#SCOTUS, Nov. 29, 2017. A relatively calm morning, as the justices prepare to hear what could be a very important case about what the Fourth Amendment’s warrant requirement means in the internet age.pic.twitter.com/SkncA5lYst
Legal Editor, @BuzzFeedNews. SCOTUS Correspondent. Nat Sec Team, covering Trump & Mueller. Sober. Gay. Buckeye. Law Dork. DMs open. chris.geidner@buzzfeed.com
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#SCOTUS, Nov. 29, 2017. A relatively calm morning, as the justices prepare to hear what could be a very important case about what the Fourth Amendment’s warrant requirement means in the internet age.pic.twitter.com/SkncA5lYst
Incredibly interesting arguments from a very engaged court this morning about whether a warrant is required for the gov’t to obtain 100+ days of historical cell-site records for a cell-phone user.
My first take out of #SCOTUS — and it’s one that surprises me — is the level to which Michael Dreeben, the federal gov’t’s top criminal appellate lawyer, appeared unwilling to engage with the realities of living in 2017.
Dreeben is one of the best Supreme Court advocates alive today, and he’s an incredible lawyer, but, today, he just was unwilling to engage in a real debate about how the changed ways we live our lives affect privacy or property rights in new ways.
And, I think that affected the justices as the argument wore on. While it’s clear that they’re not sure of how to resolve the case, his unwillingness to budge at all seemed to pull justices away from him, especially the Chief (and Gorsuch, perhaps), throughout the 80 minutes.
For those not following the case, the govt’s position — one Dreeben just repeated in different forms over his 40 minutes — was: Cell-site records are a business record, so it’s not a search, so the Fourth Amendment isn’t implicated. Period.
On the other side, the questions started off by asking about why cell-site records were more sensitive than other potentially sensitive records (bank records, phone numbers called) that the court has allowed to be collected without a warrant under the third-party doctrine.
The questions veered basically into a debate about what the rule would be — the "what would the opinion look like" question that Breyer loves.
Then, Dreeben got up, and just didn't engage in the debate that the justices were there to have. It was unfortunate, because this is a really big issue — and one that the justices seemed to be taking seriously.
Dreeben is better than that, usually, is he not?
Yeah, see earlier in the thread. He’s an incredible advocate!
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