Saturday, September 30, 2017

Upcoming Supreme Court Argument--Stored Communications Act

Attorneys interested in electronic communications privacy issues should take note of a case currently under consideration by the Supreme Court that implicates the Stored Communications Act (SCA).
The court will hear oral argument this term in Carpenter v. United States. Carpenter concerns whether Fourth Amendment protections apply to cell phone “transactional records,” which reveal the location and movements of a cell phone. The case is important because it will reconcile a conflict between the long-standing “third party” doctrine and recent cases recognizing privacy interests in electronic data.

In Carpenter, federal law enforcement obtained the transactional records of defendant Carpenter’s cell phones. Federal agents used the data to determine that Carpenter’s cell phones connected with towers near robberies they were investigating.
Law enforcement obtained those records through a court order under Section 2703 of the SCA. That provision allows the government to compel disclosure of communication “transactional records” based on “reasonable grounds to believe” that the information is relevant to an investigation. This standard is less stringent than the Fourth Amendment’s requirement of a warrant supported by “probable cause.”
In the trial court, the defendant moved to suppress the service records, arguing that the more stringent Fourth Amendment standard should apply to the records. That motion was denied, and Carpenter was convicted.
On appeal, the Sixth Circuit also rejected the defendant’s Fourth Amendment argument, finding that the defendant had no reasonable expectation of privacy in his cell phone records under the “third party” doctrine.

Wednesday, September 27, 2017


When Judge Hamilton originally dissented from the June 2017 panel decision affirming the grant of the writ of habeas corpus, I foresaw that the 7th Circuit would grant a rehearing en banc.  Frankly, Judge Hamilton is now the major force on the Court.  Knowing that the senior judges are not allowed to sit on a rehearing en banc unless they were on the original panel (Judge Ann Williams), my count of the who would be expected to sit en banc was bad for Dassey.

I figured that he would need Judge Posner to have a chance to prevail.  Then Posner unexpectedly resigned two weeks ago.  I was not optimistic.

Yesterday for some reason, Judge Flaum did not participate (I  had counted him as a law enforcement vote).  That left 7 judges to consider the case.  The majority of the question was done by five of the judges: Wood, Williams, Rovner, Hamilton and Sykes. Kanne did make some inquires, and strangely enough, Judge Easterbrook was fundamentally silent (Sometimes it is hard to tell who is asking questions as the oral argument is limited to sound and not video). 

It seemed to me, that both sides were trying to persuade Easterbrook.  My prediction is that he will be the swing vote.  Wood, Williams and Rovner will vote to uphold the district court, granting Dassey his writ  It was clear that Judge Sykes is going to vote to reverse and Judges Hamilton and Kanne will as well.  The vote will be 4-3 one way or the other.

A final note.  Most media reports have not mentioned that portion of the argument addressing the complete failure of Dassey's original counsel to be his lawyer and not an extension of the prosecution. Pretty clear, it was in street parlance, a V-6.  A walking violation of the 6th Amendment.