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Speaker 1: This is Bloomberg Law, with June Grossel from Bloomberg Radio.

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Speaker 2: It took nine days of deliberations, but on Wednesday, a

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Speaker 2: California jury found Meta and Google libel in a first

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Speaker 2: of its kind lawsuit. The jurors held the social media

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Speaker 2: platforms responsible for a twenty year old woman's mental health struggles,

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Speaker 2: which she said were caused by her addiction to the platforms.

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Speaker 2: Jurors awarded her six million dollars, finding that Meta and

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Speaker 2: Google were negligent in the design and operation of their platforms.

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Speaker 2: Her attorney, Mark Lanier says the verdict is a game changer.

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Speaker 3: I feel like what we're about here is something beyond

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Speaker 3: just trying to make a buck, beyond just trying to

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Speaker 3: help Kayley. I feel like we're about something that is

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Speaker 3: incredibly socially important and responsible.

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Speaker 2: There are thousands of other lawsuits that claim that Instagram,

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Speaker 2: YouTube and other platforms are intentionally designed to addict young users,

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Speaker 2: but it's a long road ahead for those plaintiffs, as

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Speaker 2: Meta and Google will appeal.

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Speaker 4: We respectfully disagree with the verdict and will appeal. Team

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Speaker 4: mental health is profoundly complex and cannot be linked to

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Speaker 4: a single app. We will continue to defend ourselves vigorously

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Speaker 4: as every case is different, and we remain confident in

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Speaker 4: our record of protecting teens online.

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Speaker 2: This is what's called a bellweathered trial or a test

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Speaker 2: case designed to foresee how future litigation will play out.

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Speaker 2: And the next case is slated to go to trial

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Speaker 2: in California in July. Joining me is an expert in

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Speaker 2: cybersecurity and data privacy, Colin Walkee, a partner at haul Estel. Colin.

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Speaker 2: This is one case among thousands. What does this verdict

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Speaker 2: stand for?

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Speaker 1: This verdict actually stands for the proposition that Meta and

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Speaker 1: YouTube intentionally made their algorithms addictive and negatively impacted someone's

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Speaker 1: mental health as a result.

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Speaker 5: This particular claim is based upon negligence, i e.

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Speaker 1: They knew and owed a duty to individuals to not

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Speaker 1: make their algorithms addictive. They did it anyway. However, you

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Speaker 1: could look at a recent case out of New Mexico

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Speaker 1: to the tune of three hundred and seventy five million

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Speaker 1: dollars where tech companies were found to have violated the

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Speaker 1: consumer protection law. So the difference here is is this

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Speaker 1: is just a traditional negligence theory. There is no statutory

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Speaker 1: action against these companies.

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Speaker 2: Meta argued that the plaintiff had struggle with her mental

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Speaker 2: health separately from her social media use, and they pointed

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Speaker 2: to her turbulent home life and bullying at school, etc.

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Speaker 2: Did the jury discount those factors? Did they find they

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Speaker 2: were not contributory?

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Speaker 1: That wasn't the only thing that their attorney's pointed to.

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Speaker 1: YouTube's attorney also pointed to the fact that in all

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Speaker 1: of the evidence presented, only a few minutes worth of

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Speaker 1: time was actually proven to have been on YouTube. So

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Speaker 1: I don't think that the jury discounted that fact. I

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Speaker 1: think the jury knew what we all know, which is

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Speaker 1: we reach for our phones when we don't intend to,

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Speaker 1: when we're sitting on their couch without thinking, and why

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Speaker 1: because social media is addictive.

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Speaker 5: And not only that this case is a long time coming.

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Speaker 1: It's not as though we haven't read tell All book

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Speaker 1: after tell All book about the manner and method by

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Speaker 1: which these tech companies have attempted to make their algorithms

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Speaker 1: more addictive in order to get more attention, in order

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Speaker 1: to sell more advertising.

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Speaker 6: When you are using a.

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Speaker 5: Free product, you are the product.

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Speaker 1: And so I think the jury knew that, understood it,

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Speaker 1: and have lived through it and simply did what has

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Speaker 1: been a long time coming.

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Speaker 2: What do you think the strongest evidence was showing the

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Speaker 2: intention of the platforms to knowingly addict young users.

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Speaker 1: Some of the evidence that came out during this trial,

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Speaker 1: for example, was a study that Meta had suppressed and

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Speaker 1: they had conducted it themselves that showed when individuals in

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Speaker 1: particularly youth, put away their phone for a week, there

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Speaker 1: was an actual causative relation. We're not talking correlative relation,

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Speaker 1: We're talking causitive relationship between that, showing that there was

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Speaker 1: an effect on mental health. Not only that, but another

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Speaker 1: study that they conducted showed that individuals who were already

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Speaker 1: predisposed to mental health issues increase their usage of social

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Speaker 1: media and increase their worsening mental health.

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Speaker 5: So these were some of the studies that were shown.

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Speaker 1: So this put Meta on notice of what their algorithms

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Speaker 1: were doing.

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Speaker 2: The jury was out for nine days forty hours over

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Speaker 2: nine days, so they must have been struggling with some

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Speaker 2: aspect of the plaintiff's case, right.

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Speaker 1: Well, it could be something that was holding them up

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Speaker 1: from a liability standpoint. To your point earlier, well, this

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Speaker 1: individual did have mental health issues in any event, is

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Speaker 1: that really the cause here because we had to prove

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Speaker 1: its positive. But I think more to the point, it

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Speaker 1: could also be on the damage valuation. This woman was

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Speaker 1: ultimately awarded three million dollars in actual damages and three

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Speaker 1: million dollars.

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Speaker 5: In punitive damages.

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Speaker 1: Sometimes the fight isn't over the liability. The fight is, okay,

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Speaker 1: how much do we award?

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Speaker 2: And where huge liability for the companies could have come

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Speaker 2: in is in the punitive damages. I mean, three million

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Speaker 2: dollars in punitive damages is just a drop in the

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Speaker 2: bucket to Meta or Google. Isn't it usually the case

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Speaker 2: that when you hear about these huge verdicts, most of

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Speaker 2: it is in the punitives.

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Speaker 1: Absolutely whether the evidence shows that their actions were willful

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Speaker 1: and wanton and in reckless disregard.

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Speaker 5: Of the plaintiff's rights. Point back to.

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Speaker 1: Those studies, were the individuals new at Meta the consequences

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Speaker 1: of these algorithms and so for example, one famous jury

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Speaker 1: verdict that resulted in a several hundred million dollars punitive

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Speaker 1: damage award was likened to a parking ticket. If I

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Speaker 1: made one hundred thousand dollars a year and I get

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Speaker 1: a parking ticket for one hundred and fifty dollars. Well,

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Speaker 1: you know, that's really one percent of my income or

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Speaker 1: whatever that comes out to be point oh one. And

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Speaker 1: so if you did the same thing to Meta's, you know,

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Speaker 1: sixty billion dollars in profits last year, that can be.

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Speaker 5: A fairly big number just for a speeding ticket.

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Speaker 2: So only nine out of the twelve jurors had to

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Speaker 2: agree on each claim against each defendant. Two jurors consistently

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Speaker 2: disagreed with the other ten on whether the tech company

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Speaker 2: should be held liabel. So the social media companies now

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Speaker 2: know what kinds of jurors lean toward their position. Will

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Speaker 2: they be looking to select jurors with similar characteristics to

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Speaker 2: those two in upcoming trials?

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Speaker 5: Oh?

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Speaker 1: Absolutely, And I'm confident that Meta and the tech companies

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Speaker 1: spent tons of money on jury consultants and identifying the

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Speaker 1: type of juror they want. And I'm confident now that

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Speaker 1: they've identified these two jurors, their personality profiles.

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Speaker 5: Will be what is sought out in the future.

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Speaker 1: I mean that being said, and Meta has already indicated

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Speaker 1: it's going to appeal, so they have legal arguments to

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Speaker 1: appeal from, and then they may have some factual arguments

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Speaker 1: to appeal from and the fact that you have two

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Speaker 1: descending jurors certainly helps that case. But at the end

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Speaker 1: of the day, jury verdicts are typically fairly sacred and

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Speaker 1: they're very hard to overturn. So absence the judge making

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Speaker 1: an error on the law or the jury really abusing.

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Speaker 5: Their findings of fact, I think this verdict stands.

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Speaker 2: So, as I mentioned, this is just the first verdict.

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Speaker 2: Do you think that Meta now goes out and tries

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Speaker 2: to start settling. Do you think they're going to take

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Speaker 2: the long road and say, well, wait for the appeal,

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Speaker 2: wait for other cases, to see how other cases shake out.

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Speaker 5: Yeah.

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Speaker 1: I mean I found it odd that they wanted to

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Speaker 1: use this as their test case, but they clearly have

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Speaker 1: and they have a creative First Amendment argument with regard

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Speaker 1: to the.

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Speaker 5: Whole problem with prosecuting.

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Speaker 1: Previously has been thought that section two thirty of federal law,

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Speaker 1: which says that social media companies can not be liable

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Speaker 1: for the information that is posted on their website. This

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Speaker 1: lawsuit says that that's true, but they can be held

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Speaker 1: liable for the decisions and the algorithms that show that content,

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Speaker 1: how that content is portrayed, and typically in intellectual property law,

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Speaker 1: those are considered editorial rights. We are editing what you

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Speaker 1: are seeing. Why is that a problem. And so there's

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Speaker 1: a First Amendment case that they are alleging here. And

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Speaker 1: so if it goes up on appeal, makes it to

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Speaker 1: the Supreme Court, and the Supreme Court insulates them from liability, they're.

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Speaker 5: Not likely to settle anything in the future.

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Speaker 1: And that's why I think they'll keep prolonging in this

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Speaker 1: litigation at least through that opinion.

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Speaker 2: Do you think people are jumping the gun too much?

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Speaker 2: They're comparing this to the tobacco litigation and the global

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Speaker 2: settlement there and the opioid litigation. I mean, it seems

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Speaker 2: like we're just at the starting gate.

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Speaker 5: I do think it's the starting gate.

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Speaker 1: But I think that so many people, in spite of

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Speaker 1: their constant social media usage, have been expecting this to

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Speaker 1: come for so long that it does feel like the

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Speaker 1: big Tobaccos settlement scenario the opioid issues.

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Speaker 5: But what I will tell you is, at least with

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Speaker 5: regards to.

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Speaker 1: Tobacco, to your point, June, three million dollars is a

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Speaker 1: drop in the bucket, and last year Meta posted sixty

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Speaker 1: billion dollars in profit in nineteen ninety seven, the year

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Speaker 1: before the tobacco settlement got entered into Philip Morris, their

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Speaker 1: profits were magnitudes of orders less than that, like five billion.

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Speaker 5: And so the point here is Meta and these other.

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Speaker 1: Tech companies have plenty of money to continue to fight on.

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Speaker 1: Even if they settle a billion dollars year and a

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Speaker 1: billion dollars there, they have plenty of money to keep fighting.

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Speaker 2: To put it in terms we all can relate to,

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Speaker 2: how depressed do you think Meta and Google should be

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Speaker 2: about this verdict?

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Speaker 4: Well?

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Speaker 1: I don't know, because if you look at the approach

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Speaker 1: that our government has taken too regulating AI and data

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Speaker 1: privacy in general, which is to say we don't and

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Speaker 1: we won't, I would not be surprised at all if

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Speaker 1: what you see is a bunch of legislation coming down

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Speaker 1: the pike, pushed by tech industry lobbyists that says we're

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Speaker 1: insulating these companies from these types of lawsuits. The only

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Speaker 1: mannering method by which you consue these companies is for X, Y,

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Speaker 1: and Z and negligence. Ain't one of them some sort

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Speaker 1: of insulation from their liabilities. I can see that happening,

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Speaker 1: and I can see the legislators, if history is prologue

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Speaker 1: bending over backwards to accommodate that request.

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Speaker 2: Colin, what do you see as the ultimate sort of

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Speaker 2: ideal answer the social media companies go out of business.

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Speaker 5: Well, I don't think that they're supposed to go out

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Speaker 5: of business.

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Speaker 1: I think that they are supposed to show generalized and

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Speaker 1: neutralized algorithms, not algorithms that are designed to get you hooked.

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Speaker 1: In other words, one thing they could do, for example,

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Speaker 1: is stop infinite scroll. The whole reason why infinite scroll

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Speaker 1: was invented was because ase people got tired of having

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Speaker 1: to wait for their page to load, a little bit

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Speaker 1: of patients built into an algorithm might actually get us

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Speaker 1: off of our phones. And that's one of the things

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Speaker 1: that I find so ironic about this. The entire point

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Speaker 1: of this case is that social media negatively impacts mental health.

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Speaker 1: And I go and I look at the front page

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Speaker 1: of the newspaper after this verdict comes down, and everybody

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Speaker 1: is on their cell phone sharing it in social media.

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Speaker 5: The irony is.

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Speaker 1: Thick here, and we don't realize that we ourselves are

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Speaker 1: participating in this problem.

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Speaker 2: I guess I'll have to plead guilty to that as well.

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Speaker 2: Thanks so much Colin. That's Colin Walkee of hall Estell

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Speaker 2: coming up next on the Bloomberg Law Show. In a

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Speaker 2: landmark case, the Supreme Court deals a major blow to

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Speaker 2: the music industry's efforts to stop music piracy. I'm June

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Speaker 2: Grosso and you're listening to Bloomberg. A jury had returned

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Speaker 2: a one billion dollar verdict against Cox Communications for failing

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Speaker 2: to shut down the accounts of more than one hundred

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Speaker 2: thousand users who illegally downloaded and distributed copyrighted songs. Justice

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Speaker 2: is Sonya Sotomayor and Amy Coney Barrett had called Cox

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Speaker 2: out for its flagrant behavior during oral arguments.

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Speaker 7: You did nothing and in fact, counselor your clients sort

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Speaker 7: of lais a fair attitude towards the respondents is probably

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Speaker 7: what got the jury upset.

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Speaker 8: What incentive would you have to do anything if you won?

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Speaker 8: You if you win and mere knowledge isn't enough, Why

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Speaker 8: would you bother to send out any notices in the future.

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Speaker 2: And yet Sodamayor and Barrett join their colleagues in letting

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Speaker 2: Cox completely off the hook. In a unanimous decision, the

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Speaker 2: Court overturned the verdict and found that internet service providers

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Speaker 2: like Cox can't be held liable for copyright infringement even

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Speaker 2: if they know their users are illegally copying and sharing

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Speaker 2: protected content. The decision sets a precedent that's a serious

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Speaker 2: blow to the music industry's efforts to curb online piracy.

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Speaker 2: My guest is intellect actual property litigator Terrence Ross, a

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Speaker 2: partner at catin Mutchen, Rosenmann Terry. The jury said Cox

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Speaker 2: had to pay a billion dollars in damages, and now

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Speaker 2: the Supreme Court says, no, Cox doesn't have to pay

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Speaker 2: anything at all.

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Speaker 5: That's correct.

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Speaker 9: The cause of action in the lower court was for

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Speaker 9: contributory copyright infringement, which means that the defendant did not

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Speaker 9: actually commit the copyright theft, but somehow contributed to the

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Speaker 9: ability of a third party to commit copyright infringement, and

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Speaker 9: the Supreme Court determined that the lower courts had applied

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Speaker 9: the wrong standard for measuring whether or not contributory copyright

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Speaker 9: infringement had occurred, and therefore reversed as to liability, which

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Speaker 9: eliminated the damages verdict.

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Speaker 2: Just as so do Mayors scolded Cox's attorney, saying you

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Speaker 2: did nothing, and now the court is saying that's fine.

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Speaker 2: You don't have to do anything well.

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Speaker 9: As we discussed that week after the oral argument before

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Speaker 9: the Supreme Court, I had commented that I thought this

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Speaker 9: was one of the most opaque oral arguments I'd ever

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Speaker 9: listened to at the Supreme Court. And you'd ask me,

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Speaker 9: what's Gordon Hamn? I said, I just blained, don't know,

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Speaker 9: I do not have a clue. And I was proven right.

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Speaker 9: The oral argument centered so heavily on the really terrible

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Speaker 9: facts were Cox surrounding its efforts, half hearted at best,

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Speaker 9: to comply with the safe Harbor provision of the Digital

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Speaker 9: Millennium Copyright Act, and they were just terrible facts. We

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Speaker 9: know the jury thought they were so bad that they

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Speaker 9: found Cox to be willfully liable for contributory infringement. And

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Speaker 9: yet none of that came out in this opinion. There

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Speaker 9: was some discussion, although very limited, during oral argument as

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Speaker 9: to what the correct standard for contributory copyright fragment was,

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Speaker 9: but Cox in particular had pushed that argument into a

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Speaker 9: very odd place where it was drawing upon aiding in

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Speaker 9: a betting cases from common torts. Even cited to the

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Speaker 9: recent Mexican government case against American gun manufacturers, which was

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Speaker 9: an aiding in a betting theory that the Supreme Court

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Speaker 9: had lost, And so the decision is maybe not surprising

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Speaker 9: as to the result, but a little bit surprising after

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Speaker 9: the or or argument that it went in the direction

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Speaker 9: that it went.

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Speaker 2: How did the court handle the apparent violations of the

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Speaker 2: DMCA with Cox ignoring more than one hundred and sixty

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Speaker 2: thousand copyright infringement notices and giving users chance after chance

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Speaker 2: after chance rather than terminating their service. And there was

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Speaker 2: evidence that the Cox manager who was overseeing compliance told

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Speaker 2: his team to ignore the DMCA, using foul language to

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Speaker 2: say that.

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Speaker 6: That's clearly all correct.

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Speaker 9: Justice Thomas, who wrote the opinion from the majority of

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Speaker 9: the Court, simply chose to ignore the Digital Millennium Copyright Act.

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Speaker 9: In essence, he said that Cox had failed to comply

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Speaker 9: with the safe harbor in the Digital Millennium Copyright Act

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Speaker 9: because they did not have a program in place to

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Speaker 9: comply with copyright infringement notices. But then he said, and

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Speaker 9: this is an important party set, but that does not

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Speaker 9: prove the case for the recording companies. He said, a

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Speaker 9: mere failure to establish that you're entitled to take advantage

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Speaker 9: of the safe harbor defense of the Digital Millennium Copyright

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Speaker 9: Act does not establish the affirmative grounds for contributory copyright infringement.

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Speaker 9: And then he went through an analysis of what he

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Speaker 9: viewed to be the elements of cause of action for

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Speaker 9: contributory copyright infringement. He found that there was an affirmative

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Speaker 9: action required on the part of the defendant be accused

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Speaker 9: of contributory copyright infringement. And that's what surprised I think

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Speaker 9: a lot of us. There is a long history of

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Speaker 9: decisions in the circuit courts and in the Supreme Court

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Speaker 9: stretching back to nineteen twelve, in which courts have allowed

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Speaker 9: contributory copyright infringement cases go forward in situations factual situations,

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Speaker 9: which has seemed to be nothing more than providing a

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Speaker 9: product or a service, and Justice Thomas starts off by

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Speaker 9: recharacterizing those cases as findings that a company cannot be

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Speaker 9: liable as a copyright infringement for purely providing a service

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Speaker 9: to the general public, even with knowledge that it will

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Speaker 9: be used by some copyright infringers. And that's the big

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Speaker 9: surprise here.

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Speaker 5: The cases had.

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Speaker 9: Implicitly understood the provision of services and products that led

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Speaker 9: to copyright infringement as an affirmative action on the part

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Speaker 9: of the defendant. Now, the Supreme Court says that's.

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Speaker 6: Not good enough.

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Speaker 9: They seem to be of the view that the only

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Speaker 9: way you can bring a contributory copyright infringement case against

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Speaker 9: a provider of a service or product is if they

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Speaker 9: specifically promote that product or service as capable of engaging.

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Speaker 6: In copyright infringement.

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Speaker 9: And so the result of this case is that it

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Speaker 9: will be extraordinarily hard to ever again bring a cause

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Speaker 9: of action for contributory copyright infringement.

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Speaker 2: Terry, do you have any idea how the justices reached this.

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Speaker 2: I'll call it a radical decision. Do you think it

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Speaker 2: was the result of compromise.

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Speaker 9: I call this a way out, not a compromise. This

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Speaker 9: was a way to avoid a really hard decision with

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Speaker 9: respect to the damage element, but was not a compromise.

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Speaker 9: It was basically a complete one to eighty change in

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Speaker 9: direction of the cases that have existed for one hundred

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Speaker 9: and twenty years now. This case adopts such a radical

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Speaker 9: view of secondary liability under the Copyright Act, and I

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Speaker 9: don't think was attended by Congress that it basically kills

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Speaker 9: off the two causes of action only a complete moron

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Speaker 9: could be found liable for a contributory or vicary's copyright

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Speaker 9: infringement at this point in time, So I don't know

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Speaker 9: what went on behind closed door. I found it fascinating

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Speaker 9: that Justice Thomas wrote the opinions. Justice Thomas tends to

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Speaker 9: write opinions that are short, sweetened to the point, and

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Speaker 9: so sometimes he gets designated for a case that the

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Speaker 9: Court does not want to spend too much time intellectualizing.

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Speaker 5: They just say, look, here's.

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Speaker 6: What we think.

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Speaker 9: You only get contributory infringement if you show an affirmative act.

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Speaker 9: There was no firmative act found case over, and that's

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Speaker 9: what this opinion is. It certainly doesn't address any of

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Speaker 9: the past cases involving contributory copyright infringement except for Rochester

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Speaker 9: and Betamax, both of them the Preme Court cases, which

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Speaker 9: were only slightly helpful in this decision. They really needed

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Speaker 9: to look at the full spectrum of contributory copyright cases

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Speaker 9: over the last century and have failed to do that.

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Speaker 2: And this is supposed to be a textualist court, But

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Speaker 2: were they reading the text here?

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Speaker 9: None of this is in the Copyright Act. I mean,

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Speaker 9: the whole purpose of having a statute is to set

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Speaker 9: out the meats and bounds of causes of action and writes.

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Speaker 9: None of this is in the Copyright Act.

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Speaker 6: I just plain, don't give it.

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Speaker 9: And you know, over the years there have been a

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Speaker 9: lot of good justices no copyright law, and even Justice Scalia,

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Speaker 9: who was all about the text, never ever stopped to say,

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Speaker 9: wait a minute, there is no secondary liability in the

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Speaker 9: seventy six Copyright Act. What are we talking about here?

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Speaker 6: It's just crazy.

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Speaker 2: How much does this decision hamper the music industry's efforts

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Speaker 2: to combat online piracy? Are there any other options available

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Speaker 2: to music labels?

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Speaker 10: Now?

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Speaker 9: Okay, so it seems to me there are two options here.

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Speaker 9: One is legal and once legislative legislative. They could go

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Speaker 9: to Congress and say, look, this is an absurd decision

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Speaker 9: and it's completely gut it the Digital Millennium Copyright Act.

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Speaker 9: This is not what you intended with the Digital Millennium

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Speaker 9: Copyright Act. And I thought I saw congressmen put out

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Speaker 9: a press release essentially saying that they could then ask

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Speaker 9: Congress to rewrite the Digital Millennium Copyright Act to provide

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Speaker 9: that the ISPs must comply with the Safe Harbor provisions

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Speaker 9: in order to avoid contributory or vicarious copyright fridemen. So

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Speaker 9: that's one route that the music companies could pursue. The

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Speaker 9: other route, which is more complicated, is to serve subpoenas

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Speaker 9: upon Cox or other ISPs for the IP addresses that

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Speaker 9: are doing the most downloading of copyright music and get

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Speaker 9: the names and addresses of whoever the owner is and

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Speaker 9: then sue that owner. So you bypass Cox and you

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Speaker 9: sue the person who's actually engaged in the music file

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Speaker 9: downloading for copyright infringement. Now, this was a course of

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Speaker 9: action that occasionally has happened in the past, and it's

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Speaker 9: relatively successful because the defendant usually caves in quickly and

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Speaker 9: they enter into some settlement where they agree never to

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Speaker 9: download music again. It seems to me that that remains

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Speaker 9: a viable option from a legal side. It's just very cumbersome.

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Speaker 9: You don't always get courts willing to enforce such a subpoena,

402
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Speaker 9: and that it requires it follow on litigation, so it's

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Speaker 9: going to be a little bit more costly. But those

404
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Speaker 9: are the only two options I see for the music

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Speaker 9: company at this point.

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Speaker 2: How much does the music industry lose because of this piracy.

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Speaker 9: I've seen all sorts of estimates, but it's over a

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Speaker 9: billion dollars a year typically. Now, the interesting thing about

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Speaker 9: this case is that the music companies didn't even pursue

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Speaker 9: all the copyright infringements that were being utilized through the

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Speaker 9: Cock system. They were only going after the really large

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Speaker 9: downloads and distributions of files. And the jury found damages

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Speaker 9: of a billion dollars. And that was against a single ISP,

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Speaker 9: not the many ISP's in this country, and for only

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Speaker 9: a portion of the copyright infringement that was going on.

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Speaker 9: So that suggests that the number is many billions of dollars.

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Speaker 9: Look to understand the extent of the problem. June, at

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Speaker 9: one point in time, over the entire Cox Internet system,

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Speaker 9: twenty one percent of all traffic involved music copyright infringement.

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Speaker 9: The fall the traffic is infringement upon copyrighted music. I mean,

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Speaker 9: it's just a phenomenal number. And here the Supreme Court says, wow,

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Speaker 9: now there's actually no remedy for that, And that's not

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Speaker 9: what Congress thought when they passed the Digital Millennium Copyright Act.

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Speaker 2: It'll be interesting to see what happens to a similar

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Speaker 2: music industry case against Verizon that's seeking two points six

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Speaker 2: billion dollars in damages. We'll see whether that case survives.

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Speaker 2: It's always a pleasure to have you on Terry, Thanks

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Speaker 2: so much. That's Terence Ross of Catanutchen Rosaman Coming up next.

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Speaker 2: The Supreme Court appears ready to allow asylum seekers to

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Speaker 2: be turned away at the border. I'm June Grosso. When

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Speaker 2: you're listening to Bloomberg in the Trump administration turn away

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Speaker 2: asylum seekers at the US Mexico border. Federal law says

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Speaker 2: that any non citizen who quote arrives in the United

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Speaker 2: States can apply for asylum. So the answer turns on

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Speaker 2: what it means to arrive in the United States. Though

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Speaker 2: that may sound like a simple question, most of the

437
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Speaker 2: oral arguments at the Supreme Court on Tuesday were basically

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Speaker 2: an attempt to determine what those four words mean. The

439
00:24:53,080 --> 00:24:56,719
Speaker 2: government's attorney, Vivek Suri said, a person has to have

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Speaker 2: crossed the border in order to be considered to have

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Speaker 2: a in the United States.

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Speaker 10: You can't arrive in the United States while you're still

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Speaker 10: standing in Mexico. That should be the end of this case.

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Speaker 2: But liberal Justice Katanji Brown Jackson challenged that interpretation.

445
00:25:13,880 --> 00:25:16,760
Speaker 11: Imagine a person who has a placard on their body

446
00:25:16,880 --> 00:25:20,600
Speaker 11: as they approach the border that says, you know, I

447
00:25:20,800 --> 00:25:25,920
Speaker 11: would like entrigue. I'm being persecuted in Mexico. Your suggestion

448
00:25:26,119 --> 00:25:28,840
Speaker 11: that the United States would say, unless you can figure

449
00:25:28,840 --> 00:25:31,439
Speaker 11: out a way to illegally cross, we're not going to

450
00:25:31,560 --> 00:25:35,080
Speaker 11: entertain that claim seems very peculiar.

451
00:25:35,080 --> 00:25:39,880
Speaker 2: And the attorney arguing on behalf of asylum seekers, Kelsey Corkran,

452
00:25:40,320 --> 00:25:44,320
Speaker 2: said until a policy changed ten years ago, arriving in

453
00:25:44,359 --> 00:25:47,680
Speaker 2: the United States simply meant making it to a port

454
00:25:47,680 --> 00:25:48,240
Speaker 2: of entry.

455
00:25:48,680 --> 00:25:53,000
Speaker 12: From nineteen seventeen to twenty sixteen, ninety nine years, there

456
00:25:53,520 --> 00:25:55,560
Speaker 12: was not a single example of a turnback. So what

457
00:25:55,600 --> 00:25:58,640
Speaker 12: was happening is people would come through the port. At

458
00:25:58,680 --> 00:26:00,359
Speaker 12: that point. When they were in the port, they would

459
00:26:00,359 --> 00:26:03,479
Speaker 12: be inspected and processing. What happen. So it's an unusual

460
00:26:03,520 --> 00:26:05,760
Speaker 12: scenario we have here where we have the officers standing

461
00:26:05,760 --> 00:26:06,880
Speaker 12: there and turning people back.

462
00:26:07,280 --> 00:26:11,200
Speaker 2: The justices pressed her with questions about whether an asylum

463
00:26:11,320 --> 00:26:14,639
Speaker 2: seeker had arrived in the United States if they reached

464
00:26:14,640 --> 00:26:17,720
Speaker 2: the border wall or made it almost halfway through the

465
00:26:17,800 --> 00:26:21,600
Speaker 2: Rio Grande, or cross the Rio Grande, or we're first

466
00:26:21,600 --> 00:26:24,240
Speaker 2: in the line waiting to enter a port of entry

467
00:26:24,480 --> 00:26:27,800
Speaker 2: or second in the line. Here are Justices Amy Cony,

468
00:26:27,880 --> 00:26:29,359
Speaker 2: Barrett and Neil Gorsuch.

469
00:26:30,040 --> 00:26:32,040
Speaker 8: How do you know under your theory, when the person

470
00:26:32,119 --> 00:26:35,920
Speaker 8: is close enough that we could say they have arrived

471
00:26:35,960 --> 00:26:38,479
Speaker 8: in or arrived in the destination? I mean, what if

472
00:26:38,520 --> 00:26:40,639
Speaker 8: there's a queue and they're far back, or what if

473
00:26:40,680 --> 00:26:43,320
Speaker 8: they arrived not at a port of entry? How close

474
00:26:43,359 --> 00:26:45,040
Speaker 8: do you have to be to the border? Could you

475
00:26:45,080 --> 00:26:47,360
Speaker 8: say that someone arrives in the United States if they're

476
00:26:47,400 --> 00:26:49,600
Speaker 8: at a portion of the border that does not have

477
00:26:49,640 --> 00:26:51,560
Speaker 8: a port of entry, Like, what is it if it's

478
00:26:51,600 --> 00:26:55,960
Speaker 8: not crossing the physical border? What is the magic thing

479
00:26:56,119 --> 00:26:58,720
Speaker 8: or the dispositive thing that we're looking for where we say, ah,

480
00:26:58,800 --> 00:27:01,600
Speaker 8: now that person we can say arrives in the United States.

481
00:27:02,320 --> 00:27:04,840
Speaker 10: Now, how come somebody who's in the line, isn't it?

482
00:27:05,240 --> 00:27:07,920
Speaker 10: I mean, if the whole point is to make sure

483
00:27:08,000 --> 00:27:11,360
Speaker 10: that people who are attempting to get into the country

484
00:27:11,960 --> 00:27:16,680
Speaker 10: have the opportunity to file asylum claims, and they've made

485
00:27:16,680 --> 00:27:20,400
Speaker 10: it all the way, why doesn't matter he's second in line.

486
00:27:20,760 --> 00:27:25,360
Speaker 2: The High Court's answers could reshape the government's asylum policy.

487
00:27:25,960 --> 00:27:29,000
Speaker 2: Joining me is Leon Fresco, a partner at Holland and Knight.

488
00:27:29,320 --> 00:27:31,920
Speaker 2: He was the head of the Office of Immigration Litigation

489
00:27:32,240 --> 00:27:36,119
Speaker 2: during the Obama administration. Leon this case stems from a

490
00:27:36,160 --> 00:27:41,520
Speaker 2: policy called metering that was adopted in twenty sixteen because

491
00:27:41,560 --> 00:27:46,080
Speaker 2: of an overwhelming surge of migrants. It required people to

492
00:27:46,200 --> 00:27:49,680
Speaker 2: wait on the Mexican side of the border. So what's

493
00:27:49,720 --> 00:27:50,639
Speaker 2: the issue here.

494
00:27:51,200 --> 00:27:54,560
Speaker 13: So in this case, which is called Gnome versus alot Lado,

495
00:27:55,119 --> 00:27:58,280
Speaker 13: the issue is whether a non citizen who has stopped

496
00:27:58,280 --> 00:28:02,360
Speaker 13: on the Mexican side of the US Mexican border, are

497
00:28:02,359 --> 00:28:05,879
Speaker 13: they considered someone under the statute who arrived in the

498
00:28:06,000 --> 00:28:09,000
Speaker 13: United States for the purposes of being allowed to get

499
00:28:09,080 --> 00:28:13,719
Speaker 13: asylum processing under the immigration laws. So here's how this works.

500
00:28:14,240 --> 00:28:17,480
Speaker 13: So there's two kinds of people who tried to apply

501
00:28:17,560 --> 00:28:20,560
Speaker 13: for asylum. There's the people who tried to sneak across

502
00:28:20,600 --> 00:28:25,320
Speaker 13: the border. And so for those people, traditionally, for the

503
00:28:25,440 --> 00:28:29,879
Speaker 13: last thirty forty years or so, there was this understanding

504
00:28:29,920 --> 00:28:32,480
Speaker 13: that yes, once you got across the border, you could

505
00:28:32,520 --> 00:28:35,440
Speaker 13: make a claim for asylum. Now there's a separate case

506
00:28:35,480 --> 00:28:38,800
Speaker 13: and a separate issue involved with President Trump basically using

507
00:28:38,840 --> 00:28:42,040
Speaker 13: the travel ban authority to say no, if you cross

508
00:28:42,080 --> 00:28:45,040
Speaker 13: the border, you can't get asylum, but that's not an

509
00:28:45,080 --> 00:28:48,200
Speaker 13: issue in this case. This case is about whenever you

510
00:28:48,480 --> 00:28:52,960
Speaker 13: ask people what you're supposed to do when you really

511
00:28:52,960 --> 00:28:55,600
Speaker 13: want asylum, they say, well, go to a port of

512
00:28:55,800 --> 00:29:00,000
Speaker 13: entry and present yourself as a proper person. Don't create

513
00:29:00,240 --> 00:29:04,400
Speaker 13: chaos and all kinds of confusion by running across the border.

514
00:29:04,520 --> 00:29:07,040
Speaker 13: Go to a port of entry. So what happens is

515
00:29:07,080 --> 00:29:09,360
Speaker 13: you go to a port of entry, if the government

516
00:29:09,440 --> 00:29:12,080
Speaker 13: refuses to ever see you, it just keeps you on

517
00:29:12,120 --> 00:29:16,320
Speaker 13: the Mexican side, which is what's currently happening, then you

518
00:29:16,440 --> 00:29:18,400
Speaker 13: never get to apply for asylum either.

519
00:29:19,040 --> 00:29:21,480
Speaker 6: So the question that this case tries to.

520
00:29:21,440 --> 00:29:25,320
Speaker 13: Deal with is what happens to those individuals who've clearly

521
00:29:25,960 --> 00:29:30,360
Speaker 13: presented themselves and said I want asylum, but their human

522
00:29:30,400 --> 00:29:33,600
Speaker 13: body is on the Mexican side of the border. Does

523
00:29:33,640 --> 00:29:37,320
Speaker 13: the US government have an obligation to still process these

524
00:29:37,360 --> 00:29:41,800
Speaker 13: individuals for asylum? That's the question, and the Trump administration

525
00:29:41,960 --> 00:29:44,720
Speaker 13: says no, if your body's on the Mexican side of the.

526
00:29:44,680 --> 00:29:47,080
Speaker 6: Border, you don't get to apply for asylum.

527
00:29:47,360 --> 00:29:50,040
Speaker 13: And the litigants who were from this organization called Al

528
00:29:50,160 --> 00:29:54,040
Speaker 13: Ultra Lado said that's not correct, and the Ninth Circuits

529
00:29:54,040 --> 00:29:58,080
Speaker 13: did the same thing that once you've presented yourself for asylum,

530
00:29:58,360 --> 00:29:59,480
Speaker 13: you've done what's needed.

531
00:29:59,520 --> 00:30:02,240
Speaker 6: It's not really mattering if your body is a.

532
00:30:02,200 --> 00:30:05,560
Speaker 13: Few feet away from the US territorial border.

533
00:30:06,280 --> 00:30:11,200
Speaker 2: Explain the questions over the interpretation of the phrase arrives

534
00:30:11,240 --> 00:30:12,400
Speaker 2: in the United States.

535
00:30:13,080 --> 00:30:19,440
Speaker 13: So the asylum statute uses the quote arrives in or

536
00:30:19,600 --> 00:30:23,360
Speaker 13: is quote physically present in the United States. So if

537
00:30:23,360 --> 00:30:26,280
Speaker 13: you were just to do again an artificial intelligence or

538
00:30:26,520 --> 00:30:30,920
Speaker 13: a dictionary or something like that, then that would be

539
00:30:31,280 --> 00:30:33,400
Speaker 13: the end of this, because then that would mean if

540
00:30:33,440 --> 00:30:35,760
Speaker 13: you arrived in your body would have to be inside

541
00:30:35,800 --> 00:30:38,400
Speaker 13: the United States, or if you were physically president in

542
00:30:38,400 --> 00:30:40,480
Speaker 13: the United States, that would mean your body would have

543
00:30:40,560 --> 00:30:43,000
Speaker 13: to be inside the United States. But then there's a

544
00:30:43,120 --> 00:30:47,760
Speaker 13: separate concept in the immigration law called an arriving alien,

545
00:30:48,160 --> 00:30:50,960
Speaker 13: and the idea is, if you are an arriving alien

546
00:30:51,080 --> 00:30:54,680
Speaker 13: and you're apprehended or somehow in the custody of the

547
00:30:54,720 --> 00:30:59,080
Speaker 13: government or even the situational awareness of the government that

548
00:30:59,440 --> 00:31:01,680
Speaker 13: you are in a alien, you're someone who can apply

549
00:31:01,720 --> 00:31:05,240
Speaker 13: for asylum. Yes, you're kept in detention during this time,

550
00:31:05,720 --> 00:31:08,520
Speaker 13: but you can apply for asylum. The law actually uses

551
00:31:08,560 --> 00:31:12,160
Speaker 13: this word arriving alien. So the question is, why would

552
00:31:12,240 --> 00:31:17,160
Speaker 13: the law use the term arriving alien if that didn't

553
00:31:17,200 --> 00:31:21,600
Speaker 13: mean anything, if the sort of process of arriving didn't

554
00:31:21,920 --> 00:31:25,160
Speaker 13: shield you in some way, if the government knew about

555
00:31:25,160 --> 00:31:28,480
Speaker 13: you and apprehended you in some way, whether the apprehension

556
00:31:28,680 --> 00:31:32,040
Speaker 13: was inside the United States or to prevent you from

557
00:31:32,040 --> 00:31:35,840
Speaker 13: coming inside the United States. And so that's the sort

558
00:31:35,880 --> 00:31:39,840
Speaker 13: of debate or dispute here is once the government knows

559
00:31:39,920 --> 00:31:42,920
Speaker 13: about you and is doing something to stop you, then

560
00:31:43,120 --> 00:31:46,320
Speaker 13: the plaintiffs, the immigrants' rights groups thing that should be

561
00:31:46,360 --> 00:31:49,080
Speaker 13: the end of it. They think, hey, that's the answer here.

562
00:31:49,320 --> 00:31:52,480
Speaker 13: You are an arriving alien, you've been apprehended. You should

563
00:31:52,480 --> 00:31:55,840
Speaker 13: now get to apply for asylum. And the government says, yeah,

564
00:31:55,880 --> 00:31:58,800
Speaker 13: but that's not how that works. The arriving alien is

565
00:31:58,840 --> 00:32:02,280
Speaker 13: sort of for the apprehension of the person and then

566
00:32:02,480 --> 00:32:05,520
Speaker 13: the deportation of the person and the detention. But the

567
00:32:05,560 --> 00:32:10,280
Speaker 13: actual act of applying for asylum requires an actual arrival

568
00:32:10,760 --> 00:32:13,400
Speaker 13: and requires physical presence in the United States.

569
00:32:13,800 --> 00:32:16,160
Speaker 2: This is why Justice Scalia used to reach for the

570
00:32:16,160 --> 00:32:19,760
Speaker 2: dictionary sometimes. So what's your take on how the justices

571
00:32:19,840 --> 00:32:20,640
Speaker 2: might rule here.

572
00:32:21,280 --> 00:32:25,560
Speaker 13: So I do think that because much of this court

573
00:32:25,640 --> 00:32:29,360
Speaker 13: is textualists. So you have three very strong textualists on

574
00:32:29,400 --> 00:32:31,560
Speaker 13: the court, but then you also have people who are

575
00:32:31,640 --> 00:32:36,320
Speaker 13: asking practical questions amongst the conservative justices that I think

576
00:32:36,360 --> 00:32:39,320
Speaker 13: out of the six conservative justices, you're probably likely to

577
00:32:39,360 --> 00:32:44,840
Speaker 13: find at least five votes, probably for the government's argument

578
00:32:45,320 --> 00:32:49,280
Speaker 13: that in order to be eligible for asylum, your human

579
00:32:49,320 --> 00:32:53,120
Speaker 13: body actually has to be inside the United States. Now,

580
00:32:53,160 --> 00:32:56,520
Speaker 13: they may say, look, this is very cruel that the

581
00:32:56,720 --> 00:32:59,440
Speaker 13: administration can just keep people out from the ports of

582
00:32:59,600 --> 00:33:02,720
Speaker 13: entry when they're saying, go to the ports of entry.

583
00:33:02,800 --> 00:33:04,000
Speaker 6: This has to be your solution.

584
00:33:04,800 --> 00:33:07,600
Speaker 13: But they may say that's something for the Congress to

585
00:33:08,280 --> 00:33:11,640
Speaker 13: have to adjudicate in terms of passing a bill that

586
00:33:11,760 --> 00:33:15,200
Speaker 13: lets a certain amount of people get screened each day

587
00:33:15,320 --> 00:33:18,640
Speaker 13: or does something else, but it's not an issue for

588
00:33:18,680 --> 00:33:21,440
Speaker 13: the courts to decide. I think that's where this is

589
00:33:21,600 --> 00:33:23,600
Speaker 13: likely going, but we'll have to wait and see.

590
00:33:23,920 --> 00:33:27,760
Speaker 2: The Justice has posed all these hypotheticals to determine what

591
00:33:28,000 --> 00:33:31,560
Speaker 2: point an asylum seeker had to have reached in order

592
00:33:31,720 --> 00:33:35,320
Speaker 2: to be considered to have arrived in the United States.

593
00:33:35,800 --> 00:33:38,360
Speaker 2: So was it enough if they reached the border wall

594
00:33:38,840 --> 00:33:42,520
Speaker 2: or made it almost halfway through the Rio Grande, or

595
00:33:42,560 --> 00:33:46,040
Speaker 2: suppose they were first in line waiting to enter a

596
00:33:46,120 --> 00:33:49,800
Speaker 2: port of entry, or suppose they were last in line. Obviously,

597
00:33:49,800 --> 00:33:51,160
Speaker 2: there are a lot of variables.

598
00:33:51,840 --> 00:33:52,880
Speaker 6: That's correct. I mean.

599
00:33:52,920 --> 00:33:55,160
Speaker 13: The problem is it's very hard to draw a bright

600
00:33:55,240 --> 00:33:58,400
Speaker 13: line rule. The easiest right line rule to draw, which

601
00:33:58,400 --> 00:33:59,800
Speaker 13: is why I think this is going to be a

602
00:33:59,800 --> 00:34:03,240
Speaker 13: peace to the Conservative justices is that your body is

603
00:34:03,240 --> 00:34:06,040
Speaker 13: inside the United States. And this is why they talked

604
00:34:06,040 --> 00:34:10,879
Speaker 13: a lot about the Haitian interdiction cases where Haitians were

605
00:34:10,880 --> 00:34:15,280
Speaker 13: interdicted at sea, and the question was did those cases

606
00:34:15,320 --> 00:34:18,920
Speaker 13: require asylum and they did not. Those were considered extra

607
00:34:19,080 --> 00:34:23,440
Speaker 13: territorial cases, and that the asylum laws didn't apply to

608
00:34:23,960 --> 00:34:27,239
Speaker 13: the Haitians that were interredicted at sea. And so I

609
00:34:27,320 --> 00:34:31,839
Speaker 13: don't know how you would draw this line. But what's

610
00:34:31,840 --> 00:34:35,480
Speaker 13: going to be interesting is I do think, assuming that

611
00:34:35,520 --> 00:34:39,160
Speaker 13: the immigrants rights groups lose here on that basis, that

612
00:34:39,200 --> 00:34:40,120
Speaker 13: it's sort of hard.

613
00:34:39,920 --> 00:34:40,640
Speaker 6: To draw a line.

614
00:34:40,719 --> 00:34:42,680
Speaker 13: And so we might as well read the statute the

615
00:34:42,719 --> 00:34:45,680
Speaker 13: way it says, which is arrives and that your body

616
00:34:45,719 --> 00:34:47,400
Speaker 13: has to be in the US. There's still going to

617
00:34:47,400 --> 00:34:50,239
Speaker 13: be a second case that comes to the Supreme Court, Well,

618
00:34:50,280 --> 00:34:53,279
Speaker 13: when you do arrive and you do apply for asylum,

619
00:34:53,440 --> 00:34:57,040
Speaker 13: can the Trump administration still ban you anyway? And I

620
00:34:57,080 --> 00:34:58,839
Speaker 13: think it's going to be hard for the court if

621
00:34:58,840 --> 00:35:01,640
Speaker 13: they rule against them, Gridsier to rule against them yet

622
00:35:01,640 --> 00:35:05,560
Speaker 13: again a second time and say there's just literally no

623
00:35:05,640 --> 00:35:08,000
Speaker 13: way to apply for asylum ever in America.

624
00:35:08,520 --> 00:35:09,800
Speaker 6: So we'll see.

625
00:35:10,080 --> 00:35:13,480
Speaker 13: But I do think the difficulty they're having with this

626
00:35:13,600 --> 00:35:19,640
Speaker 13: case for shadows a potential triumph for the immigrants' rights

627
00:35:19,640 --> 00:35:22,320
Speaker 13: groups in this second case about what happens when people

628
00:35:22,400 --> 00:35:23,960
Speaker 13: do actually arrive.

629
00:35:24,200 --> 00:35:26,080
Speaker 6: But again, we'll just have to wait and see.

630
00:35:26,440 --> 00:35:28,960
Speaker 2: What's happening at the border right now, because during the

631
00:35:29,080 --> 00:35:33,480
Speaker 2: oral arguments they said that the administration is not engaging

632
00:35:33,719 --> 00:35:37,000
Speaker 2: in this practice called metering at this time.

633
00:35:37,560 --> 00:35:41,040
Speaker 13: Correct, they're banning everybody from asylum. So that's what they're

634
00:35:41,080 --> 00:35:44,240
Speaker 13: doing right now, is they're saying you're just completely banned

635
00:35:44,560 --> 00:35:47,640
Speaker 13: from seeking asylum at the southern border of the United States.

636
00:35:48,160 --> 00:35:50,160
Speaker 6: What I do think is when they then get to

637
00:35:50,239 --> 00:35:51,120
Speaker 6: the second.

638
00:35:50,840 --> 00:35:52,920
Speaker 13: Case about well, what about when your body is in

639
00:35:52,960 --> 00:35:56,480
Speaker 13: the United States, can the president still unilate early ban you,

640
00:35:57,239 --> 00:35:58,759
Speaker 13: then they're going to have to look at that within

641
00:35:58,800 --> 00:36:01,600
Speaker 13: the context of what they dicay here and see that

642
00:36:01,680 --> 00:36:04,839
Speaker 13: this really would mean that a president could ignore all

643
00:36:04,880 --> 00:36:08,760
Speaker 13: of these statutes that talk about asylum and its pages

644
00:36:08,760 --> 00:36:11,359
Speaker 13: and pages and pages of statutes and regulation, that could

645
00:36:11,400 --> 00:36:13,480
Speaker 13: just ignore all of them and say this whole thing

646
00:36:13,520 --> 00:36:14,719
Speaker 13: doesn't exist anymore.

647
00:36:15,120 --> 00:36:16,360
Speaker 6: And I do think that.

648
00:36:16,239 --> 00:36:19,640
Speaker 13: Will probably give the court some pause, although who knows,

649
00:36:19,719 --> 00:36:22,080
Speaker 13: because the question is do they also want to just

650
00:36:22,239 --> 00:36:25,440
Speaker 13: allow a one hundred percent ban on asylum cases.

651
00:36:25,480 --> 00:36:26,640
Speaker 6: So we'll have to wait and see.

652
00:36:26,920 --> 00:36:29,640
Speaker 2: And this is just one of the immigration cases that

653
00:36:29,680 --> 00:36:33,200
Speaker 2: the Supreme Court is hearing this term. This coming Wednesday,

654
00:36:33,280 --> 00:36:36,040
Speaker 2: the Justices will be hearing arguments in one of the

655
00:36:36,040 --> 00:36:39,440
Speaker 2: most high profile cases of the term, a challenge to

656
00:36:39,640 --> 00:36:44,879
Speaker 2: President Trump's executive order seeking to end birthright citizenship. Thanks

657
00:36:44,920 --> 00:36:47,880
Speaker 2: so much for joining me, Leon, that's Leon Fresco of

658
00:36:47,920 --> 00:36:50,000
Speaker 2: Holland and Knight. And that's it for this edition of

659
00:36:50,000 --> 00:36:52,640
Speaker 2: the Bloomberg Law Show. Remember you can always get the

660
00:36:52,719 --> 00:36:55,960
Speaker 2: latest legal news on our Bloomberg Law Podcast. You can

661
00:36:55,960 --> 00:37:00,000
Speaker 2: find them on Apple Podcasts, Spotify, and at www dot

662
00:37:00,239 --> 00:37:04,400
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663
00:37:04,440 --> 00:37:07,520
Speaker 2: tune into the Bloomberg Law Show every weeknight at ten

664
00:37:07,560 --> 00:37:11,320
Speaker 2: pm Wall Street Time. I'm June Grosso and you're listening

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Speaker 2: to Bloomberg