MIT 6.805/STS085: Ethics and Law on the Electronic Frontier

Preparation for week of class on October 4
Moot Court on Transactional Records

Readings

• Smith v. Maryland, 442 U.S 735 (1979). Landmark Supreme court ruling on Fourth Amendment status of telephone records

• 18 USC 2703: Required disclosure of customer communications or records. Enacted as part of the 1986 Electronic Communications Privacy Act

• Information on The Pudding. This is a San Jose free phone call startup that has just announced its beta service (September 24, 2007). This is a real company, which is at the center of the hypothetical for the moot court. Everyone should read at least The Pudding's privacy policy. Some of you, in particular, the members of the press that will be giving background reports, should also take a broader look at the Pudding site. There's also been a fair amount activity on the Web and in the blogsphere the past few days reacting to the Pudding Media announcement, and this that would be useful for the Moot Court reporters to look at.

  Note: It might appear that some of the things asserted in The Pudding's privacy policy don't quite match the facts in the moot court hypothetical. In arguing the case, assume that the facts are as stated. After all, it's our hypothetical.

• In addition, continue reading in The Transparent Society, chapter 6. We've skipped chapter 4 on copyright, a topic we'll cover at the beginning of November, and chapter 5 is optional.

Writings

There is a writing assignment to be turned in using the rotisserie. Unlike the previous rotisserie assignments, this one will not be due until Wednesday evening, and there is no cycle of reading and commenting on a classmate's work. However, the staff will read an comment on your work. as part of evaluating your writing for the course, so try to do a careful job. Your specific writing assignment depends on your role in the Moot court, as described below.

6.805 - Moot Court
United States v. Brin

Background and Facts

On 15 September 2010, Donna Brin, a resident of Mountain View, CA, was charged with federal tax fraud in connection with material false statements on her 2009 federal tax return. She is accused of having knowingly and wilfully made the false assertion that she was entitled to a home office tax deduction. The tax deduction allowed her to reduce her federal tax by more than 20%.

Brin is currently self-employed as a blogger for the Mountain View Soapbox, supporting herself on advertising revenue generated by her blog. However, from early 2005 until the end of 2009 she was employed as a reporter for the Mountain View Telegraph, a local weekly newspaper. In a freak accident on New Years Eve (31 December 2009), the Telegraph's offices burned to the ground, destroying all equipment and data storage. As the last print newspaper left in California, the owners of the Telegraph decided that the fire was an omen heralding the permanent demise of print news sources. On 1 January 2010, the Telegraph declared bankruptcy and fired all of its employees. Then on 1 February, the owners launched an online news site, the Mountain View Soapbox, and offered several reporters, including Ms. Brin, the privilege of blogging without pay. They were allowed to keep the ad revenue generated by their postings.

In its criminal complaint, the government alleges that she did no more than de minimis work in her home during the year 2009 and that during the time she did use her home office she was engaged in "entertainment" activities. The following evidence was presented by the government to prove its case:

• http logs of Brin's usage of free IP telephony the Pudding with IP addresses at the Telegraph office establish that she was at work at least 10 hours per day, six days per week.
• http logs of Pudding usage from her home IP addresses establish specific times during which time she was using her home office
• internal Pudding logs of advertisements served to Brin's user name along with the profile category assigned to Brin based on automated speech recognition techniques applied to help IP telephony traffic.

  The ads served to Brin's home IP address were targeted to her based on Pudding's internal profile tags:

  "gamer"
  "britney"
  "rock climer"
  "presumed to be female"
  "presumed to be age 25-33"
  "Northern California"

  The ads served to Brin's work IP address were targeted to her based on Pudding's internal profile tags:

  "at the office"
  "knowledge worker"
  "likely journalist"
  "presumed to be female"
  "presumed to be age 25-33"
  "Northern California"

The government planned to argue at trial that these profiles developed about Brin by Pudding's speech recognition system are sufficiently reliable as to constitute evidence of her activity both at home and at the office.

Disputed Evidence

The evidence was collected as follows:
government investigators served the Pudding with:

• a court order demanding production of: all http while in her office at the Telegraph and at her home office.
• an administrative subpoena demanding production of logs of advertisements and associated profile pages served to Brin's user name.

Both parties stipulate that the government satisfied the requirements of 18 USC 2703(d) in its request for http logs. Both parties also agree that the profile information does not fall within the scope of USC 2703(d).

Proceedings Below

Upon receiving notice that the government planned to introduce these logs from Pudding Media, Brin immediately filed a motion to have this evidence gained in response to the subpoena suppressed as a violation of her Fourth Amendment rights. The trial judge granted the motion to suppress, and the government filed an interlocutory appeal challenging the trial judge's decision. The 9th Circuit Court of Appeals sustained the trial judge's decision, without comment.

Proceedings before the United States Supreme Court

The Government filed a writ of certiorari and the United States Supreme Court agreed to hear the case in order to resolve the question of whether the rule in Smith v. Maryland allows introduction of profile data obtained with a subpoena, as opposed to a probable cause warrant.

The Court indicated that it will hear oral arguments on the matter following submission of briefs from the Defendant/Appellee and Solicitor General/Appellant. Each party will have 30 minutes to argue it's case. The Court will also accept briefs from amicus curiae (friends of the court) including a coalition of civil liberties organizations and a coalition of public and private law enforcement organizations.

During the course of the arguments, each justice will be expected to ask at least one question of each side.

Following the oral arguments, the Justices will retire and formulate their decision, to be announced in open court along with a summary of the legal reasoning supporting the decision.

Immediately after the decision is announced, the amici will hold a press conference, followed by a summary of the day's events from the New York Times.

Roles

Parties:

• Defendant/Appellee, Donna Brin
• Appellant, United States Solicitor General

The Court (Supreme Court Justices (9))

• Chief Justice Roberts
• Justice John Paul Stevens
• Justice Antonin Scalia
• Justice Anthony Kennedy
• Justice David Souter
• Justice Clarence Thomas
• Justice Ruth Bader Ginsburg
• Justice Stephen Breyer
• Justice Samuel Alito

New York Times Reporter (the immediate result of the case and the views of the parties)

• Linda Greenhouse

Frontline Reporter (the in-depth view)

• Hedrick Smith

Civil Liberties Amici

• American Civil Liberties Union
• Center for Democracy and Technology
• Electronic Frontier Foundation
• Electronic Privacy Information Center

Law Enforcement Amici

• National Association of District Attorneys
• National Center for Missing and Exploited Children
• The International Association of Chiefs of Police

Papers to be filed in advance

By order of the Court, the following parties will file the stated papers by Wednesday 3 October.

• Appellee and Appellants: Brief of legal argument (roughly 2 pages). Be sure to include:
  • statement of the relevant facts
  • the legal issue to be resolved
  • argument in support of your position, citing relevant cases and using facts as needed. Do not make up any additional facts
• Justices: write a memo summarizing the issues in the case and 2 questions for each side
• Frontline Reporter -- write a short piece on the larger significance of the case, legally, technical and socially.
• NY Times Reporter: write a background summary of the case and questions you plan to ask the parties and the amici.
• Amici: write a brief in support of your position. Include the items listed for the appellee/ant brief along with a statement of why your organization is interested in the outcome.

Schedule