In The Matter of the Application of the United States of America for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government

Filing 55

ECF FILER: Motion filed by by Kevin S. Bankston, Esq. counsel for Amicus Appellees ACLU, ACLU PA, Ctr For Democracy and Tech and Elec Frontier Fndtn for Additional Time for Oral Argument. Certificate of Service dated January 20, 2010. [Entry edited by Clerk's Office to reflect the correct event and to reflect all the requested reliefs].--[Edited 01/21/2010 by TLW] (KSB)

In The Matter of the Application of the United States of ...ce to Disclose Records to the Government

Doc. 55

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________ No. 08-4227 _________________ In The Matter Of The Application Of The United States of America for An Order Directing A Provider Of Electronic Communications Service To Disclose Records To The Government ________________________________________________ On Appeal from the United States District Court for the Western District of Pennsylvania The Honorable Terrence F. McVerry, United States District Judge, Presiding Magistrate's No. 2:07-mj-00524M ________________________________________________ Motion of Amici Curiae Electronic Frontier Foundation, The American Civil Liberties Union, The ACLUFoundation of Pennsylvania, Inc., and the Center for Democracy and Technology For Additional Time For Oral Argument ________________________________________________ Kevin S. Bankston, CA ID 217026 Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110 Tele: [phone] Attorney for Amici Curiae Electronic Frontier Foundation, The American Civil Liberties Union, The ACLUFoundation of Pennsylvania, Inc., and the Center for Democracy and Technology

Dockets.Justia.com

This motion is filed on behalf of Amici Curiae The Electronic Frontier Foundation ("EFF"), the American Civil Liberties Union ("ACLU"), the ACLUFoundation of Pennsylvania, Inc. ("ACLU-PA") and the Center for Democracy and Technology ("CDT"). Amici hereby request of this Honorable Court thirty (30) minutes for oral argument, if argument is granted, to be split between EFF Senior Staff Attorney Kevin S. Bankston and Professor Susan Freiwald, who filed a separate amicus brief in this matter. In support of this motion, Amici aver as follows. 1. As the district court noted when it first appointed EFF and Professor Freiwald as amici below, this case raises issues of "importance and novelty" and "presents, as a matter of first impression in this Circuit, issues regarding the Government's entitlement to cell-phone-derived location information, by ex parte Order under the provisions of electronic communications legislation and absent a showing of probable cause." Briefing Order of May 2, 2008 (Docket No. 13) at p.1. 2. In addition to raising issues of first impression regarding the Fourth

Amendment's application to cell phone location information, this case also raises equally important and novel questions concerning a statutory electronic communications privacy regime that is a "complex, often convoluted area of the law," United States v. Smith, 155 F.3d 1051, 1055 (9th Cir. 1998), "famous (if not

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infamous) for its lack of clarity." Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457, 462 (5th Cir. 1994). The Court's answers to these difficult questions will directly or indirectly impact the statutory and constitutional privacy rights of every American carrying a cell phone. 3. The undersigned Amici and amicus Professor Freiwald, who were specifically invited to brief the District Court in this matter and have also graciously been permitted to brief this Court, respectfully believe that they are in a unique position to assist this panel in evaluating the Government's arguments at oral argument, if such argument is scheduled. 4. Both EFF and Professor Freiwald have considerable experience at

navigating the oft-times difficult intersection between the Fourth Amendment and the federal electronic privacy statutes. EFF has participated as party, counsel or amicus in a wide range of cases addressing statutory and constitutional issues surrounding electronic communications privacy,1 while Professor Freiwald is one

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See, e.g., Steve Jackson Games, Inc. v. U.S. Secret Service, 36 F.3d 457 (5th Cir. 1994); U.S. Telecom Ass'n v. F.C.C., 227 F.3d 450 (D.C. Cir. 2000); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002); U.S. v. Councilman, 418 F.3d 67 (1st Cir. 2005) (en banc); Hepting v. AT&T Corp., 439 F.Supp.2d 974 (N.D.Cal. 2006); In re Application of the U.S. for an Order (1) Authorizing the Use of a Pen Register and Trap and trace Device and (2) Authorizing Release of Subscriber Info. and/or Cell Site Info., 396 F.Supp.2d 294 (E.D.N.Y. 2005); Snow v. DirecTV, Inc., 450 F.3d 1314 (11th Cir. 2006); Doe v. Gonzales, 449 F.3d 415 (2nd Cir. 2006); Warshak v. U.S., 490 F.3d 455 (6th Cir. 2007); and U.S. v. Forrester, 512 F.3d 500 (9th Cir. 2008).

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of the few academics to regularly publish articles on the subject.2 5. The undersigned Amici's brief addresses the question of whether courts have discretion under 18 U.S.C. § 2703(d) to deny Government applications for court orders to obtain cell phone location information absent a probable cause showing. Amici further address whether the Fourth Amendment, directly or through the doctrine of constitutional avoidance, requires such a denial. Professor Freiwald's brief also addresses the direct Fourth Amendment question, and in even greater depth. 6. The undersigned Amici respectfully submit that oral argument from both the EFF amici (represented by EFF Senior Staff Attorney Kevin S. Bankston) and Professor Freiwald would best guarantee that the complex questions raised by this case are fully and competently presented to the Court. 7. Given these circumstances, we anticipate that the usual allotment of fifteen (15) minutes per side may not allow the Court adequate time to fully explore the important issues raised by this case. Amici therefore request an additional fifteen (15) minutes of oral argument, for a total of thirty (30) minutes per side. The undersigned Amici and Professor Freiwald have agreed to split the
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See, e.g., Susan Freiwald, Uncertain Privacy: Communication Attributes After the Digital Telephony Act, 69 So. Cal. L. Rev. 949 (1996); Susan Freiwald, Online Surveillance: Remembering the Lessons of the Wiretap Act, 56 Ala. L. Rev. 9 (2004); Susan Freiwald, First Principles of Communications Privacy, Stanford J. Law. & Tech. 2007; and Patricia L. Bellia and Susan Freiwald, Fourth Amendment Protection for Stored E-mail, 2008 U.Chi. L. Forum 121.

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time, should the court so allow. 8. On January 14, 2010, counsel for the Government, Mark Eckenwiler, informed counsel for Amici Jennifer Granick that, should the Court request oral argument, the Government believes that a maximum of 15 minutes is sufficient for this appeal. Accordingly, the Government intends to request only the customary 15 minutes, or whatever amount of time the Court may grant to amici. 9. For the reasons stated, the undersigned Amici respectfully request that their motion for additional time to participate in oral argument be granted, and that the Court allow that time to be split between Mr. Bankston and Professor Freiwald. Respectfully submitted, Dated: January 20, 2010 /s/ Kevin S. Bankston Kevin S. Bankston Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110 [phone] [e-mail] Attorney for Amici Curiae Electronic Frontier Foundation, The American Civil Liberties Union, The ACLU-Foundation of Pennsylvania, Inc., and the Center for Democracy and Technology

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