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

Preparation for week of class on October 2
Moot Court
United States v. Sami al-Bayt

Readings

Writings

There is no writing assignment to turn in before class. On the other hand, you will certainly need to prepare notes for yourself to support your role during the proceedings.

• The Appellee, Appellants, and the amici arguing before the court should prepare their arguments. You'll need to cover:
  • 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.
  • You should not make up any additional facts, but you can point to examples of information that might have been included in the records obtained by the government in the case, and discuss their Fourth Amendment significance.
  • The amici should also have a statement of why your organization is interested in the outcome.
  Coordinate as you are preparing these so that you don't all cover the same arguments. Pay attention to how much time you'll have to present. Remember that the justices can and will interrupt you with questions, and that these interruptions count as part of your time!
• Justices: prepare a summary for yourself of the issues in the case, with two questions for each side.
• Frontline Reporter -- You'll need to present an introductory report for the Frontline audience (see proceedings below), so prepare that. Your report should cover the larger significance of the case, legally, technically, and socially.
• NY Times Reporter: You'll need to quickly write up and present a news article after the decision, so write a background summary now, and prepare questions you plan to ask the parties and the amici.

United States v. Sami al-Bayt

Background and Facts

Beginning the in year 2013, the average amount of hard disk storage in the average American home has dropped from a high of 5TB (in 2010) to under 500GB. Industry analysts explain this drop in demand for local disk storage as a response to the nearly ubiquitous adoption of cloud computing services by most individuals and businesses in the United States.

The average home now has several portable 'thin-client' workstations that provide access to a range of hosted computing services. Basic cloud services offered include email, multiparty audio/video chat, file storage offering an average of 50TB for free for each household, virtual web servers, as well as popular office applications such as document processing, spreadsheets, databases, financial management software, etc. Consumers have the ability to install their own software or use what are generally free software services run by the cloud provider.

Businesses take advantage of a similar range of services. With the exception of quasi-criminal enterprises, businesses no longer operate their own data centers but rely on hosted services provided by a range of cloud services. Analysts have observed, though, that roughly 80% of cloud computing providers build their offerings on a common software platform called YahooCloud, an Apache-licensed suite of software designed and largely maintained by YahooSoft, now the largest IT company in the world that was created when Yahoo bought Microsoft and Google at fire-sale prices during the financial turmoil of 2008-2009.

Sami al-Bayt lives in Cincinnati, Ohio with his wife and 3 children. He is a subscriber of CloudBurst Home Computing services (CBHC). He has, on average, 85TB of stored data. Files include:

• video and audio recording of family events, etc.
• records of personal family finances
• public writings about political and religious activity.

He operates a variety of applications on hosted virtual machines including

• email
• web servers (providing some content to the public and some to family and friends on a password-protected basis).
• accounting and investment management software
• word processing tools
• a SQL data base for the exclusive use of his account, that supports the above services

In addition, al-Bayt is the Vice-President and Treasurer of his local mosque. He uses his personal file and application host space to maintain:

• the mosque web site (with both public and member-only documents)
• financial records and minutes of board meetings of the 501(c)(3) non-profit corporation that operates the mosque
• pictures and video of social, religious and political activities of the local Islamic community.

CBHC bills its customers monthly, based on the amount of storage used over the free 50TB and charges an usage-based fee for the various applications and virtual machine slices that are used. The bills that each customer received include summaries of usage levels and associated costs. Detailed transaction records are also available on CBHC web site. While these transactions records for each account do not include the actual hosted documents or the contents of email messages, they do include

• all email header information
• all web server logs
• the times and details of each financial transaction, including names, account numbers, and amounts of transactions from third parties
• all SQL queries issued to the data base
• the names of files read and written by all hosted applications
• the specific times each document file was opened for editing, and written
• the name of the user associated with each access

Proceedings Below

Sami al-Bayt, together with 5 other members of his mosque, are charged with violating federal money laundering and terrorism financing statutes. In the course of the investigation into these alleged crimes, the FBI and Secret Service sought and obtained a series of court orders under 18 USC 2703(b) and 18 USC 2703(c) requiring CBHC to disclose to the government the detailed records of file access, application use, and virtual machine operation in al-Bayt's account during the period under which he was suspected of violating these laws. The orders were granted based on a showing of 'specific and articulable facts' as required by 18 USC 2703(d).

Upon receiving notice that the government planned to introduce the transaction logs into evidence, al-Bayt immediately filed a motion to have this evidence gained in response to the subpoena suppressed as a violation of his 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 6th Circuit Court of Appeals sustained the trial judge's decision, without comment.

The legal record does not show in detail the contents of the transactional records obtained, but it is stipulated that they include web server logs, email server logs, database query logs, and functional traces of the programs executed on the CBHC virtual machines rented by al-Bayt.

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 following issue:

"Whether granting law enforcement access to transactional records of cloud computing services under the provisions of 2703(b), (c) and (d), under a showing of 'reasonable articulable suspicion' violates the defendant's 4th Amendment right to be free from unreasonable search?"

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 its case. The Court will also accept arguments from amicus curiae (friends of the court) including a coalition of civil liberties organizations and a coalition of public and private law enforcement organizations. In a departure from standard Court procedure, some of the amici will be permitted to present their arguments orally before the Court, rather than as written briefs.

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.

Schedule