Massachusetts Bay Transportation Authority v. Anderson et al

Filing 35

Transcript of Motion Hearing held on August 14, 2008, before Judge O'Toole. Court Reporter: Marcia G. Patrisso at 617/737-8728. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 9/2/2008. Redacted Transcript Deadline set for 9/12/2008. Release of Transcript Restriction set for 11/10/2008. (Scalfani, Deborah)

Massachusetts Bay Transportation Authority v. Anderson et al

Doc. 35

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

) ) ) ) Plaintiff, ) ) v. ) ) ZACK ANDERSON, RJ RYAN, ) ALESSANDRO CHIESA, MASSACHUSETTS ) INSTITUTE OF TECHNOLOGY, ) ) Defendants. ) ) MASSACHUSETTS BAY TRANSPORTATION AUTHORITY,

Civil Action No. 08-11364-GAO

BEFORE THE HONORABLE GEORGE A. O'TOOLE, JR. UNITED STATES DISTRICT JUDGE MOTION HEARING

John J. Moakley United States Courthouse Courtroom No. 9 One Courthouse Way Boston, Massachusetts 02210 Thursday, August 14, 2008 11 a.m.

Marcia G. Patrisso, RMR, CRR Official Court Reporter John J. Moakley U.S. Courthouse One Courthouse Way, Room 3510 Boston, Massachusetts 02210 [phone] Mechanical Steno - Computer-Aided Transcript

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AP PEA RAN CES : HOLLAND & KNIGHT LLP B y : I e u a n - G a e l Mahony, Esq. Maximillian J. Bodoin, Esq. 1 0 St. James Avenue - Suite 12 B o s t o n , Massachusetts 02116 ELECTRONIC FRONTIER FOUNDATION B y : J e n n i f e r Stisa Granick, Esq. 4 5 4 Shotwell Street S a n Francisco, California 94110 On Behalf of the Defendants Zack Anderson, RJ Ryan and Alessandro Chiesa EDWARDS ANGELL PALMER & DODGE, LLP By: J e f f r e y Swope, Esq. 1 1 1 Huntington Avenue B o s t o n , Massachusetts 02199 O n Behalf of the Defendant MIT A l s o in Attendance: S c o t t Darling III, Esq. M B T A Legal Department Jaren Wilcoxson, Esq. Office of the General Counsel of MIT

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PROCEEDINGS THE CLERK: All rise for the United States Court

District Court for the District of Massachusetts. is now in session. You may be seated.

Calling Civil Action 08-11364, MBTA versus Zack Anderson, et al. Counsel, please state your names for the record. MR. MAHONY: Ieuan Mahony from Holland & Knight

for the plaintiffs, Massachusetts Bay Transportation Authority. MR. DARLING: for MBTA. MR. BODOIN: MS. GRANICK: Max Bodoin for the MBTA. Good morning, your Honor. I'm Scott Darling, in-house counsel

Jennifer Granick from the Electronic Frontier Foundation for defendants Anderson, Ryan and Chiesa. MR. SWOPE: Good morning, your Honor. Jeffrey With me

Swope, Edwards Angell Palmer & Dodge for MIT.

at counsel table is counsel Jaren Wilcoxson from the MIT general counsel's office. THE COURT: All right. Good morning, everyone.

I understand we have parties on the line as well -- on the telephone line -- the defendant -MS. GRANICK: That's correct, your Honor.

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T H E COURT: MS. GRANICK:

The student defendants. Yes. And I have my lawyers --

colleagues of mine -- from the Electronic Frontier Foundation, and I believe that it's defendants Ryan and Chiesa who are on the line. Mr. Anderson is out of the

country and is unable to join in the hearing this morning. THE COURT: Okay. Let me just make a couple of

preliminary comments before we get to any of the issues between the parties. First of all, because there is some -- I think the lawyers know all of this, but for the benefit of the people in the audience who may or may not, let me just set the stage why we're here and what the proceedings are. We have a standard procedure in this court for the handling of emergency or short-notice matters. All

our cases, both civil and criminal, are assigned to a particular district judge by random assignment, something we jealously protect. But we have a procedure

if a matter comes in on an emergency basis after hours, or when the assigned judge is not available, that it can be referred to an emergency-duty judge. happened in this case. And that's what

The case came in late Friday,

and although it was assigned to me I was not available

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i m m e d i a t e l y , and Judge Woodlock, our emergency-duty judge, happened to be present. And so that's why he But the

handled the first parts of the proceedings.

case had been assigned to me and all further proceedings will be here in front of me. regular under our processes. But I just want to acknowledge Judge Woodlock's prompt and attentive response to the matters, including the extraordinary hearing on Saturday at which the matters were resolved. And I told him privately that I And that's entirely

owe him one for having done that. Let me just say also from my review of the papers that I appreciate the professionalism displayed by counsel in the case for all the parties. It is

apparent that they are, in their respective roles, vigorously advocating for their clients' interests, but I think so far, anyway, from what I see, adhering to the high standards that we expect of counsel in these cases. And just a brief word about temporary restraining orders and how they fit into the process of a case. Our civil rules provide in emergency, or

exigent, circumstances for an application for and perhaps even a grant of a motion for a temporary restraining order. Under the rules that can even be

made -- to use the language that lawyers use -- ex

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p a r t e ; that is, by one side without the other, although it's usually -- an effort is made to involve both sides, as happened here. Temporary restraining orders usually reflect, at least, the movant's view that there are emergent circumstances which require shortening of otherwise-applicable time periods and then expediting address to the merits of the motion which can involve, obviously, an assessment of the merits of the underlying cause of action. Because of their rather extraordinary

nature, temporary restraining orders are limited in duration to ten days, after which they expire of their own force, unless extended -- they can be extended for an additional period -- or during any of that time the party -- if a restraining order is issued, the party may move to extend that as a preliminary injunction, which has more formal procedures attached to it sometimes, and usually follows -- well, follows, perhaps, a more-detailed presentation of the parties' views than is practical on a short-notice temporary restraining order. So in the history of this case, obviously, Judge Woodlock had the hearing, granted the temporary restraining order that is in the record that we're here to consider. The rules also provide that if a temporary

restraining order is issued -- well, actually, I'm not

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s u r e it applies here, ex parte -- a party may move to dissolve it on short notice. Here what we have is a motion by the plaintiff to amend the terms of the order issued by Judge Woodlock and a motion for reconsideration filed by the defendants -- at least the student defendants -- which may be equivalent to a motion to dissolve. I think the

objective of the reconsideration would be to withdraw the restraining order. There has been a late flurry of papers filed. I'm not sure when -- there was a motion for a scheduling conference and for some interim discovery that was filed, I guess, late yesterday. thing early this morning. I saw it the first

And then there are also some

additional matters and formal opposition to the motion to reconsider filed by the plaintiff, and accompanying paper, and then a sealed document, Number 32 on the docket. M S . GRANICK: briefly, your Honor? THE COURT: before we do that. Let me get to one other matter first I set this hearing in response to Would you like me to address that

the plaintiff's motion on Monday, I guess, to amend the order. Shortly after that the hearing time was set. I

think that we had the motion for reconsideration and so

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on .

There's no -- the matter of when, within the

ten-day period, a hearing on such matters to amend or perhaps extend or to reconsider or dissolve is something that is really a scheduling matter and there's no necessary particular time for it. So let me raise a thought I had when I saw the motion for discovery this morning, and that is whether, depending on the defendants' views on this, it might be appropriate to postpone the merits question in either direction on the existence of the TRO to permit some limited discovery such as that is moved for in the plaintiff's motion. So I guess I'm looking to the

defendants for a reaction to that. Let me just say that what appealed to me about that possibility was it would perhaps enable me to make a sounder decision if I knew a little bit more about the facts of the case that might be developed during discovery or not. Expedition is important on matters And the

such as this, but it is not the only value.

soundness and rationality and evidentiary foundation for any ruling in either direction are also very important considerations that I think I have an obligation to take account of. So simply as a scheduling matter, without addressing the pros and cons of the underlying issues at

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a l l , I wonder whether prudence might not dictate a little further information development. MS. GRANICK: Your Honor, the Court has before

it today all the information that it needs to decide the validity of the temporary restraining order. The issue

in the temporary restraining order is different from the issues underlying the merits of the case. The issue is

whether the restraining order is required in order to prevent harm to the plaintiff. And what this case is about is an unconstitutional gag order, prior restraint, on my clients' ability to speak about a matter of great public interest. Every day that goes by where this gag order

is in place is an irreparable harm to my clients and to the First Amendment, yet the information -- on the other side, the information that this Court has is enough to know whether what my clients want to talk about will do irreparable harm to the MBTA. I filed this morning with the Court, and provided to opposing counsel yesterday, a document which is a confidential report which encompasses all the findings -- all the reported findings, all the research that my clients, the students, have done. And I

provided that report to counsel and to the Court because it seemed to me from discussions with -- from what

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c o u n s e l was saying in the press, and from discussions with him and from what Judge Woodlock was concerned about on Saturday, that there was a lot of uncertainty and worry about what my clients might actually say, on the one hand, and some dismissiveness about whether it was a prank or whether it was serious on the other. And in order to make both parties -- both the MBTA and the Court more comfortable with what exactly we're talking about here, I have provided the Court with the entire universe of information that my clients would like to talk about. Now, it is much more than my clients ever intended to talk about. They always intended to

withhold the details of their research when they were going to give their talk at the conference and ongoing into the future. But this document enables the Court

and counsel to know that there's not going to be another shoe that's going to drop sometime later on. This is

what we're talking about, just the information that's in this report. Now, I filed it under seal also -T H E COURT: Yeah. I was just going to clarify.

You're talking about the sealed document that is docketed as Number 32? MS. GRANICK: Yes, your Honor. Docket No. 32.

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A n d I filed it under seal because, as I said, our clients never intended to reveal all of these details; that was never their intention. It was a

document -- it is a document that we prepared for settlement purposes. We offered to provide this

document since the MBTA's concern was what are these students going to say. But instead of engaging in this kind of back-and-forth interchanging over settlement, we just decided that it was important that all of the parties and the Court be on the same page about what we're talking about. question. And that is the core of the TRO

There needs to be no further discovery on

that matter; that's all there is that the Court needs to be concerned about going forward. And our contention, your Honor, is that looking at that report -- first of all, everything in that report is First-Amendment protected speech; and second of all, discussing any information in that report is not and cannot be a violation of the Computer Fraud and Abuse Act. And I think the Court is eminently able to

make that determination today given the irreparable harm and the prior restraint that's imposed upon my clients and the consideration that the First Amendment -- of the First Amendment in this area where we're talking about a

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g a g order. THE COURT: Okay.

Mr. -- was that -MS. GRANICK: Yes. I have some comments on the

proprietary of discovery at this point in time. THE COURT: Well, yeah. Go ahead. Why don't

you address that as well. MS. GRANICK: Okay. Thank you, your Honor.

First of all, the complaint has not been served on my clients yet, and this lawsuit is less than a week old. There has not been any meet-and-confer and there My understanding

have not been any initial disclosures.

from looking at my e-mail this morning -- I was on the plane yesterday coming out here from California. It was

my understanding from looking at my e-mail this morning that there were some disclosures made after the initial discovery was propounded. the rules. And, you know, there is a reason why we have meet-and-confer rules and timeframes for this and initial disclosures, and it's in order to allow the parties, you know, some time from the time that the lawsuit is filed to, you know, do service, to look at all the facts and to deal with everything. So these discovery requests are too soon and That's not appropriate under

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i n a p p r o p r i a t e at this stage of the case. THE COURT: MR. SWOPE: Okay. Mr. Swope?

Thank you, your Honor.

The only discovery sought from MIT is the deposition of Professor Rivest. The difficulty I have

is Professor Rivest has a prescheduled airplane flight out to the West Coast tomorrow, and he won't be back in Cambridge for -- I think there's maybe one day of the week after next, and then he's out in Canada and won't be back until after Labor Day. So there would be no way to have his deposition tomorrow, and we would have to wait a week to see if he could fit it in at some point the following week. MS. GRANICK: Your Honor, on a scheduling matter

also which I forgot to mention, it is also true that the students are out for summer session, so none of them are here in Boston now. One of them's out of the country;

another one is scheduled to leave the country; one's on the West Coast. I mean, they're just not here now and

they will not be back in Boston until September. THE COURT: MR. MAHONY: Mr. Mahony? Hi, your Honor. If I may, I'll

address counsel for the individual defendants' arguments first. Your Honor, my sister said that the Court has

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b e f o r e it all that's needed.

Your Honor -- and my

sister also made mention of what my clients want to talk about. And my sister's papers are full of statements

about "my clients' good faith" and statements from the clients. Your Honor, there is no declaration, affidavit, any statement by the individual defendants before the Court at all. All of those statements that my sister

made about what her clients want, what they intend to do are simply statements; they're not evidence. there's no evidence before the Court. point. The second point, your Honor: mentions a gag order. My sister And

So that's one

Your Honor, there's a conflict in First, I hear from

the position that the EFF is taking.

my sister that the individual defendants never intended, and don't intend, to reveal the key information that they have which we believe, at least in partial review, because it's a complex document, is in that sealed document. So there's a statement that the individual

defendants don't intend to reveal the key information, and that means the other information they do intend to reveal, but that other information is public domain, of low sensitivity, that is not a concern. Your Honor, that's precisely what the TRO says:

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D o not reveal -- and our motion on Monday was intended to make that crystal clear. In contrast to that, the

findings and rulings of Judge Woodlock, we understood the TRO to say: You can talk about things in the public

domain, just don't reveal the key information, the key details. The motion that the Court has before it is

intended to emphasize that again. So, your Honor, there is no gag order. There's

no harm to the particular defendants here from the TRO because they've already said, "We don't want to talk -we don't intend to talk -- about the key information." That's the only information we care about. Your Honor, in terms of the document under seal -- I'm sure we'll get to this in more detail -it's a complex document. I received it last night. We

do think, your Honor, that the provision of that information is a good step forward in this case. Our

papers are perhaps too detailed about the efforts that we've gone through to try and pull the information from the defendants. There is still a good deal of information out there, your Honor; for example, there's a source code that's referenced in the presentation that we don't have; there's the A paper that Professor Rivest -- that they did for Professor Rivest, that we've been refused;

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t h e r e f o r e , your Honor, there is a range of discovery, a range of information, that we don't have that the Court doesn't have the benefit of. And when I say "range," your Honor, in our discovery requests we've tried to be quite targeted. The easiest way to look at that targeted intent, and hopefully accomplishment, is the length of the depositions. We stated for Mr. Anderson, who's the lead

defendant, the lead individual defendant, a four-hour deposition, and for Professor Rivest a two-hour deposition. So when Mr. Swope says he'll be unavailable

but maybe a week from now we could fit it in, that is literally correct, your Honor, because we're only asking for two hours. And we're happy to go to his office or

wherever it's convenient for him to be scheduled. Now, your Honor, let me turn briefly to the technical arguments that my sister makes about service. Your Honor, back last weekend all of the individual defendants were out in Las Vegas. We had retained local

counsel in Las Vegas who had a private investigator ready to serve the defendants with the TRO. My sister,

on the record -- and Judge Woodlock confirmed with her and with the individual defendants that they had notice, that they understood that they were subject to the TRO. I spoke with my sister on the phone, and I confirmed it

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w i t h an e-mail, that service was not required on her clients. So if that's changed, that's something that

needs to be addressed, but I think it's wholly inappropriate. Second, in terms of meet-and-confer? Your

Honor, again, I view -- we view that document under seal as a good step forward in terms of getting the parties to talk. We have a huge interest in understanding what But, your Honor,

the exposure is, what's going on.

there is -- you know, for example, that A paper, there are some things where talking just isn't working. A meet-and-confer is a limited utility at this point. helpful. A structure from the Court would be very And the point that an evidentiary -- better

evidentiary record assists everyone, we strongly agree with. Thank you, your Honor. THE COURT: Well, let me just press a little It may be, given the

further on that point.

practicalities, that oral depositions are not easily accomplished on the time frame that I'm having in mind. What I was contemplating is not something that would be on the other side of a week from now, as Mr. Swope refers to, but the oral depositions are only part of what's requested. There is also a document request, and

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t h e r e are at least a couple of things on that that would seem to be available to be produced that might be illuminating. be the paper. And, of course, chief among those would I think just to flush it out,

maybe some -- and I'm looking at -- there's an exhibit to the request that is a proposed service of document request. The other thing that occurs to me that might be readily available and illuminating, potentially, would be communications between the defendants, the undergrads, and DefCon about the content of the presentation. So, now, let me just say with respect to the argument that the Court's scheduling of events on the hearing related to the TRO requires resolution of whatever issues there are with respect to the First Amendment I think is -- under the circumstances, anyway, where there is no event on the horizon, as there was on Friday and Saturday, is not particularly -- that is not particularly germane to the scheduling question. In

other words, my suggestion is not to resolve any of the substantive issues until -- strike the "until" -- but on a sensible schedule within the scope of the force of the TRO that permits an address to those issues which include, perhaps, the First Amendment issue.

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B u t I'm not inclined, at least on the facts as I understand them, to first consider the merits of the First Amendment claim in order to decide what our schedule should be as long as we are operating within the ten-day period under the rules. That said, let me just ask about the feasibility as a practical matter now, and any other substantive objections there might be, to the production of those limited items. Let me just look at the -- if you

have -- it is Exhibit 1 to Docket No. 28, which is the plaintiff's request for an interim discovery order. Those matters -- that would be under -- basically, very limited -- under 1.1, 1.2 and 2.1. have it with you. I don't know if you

I can read it for you if you don't

have it in front of you. MS. GRANICK: I know which documents you are

referring to, your Honor. THE COURT: It is basically the communications

between the undergrads and DefCon and a copy of the class paper. MS. GRANICK: I understand, your Honor. Federal

Rule of Civil Procedure 34 says that a minimum of 30 days' notice is required for document requests. simply untimely. THE COURT: The discovery rules also say that It's

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t h e Court can set any schedule for good reason. mean, if it's a question of authority, there's no question that I have the authority in a sort of

So I

expedited emergency -- the rules also allow, indeed permit, discovery before the action is brought, in some circumstances. So there's wide latitude. So I don't

have any doubt of my ability to do that, so... MS. GRANICK: I understand. But my point is,

your Honor, that the discovery that's sought goes to the underlying merits of the case and not to the issues that are before the Court for either a TRO or a preliminary injunction. 34 -T H E COURT: Well, but the underlying merits of So there's no reason to change the Rule

the case are a key consideration in whether the plaintiffs have met the burden required for obtaining a TRO, or continuing it, once obtained, and that is the likelihood of success on the merits. to consider the merits of the case. MS. GRANICK: That's correct, your Honor. Only So it's necessary

if the plaintiffs have come here and presented the Court with a valid legal theory on which relief may be based. And there is a manifest legal error that underlies Judge Woodlock's TRO which needs to be addressed by this Court and can be addressed without any reference to other

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do cum ent s.

And that underlying fallacy is the idea that

the Computer Fraud and Abuse Act prevents the distribution of information. What plaintiff is claiming is that there is a notion of responsible disclosure, which they define as you disclose everything to MBTA and wait until they've had a chance to fix it, and that that notion is enshrined in law in the CFAA and that it's consistent with the First Amendment. That is wrong.

First of all, responsible disclosure is -responsible disclosure is what the students engaged in here. They never intended and -- at the talk at DefCon

to reveal the information that they believed was the important piece of information that would allow or teach a bad guy to circumvent the system and to get free subway rides from the MBTA. That withholding was responsible. And there's a

letter in the -- from 11 renowned computer science professors and computer scientists which says that this is how computer science security research is done. how it's done every day. conferences -T H E COURT: Let me just interrupt because I There are hundreds of It's

understand that that's your argument on the merits of the questions that are going to be presented, and you

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m a y well be right, but my discovery-related comments are made without getting to -- in other words, what I'm talking about is a way of getting to a reliable, from my point of view, information base on which to address the merits questions. And so to address the merits

questions to decide whether I need discovery I think has it backwards. What I'm talking about is being sure that I can have a sufficient understanding of both parties' positions so that I can, as I say, reliably resolve the merits questions which include: That's your question. You may be right. Is this a lawful TRO?

And your position is it's not.

My question is setting a schedule and

developing the information that will help me make a good call on that point. MS. GRANICK: Whether it's a lawful TRO, your It's a And

Honor, is a question of law, not of fact.

question that discovery will not help us answer. forcing the defendants to go through a bunch of discovery when the underlying legal theory of the

case -- the claim that is the only claim that gives this Court jurisdiction over the case -- is flawed, is putting the cart before the horse. And they have to show this Court before they can continue the TRO, before they can seek discovery, that

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t h e CFAA claim is valid. valid.

And the CFAA claim is not

Because if you look at the plain language of the

statute, the legislative history and all of that, it very clearly shows that the transmission of information can't be to the public in a conference; it has to be a human-protected computer. And it's a provision that Congress added not to enshrine some notion of responsible disclosure in the law. CFAA, this provision of it, well predates all the

debates in the security community about responsible disclosure. It was a provision that was added in order And the

to protect computers from viruses and worms.

plaintiff is misreading that provision to squelch speech at a conference. That is not something on which this Court needs to take discovery. Those are legal matters that this

Court can decide -- and indeed has to decide -- right now because of the First Amendment harm that's ongoing. THE COURT: Okay. Before I go back to Mr.

Mahony, Mr. Swope, anything on that question? MR. SWOPE: No, your Honor. The document

request is not to MIT. MR. MAHONY: Your Honor, if I could simply add The 1.1

the two more document requests at 5.4 and 5.5?

and 1.2 and 2.1 the Court suggested is fine for the

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M B T A ' s purpose on an interim basis; the 5.4 -- and 5.5 -- which asks for the code that's referenced in the materials; and the 5.5 is just a catch-all to say: If

there's anything else you're planning on providing at that conference, let us take a look at it. And, your Honor, I would like go back to the deposition question to see if there's a way maybe we could do a telephonic deposition, if folks are unavailable. In other words, the goal here is if we

can't have face-to-face -- we've already went down to four hours and two hours, if we can't have face-to-face, your Honor, we're willing to work to get something, you know, second best, again, for this interim -- you know, for this in-between or beginning phase. THE COURT: MS. GRANICK: Okay. Your Honor, I just -- if -- before

the Court does a serious consideration of this, if this is what the Court is considering, which is to continue the TRO -T H E COURT: No, I would not continue the TRO. The TRO continues on its I am not reaching the

I'd do nothing to the TRO. own. That's my whole point.

question under this plan.

There's no implicit approval

of the TRO; it is simply deferring to permit development of information at which that question will be

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co nsi der ed. And maybe to reduce anxiety, I should tell you the schedule I am thinking of is to continue this only until next Tuesday, so a very short period of time, well within the ten days of the duration of the TRO. MR. MAHONY: And what would -- would the thought

on Tuesday be that we'd have this same hearing and maybe we could supplement, because we certainly want to move to convert this to a protective order. THE COURT: I guess to flush out more details.

I'm talking about very limited document discovery which I -- is as forthwith as can be -- I don't know what the practicalities are in that -- and then the parties to submit anything that they want to say about that, I mean, by, I guess, the close of business on Monday, and then we'll take it up on Tuesday morning. my thought. to do it. MR. MAHONY: So that the papers for the Tuesday That would be

We can pick one day or the other, I guess,

hearing would be due Monday, and the discovery would be Friday -T H E COURT: tomorrow. MR. MAHONY: THE COURT: That's wonderful. That's my thought. Not later than the end of business

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M S . GRANICK:

Your Honor, it just -- as a One of our

practical matter it is highly impractical.

clients is out of the country; another of our clients is neither in Boston nor in San Francisco, where our offices are; we are losing one of our clients to another overseas trip, since they're on their summer break, I think on Monday of next week; I am going to be flying back to San Francisco all day today and then we have the weekend which intervenes. So this is -- it's going to

be extremely difficult for us to pull this information together before Monday. I also think that, you know, as I said, it does not weigh upon the issues that are before this Court. And then one of the lawyers from our office -- it actually can't be me because I am going to be flying on this weekend -- will have to come back here to Boston in order to appear before the Court and argue these issues. So I don't -- I mean, I don't understand how the documents that are the subject of plaintiff's request weigh upon the issues of whether this TRO is, A -- has legal basis under the CFAA; and, B, is in accordance with the First Amendment, because those are factual issues, and what the plaintiff needs to show is that it's legally appropriate. THE COURT: Well, I've already addressed the --

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w h e t h e r this would involve -- the scheduling decision would involve consideration of the First Amendment. Let me just say I don't think you're right about the fact that it's a pure legal question. The question

in any case is whether -- unless it's a -- you know, you might have an objection that the statute is invalid or on its face it can't cover the range of possibilities on the facts, but usually the question on a case is whether on the facts as pled does the plaintiff have a cause of actions as alleged under the cited authority. And so

there's always a mixed question of fact and law. The legal meaning of the -- or the legal scope of the statute, properly understood, obviously has something to do with deciding whether the facts that the plaintiff pleads fit within the proper scope so that there's relief, but it can't be a pure legal question. MS. GRANICK: Your Honor, assuming all the facts

that plaintiff has alleged are true -- assuming for the sake of argument they are all true -- there is no claim. There's a pure legal question. address that. And this Court can

It has absolutely nothing to do with the If everything in the plaintiff's

factual allegations.

complaint and everything that they've argued is true, the CFAA doesn't cover it because the CFAA, by its very terms as a legal -- pure legal matter -- does not cover

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t h e transmission of information to people; it only covers the transmission of information to a protected computer. So there is no factual dispute here for the

purposes of this TRO. We're assuming, for the sake of argument, that everything they say is true. It's a pure legal question

as it's a First Amendment question. THE COURT: Okay. I understand your point but

I'm not in agreement with it because, even as you say it, what you're saying is that, on the facts they pled, there's not a legal remedy, which is, of course, a fact and legal question. But anyway, let me -M S . GRANICK: I'm sorry. THE COURT: considerations. Let me consider your practical Your Honor, if you -- I would --

I mean, the class paper I would assume I mean, if not from you, then they

is easily available.

can serve Mr. Swope, and he has a copy, I assume. MR. SWOPE: We do have a copy, your Honor. The

federal educational -- the Family Education Rights and Privacy Act say the students have to be given notice, which I guess they're getting now, and have a right to object, which I guess they can do now, and your Honor can rule on it. We do have a copy, obviously, but I

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a s s u m e your Honor will go through the appropriate dance for us to provide it. THE COURT: Okay. If it can't be produced by

the students, and I don't know what the practicalities are, and nor -M S . GRANICK: Your Honor, everything that's in

that paper and more is contained in the document that I provided to the Court and to -T H E COURT: Well, that's one thing I'm If they're

interested in, is how they compare, frankly.

the same, that's one thing; if they're not the same, I might be interested in the differences. too, but I am. MS. GRANICK: How could those differences weigh They might be,

upon the question of the validity of the claim? THE COURT: they are. A n y w a y , let's do this: I will grant the request I don't know. I don't know what

for discovery as outlined in 1.1, 1.2, 2.1, 5.4 and 5.5 understanding that the defendants have to use reasonable efforts to comply. If they're unable, for practical

reasons, reasonably to comply, then they may state those circumstances which make it difficult to comply. least we'll get that answer. But at

So I would say by, say --

why don't we say by four o'clock Eastern time tomorrow,

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e i t h e r production or otherwise a response. we'll permit the parties to evaluate that.

And then

And we'll continue this hearing on Tuesday, the 19th. Why don't we say -I think I have something at ten, Gina? THE CLERK: THE COURT: morning. MS. GRANICK: Your Honor, we are intending to Yes. Why don't we say 10:30 on Tuesday

seek a writ to the First Appellate -- the First Circuit Court of Appeals. Can I ask the Court to stay this

discovery order to give us an opportunity to seek that writ? THE COURT: denied. MS. GRANICK: THE COURT: THE CLERK: Thank you, your Honor. Okay. I'll see you Tuesday morning. You can ask, but the request is

All rise.

Court is now in recess. (The proceedings adjourned at 11:46 a.m.)

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CERTIFICATE

I , Marcia G. Patrisso, RMR, CRR, Official Reporter of the United States District Court, do hereby certify that the foregoing transcript constitutes, to the best of my skill and ability, a true and accurate transcription of my stenotype notes taken in the matter of Civil Action No. 08-11364-GAO, MBTA v. Zack Anderson, et al.

/s/ Marcia G. Patrisso MARCIA G. PATRISSO, RMR, CRR O f f i c i a l Court Reporter

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