WEBVTT - Geofence Warrants & Can Trump Fire Powell? 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:08.600 --> 0:00:13.360 President Trump has taken unprecedented steps to fire board members 0:00:13.600 --> 0:00:17.840 at agencies created by Congress to be independent of the 0:00:17.840 --> 0:00:21.560 White House. He's fired members of the Federal Trade Commission, 0:00:21.840 --> 0:00:26.440 the Equal Employment Opportunity Commission, the National Labor Relations Board, 0:00:26.560 --> 0:00:30.920 and the Merit Systems Protection Board, all without cause as 0:00:31.040 --> 0:00:35.840 required by relevant statutes. All these firings are being challenged 0:00:35.880 --> 0:00:39.480 in DC federal courts. Some are at the trial court level, 0:00:39.640 --> 0:00:42.519 others are at the appellate level, and still others at 0:00:42.560 --> 0:00:46.559 the Supreme Court. Joining me is Bloomberg Intelligence senior litigation 0:00:46.720 --> 0:00:51.000 analyst Elliott Stein. Elliott, isn't the same issue that's coming 0:00:51.080 --> 0:00:55.520 up over and over again in these cases involving firings. 0:00:56.040 --> 0:01:01.200 Yeah, exactly. You know, basically whether Humphy's Executor, which is 0:01:01.200 --> 0:01:04.880 the Supreme Court decision from nineteen thirty five which upheld 0:01:04.959 --> 0:01:09.360 four cause removal restrictions, still applies, because all these government 0:01:09.360 --> 0:01:12.200 statutes for all these agencies where the commissioners are being 0:01:12.200 --> 0:01:16.160 fired have the same or similar four cause removal restrictions. 0:01:16.440 --> 0:01:18.560 And so the question is whether you know the Trump 0:01:18.640 --> 0:01:22.800 administration is arguing that those restrictions are unconstitutional because they 0:01:22.800 --> 0:01:25.480 impinge on the president's authority to run the executive branch. 0:01:26.160 --> 0:01:29.080 And these cases are all in the DC. 0:01:29.040 --> 0:01:31.280 Circuit, right exactly. Some of them are still at the 0:01:31.280 --> 0:01:34.480 trial court level, so d DC, but yes, they're all 0:01:34.800 --> 0:01:37.000 under the umbrella of the DC Circuit, and some have 0:01:37.080 --> 0:01:39.400 already started reaching the Supreme Court. 0:01:39.680 --> 0:01:43.200 So tell us about the hearing yesterday over the firing 0:01:43.240 --> 0:01:44.880 of the FTC commissioners. 0:01:45.560 --> 0:01:49.280 Yesterday's hearing was at the trial court level. It was 0:01:49.320 --> 0:01:53.120 before Judge Ali Khan, and you know, it was similar 0:01:53.200 --> 0:01:58.120 to what we've seen in other cases involving commissioners from 0:01:58.400 --> 0:02:03.360 other agencies for example ANLRB, the National Labor Relations Board 0:02:03.440 --> 0:02:07.360 and the MSPB, the Merit Systems Protection Board. And essentially, 0:02:07.920 --> 0:02:12.400 the Trump administration is arguing that the four cause removal 0:02:12.440 --> 0:02:16.360 restrictions that are in the governing statutes are unconstitutional and 0:02:16.400 --> 0:02:20.440 the president should be able to fire these commissioners at 0:02:20.480 --> 0:02:23.560 will because they're part of the executive branch and under 0:02:23.639 --> 0:02:27.760 Article to the president has authority to control the executive branch. 0:02:28.360 --> 0:02:32.519 The commissioners obviously take the opposite view and say, well, 0:02:32.600 --> 0:02:34.720 you know, we have a Supreme Court decision from nineteen 0:02:34.760 --> 0:02:39.720 thirty five Humphrey's Executor, which upheld four cause removal restrictions, 0:02:39.800 --> 0:02:43.160 and that decision is still good law. The Supreme Court 0:02:43.280 --> 0:02:47.320 hasn't overruled it, even though it revisited and interpreted that 0:02:47.440 --> 0:02:51.040 decision in recent cases involving single director agencies like the 0:02:51.080 --> 0:02:52.840 CFPB and the FAHFA. 0:02:53.639 --> 0:02:57.360 One of these cases actually reached an on bank panel 0:02:57.480 --> 0:03:00.919 of the DC Circuit, which means the three judge panel 0:03:01.080 --> 0:03:04.680 ruled in the case and then it was appealed to 0:03:04.760 --> 0:03:06.359 the full DC Circuit. 0:03:07.400 --> 0:03:10.320 Essentially two of the cases, but they've sort of been consolidated. 0:03:10.520 --> 0:03:14.160 Those are the cases involving the NRB and the MSPB, 0:03:14.280 --> 0:03:18.119 the Merit Systems Protection Board. In that case, the trial 0:03:18.360 --> 0:03:22.280 court Judge Howell said that the four cause removal restrictions 0:03:22.280 --> 0:03:25.960 are fined their constitutional under Humphrey's Executor and as a result, 0:03:26.000 --> 0:03:29.960 the termination of the commissioners from those agencies was improper, 0:03:30.400 --> 0:03:34.239 and so she directed the agencies to reinstate the commissioners 0:03:34.600 --> 0:03:37.760 their trump administration then went to the DC Circuit, which 0:03:38.400 --> 0:03:40.720 in the first instance went to a three judge panel, 0:03:41.240 --> 0:03:44.360 and the panel, which was comprised of two judges appointed 0:03:44.400 --> 0:03:49.040 by Republicans and won by a Democrat, essentially said that 0:03:49.080 --> 0:03:53.360 the trial court's ruling was unlikely to succeed on the merits, 0:03:53.400 --> 0:03:56.120 and as a result, they put a hold on the 0:03:56.160 --> 0:04:00.000 trial court's injunction that would have reinstated the commissioners. Commit 0:04:00.000 --> 0:04:03.640 missioners then went to the full DC Circuit and requested 0:04:03.640 --> 0:04:06.920 an ND bound review of that panel decision, and and 0:04:07.120 --> 0:04:11.280 Bank Court essentially came out the other way from the 0:04:11.320 --> 0:04:15.320 panel and said that the child Court's injunction to reinstate 0:04:15.360 --> 0:04:18.760 the commissioners was fine because the commissioners were likely to 0:04:18.800 --> 0:04:22.360 succeed on the merits. What's interesting is that you know, 0:04:22.480 --> 0:04:26.839 these rulings are coming out completely along ideological lines. So 0:04:27.120 --> 0:04:29.320 you know, I mentioned the three judge panel where you 0:04:29.360 --> 0:04:33.760 had two judges appointed by Republicans ruling in favor of 0:04:33.800 --> 0:04:37.520 the Trump administration and one judge appointed by a Democrat 0:04:37.640 --> 0:04:40.000 ruling in favor of the commissioners. You had a similar 0:04:40.360 --> 0:04:43.799 alignment at the en Bank level where you had seven 0:04:43.920 --> 0:04:47.000 judges appointed by Democrats ruling in favor of the commissioners 0:04:47.040 --> 0:04:49.760 and four judges appointed by Republicans ruling in favor of 0:04:49.760 --> 0:04:50.760 the Trump administration. 0:04:51.440 --> 0:04:56.839 How are the judges appointed by Republicans get over Humphrey's executor, 0:04:56.920 --> 0:04:58.359 which is still good law. 0:04:59.000 --> 0:05:02.360 Right, So they say the more recent Supreme Court decisions 0:05:02.400 --> 0:05:07.200 concerning four cause removal restrictions sale a law which concerned 0:05:07.200 --> 0:05:11.159 the CFPV director and Collins, which concerned the FHFA director, 0:05:11.680 --> 0:05:16.719 really narrowed the holding of Humphrey's executor, and that the 0:05:16.760 --> 0:05:22.839 more recent decisions essentially held that four cause removal restrictions 0:05:23.000 --> 0:05:28.520 are improper for agencies that wield executive power, and that 0:05:28.760 --> 0:05:33.840 in Humphreys, the FTC at that time didn't really wield 0:05:33.880 --> 0:05:37.400 executive power because there was more like a quasi legislative 0:05:37.480 --> 0:05:41.400 or quasi judicial agency. It basically acted as a legislative 0:05:41.520 --> 0:05:45.080 aid and didn't quite have the full gamut of powers 0:05:45.160 --> 0:05:48.839 that it has now. And as a result, you know, 0:05:49.000 --> 0:05:53.239 these agencies where commissioners are being fired, wield executive power. 0:05:53.240 --> 0:05:55.679 And you know two of the hallmarks of executive power 0:05:55.800 --> 0:05:58.680 or rule making authority and enforcement authority, and most of 0:05:58.720 --> 0:06:01.760 these agencies have authority, and as a result, they wield 0:06:01.800 --> 0:06:05.280 executive power and they fall under the President's authority. 0:06:05.640 --> 0:06:07.479 So that was the only one that went up to 0:06:07.520 --> 0:06:09.279 the full DC circuit. 0:06:09.720 --> 0:06:12.480 Yes, that's right. Most of these other ones are still 0:06:12.520 --> 0:06:15.080 at the trial court level, including the FDC one that 0:06:15.200 --> 0:06:16.200 was heard yesterday. 0:06:16.440 --> 0:06:19.000 There was a May sixteenth appellate court. 0:06:18.880 --> 0:06:24.000 Argument, right, So on May sixteenth, the NLRB and MSPB 0:06:24.240 --> 0:06:28.720 cases were argued before the DC Circuit panel on the merits. Right. 0:06:28.760 --> 0:06:32.760 We already discussed how the preliminary issue or sort of 0:06:32.760 --> 0:06:36.640 the emergency issue regarding the injunction to reinstate them went up, 0:06:36.880 --> 0:06:40.800 but those were just emergency issues here, and on May 0:06:40.839 --> 0:06:45.000 sixteenth concerned the full merits of the trial court's ruling 0:06:45.040 --> 0:06:48.800 to reinstate the commissioners. And how did that go, you know, 0:06:49.040 --> 0:06:52.360 similar to how all these cases are going where you know, 0:06:52.480 --> 0:06:55.600 you do see this alignment where that panel had again 0:06:55.640 --> 0:06:58.640 two judges, Judge Walker and Judge Katsas, who were appointed 0:06:58.640 --> 0:07:01.919 by President Trump, and then Judge Pan who was appointed 0:07:01.960 --> 0:07:06.000 by President Biden. And you know, Judge Pan was very 0:07:06.200 --> 0:07:10.920 critical or skeptical of the Trump administration's position. So I 0:07:11.000 --> 0:07:13.720 expect her to rule in favor of the commissioners, but 0:07:13.920 --> 0:07:16.280 you know, so likely be in the dissent. There are 0:07:16.280 --> 0:07:19.200 two other judges. Judge Walker has taken a very expansive 0:07:19.320 --> 0:07:23.280 view of executive authority. He wrote one of the opinions 0:07:23.440 --> 0:07:26.880 when this case reached the DC Circuit panel previously, and 0:07:27.000 --> 0:07:30.560 he took a very expansive view of executive authority. So 0:07:30.880 --> 0:07:33.120 he's very likely to rule for President Trump, and then 0:07:33.160 --> 0:07:35.600 the other judge, Katsis, I think will also rule for 0:07:35.680 --> 0:07:38.920 President Trump. He was sort of trying to figure out 0:07:39.040 --> 0:07:43.960 just how far the Trump administration's argument could go. You know, 0:07:44.000 --> 0:07:45.320 he's trying to figure out sort of like what the 0:07:45.320 --> 0:07:47.560 outer bounds would be. But at the end of the day, 0:07:47.600 --> 0:07:50.840 I do expect that the Trump administration will win reversal 0:07:51.160 --> 0:07:54.680 at the panel level, after which, of course the Commissioners 0:07:54.720 --> 0:07:57.160 will then ask her and Bank review again. I expect 0:07:57.200 --> 0:07:59.520 they'll win there, and then we'll probably be onto the 0:07:59.560 --> 0:08:02.200 Supreme Court for ruling on the merits eventually. 0:08:02.320 --> 0:08:05.560 Do you need a scorecard? It's you're here to figure 0:08:05.560 --> 0:08:09.040 out which cases are aware and which judges heard them. 0:08:09.120 --> 0:08:11.920 So now tell us about the case that reached the 0:08:11.960 --> 0:08:16.040 Supreme Court and Chief Justice Roberts handed down an order. 0:08:16.560 --> 0:08:19.600 So in the NRB and MSCB cases, you know, we 0:08:19.640 --> 0:08:21.640 already talked about how it went to the on the 0:08:21.640 --> 0:08:24.560 emergency issue of whether the commissioners could be reinstated and 0:08:24.600 --> 0:08:27.679 went to the DC Circuit panel and bank. The Trump 0:08:27.680 --> 0:08:30.640 administration lost at the end bank level, so they asked 0:08:30.640 --> 0:08:34.200 the Supreme Court to put a stay on the ruling 0:08:34.240 --> 0:08:38.200 that would have reinstated the commissioners, and the Supreme Court 0:08:38.480 --> 0:08:42.520 put an administrative stay on the injunction that would have 0:08:42.520 --> 0:08:44.880 reinstated the commissioners, you know, to give them more time 0:08:44.880 --> 0:08:47.480 to actually rule on the issue. But they haven't done 0:08:47.480 --> 0:08:50.520 anything subsequent to that, so, you know, I think it 0:08:50.600 --> 0:08:53.120 seems like they're leaning. The Supreme Court is leaning towards 0:08:53.200 --> 0:08:56.480 letting the case play out at the lower court level, 0:08:56.559 --> 0:09:00.560 because in addition to requesting a stay of the injunction, 0:09:00.880 --> 0:09:04.360 the Trump administration also asked the Supreme Court to actually 0:09:04.400 --> 0:09:07.559 grant cert sort of you know, at a very early 0:09:07.559 --> 0:09:09.800 stage in the litigation, before it even went all the 0:09:09.800 --> 0:09:12.520 way through the DC Circuit on the merits. And the 0:09:12.559 --> 0:09:14.720 Supreme Court hasn't ruled on that request either. 0:09:14.880 --> 0:09:17.680 The Trump administration seems to be doing that a lot, 0:09:17.760 --> 0:09:19.319 pushing the envelope for it. 0:09:19.480 --> 0:09:21.559 Yeah, you know what we call the shadow dock here, right, 0:09:21.679 --> 0:09:24.920 you know, they're entitled to do it. Other parties do it. 0:09:24.840 --> 0:09:29.360 Too, although no other president has gone to the Supreme 0:09:29.480 --> 0:09:33.640 Court on an emergency basis. This often in this short 0:09:33.720 --> 0:09:36.640 period of time, I think so far there are nineteen 0:09:36.720 --> 0:09:41.360 emergency petitions from the Trump administration at the Supreme Court, 0:09:41.600 --> 0:09:45.319 and that includes one file just today the administration asked 0:09:45.320 --> 0:09:48.800 the court to stop a judge's order that would force 0:09:48.880 --> 0:09:52.920 it to answer questions from a watchdog group and turnover 0:09:53.120 --> 0:09:58.200 documents about Elon Musk's Department of Government efficiency. So they're 0:09:58.200 --> 0:10:00.360 not slowing down with the petitions. 0:10:00.440 --> 0:10:01.760 Well, I mean, part of that is because a lot 0:10:01.800 --> 0:10:04.240 of these cases do go through the DC's circuit, which 0:10:04.400 --> 0:10:08.480 leans towards judges who have been appointed by Democrats, so 0:10:08.520 --> 0:10:11.080 as a result of Trump administration and loses more cases there, 0:10:11.400 --> 0:10:13.400 and then they go to the Supreme Court hoping for 0:10:13.440 --> 0:10:13.719 a win. 0:10:14.120 --> 0:10:19.240 I mean, let's talk about how this affects perhaps the 0:10:19.280 --> 0:10:22.520 Federal Reserve Board, right and your own power. So, first 0:10:22.559 --> 0:10:25.439 of all, the Federal Reserve Act, is it the same 0:10:25.559 --> 0:10:27.559 kind of language as in these other. 0:10:27.920 --> 0:10:31.080 Yes, it's similar. I mean, all these statutes sort of 0:10:31.120 --> 0:10:34.800 have variations of the same theme, which is some sort 0:10:34.800 --> 0:10:37.800 of four cause removal restriction. And sometimes it's defined, sometimes 0:10:37.800 --> 0:10:40.600 it's not defined what four causes. When it's not defined. 0:10:40.600 --> 0:10:44.439 It's generally assumed to mean some sort of neglect, inefficiency, 0:10:44.559 --> 0:10:48.440 or malfeasance. The Federal Reserve Act does have four cause 0:10:48.520 --> 0:10:53.600 removal restriction language in order to remove you know, Federal 0:10:53.640 --> 0:10:58.240 Reserve Board governors. It doesn't have any such language to 0:10:58.559 --> 0:11:01.720 sort of demote the or any of the vice chairs, 0:11:01.960 --> 0:11:04.240 but to completely remove them from the board. It does 0:11:04.320 --> 0:11:05.440 have that language. 0:11:05.679 --> 0:11:08.320 There have been, you know, arguments at the Supreme Court 0:11:08.360 --> 0:11:11.840 where during the oral argument some of the justices singled 0:11:11.880 --> 0:11:14.760 out the Feds being different. But what's your take on 0:11:14.880 --> 0:11:18.440 whether the cases that we've been talking about indicate that 0:11:18.480 --> 0:11:22.320 the court will rule that the president can fire the 0:11:22.320 --> 0:11:23.480 Federal Reserve chair. 0:11:24.040 --> 0:11:26.400 Yeah. It's interesting because the issue does come up in 0:11:26.440 --> 0:11:29.440 all these cases that we've already discussed, and you know 0:11:29.920 --> 0:11:32.720 that the commissioners who were fired, and some of the 0:11:32.840 --> 0:11:36.280 judges who are skeptical to the Trump administration's view say well, 0:11:36.320 --> 0:11:39.840 you know, if you can fire these commissioners, there's nothing 0:11:40.120 --> 0:11:45.240 to stop you from firing Federal Reserve Board governors. And 0:11:45.280 --> 0:11:47.600 then it's interesting because then the Trump administration comes back 0:11:47.600 --> 0:11:50.120 and says, well, you know, we haven't taken a position 0:11:50.160 --> 0:11:54.440 on the Federal Reserve Board that's not before this court. 0:11:54.480 --> 0:11:58.520 There may be arguments that Federal Reserve Board governors could 0:11:58.640 --> 0:12:02.120 raise that are different than the ones before these other cases. 0:12:02.280 --> 0:12:04.240 So it's sort of interesting to see how the Trump 0:12:04.280 --> 0:12:07.840 administration tries to sidestep that argument. But at the end 0:12:07.840 --> 0:12:10.680 of the day, I think the commissioners are right and 0:12:10.720 --> 0:12:13.200 the judges that are skeptical to the Trump administration are 0:12:13.320 --> 0:12:16.959 right because the Fed, you know, it has rule making authority, 0:12:17.240 --> 0:12:21.080 it can bring enforcement actions. It does a lot of 0:12:21.160 --> 0:12:26.280 things on the regulatory side of its responsibilities that would 0:12:26.360 --> 0:12:31.680 fall under executive authority. Right. It also obviously has monetary 0:12:31.840 --> 0:12:36.000 policy responsibilities, and those are even the Trump administration has 0:12:36.000 --> 0:12:40.200 carved those out from falling under the president's authority. But 0:12:40.440 --> 0:12:46.880 given its other powers, including rulemaking and enforcement action authority, 0:12:47.080 --> 0:12:51.040 I think, in order to be consistent with trumpet administration's arguments, 0:12:51.080 --> 0:12:53.199 which I do believe will prevail in these other cases, 0:12:53.600 --> 0:12:56.560 that the President would be able under the law to 0:12:56.840 --> 0:12:59.880 fire Federal Reserve Board governors. But I also say, you know, 0:13:00.160 --> 0:13:02.800 the markets are more likely to dissuade the president from 0:13:02.840 --> 0:13:04.160 doing that than the courts. 0:13:03.880 --> 0:13:07.679 Are, and the Supreme Court justices. Is it just the 0:13:07.720 --> 0:13:11.640 to Clarence Thomas and Neil Gorsich who said that they 0:13:11.679 --> 0:13:13.880 would overrule Humphrey's executor. 0:13:14.320 --> 0:13:16.680 Yeah, they are the only two that has explicitly said that. 0:13:16.920 --> 0:13:18.960 And they did say that. I forget if it was 0:13:19.000 --> 0:13:21.120 in Sale a Law or in Collins. I think it 0:13:21.160 --> 0:13:25.559 was in Sale They said they would explicitly overrule Humphries. 0:13:25.880 --> 0:13:29.120 But you know the rest of the Conservative justices, they've 0:13:29.200 --> 0:13:32.120 interpreted Humphries to be a very narrow exception to the 0:13:32.200 --> 0:13:35.280 general rule that the president can fire anyone in the 0:13:35.280 --> 0:13:35.960 exec dipperience. 0:13:36.320 --> 0:13:39.000 And are we still waiting to see if the Supreme 0:13:39.000 --> 0:13:44.200 Court rules on reinstatement of the NLRB and MSBT. 0:13:44.320 --> 0:13:49.600 Yeah, technically those requests are still pending. But you know, 0:13:49.920 --> 0:13:54.120 given that the DC Circuit panel just last Friday on 0:13:54.160 --> 0:13:58.600 the sixteenth, heard those cases on the merits, it would 0:13:58.640 --> 0:14:01.840 be odd I think for the Supreme Court to take 0:14:01.960 --> 0:14:05.319 up the case now. I think they'll wait for the 0:14:05.400 --> 0:14:06.560 DC Circuit to rule. 0:14:06.760 --> 0:14:10.079 Well, the Supreme Court has lots of other emergency applications 0:14:10.080 --> 0:14:13.840 to consider. Thanks so much, Elliott. That's Bloomberg Intelligence senior 0:14:13.880 --> 0:14:20.120 litigation analyst Elliott Stein. Geofence warrants are relatively New Google 0:14:20.200 --> 0:14:23.640 received its first in twenty sixteen, but the use of 0:14:23.720 --> 0:14:28.320 such warrants has proliferated, as have court cases challenging them. 0:14:28.720 --> 0:14:33.120 Unlike a warrant authorizing surveillance of a known suspect, geo 0:14:33.280 --> 0:14:37.480 fencing is used to identify would be suspects. Google has 0:14:37.520 --> 0:14:41.000 been the primary recipient of these warrants due to its 0:14:41.040 --> 0:14:46.280 extensive location history database. Federal courts have split on whether 0:14:46.360 --> 0:14:50.840 these geofence warrants are constitutional, but now New Jersey State 0:14:50.880 --> 0:14:54.760 Court has ruled that police use of geofence warrants does 0:14:54.840 --> 0:15:00.000 not violate constitutional privacy protections and is not an impermissible 0:15:00.400 --> 0:15:05.240 general warrant. Joining me is Alex Ebert Bloomberg Law correspondent, 0:15:05.600 --> 0:15:08.360 So Alex tell us what a geofence warrant is. 0:15:09.080 --> 0:15:13.000 A geofence warrant is a broad warrant that allows police 0:15:13.320 --> 0:15:16.360 to find out who may have been in a certain 0:15:16.400 --> 0:15:20.800 location at a given time. So imagine you're the police 0:15:20.880 --> 0:15:24.120 and you're looking for people, let's say at the Capitol 0:15:24.200 --> 0:15:27.960 riot on January sixth, and you want to find out, hey, 0:15:28.120 --> 0:15:31.800 whose cell phones might have been present around the Capitol 0:15:31.880 --> 0:15:34.440 when things started going down. Or let's say there was 0:15:34.480 --> 0:15:37.080 another event where we have a ride after there's a 0:15:37.080 --> 0:15:40.760 police shooting. Hypothetically police officers could find out who was 0:15:40.800 --> 0:15:44.160 in the vicinity of building when it got broken into. 0:15:44.840 --> 0:15:47.160 That's the sort of information that police officers can be 0:15:47.200 --> 0:15:47.640 looking for. 0:15:48.360 --> 0:15:52.240 So what is the question when using a geofence warrant? 0:15:52.600 --> 0:15:56.200 Is it privacy concerns? What are the constitutional concerns? 0:15:56.600 --> 0:15:59.320 That's right? So this all boils down to privacy, And 0:15:59.360 --> 0:16:02.600 there's two sort of big questions that courts are grappling with. 0:16:02.840 --> 0:16:06.440 One is this a general warrant that would violate the 0:16:06.480 --> 0:16:10.600 Fourth Amendment protections we have against the police invading our privacy? 0:16:11.160 --> 0:16:14.800 And two would this be considered the stuff that we 0:16:14.840 --> 0:16:18.120 don't really have an entitlement to protect because it's held 0:16:18.120 --> 0:16:20.560 by third parties. This is an issue that courts have 0:16:20.600 --> 0:16:24.080 grappled with for decades and it gets only more complex 0:16:24.560 --> 0:16:27.800 as more of our data is being given to third parties. 0:16:27.840 --> 0:16:29.560 Tell us what happened in this case? What you know 0:16:29.600 --> 0:16:30.560 the facts of the case. 0:16:30.960 --> 0:16:36.000 Sure, So this case involves a Milltown robbery. Basically, what 0:16:36.040 --> 0:16:39.720 happens is someone came into a convenience store gas station 0:16:40.120 --> 0:16:43.760 late at night and the clerk who got assaulted hurt 0:16:43.800 --> 0:16:46.720 someone talking on the phone. That was really all the 0:16:46.720 --> 0:16:49.280 police had to go off of in this case. And 0:16:49.360 --> 0:16:52.640 so because they knew there was a phone conversation going on, 0:16:53.080 --> 0:16:55.960 they went to Google and said, hey, was there anyone 0:16:56.120 --> 0:16:59.440 in this particular area. Usually it's a couple of blocks 0:16:59.760 --> 0:17:03.200 that is making a phone call or accessing their phone 0:17:03.360 --> 0:17:06.080 at this given time period. They went to Google and 0:17:06.119 --> 0:17:10.639 Google found only one identifiable person that was there, and 0:17:10.720 --> 0:17:13.760 from there the police officers were able to request from 0:17:13.800 --> 0:17:18.880 Google demand that they provide the identification of that Googled 0:17:19.000 --> 0:17:19.920 user and. 0:17:19.840 --> 0:17:22.040 So explain what the court found here. 0:17:22.560 --> 0:17:26.600 Sure, So the New Jersey Court of Appeals was extremely divided, 0:17:26.760 --> 0:17:30.720 as other courts have been in recent times on this issue. 0:17:30.760 --> 0:17:35.000 The majority found that this is okay. That there's a 0:17:35.080 --> 0:17:39.000 process through which the police here are requesting information from Google, 0:17:39.520 --> 0:17:43.040 and they're narrowing it down based on the location and 0:17:43.080 --> 0:17:46.679 the time period that they're seeking pings on people's cell phones. 0:17:47.200 --> 0:17:51.200 And from there it's fine, it's articulable suspicion. We've got 0:17:51.200 --> 0:17:55.480 the probable cause necessary to get this information in a warrant. 0:17:56.160 --> 0:17:59.680 But the descent here is saying, no way, what we're 0:17:59.720 --> 0:18:02.400 asking for here is to hoover up all this information, 0:18:03.160 --> 0:18:06.520 and you're able to tap into whomever might be in 0:18:06.560 --> 0:18:09.400 this location at a given time, whether or not they 0:18:09.480 --> 0:18:11.479 might be related to this crime or not. 0:18:12.119 --> 0:18:15.159 This New Jersey case is a case in state court, 0:18:15.560 --> 0:18:18.960 but the federal courts are split on this. The Fourth Circuit, 0:18:19.480 --> 0:18:24.800 sitting on Bank couldn't produce a majority opinion explaining why 0:18:25.160 --> 0:18:30.919 they allowed the geofence warrant, so it issued eight separate concurrences. 0:18:31.720 --> 0:18:35.000 It is such a mess, Joon. So we have that 0:18:35.160 --> 0:18:38.800 court going that direction, and then we have the Fifth Circuit, 0:18:38.880 --> 0:18:41.679 what we would consider to be extremely conservative, going to 0:18:41.720 --> 0:18:45.080 complete other routes. So we have this circuit split where 0:18:45.160 --> 0:18:47.520 we have a court that says this isn't the search 0:18:47.600 --> 0:18:50.919 at all, this is information held by third parties. The 0:18:50.960 --> 0:18:53.840 defendants aren't entitled to protection over right. Then we've got 0:18:53.880 --> 0:18:56.600 the Fifth Circuit saying this isn't just a search, this 0:18:56.720 --> 0:19:00.720 is an unconstitutional general warrant. You know the thing that 0:19:00.920 --> 0:19:03.119 you know we created the Fourth Amendment to stop. We 0:19:03.119 --> 0:19:06.960 don't want the British officers coming in and ransacking our 0:19:06.960 --> 0:19:10.400 houses just generally looking for stuff, and that's what you're 0:19:10.400 --> 0:19:13.440 trying to do here with these general warrants of disinformation 0:19:13.520 --> 0:19:16.520 at Google users and just pulling it back. We're talking 0:19:16.520 --> 0:19:20.320 about hundreds of millions of devices in the United States. 0:19:20.760 --> 0:19:23.159 You know, hundreds of millions of people have access to 0:19:23.400 --> 0:19:26.680 just Google's accounts. And so if you're looking at the 0:19:26.720 --> 0:19:29.840 split here, it's the difference between can we get at 0:19:29.840 --> 0:19:34.480 that private information that's held by these service providers, by 0:19:34.520 --> 0:19:38.159 these apps, or is that just too much data? Do 0:19:38.240 --> 0:19:42.119 we have an updated sense of privacy that is being 0:19:42.160 --> 0:19:42.800 invaded here? 0:19:43.000 --> 0:19:45.680 Do you have any idea how many of these GEO 0:19:45.800 --> 0:19:48.120 warrants are issued in a year. 0:19:48.880 --> 0:19:51.560 I haven't been able to find information how mean it is. However, 0:19:51.640 --> 0:19:54.200 when I've spoken with attorneys off the record, they've told 0:19:54.240 --> 0:19:57.440 me that it's increasing again and again and again because 0:19:57.440 --> 0:20:01.600 it's becoming more valuable in for We also have other 0:20:01.680 --> 0:20:05.880 courts considering this issue right now. Just last month, the 0:20:05.920 --> 0:20:09.000 Texas Criminal Court of Appeals, which is their highest level 0:20:09.280 --> 0:20:13.520 of criminal courts, they allowed the geofense warrants, and the 0:20:13.560 --> 0:20:17.000 Minnesota Supreme Court is considering right now a case on 0:20:17.119 --> 0:20:20.520 the constitutionality of geofense warrants. So this is bubbling up 0:20:20.560 --> 0:20:21.480 across the country. 0:20:21.800 --> 0:20:25.200 Could this be appealed to the New Jersey Supreme Court. 0:20:25.640 --> 0:20:29.760 Indeed, so because this is a divided decision in the 0:20:29.800 --> 0:20:33.840 Court of Appeals, New Jersey Supreme Court will automatically grant 0:20:34.080 --> 0:20:37.840 review if the loser wants it. That is a certainty here. 0:20:38.280 --> 0:20:40.800 This is going to be a huge case and you're 0:20:40.800 --> 0:20:43.640 going to see you know, amakis briefs from all over 0:20:43.680 --> 0:20:46.240 the country pour in on this thing because there's so 0:20:46.400 --> 0:20:49.199 few of these decisions that are either bubbling up or 0:20:49.240 --> 0:20:53.280 at that highest court level. And in particular, New Jersey 0:20:53.480 --> 0:20:56.720 is extremely strong in Fourth Amendment terms, and it has 0:20:56.760 --> 0:21:00.840 interpreted both the national the federal Fourth amend and its 0:21:00.880 --> 0:21:04.040 own privacy protections broadly for criminal defendants. 0:21:04.359 --> 0:21:08.760 Google is implementing changes to encryption. Explain what they're trying 0:21:08.760 --> 0:21:10.080 to do, that's right. 0:21:10.160 --> 0:21:12.119 Yeah, So it's been over a year now since Google 0:21:12.160 --> 0:21:14.840 has announced that it's going to be implementing changes to 0:21:14.960 --> 0:21:19.119 encryption that would prevent somewhat you know, some of these 0:21:19.359 --> 0:21:24.359 broader geofense warrants we're talking about. Instead of Google storing 0:21:24.400 --> 0:21:27.400 this information, it will be stored on a local device, 0:21:27.800 --> 0:21:30.080 or it will be you know, encrypted in such a 0:21:30.119 --> 0:21:32.359 way that giving Google can't read it, and so it 0:21:32.359 --> 0:21:36.760 can't turn over account information to police officers. But that's 0:21:37.119 --> 0:21:40.760 not necessarily going to stop, either for Google or for 0:21:40.880 --> 0:21:44.440 other apps. If you think about it, there's other warrants 0:21:44.520 --> 0:21:47.240 that you know, could function well beyond this. Right, So, 0:21:47.359 --> 0:21:51.119 if you're taking an Uber somewhere, why can't the police say, hey, Uber, 0:21:51.480 --> 0:21:53.760 give me all of the rides that you know came 0:21:53.800 --> 0:21:57.840 into this block, right or this series of blocks within 0:21:57.960 --> 0:22:01.160 the you know, three hours the night April twenty fives, 0:22:01.280 --> 0:22:04.040 or Facebook or Apple you know, were there any location 0:22:04.240 --> 0:22:07.480 tags or people that bought things, you know, using Apple 0:22:07.520 --> 0:22:11.280 Pay or whatever within certain radius around here. It's not 0:22:11.359 --> 0:22:14.480 just Google that you know, defendants might have to worry about. 0:22:14.800 --> 0:22:17.320 And beyond that, you could even think of ways where 0:22:17.560 --> 0:22:20.560 you can get at this sort of information without really 0:22:20.600 --> 0:22:24.440 looking at you know, pinging from someone's location through geolocation. 0:22:24.880 --> 0:22:27.160 What if you could go to Google and say, hey, 0:22:27.359 --> 0:22:31.359 give me anyone that's searched for, you know, the victim's 0:22:31.560 --> 0:22:35.080 house or areas around there in a certain time period. 0:22:35.400 --> 0:22:38.159 So you can think of creative ways where the police 0:22:38.160 --> 0:22:42.240 could really use an expansive access to these geofence warrants 0:22:42.640 --> 0:22:45.359 to look for information, you know, even outside of what 0:22:45.440 --> 0:22:46.880 Google is trying to prohibit. 0:22:47.119 --> 0:22:50.400 Has the Supreme Court taken up any case that's similar 0:22:50.440 --> 0:22:51.880 to these geo warrants? 0:22:52.280 --> 0:22:55.439 Not exactly on point tune. So over the course of 0:22:55.480 --> 0:22:58.160 my lifetime, the Supreme Court has gone from a more 0:22:58.480 --> 0:23:02.520 favorable access to third party data to a less favorable 0:23:02.520 --> 0:23:06.040 access to third party data framework and stamp. And in 0:23:06.119 --> 0:23:09.680 twenty eighteen, we had a Carpenter case, which is about 0:23:10.000 --> 0:23:13.560 the pinging of cell phone towers, right and there the 0:23:13.560 --> 0:23:18.720 Supreme Court made sort of a great ruling for defendants that, hey, 0:23:18.800 --> 0:23:20.960 police have to get a warrant to get access to this. 0:23:21.080 --> 0:23:24.240 You can't just hoover in this information. But there's nothing 0:23:24.320 --> 0:23:28.600