00:00hi everyone welcome to the a six in Z
00:01podcast we talk a lot about tech policy
00:04issues in the news and elsewhere but we
00:06tend to focus only on what the president
00:07and the White House also known as the
00:09executive branch as well as what the
00:11Senate and House of Representatives aka
00:13the legislative branch are saying and
00:15doing but when it comes right down to it
00:16many Technology Policy issues will
00:18ultimately be resolved by the courts
00:21the judicial branch in some cases going
00:23all the way up to the Supreme Court so
00:25in this episode recorded as part of the
00:27annual a6 and Z tech policy summit that
00:29took place earlier this month in
00:30Washington DC we discuss how the courts
00:33could decide today's big tech issues we
00:35briefly touch on one such top of mine
00:37issue encryption and finally we
00:39discussed tech companies increased
00:40engagement in high-profile policy
00:42battles of all kinds for example by
00:45writing and signing amicus briefs to how
00:46the tech sector is becoming its own
00:48powerful branch of sorts joining us to
00:51have this conversation we have Karen
00:52Dunn partner at Boise Schiller Flexner
00:54in Washington DC previously she served
00:56in all three branches of government and
00:57currently focuses her practice on
00:59high-profile civil litigation and trials
01:01as well as crisis management and she's
01:03also been a consultant on the TV show
01:04house of cards and then we have Aaron
01:06Murphy partner in the Washington DC
01:08office of Kirkland and Ellis her
01:09practice focuses on Supreme Court applet
01:12and constitutional litigation
01:13she's argued three cases before the
01:15Supreme Court including a landmark
01:16campaign finance decision and she was
01:18recently recognized by National Law
01:20Journal as a rising star the
01:21conversation is hosted by a 16 ZZZ Ted
01:24Elliott who heads up our policy and
01:26regulatory affairs team and was formerly
01:27general counsel at Facebook and before
01:29that was a lawyer in DC including
01:31serving in the George W Bush White House
01:33oh and all three of them have clerked
01:35for a different Supreme Court justices
01:37and getting into the head of our new
01:38recently confirmed Justice is where the
01:40conversation starts off Aaron Karen
01:42thanks for being with us so let's jump
01:44into some of the discussions here as we
01:46think about tech policy and how that's
01:47going to come out of the courts in
01:49particularly the federal courts at the
01:51Supreme Court we have a new Supreme
01:53Court as of whatever it is two three
01:55weeks ago now with we're back to nine so
01:58justice gore says has now been confirmed
02:00and the question is now that we've got
02:02the potential for not just equally
02:03divided horse but an actual 5-4 majority
02:05on some of these questions would love
02:08any insight that the two of you have
02:10about how the court in its current
02:13is likely to come out on significant
02:15tech issues in particular is there
02:17anything in justice gore such as
02:19background as a Tenth Circuit judge
02:21deciding some tech cases that could give
02:24us a hint on this Aaron do you want to
02:26sure absolutely first thank you all for
02:29having me here it'll be interesting to
02:31watch this area as it will be
02:33interesting to watch a lot of areas with
02:34a new member of the court you know
02:37there's many ways in which I think
02:39people think that justice Gorsuch will
02:41look a fair amount like justice scalia
02:44but there's always settle differences
02:46and things are always a little bit more
02:47complicated than that and one of the
02:49particular areas in which justice scalia
02:52and some of his conservative colleagues
02:55on the court didn't always quite see eye
02:57to eye were in some of these privacy
03:00issues particularly I'm thinking Fourth
03:02Amendment issues search and seizure
03:04issues and sometimes they'd get to the
03:06same result but through different ways
03:08of thinking about it Justice Scalia is a
03:10big fan of looking at things in terms of
03:13bright-line rules and putting things
03:15into neat and easy boxes I think some of
03:18his conservative colleagues take a
03:20little bit more of a pragmatic approach
03:22and that really plays itself out when it
03:24comes to something like asking whether
03:26there's been a search and a reasonable
03:28search and we've seen this play out a
03:30little bit in recent years with cases
03:32dealing with things like using
03:35technology in ways that many of us would
03:38think of as invading our privacy ichiro
03:41to it just to some extent there's so
03:43many of those issues to be dealt with
03:45still in terms of what kinds of things
03:49the government can use technology to do
03:51without running afoul of constitutional
03:54constraints right now for instance the
03:55courts thinking about a case about
03:57whether searching the cell tower records
04:01for an individual qualifies as a search
04:05and implicates the Fourth Amendment so
04:07we got a lot of these issues that are
04:08coming up and I think it'll be very
04:10interesting to see if justice Gorsuch is
04:13someone who comes at it with a little
04:16bit more of that bright line approach
04:18that Justice Scalia did looking for ways
04:20to easily apply kind of 18th century law
04:23to modern technology or
04:26comes at it a little more like we've
04:28seen in particular from some decisions
04:30from Justice Alito talking about you
04:32know well we have to look at all of this
04:35with a recognition that technology has
04:38caused our sense of what is reasonable
04:41expectations of privacy to change and we
04:44can't kind of blind ourselves to
04:46thinking about that when we're thinking
04:48about these constitutional questions so
04:50to me that will be a really interesting
04:52area as a lot of these cases are coming
04:55up that implicates technology and just a
04:58score such had a couple decisions on the
05:00Tenth Circuit that indicated he's pretty
05:02sensitive to this idea of not
05:05reflexively applying old rules to new
05:08technology but when you're on a lower
05:11court you're bound by what the higher
05:12court says and now he's not bound by
05:14anything anyone says so you know it's
05:16it's always hard to read too much into
05:17what a venn judge said when thinking
05:20about how they'll approach things that's
05:21a justice yeah I agree
05:23also I think that the court has shown a
05:24recent rather dramatic interest in
05:26revisiting the Fourth Amendment in
05:29general and as I read these cases I
05:31don't find their opinions limited in
05:34their impact to just Fourth Amendment
05:36jurisprudence because I think the
05:38reaction to the Reilly case which was a
05:40couple years ago which talked
05:42specifically about the cellphone and
05:44whether you could do a search incident
05:46to arrest on the cellphone and get
05:48everything in the cellphone it was
05:50finally a moment where people said oh my
05:52gosh you know the Supreme Court
05:53understands that I'm carrying in my hand
05:55a computer and there's stuff in it that
05:58is meaningful to me and what the tech
06:00companies have been saying for a long
06:01time which is my privacy interest is
06:03really important and ought to be
06:04protected so I think that that is very
06:07interesting and the replacement of
06:09Justice Scalia with justice course which
06:11is particularly interesting because
06:13Justice Scalia who wrote a precursor
06:16decision to that Jones styled it very
06:19much as a physical trespass and it's not
06:22completely clear to me that that is how
06:24justice Gorsuch will approach this
06:25because in many ways is very obvious at
06:29the time to equate physical trespass
06:31with the kind of data that isn't
06:34physical at all maybe over and this is
06:37what Aaron is talking about that Justice
06:39and justice Sotomayor in particular who
06:42had an amazing concurrence in that case
06:43well worth reading our signaling to the
06:46world which is we have to revisit this
06:48idea of privacy interests for data
06:51disclosed to third parties we have to
06:53revisit the Fourth Amendment we have to
06:55revisit this idea that everything is
06:58physical and I will tell you as a former
06:59prosecutor I mean search incident to
07:01arrest and the cell phone I was shocked
07:03that this happened because law
07:06enforcement has really reliant on being
07:08able to do a shocked by what you were
07:09shocked by the court coming out how it
07:11did in Reilly yeah well actually it will
07:14by the surge itself where's the
07:17prosecute you like doing these searches
07:18well yeah I mean I imagine that the
07:20universe of law enforcement is like oh
07:22my god are you kidding me with this what
07:24a hassle to have to write the warrant
07:25application in reality you probably get
07:27the same information let's you know just
07:29be honest most cases the warrants are
07:31signed but it made me really think oh my
07:34every time that we just got all this
07:37information maybe we weren't just
07:38entitled to do it legally
07:41maybe this Reilly decision is right yeah
07:43but I think what the Supreme Court is
07:44telling us is that they're starting to
07:47think about this and mostly it's been
07:48through the prism of the Fourth
07:49Amendment yeah I think when you look at
07:50some of those decisions where the court
07:52and certain justice seem to be
07:53reconsidering these settled doctrines
07:55it's not exclusively the younger members
07:57but is predominantly the younger members
07:59and that Gorsuch being whatever is
08:02forty-eight forty-nine years old has
08:03grown up with a lot of this technology
08:04to a greater extent than the rest of
08:06court I think can think about the
08:07implications as your old boss you know
08:09the chief said in the Reilly case it's
08:12hey you know your phone is very
08:13different than just scraps of paper in
08:15the wallet I mean you've got literally
08:16everything in the phone and that's a
08:18you're carrying around and basically a
08:20filing cabinet with you be you're
08:22sharing it by necessity with a cloud
08:24provider or somebody it's some data on
08:27the phone but a lot of it is reachable
08:29through there and that's something
08:30that's very new and I think it takes
08:32maybe younger justice to appreciate that
08:34yeah you know I think it's probably I
08:36mean it's a completely unproven
08:38hypothesis on my part but I would assume
08:41that you're impacted by whether your
08:44children are of the age that they grew
08:47up with that kind of technology which
08:49some of them are and some of them aren't
08:51but for one it impacts your familiarity
08:54technology but I think you're just
08:55because most of them are even the
08:58younger members are of a generation
08:59where that's not the technology they are
09:01up with and they may now use it much
09:02more than they ever did but if you've
09:05got kids at home who that is the way
09:08their world works I think it would open
09:09your eyes to thinking about ok we need
09:12to be sure we understand yeah what the
09:14implications of this are and what it
09:16means and what people really are
09:18carrying around with them in this phone
09:19all the time or what it really means if
09:22you're going to be able to triangulate
09:24people's locations every moment of their
09:26life wherever they are yeah it's
09:28important with it with significant
09:30ramifications for settled doctrine
09:31switching gears I think when many people
09:33think about tech and the courts if you
09:36read today if you'd paper as the past
09:38few months I think we'd think about is
09:40tech companies getting involved in these
09:43big cases challenging federal policy and
09:46we've seen a bunch of that in the past
09:47hundred days for example the immigration
09:50order president Trump's immigration
09:51order was first at minimum you had every
09:55tech company in Silicon Valley even some
09:57venture capital firms signing on to an
09:59amicus brief challenging that and in
10:01fact I think the State of Washington's
10:04successful argument pointed to Microsoft
10:06is the source of standing on that but
10:08just to talk about the phenomenon and
10:11this is a new phenomenon I was general
10:12counsel at a Internet company and it was
10:14not common even as recently as you know
10:17six seven years ago to sign onto these
10:19briefs but you really see that it's not
10:20just under this administration it
10:23started happening last administration as
10:24well as some of the encryption stuff
10:25Karen any thoughts on this growing trend
10:27of companies to get involved in this
10:28almost advocacy sort of capital a
10:31advocacy yeah so I work for a number of
10:33tech companies so I'll just save my
10:34views or my own on this topic but I have
10:37thought about this a lot and I actually
10:38think you know I've heard even just
10:40today one person I talked to said the
10:43problem is the regulators can't keep up
10:46with the technology so the answer will
10:47be found in the courts and then somebody
10:49else said well the courts can't keep up
10:52with the technology so the answer has to
10:54be with the policymakers and the
10:56regulators and even if you look at this
10:59Alito decision that we're attacking
11:00about just a second ago
11:01Justice Alito writes you know the Fourth
11:04Amendment is really a very blunt
11:05instrument so maybe Congress should
11:07for us and give us some direction and so
11:09in thinking about this I've developed
11:11sort of a new worldview which I will
11:13unveil here and wait for it and we think
11:17about courts legislators you know the
11:20executive but I really think the fourth
11:22branch of government at this point are
11:23tech companies and I think that they
11:27have the resources to move fast enough
11:30they have the public reach I mean the
11:33fact is years ago it was predictable by
11:35some that social movement was gonna
11:38happen at the hands of tech companies
11:41you know Facebook for one I'm gonna
11:43pander to Ted but that is definitely the
11:45case and so what's going on now is tech
11:49companies are have an imperative they're
11:52being called upon by their employees and
11:55also by consumers and this is actually
11:57being called political consumerism where
12:00it used to be if you're a company and
12:02you sort of stayed neutral that was the
12:04right thing to do but now if you see
12:07neutral a lot of times it's not at all
12:09the right thing to do and people get
12:10very angry at you so the tech companies
12:13are sort of looking around and they also
12:15have values that they're trying to
12:18propagate in the world and the truth of
12:20the matter is I think this is having an
12:23enormous effect beyond the bottom line
12:25of the companies and we may become
12:28increasingly reliant on the tech sector
12:31to push forward things because they
12:33understand the technology they can move
12:35rapidly and because the rest of the
12:37branches of government are failing us in
12:39this respect so I think is a great
12:42question I spend a lot of time working
12:43on and thinking about it I think frankly
12:45by next year you'll be having a whole
12:47panel about how the tech sector is gonna
12:49move everybody forward I think often the
12:52companies responding mainly to their
12:54employees in the sense of the employee
12:56base on some of these big political
12:57questions of the day and to your point
12:59on the public end I think we're certain
13:01techni means maybe their customers are
13:03of a pretty consistent political view
13:06one way or the other I think the risk is
13:08any I think Facebook has encountered
13:09this over the past year that you know I
13:11don't think it's traceable to the amicus
13:12briefs but it's not only to that but
13:14there's a sense out there I think among
13:16many on the right that well Facebook is
13:18taking sides and big political
13:21you'd suddenly had this thing about the
13:22algorithm you know whether that's
13:24suppressing conservative news but you
13:26know company might well look at that and
13:27say listen I know my employees feel
13:29passionately about this but I don't want
13:30to piss off a big slice of my consumers
13:33you think that's a risk yeah I do when I
13:36think about amicus participation I mean
13:38there are cases where it's quite obvious
13:39that there's a wonderful role for tech
13:42companies yeah play I think
13:43courts are not a useless courts are not
13:45sophisticated in their understanding of
13:47technology and a lot of times parties
13:49have limited ability to explain that and
13:51it's wonderful to have briefs that
13:52that's the point of amicus briefs to be
13:55able to kind of be someone who's there
13:57and has a particular eyes role to play
13:59in the debate but I don't know that I'm
14:02a huge fan of the trend of because of
14:05who we are we have views on anything and
14:08everything and you know and everybody
14:11better sign on to the brief is in the
14:12industry because the industry supports
14:14this view and everyone in it you know I
14:17think that's probably a bit of an
14:19oversimplification of the industry and
14:21the employees and I think it's
14:23definitely something that risks turning
14:25off some consumers and I'm not sure at
14:29the end of the day if it becomes a
14:31dynamic of the industry is here to
14:34represent a policy view consistently
14:36that it's going to represent I think it
14:38diminishes the importance of the briefs
14:40to the court because it starts to become
14:41more just like how and you have plenty
14:44of the plenty of groups like that on
14:46both sides of the dialogue in cases that
14:48you know are gonna show up and they're
14:50gonna file and you know what they're
14:51gonna say before you read their brief
14:52and you know so I think it's for any
14:55industry or any group that files on
14:57Mika's briefs I think it's always good
14:58to be thinking about what do we really
15:00have to contribute in this case that is
15:02the reason that we as an industry have a
15:03particular reason to be here and
15:05something to say other than just kind of
15:08we happen to be some some people who
15:11have this view just like any other
15:13undifferentiated and on that you both
15:15have been law clerks you've seen the
15:16process up close what is your take on
15:19how much if any influence these industry
15:22briefs have I mean it's a leading
15:23question a little bit but can you think
15:25of instances in which an amicus brief
15:26has actually had a significant impact on
15:28a case Karen you said you're suggesting
15:29yes yeah I think you're refuting my
15:32leading question yeah well we do both
15:35yeah yeah of course huge influence
15:38Aaron zambese briefs I'm a huge
15:40impediment you know I I don't think I
15:44mean certainly not not dispositive not
15:47the only effect or not or not you know
15:50frequent but I can think of some
15:52examples and even in the Supreme Court
15:55healthcare case where amicus briefs have
15:58made arguments outside of the party's
16:00briefs that have made a difference I
16:01don't think it's the just pose I think
16:03they're closer is on to something when
16:05he says it's called friend of the court
16:06not friend of the party I think that's
16:08you know very post nourish and
16:10intelligent you know I don't think
16:11there's reason not to do that but I also
16:13think for the tech companies and I'm
16:15sure there are people here who can
16:17relate to this it's you know the amicus
16:19briefs are one example of this in the
16:23world but I think on some level they
16:25have no choice other than to be
16:27answerable to some of these issues and
16:28so the companies don't have a choice
16:30they've got it so even if it's purely
16:32symbolic they have to yeah speak on the
16:35issue yeah yeah there's one way to speak
16:36to being to be counted in this big
16:38debate that's going on at the court
16:39correct I think there well there are two
16:41things one is they're being called upon
16:43to stand up and have a view particularly
16:46if there is a lot of momentum but then
16:48second of all frequently there are
16:50players in a universe where they just
16:52impact so many people in a way that it
16:55used to be only the government had a
16:57reach that would impact so many people
16:59and now there are these companies who do
17:01so it's it's hard to not be responsible
17:04to those you're basically you're
17:07important actors you know and your
17:09consumers yeah I just think it's tough
17:11it's I don't think it's an easy choice
17:13for these companies but I think they
17:15have to figure out a way to to navigate
17:18encryption and Apple FBI this was a big
17:21issue I think we actually talked about
17:23it last year in the tech policy in the
17:24courts panel at that point I think Apple
17:26Apple versus FBI or Apple versus United
17:28States whatever is styled the San
17:30Bernardino case had I think it just been
17:32settled at that point just been mooted
17:34and then that issues been fairly quiet
17:36for the past year and then not totally
17:38quiet it's always lurking there so I
17:40think we're gonna see a situation at
17:42some point in the next year six months
17:44or so where will again be at this so
17:46let's go to the Supreme Court
17:48how the Supreme Court might examine an
17:51encryption case my rule of that that's a
17:54great question and it's hard to know
17:56because this issue as you know has not
17:59yeah well enough for them you've worked
18:01on this issue yeah so I did work on this
18:02issue on behalf of Apple along with my
18:05friend America soldier who's there
18:06check fact-checking what I say on you
18:09know the statutes of play there was the
18:11all writs act so 1789 talk about an
18:14outdated yeah game work and if that
18:16wasn't gonna apply there was a 20 year
18:18old statute that might suffice and the
18:21truth is none of it was equipped for now
18:23and part of the question was what's
18:25Congress gonna do about this and in the
18:27end because the pressure was off the FBI
18:30you know resorted to self-help they
18:32broke into the phone themselves the
18:35issue did not get to be teed up in the
18:37courts and the pressure came off of
18:38Congress so nobody did anything
18:39similarly in this I don't know if you're
18:42similarly following the Alexa murder yes
18:45we're vibe that one just for people
18:47haven't read a benefit so the government
18:50had wanted the data in the Amazon echo
18:53you know when you say Alexa tell me the
18:56weather so Alexa is gathering data while
18:58she's sitting there listening listening
19:00to you in your house and Amazon did not
19:03want to give this up and they asserted v
19:05first amenities in a case where there's
19:07a murder had taken place and the
19:09defendant in the murder case and I got
19:12to know more about this because this is
19:13a little odd gave up the information
19:15himself and that mooted this issue about
19:18whether they could get the stuff that
19:20Alexa was picking up in the home but I
19:23think Ted you're absolutely right this
19:24is coming there's no way to avoid it but
19:26I find it really hard to believe it's
19:28not coming in a way that's a very
19:30focused legal issue like the FBI know
19:33Bernardino case or like the you know
19:34Alexa murder case and that's gonna
19:36happen and the truth is these statutes
19:39are we are not equipped for this you're
19:41not equipped for this but Congress is
19:42showing no evidence of racing to our
19:44rescue to wrestle this to the ground and
19:46figure it out either yeah I suspect
19:48however the court ends up dealing with
19:51it there will be a lot of language in
19:53someone's opinion saying Congress please
19:55fix all this because they and you saw
19:56that in a few of these recent cases of
19:58there's where they're like look we
20:00shouldn't be figuring this out in the
20:02let's get some statutes on the books
20:04that were written at least in the same
20:05decade as the technology that you're
20:08asking us to apply the Constitution do
20:10because the government can fix some of
20:12these warrant problems and you know why
20:14don't we get some laws to give a
20:16framework here and I think the court
20:18gets particularly frustrated in
20:19situations like that where they feel
20:21like they're being put in a position of
20:22dealing with something that they don't
20:24think they should have to be the ones to
20:25deal in the first instance with so I
20:27think it will is it's a situation they
20:29probably hope to be able to avoid but
20:31Congress doesn't look to be trying to
20:33resolve these issues quickly unless it
20:35absolutely has to do with them yeah I
20:37think once you get back into the
20:38legislative sphere then it's an issue
20:39that is it's one of those that actually
20:41that we talked about the outset of one
20:42that's it's not bipartisan but it
20:44confounds partisan lines you have
20:46Democrats on both sides Republicans on
20:48both sides that issue and it's not clear
20:50where that goes in the Congress well
20:52listen we are at time here for this
20:55audience of tech policy folks and a lot
20:57of tech tech company representative here
21:00I think to be described as the new
21:02fourth branch of government has been
21:04it's a good it's a good take away a lot
21:07of responsibility well yeah maybe the
21:09because we could press any fascinating
21:11discussion and again I think this is
21:13something that for the non lawyers
21:14they're going to continue to watch this
21:16that a lot of the a lot of the big
21:18questions will start and it will keep
21:20ending up in the courts so look for
21:23Karen and Aaron to be among those
21:26arguing some of these key cases up at
21:28the Supreme Court over the years to come
21:30and please join me in thanking the two
21:32of them for appearing today
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