked for on the arrestee’s person in his wallet.

    So it wasn’t the kind of cloud-based search, search into health records.

    It was a scope-focused search.

    So I think that there are limiting principles, Justice Kennedy, that you referred to.

    One is when the officer is looking for crime of arrest-related material and there is evidence that can be plausibly said is crime of arrest-related material on the phone, he can look for that.

    The Court could couple that, if it wasn’t satisfied that that was a sufficient limitation, with a scope-based limit which would say that you can’t look everywhere on the phone where there’s no realistic chance that there’s going to be evidence related to the crime of arrest.

    You can’t just rove through the phone.

    You need to keep a scope focus.

    And that can be enforced and would be enforced by defendants, I can assure you, through post hac litigation and suppression.

    And the police would have to conform their conduct to the constraints of the Fourth Amendment in conducting the search.

    Justice Ruth Bader Ginsburg: What scope?

    You can look at e-mails but not something else?

    What would the scope limitation be?

    Michael R. Dreeben: It would depend on the crime.

    So if you were looking for evidence related to the crime of possession of child pornography, you could certainly go through photographs.

    If you were looking for another crime, potentially drug trafficking, you would look for things like drug ledgers, recent contacts, lists of customers and not necessarily in videos.

    Chief Justice John G. Roberts: It’s very hard to see how that limit would be applied.

    You can see and the police would be able to articulate why almost every application, every entry on a cellphone would reasonably be anticipated to have evidence of a particular crime.

    Obviously e-mails, obviously call logs.

    Even, you know, Facebook.

    If it’s a weapons crime, maybe they’ve got pictures of themselves with guns.

    I mean, I have trouble imagining what application, what entry police could not say it’s reasonably likely that there would be evidence of the crime.

    Michael R. Dreeben: So, Mr. Chief Justice, to the extent that you think that’s an inevitable generalization and there is a certain way of looking at it in which that’s correct, then the interposition of a warrant requirement would do nothing because the warrant would say, search the cell phone for evidence related to drug trafficking and then the phone would be searched in exactly that manner.

    Justice Stephen G. Breyer: The point of a warrant is that a person who is not involved and is objective listens to what the policeman is saying, knowing that sometimes, like me or any other human being, a policeman can get a little carried away.

    So if, in fact, he does show the warrant, that there is this basis, you issue the warrant.

    Many, many — and if he doesn’t you don’t.

    It isn’t because they’re difficult legal questions.

    It’s just you want that third dispassionate mind to review what the facts are.

    Now, if that’s a purpose of having a warrant, how long does it take to get a warrant in the mine run of these cases?

    Is it not a matter of hours in most places?

    Michael R. Dreeben: It may be in some places and not in others.

    Justice Stephen G. Breyer: In some places I’m sure it’s difficult.

    But I’m saying most places, major cities, et cetera, my guess was — and I want to be corrected if I’m wrong — it’s a matter of a few hours and you could do it more quickly if you needed to.

    Am I right about that?

    Michael R. Dreeben: I don’t know that you are, Justice Breyer.

    Justice Stephen G. Breyer: Well, you are in a department that keeps track pretty much.

    You’re much more expert than I.

    And therefore I would like your best guess on the mine run of things of a range of time to get a warrant.

    Michael R. Dreeben: So, Justice Breyer, it varies considerably in the 50 States and the Federal Government depending on where you are, the availability of magistrates, the complexity of the case.

    I would differentiate this from the McNeely case, where the Court was pretty confident that you could get a warrant quickly.

    The reason that the Court could be pretty confident about that is drunk driving is a very simple crime, and the officer has very simple observations in order to validate it and there are forms that can be prepared to get a warrant.

    With the great — we’re talking now about every crime for which people are arrested.

    Justice Stephen G. Breyer: I see your point.

    I see your point.

    Michael R. Dreeben: And the facts are going to be more complicated.

    Justice Stephen G. Breyer: Assume a range.

    The question I’m trying to get to is this.

    What, from what you’ve said is the harm in saying, yes, you need a warrant, but remember, there are exigent circumstances?

    So where is someone — the bell rings on the phone.

    Depending on the kind of crime, it may be pretty important to let the policeman answer to find out where it’s coming from, because it may be other people on the gang who are coming with weapons.

    Or alternatively, if you’re right on the technology, it may be someone about to push a buzzer that will erase the information.

    So remember we have the exigent circumstances.

    If your view of the technology is right, they will perhaps be used with common sense and caution.

    But you don’t need a special rule other than the rule, get a warrant.

    How will that hurt?

    Michael R. Dreeben: That is a special rule for the search incident to arrest content.

    It’s — we’ve discussed a variety of special rules, but that rule completely compromises the interests in search incident to arrest, because they have always assumed that the interest in police discovering evidence that could help them in the prosecution, that could protect their safety, and that would avoid destruction is paramount given the reduced expectations of privacy of the arrestee.

    Justice Stephen G. Breyer: Can you work with exigent circumstances—

    Michael R. Dreeben: No.

    And this is why I — I hope that I can make this clear, because the encryption problem is what makes it impossible for the police to be confident that you can take the time to go and get a warrant and you won’t lose the data forever.

    Encryption kicks in when the phone is turned to a setting that automatically will occur on most modern cell phones that turns the phone off and then the phone’s contents become encrypted and that’s when you need the password to open it up.

    And if you don’t have that password, you’re not going to be able to do it.

    And law enforcement’s forensic labs aren’t going to be able to get around it in — except with extraordinary efforts and extraordinary time.

    So we’re not talking about the difference here between two minutes to get the warrant and looking at the information.

    It may be months if you don’t take advantage of looking at it.

    Justice Sonia Sotomayor: How do you stop it from going off?

    Michael R. Dreeben: Now, it — I think that one of the interesting things that Petitioner did in the Riley case was append to the back of his brief a couple of pictures of Apple’s iPhone 5 on how you could go into the phone, if the phone is configured in the way that it was in the pictures that he took, and disable the auto lock feature.

    What Petitioner did not do was provide similar information for the 500 or so other phones that are on the market and that will be on the market in the coming years so that police officers will be equipped with a manual that will probably be as thick as the New York City telephone book with the various procedures that are needed to prevent any phone from going into an encryption mode and becoming inaccessible.

    They don’t know that at the time they seize the phone, Justice Breyer, and that’s why exigent circumstances, unless it’s done as a categorical rule, because I did not know whether this phone would encrypt, I searched it, unless you do that, then you are basically putting the officers at the mercy of technology, which will increasingly be able to defeat their ability to conduct the kind of routine searches that they have always conducted in the past.

    Chief Justice John G. Roberts: Well, they’ve got their own technological front in this battle, too, and that’s — I mean, to the extent there are flaws in the Faraday bag, I wouldn’t be surprised if that’s not improved over the next months or years or whatever.

    Michael R. Dreeben: Mr. Chief Justice, it’s an arms race between the forensic capabilities of law enforcement labs and the abilities of cell phone manufacturers and criminals to devise technologies that will thwart them.

    And they will leapfrog each other at times and there may be periods when law enforcement has the advantage and there may be period where — periods where those people who want to protect against revelation of data on the phone will succeed.

    And my only point here is that it would not be a wise rule for this Court to announce, based on today’s technology and reasonable projections of technology, that the police will just easily be able to go and get a warrant, because my experience from the people that I had spoken with is that a lot of phones are arriving at the lab in a locked and encrypted state and it’s very tough to deal with that.

    And if the Court does have concerns, as many members of the Court have expressed, about applying, lock stock and barrel, the traditional Robinson rule, there are weigh stations and compromise positions.

    This case, I think, as California pointed out, both this case and Riley, don’t really involve totally unpacking somebody’s life from their smartphone.

    And I’m not suggesting that the Court should resolve these cases by announcing a rule that’s just limited to the facts of the cases.

    But if the Court is looking to preserve some areas for protection, we’ve talked about limiting the justification for a search, limiting the scope of a search, limiting the duration of a search, and limiting the intensity in the sense of confining it to what can be found manually on the phone.

    Justice Stephen G. Breyer: —Do you — do you see what I was trying to do with the word ‶ exigency ″?

    I was trying to figure out if that’s a way of dealing with the unknown here, which is your problem.

    That if, in fact, technology is such that the policeman, it’s really true if he has five minutes to search, he can get this valuable evidence and if the technology is such that it doesn’t even give him five minutes, or if it’s such that it gives him four or five hours, or if it’s such that he can press a button, or if it’s the opposite and they can just cough and encrypt it, well, all that will be fed into the word ‶ exigency ″, which we wouldn’t have to decide now, but rather, you could make your arguments about the real exigency for preventing the destruction later in the context of — of what turns out to be the technology of the time.

    That’s what was going on.

    Michael R. Dreeben: Justice Breyer, the reason why Robinson adopted a categorical rule is it concluded that such case-by-case adjudication for officers in the field is completely infeasible.

    And when balancing the important law enforcement interests against the reduced expectations of privacy, Robinson struck a categorical balance.

    Reverting to an exigent circumstances analysis here would unstabilize all of the law under Robinson.

    Justice Sonia Sotomayor: How about a plain view analysis?

    Turn on the phone, see if there’s been a telephone call within a reasonable amount of time of the arrest or — or any message that was sent at the time of arrest.

    That’s sort of a plain view situation.

    It would take care of your person with the picture of him or herself with guns.

    It would take care of the call to the confederate.

    It would take care of the — of the imminent destruction of the phone.

    Michael R. Dreeben: So, Justice Sotomayor, I’m not entirely sure how to articulate that principle, but if it fits within the crime of arrest plus identity principle, then I think it would be a reasonable fallback position.

    If I could reserve the balance of my time.

    Chief Justice John G. Roberts: Thank you, counsel.

    Ms. Mizner.

    ORAL ARGUMENT OF JUDITH H. MIZNER ON BEHALF OF THE RESPONDENT

    Judith H. Mizner: Mr. Chief Justice, and may it please the Court:

    I’d like to first talk about the encryption that we’ve been discussing.

    It’s not an issue in this case.

    It was not an issue in Riley.

    It was not litigated below.

    And the government has just now said that there are a lot of phones arriving at a lab in a locked state, but do we know whether they’re in a locked state because they were locked at the time that they were seized or did they lock subsequently?

    The number of password-protected phones that are open at the time of arrest is pure speculation.

    And if they’re not open at the time of arrest, the government’s argument about locking is irrelevant.

    The number of password-protected phones that would be inaccessible at a later time is also an unknown and — and speculative quantity.

    There are devices that can break passwords.

    Technology advances on both fronts.

    The government has capabilities of breaking the more typical passwords, the four-digit or letter passwords within 15 minutes.

    There are — you can obtain assistance from manufacturers in obtaining the passwords and ability to—

    Chief Justice John G. Roberts: We’ve — we’ve kind of gotten far afield, which I’m sure is not — may not be fair to Mr. Fisher or Mr. Dumont, we’re talking about their case, but in your case why isn’t the information in plain view?

    It says, ‶ my house, my home ″.

    They look at it, that’s what they see.

    They don’t have to open anything.

    Judith H. Mizner: —They saw the words ‶ my house ″.

    They did have to open the phone and access the log to—

    Chief Justice John G. Roberts: Sure.

    But I’m saying do you have — you have no objection to the ‶ my house ″?

    Judith H. Mizner: —The ‶ my house ″ words were in plain view.

    And under this Court’s doctrine, that’s not—

    Chief Justice John G. Roberts: I assume that that’s — it says ‶ my house ″ because he’s done something with the particular number.

    If he didn’t, it would be the number itself that would show up, right?

    Judith H. Mizner: —Yes.

    And that’s part—

    Chief Justice John G. Roberts: And so that would also be in plain view?

    Judith H. Mizner: —The number was not in plain view.

    Chief Justice John G. Roberts: No, no.

    But I mean, in a — in a case in which the user had not coded the particular number, the number would show up, I think, right?

    Judith H. Mizner: Yes.

    And—

    Chief Justice John G. Roberts: And that would be—

    Judith H. Mizner: —And the number would be in plain view.

    Chief Justice John G. Roberts: —Okay.

    Judith H. Mizner: But what makes the — the privacy interest and the associational interest in simply the call logs, which the government has talked about in Mr. Wurie’s case, is that it does contain more than simply the numbers dialed.

    You have the associational information that’s created by the user.

    In this case, it was linking my house to a particular number.

    It can go well beyond that.

    You can link names and nicknames to — and places to a number.

    You can link e-mails to a name and a number.

    You can link a relationship to a name and a number.

    Doctor, shrink, mom, dad.

    You can link a photograph to a number.

    You can link your number — you can link it to text messages.

    You can link it to other numbers.

    So you can provide pattern — and also patterns of calling that provide additional associational data and could indicate the closeness of a relationship.

    How often calls were made, when are they made, what’s the time of the call, when did it start or stop, the length of the call.

    You can link notes, either general or about a particular phone call.

    Chief Justice John G. Roberts: What do you think, if the phone rings, can the police answer it?

    Judith H. Mizner: The cases that have addressed answering the phone have been in the context of search warrants for houses where, as the police are searching the house, the phone has been ringing.

    And the courts have said that — lower courts have said that where answering the phone can be viewed as being within the scope of the search warrant, it is permissible for the police to answer the phone.

    Chief Justice John G. Roberts: Well, what about this case where there isn’t a search warrant?

    Judith H. Mizner: They didn’t answer the phone.

    Chief Justice John G. Roberts: The number’s in plain view.

    I mean, is answering the phone — can you do it or not?

    You know what number is calling.

    Is it like someone — you’re conducting a search on the house and somebody knocks on the door?

    You can open the door, right?

    Judith H. Mizner: Yes.

    And they perhaps could have answered the phone in this case, but they didn’t.

    Justice Anthony Kennedy: No, but what is your position?

    What is the rule you want us to adopt in response to the Chief Justice’s question?

    Judith H. Mizner: I would say that they could answer the phone.

    Justice Sonia Sotomayor: Under what theory?

    I don’t disagree with you.

    I just want to know what would be your theory, and what’s the limitation?

    Judith H. Mizner: Well, in the sense it’s — it’s plain hearing.

    It is a — an analogue of plain view.

    There is nothing particularly private about the ringing.

    And if you — the policeman can answer the phone.

    It doesn’t mean that the person on the other end has to respond.

    It’s—

    Justice Sonia Sotomayor: I was thinking in terms of reasonable expectation of privacy.

    Most people don’t pick up other people’s phones to answer them unless the phone is lost.

    And then you pray the person who found it answers it.

    [Laughter]

    Judith H. Mizner: —And perhaps this would be analogous to — to that.

    So the—

    Chief Justice John G. Roberts: So do you think — it’s got nothing to do with plain hearing.

    I’m not saying they can’t — obviously they can hear the ring.

    I’m just — it’s a big, different step to answer it.

    Judith H. Mizner: —If the police have seized the phone and they can secure it, pending application for a warrant to engage in a search of its contents, then answering the phone could be viewed as part of — of securing.

    Justice Samuel Alito: Does the owner of a cell phone have a reasonable expectation of privacy in the call log?

    Judith H. Mizner: Yes.

    I believe for the associational data and reasons that I have just articulated, that there is an expectation of privacy in the call log.

    Justice Samuel Alito: But the cell phone company has all that information, doesn’t it?

    Judith H. Mizner: No.

    The cell phone company has—

    Justice Samuel Alito: Has the numbers.

    Judith H. Mizner: —Has the numbers, but it does not have—

    Justice Samuel Alito: All right.

    Does the — does the owner have a reasonable expectation of privacy in a list of the numbers called?

    Judith H. Mizner: —Not in the list of the numbers alone, but the call log is not limited to that list of numbers.

    And your phone bill may not necessarily include, depending on the kind of plan you have, may not include information about the length of the call or—

    Justice Samuel Alito: The cell phone company won’t have information about the length of the call?

    Judith H. Mizner: —I think it would depend on — whether they keep that information, it would depend on what kind of plan you have.

    Justice Samuel Alito: Well, what are we dealing with here?

    I know everybody wants to talk about global issues, but what — what are the — what information are we talking about in this case?

    We have my home, which you said is in plain view, my house, and then you have the call log.

    What else do we have?

    Judith H. Mizner: That is all that was accessed.

    We’re talking about the phone number that allowed the police to get to a particular premises.

    Justice Samuel Alito: Well, if the call log, the numbers called, is not covered by a reasonable expectation of privacy, and my house is not covered by a reasonable expectation of privacy, then where is the search?

    Judith H. Mizner: It — the search is in opening the phone itself, which is covered by a reasonable expectation of privacy.

    Chief Justice John G. Roberts: No, they could—

    Justice Samuel Alito: And you could do that and look for a razor blade?

    Judith H. Mizner: You could — you are then—

    Justice Samuel Alito: Flip open the old style flip-phone to see if there’s something inside?

    Judith H. Mizner: —Yes, you could examine it, but that is not going to get you the phone number.

    You had to push — the officer here had to push a button in order to get access to the call logs.

    There were two buttons that—

    Justice Samuel Alito: See the recent — but what is — where is — what is the reason — by pushing the button, you get information that you just told me is not covered by a reasonable expectation of privacy.

    Judith H. Mizner: —No, Justice Alito, I believe I said that the information is covered by a reasonable expectation of privacy because there is associational information that is inputted by the owner of the phone.

    Justice Samuel Alito: Yes, but was any of that used here?

    Judith H. Mizner: It was the link between my house and the — and the number, yes, that — that got them to the premises.

    Justice Samuel Alito: Well, they saw the number — they saw the phone rang at a particular time, and then if you look at the call log, you can see what call came in at that particular time.

    And then you know where the call came from that registered as my house.

    Judith H. Mizner: But you wouldn’t know that it was my house absent the information that the owner of the phone had put in.

    Justice Samuel Alito: Why — why is that something — and maybe I don’t understand the facts.

    If — if a phone rang right now and you look at the call log and you see what call came in at 12:13, and you know that the call came from my house, and you see the number from — of the call that came in at 12:13, wouldn’t you know that that was the number from my house?

    Judith H. Mizner: But you wouldn’t know from the call log alone without information input by the phone owner on that log that it was my house once they get the number.

    Chief Justice John G. Roberts: —Well, if it wasn’t — if it wasn’t input, you would have the number itself in plain view.

    Judith H. Mizner: Yes.

    But you would then — you could go to some kind of reverse directory to get an address.

    But you have no — what is the reason to believe that that number—

    Chief Justice John G. Roberts: You wouldn’t know it was the house.

    Judith H. Mizner: —has anything to do with the defendant’s house.

    Justice Anthony Kennedy: Can — can — can the police search the person’s wallet and find an — an index card with a number, my house?

    Can he do that—

    Judith H. Mizner: I believe—

    Justice Anthony Kennedy: —and use the information obtained?

    Judith H. Mizner: —I believe that the police can examine the contents of a—

    Justice Anthony Kennedy: Examine the contents of the wallet but not read it?

    I — I don’t understand the issue.

    Judith H. Mizner: —And—

    Justice Anthony Kennedy: Is — may the police or may not the police examine a wallet, find the number that says my house, and act on that information to investigate the crime?

    Yes or no?

    Judith H. Mizner: —This Court has not addressed the reading of information examined in — in — in searching for incident to arrest.

    Justice Anthony Kennedy: Well, it seems to me that it’s fairly clear that it’s part of the contents that are seized, that are on — in the possession of the arrestee, and that the police can act on it.

    Judith H. Mizner: Well, under the justifications of Chimel and — which were reiterated in — in Robinson and in Gant and McNeely, the justifications are officer safety and evidence preservation.

    It doesn’t — which does not necessarily encompass reading.

    But to address the case of the cell phone, I don’t think you have to resolve whether it’s appropriate to read paper documents that you come across in examining a paper or not.

    Chief Justice John G. Roberts: No, but the point is the only — the only information they got and used was the phone number and address of his house, right?

    And — and that it was his house, right?

    Judith H. Mizner: But that—

    Chief Justice John G. Roberts: That’s on your driver’s license, isn’t it?

    So — and—

    Judith H. Mizner: —Your residence is, but this was not — then they needed his driver’s license, which they had.

    Chief Justice John G. Roberts: —So I guess I’m just trying to see what greater invasion of privacy there was in this case than the police looking at your driver’s license when you’re carrying it around in your wallet.

    Judith H. Mizner: Because my house may not necessarily be the house in which you reside.

    You may have chosen to attach that description—

    Chief Justice John G. Roberts: So the problem here was that he called — he indicated that a number was his house, and it might not have been his house?

    Judith H. Mizner: —The problem is that the police searched his phone in order to associate information contained in the phone with what they were able to observe in plain view.

    Justice Stephen G. Breyer: There had to be two buttons, two buttons.

    Judith H. Mizner: Yes.

    Justice Stephen G. Breyer: Now, was there a claim made in this case that exigent circumstances, destruction of evidence, or officer safety justified the search?

    Judith H. Mizner: No.

    Justice Stephen G. Breyer: No?

    Okay.

    So I guess if there is a rule that says you can search phones, then you could do it.

    After all, you might search a phone and come up with an advertisement for a Walt Disney movie, which is perfectly public.

    But if the rule is you can’t search phones, then you win, even though in this case they came up with something that was — is — is that right or not?

    Judith H. Mizner: Yes.

    So—

    Justice Stephen G. Breyer: I mean, if, in fact, you can search the phone thoroughly for everything in the person’s life, they might have come up with something when he was six years old, there is, in fact, a picture of an elephant at the zoo.

    Totally public.

    But it would still fall within the rule, which what I thought one of the things we’re arguing about in this case.

    Judith H. Mizner: —Yes, Justice Breyer, and we believe that the seize-and-secure rule that we are proposing meets the needs of law enforcement by allowing them to maintain custody of the—

    Justice Stephen G. Breyer: All right.

    Well, what is your argument for the proposition, look, when you search a phone, sometimes what you come up with is perfectly public information; sometimes what you come up with is private information.

    Now, you want to say the absolute rule should be no.

    But what’s your argument, rather than trying to say sometimes if you get the private information, no; but if you get the public information, yes, et cetera?

    Judith H. Mizner: —Because everything is so intermingled on a cell phone or a tablet or a computer, you don’t know what you’re going to be getting when you push those buttons and start rummaging through the digital contents of the phone.

    Justice Samuel Alito: In determining whether the examination of information on a cell phone is — constitutes a search, what do you think we — we are doing?

    Are we trying to — to — are we answering an empirical question, what is the reasonable expectation of privacy of a — of a person in 2014 who has a cell phone in his or her — on his or her person?

    Or are we legislating what we think is a good privacy rule?

    Judith H. Mizner: I think the Court is determining whether or not in 2014 an individual has a reasonable expectation of privacy against government intrusion into a device that carries around an increasingly large percentage of somebody’s personal and private information.

    Justice Samuel Alito: All right.

    Well, a lot of that — part of that is the person must act — people must actually have that expectation.

    That must be the expectation of people at large in 2014, that they think that everything that’s on their cell phones is private, or they think some of the information on the cell phones is private, or they think nothing on the cell phone is private.

    Where do you think we should look to answer that question about what people in 2014 think about that question?

    Judith H. Mizner: I think from the fact that people carry them with them in — in a pocket or in a purse, that that exhibits an expectation of privacy.

    You don’t expect people to be rummaging through your pockets or — or through the items you’re carrying.

    Justice Samuel Alito: But why is that so?

    Cell phones are different.

    I’m not going to say for a — suggest for a second that there are like things that existed in the pre-digital area.

    But in the pre-digital era, presumably people didn’t have a reasonable expectation of privacy in papers, letters, things like that that they had, of photos in a billfold, numbers, addresses, things that they might — they might be carrying on their persons.

    Judith H. Mizner: You—

    Justice Samuel Alito: So how do we determine what the — what the new expectation of privacy is now?

    Judith H. Mizner: —I think people did have an expectation of privacy in those items until—

    Justice Samuel Alito: Then why was it not a search when — when you — you searched the pocket of somebody who was arrested and you found the address of someplace?

    Judith H. Mizner: —I believe it is a search, Justice Alito.

    It’s a question of whether it is a search that has been justified by an exception to the warrant requirement, the — the scope — or the permissible scope of the search incident to arrest.

    It’s still a search.

    Justice Samuel Alito: All right.

    What was the — why — how do we determine whether something has — somebody has a reasonable expectation of privacy in any category of information that is contained on a cell phone?

    Judith H. Mizner: Because of the interconnectivity of the data, I don’t think you can say a person has a reasonable expectation of privacy in this app, but not that app, because you don’t know what is linked to any other part of the cell phone.

    So the rule that provides the security that the Fourth Amendment is intended to give an individual would be to say—

    Justice Sonia Sotomayor: Are — are you — I — I — I’m assuming that what you’re saying — you just said it a minute ago — the Fourth Amendment, the searches incident to arrest are an exception to the Fourth Amendment?

    Judith H. Mizner: —Yes, Justice Sotomayor.

    Justice Sonia Sotomayor: And is it your position, I — I’m assuming this is what this argument’s been about, which is whether we’re going to extend that exception of — the exception of searches incident to arrest to a new category, cell phones—

    Judith H. Mizner: Whether—

    Justice Sonia Sotomayor: —which are different than the traditional item.

    Judith H. Mizner: —Whether the scope of a justifiable search incident to arrest is going to include a search of — of the cell phone.

    Justice Antonin Scalia: Why do you say they are an exception to the Fourth Amendment?

    They just don’t violate the Fourth Amendment.

    I mean, the Fourth Amendment covers certain things and it doesn’t cover other things.

    The things that it doesn’t cover are not — not — not exceptions.

    They’re just things not covered.

    Judith H. Mizner: Well, this Court has espoused a warrant presumption and has said — has classified the search-incident-to-arrest exigent circumstances as exceptions to the warrant requirements saying that the preference is for a warrant to be obtained, and under certain well-defined circumstances, we are going to say that you may not.

    Justice Antonin Scalia: Well, but that — that presumption is — is simply not — you don’t believe that presumption, do you?

    Judith H. Mizner: I do.

    Justice Antonin Scalia: There are many more searches conducted without a warrant than with a warrant I — I bet.

    I mean, any automobile search, any inventory search, any — any search of — of businesses.

    All sorts of searches are conducted without a warrant.

    But you still believe that a warrant is the rule and everything else is the exception.

    I think it may be the opposite, actually.

    Justice Sonia Sotomayor: Unless the exceptions have swallowed the rule.

    Judith H. Mizner: In the exceptions, viewing the search-incident-to-arrest exception as having per — as having limited parameters as the First Circuit did—

    Justice Anthony Kennedy: The — the question is whether it’s an unreasonable search, and the warrant clause follows much later.

    The question is: Is this an unreasonable search?

    Judith H. Mizner: —But this Court has—

    Justice Anthony Kennedy: That’s what the Constitution provides.

    Judith H. Mizner: —This Court has said in many instances that a search not conducted pursuant to a warrant is unreasonable unless it falls within one of the well-defined exceptions that this Court has recognized to the warrant requirement.

    But—

    Justice Anthony Kennedy: Well, it’s a search that’s reasonable.

    That’s not necessarily an exception.

    Judith H. Mizner: —But in terms of reasonableness, this Court is balancing the intrusion against the individual’s interest in privacy—

    Justice Samuel Alito: Yeah, and that’s the—

    Judith H. Mizner: —a traditional balancing test, and we suggest that — that balance here supports the seize and secure rule that we are advocating.

    Justice Samuel Alito: —No.

    I understand that.

    But that — that’s the question that I was asking before.

    Is it a reasonable search or seizure?

    All right.

    So you have to balance the privacy interest versus the law enforcement interest.

    And how do — how do we find out what the privacy interests are — what the privacy expectations are, which go into that balance with respect to cell phones in 2014?

    Judith H. Mizner: Well, on—

    Justice Samuel Alito: Does it matter?

    You think it doesn’t matter?

    Maybe people feel very strongly every single thing that’s in the cell phone is — is private, or maybe they don’t.

    Maybe they think some things are private; some things are not private.

    Judith H. Mizner: —I think that by virtue of the fact that you carry them around in a generally enclosed container, a pocket, a purse, a briefcase, that that exhibits — that is an indication that people expect that the cell phone — that the information contained on their cell phone is private.

    Chief Justice John G. Roberts: Well, as opposed to what?

    Carrying it around somewhere other than your pocket?

    I mean, do — do you think there’s a difference if it’s attached to someone’s belt and everybody can see it or if it’s in a pocket?

    Judith H. Mizner: No.

    I believe that because you are carrying it with you, it is — it’s not something that you are exhibiting to the public.

    You’re not exhibiting the contents of the phone to the public.

    Chief Justice John G. Roberts: Surely it’s more private if it’s locked in your car or kept in your house.

    Judith H. Mizner: Yes.

    Chief Justice John G. Roberts: Carrying it with you in public makes it less private.

    Judith H. Mizner: But you’re not — it may be less private, but that doesn’t mean that you don’t have a reasonable expectation of privacy against people taking it from you and starting to intrude and — and rummage through its contents.

    Justice Ruth Bader Ginsburg: But then that questions the ability of the police to take the phone.

    I thought that that was a given, that incident to the arrest, the police could take the phone.

    The question is whether they can search it without a warrant.

    Judith H. Mizner: Yes, Justice Ginsburg.

    I was responding in terms of just a general expectation that people are not going to — if you — because you’re carrying a phone in public, it doesn’t mean that you expect that people are going to walk up and remove it from your belt or remove it from your pocket and start searching its contents.

    Justice Antonin Scalia: Well, you could say the same thing about a cigarette pack that — that has cocaine in it.

    Chief Justice John G. Roberts: Or a gun.

    Justice Antonin Scalia: Or — or a gun.

    Judith H. Mizner: And the police may seize and examine those containers—

    Justice Antonin Scalia: Right.

    Judith H. Mizner: —to see whether or not.

    Justice Antonin Scalia: And why not the phone.

    That’s exactly the question.

    Judith H. Mizner: Because—

    Justice Antonin Scalia: Do you have a reasonable — our rule has been if you carry it on your person, you ought to know it is subject to seizure and examination, and that’s been the rule.

    Judith H. Mizner: —It’s the scope of examination that we — that is at issue with a cell phone.

    A cell phone is fundamentally different from a cigarette pack.

    You can open the cigarette pack, you see whether or not there is something that is subject to destruction.

    But whether there’s—

    Justice Antonin Scalia: And you can open the cell phone and see whatever’s in it.

    So if you carry around a cell phone that isn’t encrypted or whatever, you know, you — you — you get what you — what you should have expected.

    That’s — that’s been the rule.

    If you are arrested, we — we can seize it and examine it.

    Judith H. Mizner: —The question is what is the scope of a permissible examination.

    And when you’re talking about a cigarette pack, you’re looking at another physical object.

    You’re not looking at the contents of somebody’s home.

    Justice Antonin Scalia: I understand.

    But you — so you’re arguing for a new rule.

    The rule right up to now has been you can — we can seize it.

    We can examine it totally.

    If it’s a book, we can read every page of the book.

    You want a new rule for cell phones, right?

    Judith H. Mizner: We want a rule that says that you cannot search the contents of the cell phone without a warrant.

    Justice Antonin Scalia: At all?

    At all?

    Judith H. Mizner: On — absent exigent circumstances.

    Justice Ruth Bader Ginsburg: What would be an exigent circumstance where you could search, in your view?

    Judith H. Mizner: An exigent circumstance?

    Justice Ruth Bader Ginsburg: You said you had — you are arguing for a flat rule to the police, thou shalt not unless there are exigent circumstances.

    So what would be an exigent circumstance where the police, without getting a warrant, could search the cell phone?

    Judith H. Mizner: One would be an example of police are investigating a bombing, a upcoming — a potential bombing, and they have information that the — that whoever is going to set off the bomb is going to — may do it with a cell phone, and he’s going to be in a particular place at a particular time.

    You see someone approaching with a cell phone, then suggest that under those circumstances, you could—

    Chief Justice John G. Roberts: This is kind of—

    Judith H. Mizner: —take whatever measures you needed.

    Chief Justice John G. Roberts: —It’s not a bomb, but this a different case.

    This is somebody in an area selling drugs where the police have told us they typically use cell phones to arrange the deals and the transfers, and this guy is caught with two cell phones.

    Why would he have two cell phones?

    Judith H. Mizner: Many people have more than — have multiple cell phones.

    I — there was no—

    Chief Justice John G. Roberts: Really?

    What is — what is your authority for the statement that many people have multiple cell phones on their person?

    Judith H. Mizner: —Just observation.

    But—

    Justice Antonin Scalia: You’ve observed different people from the people that I’ve observed.

    [Laughter]

    Judith H. Mizner: —That’s probably true.

    Chief Justice John G. Roberts: Particularly since they’re in their pockets, right?

    Well, it — does — do you — is it insignificant, in your view, that the cell phone was a method for which criminal transactions were typically undertaken in this area and that the fellow had two cell phones rather than what I would have thought is the more normal one?

    Judith H. Mizner: Yes.

    I don’t believe that that should be a criteria justification for searching either cell phone.

    The — it may be convenient for the police to get information related to a crime by — by searching without a warrant, but this Court has said repeatedly that convenience and efficiency don’t override individual constitutional rights.

    And sanctioning a general evidence gathering search of the entire contents of his cell phone, given the current expansive nature of those contents is an unwarranted expansion of a traditional search incident to arrest, because we are not talking about the kind of traditional containers that holds limited, finite quantities of — of usually other objects.

    And there is nothing — a seize-and-secure rule protects both the individuals’ expectations of privacy and security and the government’s right to obtain evidence consonant with the protections of the warrant requirement, giving the neutral magistrate an opportunity to determine whether there’s probable cause for the search of the cell phone and to define the limits of that search.

    Chief Justice John G. Roberts: Mr. Dreeben, you have four minutes remaining.

    REBUTTAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF PETITIONER

    Michael R. Dreeben: Mr. Chief Justice, and may it please the Court:

    A search incident to arrest has always been considered a reasonable search within the meaning of the Fourth Amendment, and I think this case illustrates why that principle well applies to a cell phone.

    Justice Sonia Sotomayor: This is a very big confusion of the Fourth Amendment.

    The Fourth Amendment doesn’t permit reasonable searches without a warrant.

    It says you need a warrant for — we’ve created exceptions to that, but not because a search is reasonable.

    Virtually every search could be reasonable without a warrant.

    If you’ve watched somebody selling drugs, it’s very reasonable to go into their house, but absent the exigent circumstance of the drugs disappearing, you can’t.

    So I don’t talk about reasonable searches.

    I talk about—

    Michael R. Dreeben: So Justice Sotomayor, the Fourth Amendment doesn’t actually say you do need a warrant.

    It does protect the right against unreasonable seizures, and it describes what warrants must contain.

    Justice Antonin Scalia: That’s the only thing it prohibits is unreasonable seizures.

    Michael R. Dreeben: That’s exactly right.

    That’s the textual prohibition.

    This Court has created language in its jurisprudence that prefers warrants in certain circumstances, but as the Court recognized in McNealey last term and in Maryland v. King, the search incident to arrest doctrine is a categorical exception and this case illustrates why.

    The information that was found on the phone was very time sensitive and important to law enforcement.

    It helped fulfill the typical purposes, the categorical purposes of the search incident to arrest doctrine.

    It helped verify identity, it helped solve the crime that — for which the individual was arrested, and it was done in a reasonable and nonintrusive manner.

    There was nothing about this search that exposed reams of private data to view.

    To the extent that the data was not in a call log really subject to a reasonable expectation of privacy at all, it was discovered in a search but I think that underscores why the search was limited and reasonable.

    So this case really, I think, exemplifies why a categorical rule that respondent urges in this case would not be appropriate, and we submit that this Court should reverse the Court of Appeals.

    Thank you.

    Chief Justice John G. Roberts: Thank you, Mr. Dreeben.

    The case is submitted.

    http://www.oyez.org/cases/2010-2019/2013/2013_13_212

    —Huffduffed by davidr

  5. Aereo Oral Arguments

    http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=13-461&TY=2013

    —Huffduffed by davidr

  6. ABC, Inc. v. Aereo, Inc. | The Oyez Project at IIT Chicago-Kent College of Law

    Print this transcript

    Transcript: 

    ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE PETITIONERS

    Chief Justice John G. Roberts: We’ll hear argument next in Case 13-461, American Broadcasting Companies v. Aereo.

    Mr. Clement.

    Paul D. Clement: Mr. Chief Justice, and may it please the Court:

    Aereo’s business model is to enable thousands of paying strangers to watch live TV online.

    Aereo’s legal argument is that it can make all of that happen without publicly performing.

    But Congress passed a statute that squarely forecloses that rather counterintuitive submission.

    Because although the Internet and the thousands of mini antennas are new, the basic service that Aereo is providing is not materially different from the service provided by the cable company before this Court in 1969.

    Justice Sonia Sotomayor: Why aren’t they cable companies?

    Paul D. Clement: They’re not—

    Justice Sonia Sotomayor: I’m looking at the — everybody’s been arguing this case as if for sure they’re not.

    But I look at the definition of a cable company, and it seems to fit.

    A facility located in any State.

    They’ve got a — whatever they have — a warehouse or a building in Brooklyn, the — that receives signal transmissions or programs broadcast by television broadcast stations.

    They’re taking the signals off of the—

    Paul D. Clement: —They’re taking the signals, right.

    Justice Sonia Sotomayor: —I’m sorry, they are.

    Makes secondary transmissions by wires, cables, or other communication channels.

    It seems to me that a little antenna with a dime fits that definition.

    To subscribing members of the public who pay for such service.

    I mean, I read it and I say, why aren’t they a cable company?

    Paul D. Clement: Well, Justice Sotomayor, a couple of things.

    First of all, I mean, I think if you’re — if you’re already at that point, you’ve probably understood that just like a cable company, they’re public — they’re publicly performing and maybe they qualify as a cable company and maybe they could qualify for the compulsory license that’s available to cable companies under Section 111 of the statute.

    Justice Sonia Sotomayor: But it just gets it mixed up.

    Do we have to go to all of those other questions if we find that they’re a cable company?

    We say they’re a capable company, they get the compulsory license.

    Paul D. Clement: Well, no.

    There’s lots of conditions on the compulsory license.

    And I think the first place — the reason that we haven’t been debating about whether they’re a cable company is because they don’t want to be a cable company.

    They have a footnote in the red brief that makes it clear.

    They are not a cable company in their view.

    They don’t want to be a cable company.

    And I think that’s because coming with a cable company, it might potentially get you into the compulsory license, but it brings with it a lot of obligations to come with being a cable company—

    Justice Stephen G. Breyer: Yes.

    But that’s why they don’t want it.

    Paul D. Clement: —Exactly.

    Justice Stephen G. Breyer: That isn’t the question.

    Paul D. Clement: Well, here’s the other thing is I think—

    Justice Sonia Sotomayor: The question is are they?

    Paul D. Clement: —I don’t think they are.

    That’s really ultimately a question under the Federal Communications Act.

    But here’s why, if I could — I think Mr. Frederick will certainly speak to this if — if you want him to.

    But I think the reason they don’t want to be a cable company is because I think their basic business model would not allow them to qualify with compulsory license anyways.

    Justice Stephen G. Breyer: But I’d still like to know the answer to the question, in your opinion.

    And, of course, if you want a reason, I’ll give you my reason.

    If we take public performance, maybe we run into what Professor Nimmer saw as a problem.

    Why isn’t what used to be called a phonograph record store that sells phonograph records to 10,000 customers a public performance?

    It seems to fall within that definition.

    But if it is, there’s no — no first sale doctrine and it’s a big problem.

    So we could avoid that problem.

    Now, that’s why I’m very interested in the answer, not just what they want.

    Paul D. Clement: Well, I don’t think they are ultimately a cable company, and we could debate that question, but it’s not the question before you.

    So maybe I could give you some comfort about why you don’t need to decide that question.

    Justice Stephen G. Breyer: Well, perhaps we should remand it, because my reason for wanting to decide it is what I said.

    And what you’ve read in their briefs is they, in their supporting amici, have thrown up a series of serious problems not involving them, like the cloud, which the government tells us to ignore, and many others, which make me nervous about taking your preferred group.

    So that’s why I was interested in this question.

    Paul D. Clement: But, Justice Breyer, I think it’s very important to — to understand that even if they’re a cable company, it doesn’t make all these problems go away.

    Because they would be a cable company that by very virtue of what they want to point to, which is their user specific copies, I don’t think they would qualify for the compulsory license.

    I also think the better way to avoid your concerns is to maybe take them on directly.

    The reason that the record company is not involved in a public performance is it’s not involved in any performance at all, but that’s different, of course, from an online music store, which not only provides a download of something, but actually performs it and streams it and allows it live.

    And that is a basic distinction that’s not only recognized by the Second Circuit in the ASCAP case, but it’s also recognized in the real world by the way these — these different services are structured.

    If you provide downloads of music, you get a distribution license or a reproduction license.

    If you provide streaming of music where you also have a contemporaneous live performance, then you also get a public performance license.

    Justice Sonia Sotomayor: Is your definition — I mean, Justice Breyer has already asked you — said he’s troubled about the phonograph store, and — and the Dropbox and the iCloud.

    I’m also worried about how to define or — public performance or the performance of a work publicly, which I guess is the better way to do it, according to you.

    How do I define that so that someone who sells coaxial cable to a resident of a building is not swept up as a participant in this?

    Or someone who — the sort of passive storage advisors that — this is really hard for me.

    Paul D. Clement: Okay.

    But let me—

    Justice Sonia Sotomayor: How do I — what do I do to avoid — what do we do, not me, but what does the Court do to avoid a definition or an acceptance of a definition that might make those people liable?

    Paul D. Clement: —Okay.

    Well, let me try to take — those are actually two different examples, and I think the answer to both of them is somewhat different.

    I think the provider of coaxial cable is — if it’s just a simple sale of the cable — is not performing at all.

    And so I think if you’re somebody and all you do is take a piece of hardware and you sell it once and for all to a user, then the user may be performing with the equipment, but you’re out of the picture.

    And that’s different from an ongoing service, like a cable company or like Aereo, who still owns all these facilities and they’re providing, through wire transmissions, these performances on an ongoing basis.

    Justice Sonia Sotomayor: What if you get it through Dropbox?

    Justice Elena Kagan: Well, that’s something else before you get to Justice Sotomayor’s second half of the question, but something more along the lines of providing hardware.

    Suppose a company just gave the antenna and a hard drive, that’s what they sold to the user, and the user was able to use the antenna and the hard drive in her own house or apartment in order to get all these broadcast programs.

    What would the — would that be a performance?

    Paul D. Clement: I think the end user would be doing a performance, but it would be a purely private performance, and I don’t think the person that sold them the hardware or really anybody else, if I understand your hypo, would be involved in a performance.

    And the answer to these hypos — I mean, this isn’t something that I’m making up on the fly.

    I mean, it’s right there in the text of the statute.

    Justice Elena Kagan: But then it really does depend on, like, where the — where the hardware is.

    In other words, if — if Aereo has the hardware in its warehouse as opposed to Aereo selling the hardware to the particular end user, that is going to make all the difference in the world as to whether we have a public performance or not a public performance.

    Paul D. Clement: Well — and, again, I think that goes to what I was about to say, which is let’s just not because, you know, we like one better than the other.

    It’s because of the text of the statute Congress wrote.

    One of the ways that you can public perform.

    I mean, they start with the classic public performance.

    Right?

    A singer in a concert hall.

    They sold tickets.

    But then they say, wait, it’s also a public performance if you take the singer’s performance and you transmit it, and they’re thinking over the airways and all sorts of other ways, if you transmit it to the public.

    And the definition of transmission, then, is to communicate it from one place to another.

    So there is a geographical aspect, if you will, built right into the statute so that if you sell somebody hardware and all they’re doing is transmitting it to themselves at their home, there’s not going to be a transmission that’s chargeable to the person who sold you the hardware.

    But if you provide an ongoing service from a remote—

    Justice Elena Kagan: So you think that in my hypo, there’s a performance, but it’s a private performance and then you move the hardware and it becomes a public performance.

    Is that it?

    Paul D. Clement: —It — it becomes a public performance on behalf of the sender, but it still would be a private performance on behalf of the receiver.

    And that’s one thing that’s really important to get in mind, is that in this statute as to the public performance right, there’s nothing particularly anomalous about a single transmission that from the sender’s perspective is a public performance, but from the recipient’s perspective only allows for a private performance.

    If you think about the classic cable context, which is what Congress was trying to address in 1976 with the Transmit Clause, you have the cable company and they’re taking a performance off of the airways and they’re transmitting it to all the end-users.

    Now, the cable company is clearly performing to the public, but that same transmission is allowing each end-user to turn on their television set and to make a performance proper, which is a private performance.

    Justice Sonia Sotomayor: So Roku is — Roku is paying a license for no reason.

    Paul D. Clement: I’m sorry?

    Justice Sonia Sotomayor: Roku is paying a license for no reason?

    They sold me a piece of equipment.

    Paul D. Clement: I don’t know all the details of that particular piece of equipment.

    I’m not sure whether they’re — they’re paying a license or not.

    But if there was really a transfer and there’s nobody else providing a transmission, I don’t think that just operating the hardware in the privacy of your own home is going to result in anything but a private performance.

    Justice Sonia Sotomayor: Go to the iDrop in the cloud.

    Paul D. Clement: Sure.

    Now, there’s, I think, it’s a slightly different situation.

    Here, I think the ultimate statutory text that allows you to differentiate a cloud locker storage from something like what Aereo does is a language to the public.

    And I do think that in all sorts of places, including the real world, there’s a fundamental difference between a service that allows — that provides new content to all sorts of end-users, essentially any paying stranger, and a service that provides a locker, a storage service.

    And I think if you want a real world analogy off of the Internet, I think it’s the basic decision — the difference between a car dealer and a valet parking service.

    I mean, if you look at it from 30,000 feet, you might think, hey, both of these things provide cars to the public.

    But if you looked at it more closely, you’d understand, well, if I show up at the car dealership without a car, I’m going to be able to get a car.

    If I show up at the valet parking service and I don’t own a car, it’s not going to end well for me.

    And so—

    Justice Samuel Alito: What is the difference—

    [Laughter]

    I didn’t mean to interrupt your—

    Paul D. Clement: —Well, i was just going to — so I think there is a very real way in which you would say, you know, at the end of the day, the car dealer’s providing cars to the public, the valet parking service is not.

    It’s providing a parking service.

    Chief Justice John G. Roberts: Why isn’t — and I don’t want to stretch it too — but why isn’t it like a public garage in your own garage?

    I mean, you know, if you — you can park your car in your own garage or you can park it in a public garage.

    You can go to Radio Shack and buy an antenna and a DVR or you can rent those facilities somewhere else from Aereo.

    They’ve — they’ve got an antenna.

    They’ll let you use it when you need it and they can, you know, record the stuff as well and let you pick it up when you need it.

    Paul D. Clement: Mr. Chief Justice, that’s not an implausible way to look at this.

    That’s exactly the way that this Court looked at it in Fortnightly decision.

    But Congress in 1976 decided it was going to look at it differently, and it said that if you are providing a service, even if you are providing a service that one could reconceptualize as just renting out antennas that somebody could put on their own house, the person that provides that service on an ongoing basis and in the process exploits the copyrighted works of others is engaged in a public performance.

    That is clearly what they were trying to do in the 1976 Act by adding the transmit clause.

    Justice Samuel Alito: —Well, the Second Circuit analogized this to its CableVision decision.

    So maybe you could explain to me what is the difference, in your view, between what Aereo does and a remote storage DVR system.

    Is the difference — does the difference have to do with the way in which the cable company that has the remote storage DVR system versus Aereo acquires the program in the first place?

    Does it have to do with the number of people who view this program that’s been recorded?

    What is the difference?

    Paul D. Clement: I think the potential difference, and it’s both the CloudLocker storage and this example, I don’t think this Court has to decide it today.

    I think it can just be confident they are different.

    Here is the—

    Justice Samuel Alito: Well, I don’t find that very satisfying because I really — I need to know how far the rationale that you want us to accept will go, and I need to understand, I think, what effect it will have on these other technologies.

    Justice Anthony Kennedy: I had the same question.

    Just assume that CableVision is our precedent.

    I know that it isn’t, but let’s just assume that it is.

    How would you distinguish the CableVision from your case and how is it applicable here?

    Assume that it’s binding precedent.

    Just that’s a hypothetical.

    Paul D. Clement: —Okay.

    But, Justice Kennedy, I would like to answer both your questions by assuming that the result in CableVision is right, but I don’t have to necessarily buy the reasoning, because I think the reasoning of CableVision is profoundly wrong, so let me circle back to that.

    But the reason there’s a fundamental difference between the RS DVR at issue in CableVision and what Aereo provides is, as Justice Alito alluded to, the fact that there’s a license in the CableVision context to get the initial performance to the public.

    And so then I think appropriately the focus in the CableVision context becomes just the playback feature and just the time-shifting that’s enabled by that.

    And in that context, if you focus only on that, then the RS DVR looks a lot like a locker service where you have to come in with the content before you can get content out and you only get back the same content.

    And here is what really I think Aereo is like.

    Aereo is like if CableVision, having won in the Second Circuit, decides: Whew, we won, so guess what?

    Going forward, we’re going to dispense with all these licenses, and we are just going to try to tell people we are just an RS DVR, that’s all we are, and never mind that we don’t have any licensed ability to get the broadcast in the first instance, and we’re going to provide it to individual users, and it’s all going to be because they push buttons and not because we push buttons.

    If that were the hypothetical, I don’t know how that wouldn’t be the clearest violation of the 1976 Act.

    Justice Stephen G. Breyer: That’s exactly our problem.

    I’m hearing everybody having the same problem, and I will be absolutely prepared, at least for argument’s sake, to assume with you that if there were ever anything that should be held to fall within the public performance, this should be.

    All right?

    I will assume that.

    I’m not saying it.

    But then the problem is in the words that do that, because we have to write words, are we somehow catching other things that really will change life and shouldn’t, such as the cloud?

    And you said, well, as the government says, don’t worry, because that isn’t a public performance.

    And then I read the definition and I don’t see how to get out of it.

    Paul D. Clement: Here is the way to get out of it, Justice Breyer.

    Ultimately the words you’re going to have to interpret are ‶ to the public ″.

    Justice Stephen G. Breyer: To the public?

    You see, separate, at the same time, or at different times?

    Separate or together?

    So a thousand people store in the cloud the same thing, as can easily happen, and pull it back at varying times of the day.

    Paul D. Clement: If all they can do is, just like the valet car parking service, is get back what they put up there, I think you could easily say that that is not to the public.

    And that is not just me coming up with a clever distinction.

    That’s the distinction that’s really been drawn in the real world, because not all cloud computing is created equal, and there are some cloud computing services that use cloud computing technology to get new content to people that don’t have it, and they get licenses.

    And there is other cloud computing that just has locker services and they don’t think they need a license, and so I’m not saying that you have to bless what the market has done, but I think it’s a profound indication—

    Justice Elena Kagan: But what if, Mr. Clement, it’s not so simple as a company that just allows you yourself to put something up there?

    What if — how about there are lots of companies where many, many thousands or millions of people put things up there, and then they share them, and the company in some ways aggregates and sorts all that content.

    Does that count?

    Paul D. Clement: —That, Justice Kagan, is precisely why I’m asking you not to decide the cloud computing question once and for all today, because not all cloud computing is created equal.

    The details of it might matter.

    If I can take my valet parking service one more time.

    If a valet parking service starts renting them out and sort of has a little Zipcar service on the side and says, hey, while we have your car, if somebody else needs a car, we’re going to rent it out to them, I think that’s different from the pure valet parking service.

    If I could reserve the rest of my time for rebuttal.

    Thank you.

    Chief Justice John G. Roberts: Thank you, counsel.

    Mr. Stewart.

    ORAL ARGUMENT OF MALCOLM L. STEWART ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING PETITIONERS

    Malcolm L. Stewart: Mr. Chief Justice, and may it please the Court:

    I would like to begin by reinforcing two of the points that Mr. Clement made.

    The first is that what Aereo is doing is really the functional equivalent of what Congress in the 1976 Act wanted to define as a public performance.

    As the Chief Justice said, one potential way of looking at this is that Aereo and companies like it are not providing services, they are simply providing equipment that does, in a more sophisticated way, what the viewer himself can do.

    It’s a plausible way of looking at the world.

    That’s what the Court in Fortnightly and Teleprompter said, but Congress acted to override that and to make clear that cable services, services that used one big antenna to pull broadcast signals out of the sky and reroute it to their subscribers, those people were engaged in public performances and they ought to be paying royalties.

    The second thing that I would like to reinforce in Mr. Clement’s presentation is that there is no reason that a decision in this case should imperil cloud locker services generally, but, as Mr. Clement was pointing out, that the term ‶ cloud computing ″—

    Justice Sonia Sotomayor: How about Simple.

    TV or NimbleTV, which is not quite a hybrid?

    Malcolm L. Stewart: —I guess I’m not familiar enough with the precise details of the operation, but just let me say in general terms there are obviously services that provide television programming over the Internet.

    Some of them are licensed because they recognize that they are publicly performing.

    If a particular company, for instance, recorded television programs and offered to stream them to anyone who paid the fee or offered to stream them for free and make its money off advertising, that would be a public performance because those companies would be providing content to people who didn’t have it.

    I think the basic distinction, the one that at least defines the extremes, is the distinction between the company, whether it be Internet-based or a cable transmitter, that provides content in the first instance and the company that provides consumers with access to content that they already have.

    If you have a cloud locker service, somebody has bought a digital copy of a song or a movie from some other source, stores it in a locker and asks that it be streamed back, the cloud locker and storage service is not providing the content.

    It’s providing a mechanism for watching it.

    Justice Elena Kagan: Can I ask my same question to you that I asked to Mr. Clement?

    How about if there’s a company that allows sharing and that aggregates all the content that different individual users put up and that in some sense sort of sorts and classifies the content in different ways?

    How about that?

    Malcolm L. Stewart: I think you would have to — you would have to know both the details of the service and you would have to be making a harder call there about how to draw the line, because I don’t pretend that there is a bright line between providing a service and providing access to equipment.

    If you look, for instance, at the extremes of a person putting a rooftop antenna at his own home, everybody agrees that the rooftop antenna manufacturer is not performing at all and the individual is engaged in a solely private performance.

    The other extreme is the cable company, one big antenna, makes transmissions to a lot of people; Congress clearly intended to define that as a private performance.

    Somewhere in the — you could come up with lots of hypotheticals that look more or less like one of the other extremes, they are somewhere in the middle.

    It’s an authentically hard call as to where to draw the line.

    So I don’t have a good answer for you.

    Justice Stephen G. Breyer: How do we get out of the example?

    I mean, how do we get out — what words do I write to get out of this, throwing into this clause a music store that distributes via Federal Express, a device, or the U.S. Postal Service or even someone over the counter, distributes to 10,000 people a copy of a record which they then will take and play it?

    They have, to the same degree, transmitted something that will electronically make a performance of the music.

    So are they when they sell the record violating the display clause?

    Malcolm L. Stewart: No, they’re not—

    Justice Stephen G. Breyer: Because?

    Because?

    Malcolm L. Stewart: —Because the definition of ‶ to transmit ″ goes on:

    "To transmit a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent. "

    Justice Stephen G. Breyer: Of course they are.

    The sounds are received beyond the place.

    It requires the person to take the record, put it on a machine, and then play it.

    Malcolm L. Stewart: Well, there is a separate exclusive right in the Copyright Act.

    Justice Stephen G. Breyer: Of course there is.

    And that separate exclusive right has such things as first sale doctrine attached.

    But if they also flow here, if they — if this covers them, which is why NMPA wrote the paragraph that was quoted, if this covers it, there is no first sale doctrine, and that has a lot of consequences.

    I think so.

    Anyway, if you don’t know and you haven’t got something right there and you haven’t thought about it, you’re not going to think about it in two minutes, nor will I.

    Malcolm L. Stewart: No.

    No.

    I have thought about it.

    And I think the answer is that the word ‶ transmit ″ is being used in a particular sense.

    You are correct that there are some contexts in which we would say that a person who sends CDs or vital albums over the mails is transmitting those.

    That’s not the sense in which the term ‶ transmit ″ is used here.

    It’s talking about transmitting in a way that causes the sights and sounds to be received, transmission through radio waves, through cable, et cetera.

    And if there were any doubt about the word ‶ transmit ″, remember that it’s part of the definition of the word ‶ perform ″.

    And ambiguities in the definition should be construed in light of the defined term.

    And nobody would say, in ordinary parlance, that a person who transferred a copy of a record was performing it.

    Justice Ruth Bader Ginsburg: Mr. Stewart, before you finish, Mr. Clement in his brief made the point that we would — if we took the position that Petitioner urges, there would be an incompatibility with our international obligations; that is, Aereo’s view of the public performance right is incompatible with our obligations under the Berne Convention and under — what is it, WYCO?

    On pages 44 to 45 of his brief, he says that

    "Aereo’s view of what the public performance right is runs straight up against our international obligations. "

    and he cites a case from the European Court of Justice and I think another case.

    Malcolm L. Stewart: We haven’t made that argument.

    We — we believe that existing U.S. copyright law properly construed is fully sufficient to comply with our international obligations.

    But that — that doesn’t mean that we think that whenever a court misconstrues the statute, we will automatically be thrown into breach.

    It’s certainly possible.

    But if this case were decided in Aereo’s favor that some of our international trading partners might object, but — but I’m not going to take the position that we would concede those objections had merit, so we’re not making that argument.

    The other thing I would make — say to — to reinforce the point that Mr. Clement was making about the phrase ‶ to the public ″, using his example of the valet parking, using a comparable example of a coat checkroom, there are situations all the time in which people place property momentarily at the disposal — disposal of another and then retrieve it later.

    And it’s distributed to them at that later date, not in their capacities as members of the public, but as the true owners of the property.

    And I think some kind of distinction along those lines is essential in much more mundane applications of the Copyright Act.

    For example, if I invite 10 friends over to watch the Super Bowl, that’s a private performance.

    It’s not a public performance.

    That’s — that’s not because my friends are not members of the public.

    They are.

    And in some other capacities, it would be important to regard them as such.

    If the theater down the street had a screening of Casablanca and it happened that those 10 people were the only 10 people who attended, it would be a public performance, because they would be in there in their capacities as members of the public.

    So I think for — in a wide range of situations dealing with public performance, distribution to the public, it’s essential to ask not only are these individuals members of the public in some sense, but are they acting in their capacities as such.

    And if you have the pure cloud locker service, the service that doesn’t provide content, it simply stores content and then plays it back at the user’s request, that — that service would be providing content to its true owner.

    Justice Anthony Kennedy: How do you want us to deal with CableVision — the CableVision case in the Second Circuit?

    Again assume it’s a binding precedent.

    Just assume that.

    Malcolm L. Stewart: My answer would be the same as Mr. Clement’s, that the reasoning of CableVision, if you really adhere to the idea that the only trans — the only performance that counts is the individual transmission, and ask does that go to more than one person, then it’s hard to see how you could rule in favor of our position here.

    But as far as the bottom line outcome of CableVision is concerned, you could accept the government’s position and still say CableVision was decided the correct way because — precisely because CableVision had a license to perform in real time, to broadcast the program to its subscribers.

    The only thing that was at issue was the supplemental RSDVR service.

    And the court in CableVision appropriately, we think, held that the recording of those programs by the subscribers who were already entitled to view them in real time was fair use under Sony and the playback can reasonably be characterized as a private performance of their own content.

    Thank you.

    Chief Justice John G. Roberts: Thank you, Mr. Stewart.

    Mr. Frederick.

    ORAL ARGUMENT BY MR. DAVID C. FREDERICK ON BEHALF OF THE RESPONDENT

    David C. Frederick: Thank you, Mr. Chief Justice, and may it please the Court:

    I want to address the cable question, but before I do that, can I just say the three points I wanted to make are the text is very clear for Aereo, the interpretations of the text that they offer absolutely threaten cloud computing, and third, this case is really a reproduction right case masquerading as a public performance case.

    Now, we are not a cable service.

    The reason we’re not a cable service is because cable takes all signals and pushes them down.

    There’s a head in.

    It’s defined by statute.

    There’s a very particularized regulatory structure that deals with taking a lot of content and pushing it down to consumers.

    Aereo is an equipment provider.

    Nothing happens on Aereo’s equipment until a user initiates the system.

    The user initiates the system by logging on and pressing this is the program that I want to watch.

    That then tunes the antenna, activates the recording that will be made, and then the user is then able to play back that recording.

    Justice Sonia Sotomayor: I always thought, and I’ll try to be careful about it, but not often enough, probably breach it like every other member of the public, that if I take a phonograph of a record and duplicate it a million times the way you’re doing it, and I then go out and sell each of those copies to the public, then I am violating the Act.

    So why is it that you are not?

    David C. Frederick: Well—

    Justice Sonia Sotomayor: It’s not logical to me—

    David C. Frederick: —Sure.

    Justice Sonia Sotomayor: —that you can make these millions of copies and give — sell — essentially sell them to the public, because you’re telling the public when they want to buy it, they can call it up and hear it.

    So why aren’t you trans—

    David C. Frederick: Well, your hypothetical, Justice Sotomayor, implicates the reproduction right.

    That is the exclusive right of the copyright holder to restrict the number of copies that is made.

    That is not a public performance right question.

    They abandoned their challenge in the preliminary injunction proceeding to the reproduction right issue because it runs right into the Sony decision.

    In Sony, this Court held that consumers have a fair use right to take local over-the-air broadcasts and make a copy of it.

    All Aereo is doing is providing antennas and DVRs that enable consumers to do exactly what this Court in Sony recognized they can do when they’re in home and they’re moving the equipment, the antennas and the DVRs—

    Justice Ruth Bader Ginsburg: Mr. Frederick—

    David C. Frederick: —to the Internet.

    Justice Ruth Bader Ginsburg: —was Judge Chin right when he said there was no technically sound reason to use these multiple antennas?

    That the only reason for that was to avoid the breach of the Copyright Act.

    Was there a technical reason, instead of having a one-way antenna, to have all of these what, dime-size antennas?

    David C. Frederick: Let me — this is a very complex question, Justice Ginsburg, and let me answer it multiple levels.

    There are technical reasons why the individual antennas provide the same utility at lower costs and functionality than one big antenna.

    But there are very practical concerns, too.

    As a startup business, Aereo is attempting to entice consumers to replicate on the cloud what they can do at home at lower cap costs and more efficiency.

    As a practical matter, and Judge Chin had no basis in which to make this statement at all in his dissent because these are facts not on the record and efficiency is not a consideration under the Copyright Act, you can’t do multiple channels over the Internet anyway.

    You can only do a single video stream at a time.

    So whether you have one big antenna or whether you have lots of little antennas, you still have to compress the signal and only one can go over the Internet at a time.

    However, Justice Ginsburg, as a startup business, there is a very real consideration for why multiple antennas make sense.

    If you’re in New York City, you want to put an antenna on top of the building, you’ve got to get a building permit.

    If you want to construct it, you’ve got to get a construction permit.

    If you want to put it up there with a crane, you have to get a subway permit before you can do all of the things to put a big antenna on a building in New York City to get broadcast signals.

    Chief Justice John G. Roberts: But is there any reason you need 10,000 of them?

    Can’t you put just — if your model is correct, can’t you just put your antenna up and then do it?

    I mean, there’s no technological reason for you to have 10,000 dime-sized antenna, other than to get around the copyright laws.

    David C. Frederick: Well, the point of the copyright laws, though, Your Honor, shouldn’t turn on the number of antennas.

    It turns on whether the person who is receiving the signal that comes through the Internet is privately performing by initiating the action of that antenna getting a data stream, having that signal compressed so that it can be streamed over the Internet through a user-specific, user-initiated copy.

    Justice Antonin Scalia: That may well be, but it doesn’t contradict the Chief Justice’s question.

    I mean, you’re just saying that by doing it this way you don’t violate the copyright laws.

    But his question is, is there any reason you did it other than not to violate the copyright laws?

    David C. Frederick: We understood — yes, there is a reason, Justice Scalia.

    We wanted to tell consumers, you can replicate the experience at very small cost.

    You know you have a right to put an antenna on your roof and put a DVR in your living room.

    We can provide exactly the same antenna and DVR for a fraction of cost by putting it over the cloud.

    Chief Justice John G. Roberts: Yeah, but it’s not — it’s not.

    You give them space that’s available when they call in.

    They don’t have — this is my little dime thing, and this is my copy that’s going to be here.

    They’re there, and when they want something, you provide the service of giving them that.

    They don’t have a dedicated antenna in Brooklyn.

    David C. Frederick: Well, some of the consumers do.

    The record is clear that some are statically assigned to particular users.

    But Mr. Chief Justice, that doesn’t answer the question, the statutory interpretation question, which is, as in CableVision, as Justice Kennedy noted, there is a user-specific, user-initiated copy that when viewed by the user is a private performance.

    That operation of the system works exactly the same way.

    And the fact that CableVision is able to compress its signals to make them Internet-accessible through a single antenna and Aereo chooses to do it through multiple antennas to avoid all the hassles that go with having a big antenna should not matter for the copyright laws.

    We’re still talking about renting equipment, that consumers have a right to get over-the-air signals that are free to the public, using public spectrum that the — that the government has allocated so that broadcasters—

    Justice Anthony Kennedy: Suppose — suppose Aereo offered a service so that the viewer at home could press three different buttons, but it takes only 45 seconds, and he could get the broadcast without advertising?

    And Aereo would have some way to screen out the advertising so you could watch the entire baseball game or football game without the ad — without the ads.

    David C. Frederick: —That would probably violate the reproduction right, Justice Kennedy.

    It would not violate the public performance rights.

    Justice Anthony Kennedy: Would Aereo be a performer then?

    David C. Frederick: Aereo would not be a performer.

    The question would be — and this does go into the technical details.

    And here, the position between the parties is quite stark.

    They say the facts don’t matter.

    We have a well-developed factual record.

    There, Justice Kennedy, the fact that would matter in your hypothetical would be whether or not the initiation of the advertiser-free had been somehow done by the consumer or whether it had been done by the cloud provider.

    Justice Anthony Kennedy: No, the consumer makes the choice.

    You can have it with the ads or without the ads.

    Push button one or button two.

    David C. Frederick: Right.

    I understand—

    Justice Anthony Kennedy: I don’t understand why he is the performer in one case and not in the other case.

    David C. Frederick: —Because the — the action of who is a performer turns under the statute on who is making — who is acting to make the sequence of sounds and images perceivable.

    Where you’re talking about taking out advertising, what you’re doing is you’re altering the copy, and you are abridging, infringing, the reproduction right.

    That is not something that you can do in the Aereo technology.

    I have no brief to defend that.

    That would be a very difficult reproduction right question.

    But it doesn’t matter in terms of who is exercising a private performance, because that is being done in the home with the user-initiated, user-specific copy.

    Justice Antonin Scalia: Mr. Frederick, your — your client is — is just using this for local signals—

    David C. Frederick: Yes.

    Justice Antonin Scalia: —right now.

    But if we approve that, is there any reason it couldn’t be used for distant signals as well?

    David C. Frederick: Possibly.

    Justice Antonin Scalia: Possibly what?

    There is possibly a reason, or it could possibly be used?

    David C. Frederick: It can’t be used for distance, but it implicates—

    Justice Antonin Scalia: What would the difference be.

    I mean, you could take HBO, right?

    You could — you could carry that without — without performing.

    David C. Frederick: —No, because HBO is not done over the airwaves.

    It’s done through a private service.

    But Justice Scalia, let me answer your distant signal hypothetical this way.

    That would implicate again the reproduction right.

    It does not implicate the private performance and public performance distinction, because, even if you were to take distant signals and make them available in the home, it’s still through a user-initiated, user-specific copy of distant programming.

    The question then becomes, is there a fair use right to be able to do that.

    What Sony said, because Sony was dealing with local over-the-air broadcasts and making a copy of local over-the-air broadcasts, it said that consumers have a fair use right to make a copy of that.

    Sony did not address the distant signal, and the question then would become in balancing the fair use factors whether it was appropriate for a consumer to be able to get access to that programming without being able to otherwise implicate the free public spectrum.

    Now, the way Congress has addressed that, Congress has addressed that by saying that when there are distance signals that then get pushed through a cable system, there is a copyright royalty that gets paid.

    But I want to make absolutely clear.

    Satellite, cable, do not pay copyright royalties for local over-the-air broadcasts.

    Why?

    Because the local over-the-air broadcast channels wanted it that way.

    They didn’t want to be in a situation of having to figure out how to divvy up all the copyright royalties to the various holders.

    So when they talk about how Congress supposedly overruled Fortnightly, what they ignore is that in Section 11(d) and in Section 122(c) of the Copyright Act, Congress said the retransmission of local over-the-air broadcasts through satellite and cable shall be exempt from the copyright regime.

    And so when they talk about the retransmission issue, they’re really trying to conflate a totally different regulatory system—

    Justice Ruth Bader Ginsburg: Mr. Frederick, would you clarify?

    If every other transmitter does pay a royalty — maybe it’s under compulsory license — and you are the only player so far that doesn’t pay any royalties at any stage—

    David C. Frederick: —Well, Justice Ginsburg, the person who sells an antenna to me at the local Radio Shack doesn’t pay copyright royalties either.

    And a — and a company that provides a rental service for me to put an antenna in my home and install it, they don’t pay copyright royalties either.

    And the question that it really boils down in this case is how significant should it be how long the cord is between the antenna and the DVR being—

    Justice Stephen G. Breyer: The answer is very significant.

    And the reason it’s very significant is because what the local antenna person doesn’t do but you apparently could do, even if you don’t, is with the same kind of device pick up every television signal in the world and send it, almost, and send it into a person’s computer.

    And that sounds so much like what a CATV system does or what a satellite system does that it looks as if somehow you are escaping a constraint that’s imposed upon them.

    That’s what disturbs everyone.

    And then what disturbs me on the other side is I don’t understand what the decision for you or against you when I write it is going to do to all kinds of other technologies.

    I’ve read the briefs fairly carefully, and I’m still uncertain that I understand it well enough.

    That isn’t your problem, but it might turn out to be.

    [Laughter]

    David C. Frederick: —Well, let me address — I think I — let me try to make it their problem.

    [Laughter]

    I think I’ve addressed the distant signal, and I think you can reserve that case to say that might raise a different issue, but on the facts here would not entitle the company to an injunction enjoining Aereo from providing the service.

    Now, with respect to the second aspect of this, the reason why their interpretation of the transmit clause causes so much problem, so many problems for the cloud computing industry, is that — is twofold.

    Number one, they are conflating performance with work in the transmit clause.

    What they are saying is that, so long as the work is always perceived in some fashion through a performance that is privately done through the playback of a recording, that that — because the initial work was disseminated to the public, that implicates the public performance right.

    What that does is it means that every time somebody stores something in the cloud, whether it’s a song, a video image or — or the like, if it happens to be something that somebody else has stored in the cloud, the act of one person initiating it and perceiving it is going to implicate the public performance right.

    And that’s why the cloud computing industry is freaked out about this case because they’ve invested tens of billions of dollars on the notion that in user-specific, user-initiated copy when perceived by that person is a private performance and not a public performance.

    The second thing that they do that’s wrong with the statute is they aggregate performances.

    Instead of where the statute says ‶ transmit a performance ″, they say ‶ transmit performances ″.

    Because they acknowledge that the way the technology works for Aereo is that it is an individual, user-specific, user-initiated copy.

    But they say no matter if you add enough of them together, you can aggregate that to become a public performance.

    Chief Justice John G. Roberts: Just to make sure I’ve got — there’s no reason it’s a user-specific copy, is it?

    They’re making 10,000 copies.

    It’d be much easier for you if you’d just have to make one copy and everybody could get a copy.

    David C. Frederick: Well, that’s where the issue about replicating what happens in the home matters, Mr. Chief Justice, because if I’m in my home and I start the program two minutes in, using Aereo’s technology, I missed the first two minutes, I never get to watch it.

    It happens to be when I push the button to initiate the copy, just like if I’m at home watching on a DVR, the same principle.

    And so that copy will always be different because I have control over it versus—

    Chief Justice John G. Roberts: Surely, you can make a program where you have just one copy and starting it at different times.

    You don’t need every viewer to have his own copy.

    David C. Frederick: —But that is — that is the key distinction between video on demand and the service that Aereo provides, the kinds of equipment and technology that Aereo provides.

    We don’t have a brief to defend the master copy because in the master copy situation, that is indisputably public because there is no right to exclude anyone else.

    With Aereo’s technology, if I’m making a copy using Aereo’s system, no one else can look at it.

    Even if you happen to have watched the same program, you can’t watch my copy, I can’t download it—

    Chief Justice John G. Roberts: That’s just saying your copy is different from my copy.

    David C. Frederick: —Correct.

    Chief Justice John G. Roberts: But that’s the reason we call them copies, because they’re the same.

    [Laughter]

    All I’m trying to get at, and I’m not saying it’s outcome determinative or necessarily bad, I’m just saying your technological model is based solely on circumventing legal prohibitions that you don’t want to comply with, which is fine.

    I mean, that’s — you know, lawyers do that.

    But I’m just wondering why—

    [Laughter]

    —whether you can give me any technological reason, apart from compliance with a particular legal issue, for your technological mind.

    David C. Frederick: It is much simpler if you’re a start-up to add components, to add modules when you’re starting up, ramping up.

    And what we’re talking about in any cloud computing industry is you’re starting with one group of servers and then you add them, almost like Lego pieces, as you are adding the number of people that you’re using.

    That is a technological reason why the cloud works the way it does, Mr. Chief Justice.

    So with Aereo’s antennas and its DVRs, we can, with about the length of the size of this counsel table here, service tens of thousands of people in the New York area.

    We can provide the antennas and we can provide the DVRs and it’s a very compact, small space.

    And then if we expand and we’re able to continue to be in business and we get more subscribers in Brooklyn, we might add another row that would be the size of — of the counsel tables behind me.

    That aspect of the technology goes to the modules that are used for cloud computing where you basically can add additional servers, add additional hard disk space and then when new consumers activate — and let me just be clear about this, when they sign up, their system is completely empty.

    There’s no content being provided.

    There’s equipment that’s being provided.

    So when they activate the system and they say, I want to watch the news at 6 o’clock, they then start the process that then fills their individually assigned storage with the 6 o’clock news.

    But until that happens, there’s no content being provided.

    So the notion that they have in their reply brief over and over that we’re somehow a content provider would mean that everybody who provides an antenna or a DVR is somehow a content provider.

    And if that’s true, then the implications for the equipment industry are obviously quite massive and you can understand why that would frighten the cloud computing industry because that turns them into public performers whenever they are handling content.

    Now, the government says—

    Justice Ruth Bader Ginsburg: —They give the subscriber a menu, and it says you can get any of these things.

    It’s not as though the — the subscriber initiates it.

    You have these choices and they’re providing you these choices and those choices are content.

    David C. Frederick: —It’s no different, Justice Ginsburg, than if I’m at home and I have an antenna or rabbit ears on my TV and I know what channels I can get.

    Justice Elena Kagan: But, Mr. Frederick, it’s also — it’s also no different from — from a user’s perspective, it’s exactly the same as if I’m watching cable.

    Right?

    You just have a different content selection, but it looks the same to you.

    Somebody else is providing you with a menu, and then you pick off that menu.

    David C. Frederick: Right.

    But the menu, Justice Kagan and Justice Ginsburg, is simply what is technologically available.

    There are broadcast signals that are available in a local area, and they are limited because that’s what the broadcasters make available.

    And simply providing a user guide that says you can tune to this channel or you can tune to that channel, if you want to pick up one program or another, can’t be the difference between a content provider and merely — merely facilitating the use of your equipment.

    Justice Stephen G. Breyer: Would you — would you explain in a sentence or two, which will sound as if I’m bickering with you, but I want them to have a chance to reply, the thing that frightened me somewhat in your brief was, I think, of the cloud storing everybody’s music.

    Vast amounts of music.

    And now they then send it down, perhaps to a million people at a time, who all want to hear the same song.

    Now, what you said was, if I understood it, but explain it if it is, that there is a provision of the copyright law that says when that happens, it’s subject to a compulsory license.

    And if it’s subject to a compulsory license, then, of course, people can get it and it’s paid for by somebody.

    But if we side with them, there’d be a different provision that would come into play, namely, the performance, and it wouldn’t be subject to the compulsory license.

    There’s no point telling me I’m right if I’m wrong.

    What I want to know is am I — have I got your argument correctly?

    And if not, what is it?

    David C. Frederick: I think that your argument, Justice Breyer—

    Justice Stephen G. Breyer: It’s not my argument.

    It’s a parody.

    An indirect version of your argument.

    David C. Frederick: —Let me — okay.

    Let me try to correct this.

    There is no compulsory license with respect to music or video.

    There are different compulsory licenses with respect to satellite and cable that capture all signals and push them down to everyone.

    Justice Stephen G. Breyer: All right.

    So that would be the same and it isn’t going to be a problem.

    David C. Frederick: No.

    Where it’s going to be a problem with the cloud is if you say — if I’m watching a particular program and you’re watching a particular program and Justice Sotomayor is watching the same program, we are engaging — and the company that has allowed us to make a copy of that is engaging in public performance.

    Where you have to deal with infringement is the concept of — of volition and the idea of who is doing the act.

    If I’m simply making equipment available, then—

    Justice Stephen G. Breyer: But it should work out in a parallel way.

    That is, when I look at the program, I am making a copy of the program and, therefore, I’m violating the nonexclusive right — the exclusive right to copy.

    Now, if that’s fair use and therefore, I can do it, it should also be fair use if exactly the same thing happens but it comes from a cloud.

    David C. Frederick: —But let me — let me — let me further answer your question about music, because I omitted a key distinction, which is that for local radio broadcasts, there is a music distribution license.

    It’s under Section 115 of the Copyright Act.

    Justice Stephen G. Breyer: 115(c)(3).

    David C. Frederick: Right.

    But that’s the whole — that is exactly the same way satellite and cable work, as well.

    So that if you’re broadcasting in the local area, it is for free.

    It is like a copyright-free zone.

    And the reason for that in the music world is because they want local radio broadcasters to play songs because that drives sales of the records.

    That’s a totally different business model, of course, than in the television world.

    But the reason why this matters for your perspective is that what the court — the Second Circuit in CableVision did was it said user-specific, user-initiated copies are private performances.

    They are not public performances.

    And the only way—

    Justice Sonia Sotomayor: —But now you’re saying that AT&T system, Netflix, Hulu, all of those systems get their content and they don’t push it down to you.

    They do exactly what you do.

    They let you choose what you want to see.

    David C. Frederick: —Yeah.

    The difference is that they do not exclude anyone.

    And the difference — the public-private distinction from private property law is whether or not there’s a right to exclude.

    If I have private property, I exclude others.

    If I have public property, I’m not excluding others.

    Netflix, Hulu, those other services, they’re not excluding anyone.

    As a user of those services, I have no right to exclude anyone else.

    And so they are making their product, their content available to all without exclusion other than the subscription that you pay.

    What we’re doing is providing the equipment that enables people to access it.

    Justice Ruth Bader Ginsburg: But you are feeding subscribers, legions of subscribers.

    So I don’t understand that.

    You say they have to — are you selective, in that some people who want to use your service are going to be turned down?

    You’re not.

    You will take anybody who can pay, right.

    David C. Frederick: Sure.

    And if we went around to a 1,000 or 10,000 homes in Brooklyn and we put up antennas, installed their DVRs for them, and we sent them a monthly bill every month to pay us because we had performed that service and provided that equipment, it would be the exact same position, Justice Ginsburg.

    And that can’t be a copyright violation.

    Now, the only distinction the government has offered for why CableVision decision in the Second Circuit, and this goes to your question, Justice Kennedy, somehow should be different here, is in the supposed lawfulness of the first instance in which that content is received.

    That distinction can’t work and would imperil the cloud.

    Here is why.

    When a person is accessing local over-the-air broadcast television, it is doing so because that is pre-public spectrum.

    And Sony says we have a fair use right in order to make a copy of that free use.

    The government in the Fortnightly case argued that there is an implied-in-law license when a person accesses local over-the-air telecasts in that way.

    So it can’t be the distinction between our situation and CableVision that there is somehow some difference.

    Because if I’m watching local over-the-air broadcast TV in my home, I don’t have to pay a royalty for it.

    And that’s exactly the analogy that would be appropriate there.

    Now, how would that affect the cloud?

    Well, if you turn every type of performance that an individual makes from some content that gets downloaded or transferred from the cloud, the cloud provider can’t tell what is legal or what is not legal.

    Some stuff could be up there pirated.

    Some stuff could be up there perfectly licensed.

    And what the position of the other side in this case is, those people are liable for direct infringement of the public performance right.

    And that’s why the cloud industry is very concerned that if you have too expansive an interpretation of what is the public performance right, you are consigning them to potentially ruinous liability.

    Justice Elena Kagan: Mr. Frederick, why isn’t it sufficient to create a line such as the one Mr. Clement said, which said, you know, do you on the one hand supply or provide the content, that puts you in one box; on the other hand, if you are not supplying or providing the content, if the user is supplying and providing the content, and you are just providing the space, a kind of platform for them to do that and for them potentially to share the content, that puts you in another box?

    David C. Frederick: Well, Justice Kagan, I note that my friend did not reference the words of the Transmit Clause at all when he offered that distinction.

    And that’s actually quite important, because in order to get there, you have to make up words to put them in the Transmit Clause.

    But even if you were to think that that was good for a policy reason, you would still have to explain why the hundreds of thousands of people that are subscribers to Aereo’s service don’t have exactly the same fair use right to get over-the-air broadcast content that all of those people who are not Aereo subscribers but they happen to have a home antenna and a DVR.

    Those people have every bit as right to get that access.

    And the fact that they are doing it doesn’t make their antenna or their antenna provider a content provider.

    As I said—

    Justice Ruth Bader Ginsburg: Why do people pay for the Aereo service if they can do the same thing all by themselves?

    David C. Frederick: —Because if you don’t have to buy a TV, a DVR and an antenna and a sling box, which might cost you thousands of dollars, you might pay $100 to rent it, or if you want to just look at programming selectively, you pay $8 a month, it’s a rental service, Justice Ginsburg.

    That can’t change the copyright analysis.

    And just because you rent equipment does not transform the person that is providing that equipment into a public performer, particularly when you are the one who initiates every set of signals that activates the programming and the content.

    If there are no further questions, we’ll submit.

    Chief Justice John G. Roberts: Thank you, Counsel.

    Mr. Clement, you have three minutes remaining.

    REBUTTAL ARGUMENT BY PAUL D. CLEMENT ON BEHALF OF PETITIONERS

    Paul D. Clement: Thank you, Mr. Chief Justice.

    Just a few points in rebuttal:

    First, I just have to correct a fundamental difference.

    Mr. Frederick says, as he did in his red brief, that if you only — if you are a cable company and you only retransmit locally, you don’t have to pay a royalty.

    That is just wrong, as we point out in the reply brief.

    There is a minimum royalty that every cable company pays whether or not they transmit distance signals.

    So that is just wrong.

    Second, this is not a case, as Mr. Frederick would like to say, where the user pushes a button, and then after that point, Aereo is just a hapless bystander.

    And if you want insight into what actually happens behind the scenes, to use the phrase the District Court used, look at pages 64A to 67A of the petition appendix.

    Because Judge Nathan explains all of the things that Aereo does after the consumer presses the button and before it comes back to them on their home screen.

    They are not just a passive bystander.

    Also, this whole notion of what is volitional.

    Maybe in the reproduction concept, in context, just pushing a button and there is only one person who reproduces, but the concept of what is the requisite volitional conduct is answered by the Transmit Clause.

    Congress specifically looked at this and said there are going to be lots of situations where the sender, usually the cable company or Aereo, sends a transmission to the user, and the sender of that transmission, if it allows a contemporaneous performance, unlike the record company, they are a transmitter.

    Justice Sonia Sotomayor: Mr. Waxman, tell me the consequences of our decision today.

    Paul D. Clement: Your consequences—

    Justice Sonia Sotomayor: Do you put them out of business, or do they have to go and negotiate a license with every copyright holder?

    The — you are, in fact, telling me they are not a cable company, they are not a satellite company, so they can’t go into those systems of payment.

    What happens then?

    Paul D. Clement: —The consequences really gets back to the Chief Justice’s question, which is, if they actually provide something that is a net benefit technologically, there’s no reason people won’t license them content.

    But on the other hand, if all they have is a gimmick, then they probably will go out of business and nobody should cry a tear over that.

    Justice Stephen G. Breyer: Once you take them out of the compulsory licensing system, they’re going to have to find copyright owners, who owns James Agee’s pictures?

    Who owns something that was written by — like a French silent film in 1915?

    I mean, the problem is that they might want to have perfectly good things that people want to watch and they can’t find out how to get permission.

    That is a problem that worries me and it worries me again once you kick them out of the other systems.

    Paul D. Clement: It’s not a problem that should worry you because, first of all, if they need a compulsory license, maybe Congress can revisit it as it has in technologically specific ways for cable and satellite, but there is other ways to get content.

    They can approach HBO—

    Justice Sonia Sotomayor: But the Second Circuit—

    Justice Antonin Scalia: Do you have some other rebuttal points?

    Paul D. Clement: —I did, Your Honor, and one of them really gets to this HBO point, which is they want to say that this whole case is about reproduction and there’s no public performance going on at all.

    And to understand how crazy that is, with all due respect, if they approach HBO and say, we would like to carry your content and provide it as a premium service, they would be telling HBO, by the way, we don’t need a public performance license.

    All we need is a reproduction license because we don’t involve ourselves in any public performance at all, and that’s why at the end of the day their argument simply blinks reality.

    They provide thousands of paying strangers with public performances over the TV, but they don’t publicly perform at all.

    It’s like magic.

    Thank you, Your Honors.

    Chief Justice John G. Roberts: Thank you, counsel.

    Counsel.

    The case is submitted.

    http://www.oyez.org/cases/2010-2019/

    —Huffduffed by davidr

  7. Author Betty Medsger Reveals Much About the Dark Side of FBI and J. Edgar Hoover

    Free Preview Clip Betty Medsger tells the story of 8 activists who broke into FBI office in 1971 and revealed Hoover’s secret police state operation, Cointelpro.Click here for free audiobook download from Audible, and generate $15 to PBC Podcast! Medsger’s […]

    http://www.peterbcollins.com/2014/01/28/author-betty-medsger-reveals-much-about-the-dark-side-of-fbi-and-j-edgar-hoover/

    —Huffduffed by davidr

  8. Author Betty Medsger Reveals Much About the Dark Side of FBI and J. Edgar Hoover

    Free Preview Clip Betty Medsger tells the story of 8 activists who broke into FBI office in 1971 and revealed Hoover’s secret police state operation, Cointelpro.Click here for free audiobook download from Audible, and generate $15 to PBC Podcast! Medsger’s […]

    http://www.peterbcollins.com/2014/01/28/author-betty-medsger-reveals-much-about-the-dark-side-of-fbi-and-j-edgar-hoover/

    —Huffduffed by davidr

  9. The MacCast » Blog Archive » Maccast 2014.02.21- Brett Terpstra

    Download today’s show here!

    MC20140221.mp3 [33.7MB 01:09:48 64kbps]

    A podcast about all things Macintosh. For Mac geeks, by Mac geeks. Episode 476. Ever since I took the Maccast on as my full time gig many have asked me about the experience, but I’ve never really discussed it. Brett Terpstra, just recently left his full time gig to work on his own projects so I thought it would be a perfect time to have him on and tackle this topic.

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    Shownotes in: HTML or OPML

    Subscribe to the Podcast Feed or Get the MP3 or Enhanced AAC

    http://www.maccast.com/2014/02/21/maccast-2014-02-21/

    —Huffduffed by davidr

  10. In ‘Domain Awareness,’ Detractors See Another NSA : All Tech Considered : NPR

    Police are building software systems to integrate their data flows — from cameras to license plate scanners and social media — to better identify threats and suspects. But there’s a privacy backlash.

    http://www.npr.org/blogs/alltechconsidered/2014/02/21/280749781/in-domain-awareness-detractors-see-another-nsa

    —Huffduffed by davidr

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