WEBVTT - Facebook Data Dump Likely to Bring Lawsuits 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:08.760 --> 0:00:12.560 Facebook could be looking at scrutiny from federal and state regulators, 0:00:12.600 --> 0:00:16.120 as well as lawsuits from consumers, after data on more 0:00:16.160 --> 0:00:20.760 than half a billion users became widely available online. Information 0:00:20.880 --> 0:00:24.200 said to be exposed includes phone numbers, Facebook I d s, 0:00:24.280 --> 0:00:28.200 full names, locations, birth dates, bios, and in some cases 0:00:28.280 --> 0:00:32.240 email addresses. Facebook says that the data which re emerged 0:00:32.320 --> 0:00:35.559 online over the weekend is from an earlier flaw revealed 0:00:35.560 --> 0:00:40.199 in which Facebook fixed. My guest is Andream, a twition professor, 0:00:40.200 --> 0:00:43.920 an Associate Dean of Innovation and Technology at Penn State Law. 0:00:44.479 --> 0:00:48.040 So was this a dump a redump? What exactly was it? 0:00:48.560 --> 0:00:52.240 So that's an excellent question. And it's still early enough 0:00:52.400 --> 0:00:57.640 in the investigations around the forensics that will explain to 0:00:57.760 --> 0:01:03.560 us the events leading up to this most recent identification 0:01:04.000 --> 0:01:10.000 of large numbers of user personal identifiable information being available 0:01:10.360 --> 0:01:13.480 in hat performs. The forensics are really what we need 0:01:13.520 --> 0:01:16.640 to acquire here because the extent to which this is 0:01:16.680 --> 0:01:19.280 part of a prior problem, the extent to which this 0:01:19.400 --> 0:01:22.120 is a new problem, whether things have in fact been 0:01:22.120 --> 0:01:25.399 corrected at this point, but also to what extent users 0:01:25.520 --> 0:01:30.600 were notified in accordance with data brenotification obligations. Those are 0:01:30.600 --> 0:01:34.800 all questions that are going to the contingent um the 0:01:34.880 --> 0:01:39.520 specifics of those forensics. Additionally, because we have a complicated 0:01:39.800 --> 0:01:46.000 regulatory relationship between the FTC and Facebook, the date of 0:01:46.440 --> 0:01:50.800 knowledge by Facebook, but also what exactly they disclosed to 0:01:50.880 --> 0:01:55.280 the STC in ten at the point of the second 0:01:55.600 --> 0:02:00.960 round of consent decrees will be operative in whether potentially 0:02:01.120 --> 0:02:06.360 the data control law will give rise to basis for 0:02:06.560 --> 0:02:14.239 a new FTC enforcement action under the twelve consent decree. 0:02:14.760 --> 0:02:17.880 What will the FTC be investigating and I assume they're 0:02:17.880 --> 0:02:22.800 going to investigate yes. So in twelve, the STC and 0:02:22.919 --> 0:02:27.640 Facebook agreed to a set of terms that included ongoing 0:02:28.320 --> 0:02:34.400 self supervision obligations and assessments going forward due to some 0:02:34.720 --> 0:02:40.520 of facebook prior practices around privacy and data security. So 0:02:40.800 --> 0:02:46.320 the extent to which those promises that were voluntarily agreed 0:02:46.360 --> 0:02:51.320 to by Facebook in twelve has been broken for a 0:02:51.440 --> 0:02:56.440 second time will be on the table for discussions I 0:02:56.520 --> 0:03:02.200 expect between the FTC and Facebook when the forensics of 0:03:02.280 --> 0:03:06.120 the particular incidents or maybe more than one incident we 0:03:06.160 --> 0:03:09.560 don't even know exactly whether it was one set of 0:03:09.760 --> 0:03:13.720 leagus or multiple scraping. And it's bound up with some 0:03:13.840 --> 0:03:19.080 other questions, particularly around the phone numbers, because in Facebook 0:03:19.560 --> 0:03:25.720 publicly acknowledged that they were using phone numbers that users 0:03:25.760 --> 0:03:30.880 provided for two factor authentication purposes and security as a 0:03:30.919 --> 0:03:37.960 functionality enhancement to allow for user look up of other users, 0:03:38.440 --> 0:03:42.600 and so there was a profuscilist of time around that 0:03:43.360 --> 0:03:49.600 choice by Facebook to repurpose information that for many users 0:03:49.640 --> 0:03:54.840 would have been provided with an expectation of a narrow 0:03:55.000 --> 0:04:01.760 security related use, but not necessarily a use repurposing for 0:04:02.240 --> 0:04:06.360 helping other Facebook users find them. So there are a 0:04:06.440 --> 0:04:10.600 bundle of various practices that will potentially be implicated in 0:04:11.280 --> 0:04:16.680 these conversations, as well as the context of what was 0:04:16.760 --> 0:04:21.480 disclosed by Facebook to the SEC at the time of 0:04:21.560 --> 0:04:28.760 the June Does Facebook know what happened? I would hope so. Um, 0:04:29.560 --> 0:04:34.120 but this is the first question. So the issue of 0:04:34.200 --> 0:04:39.200 the extent of forensic analysis internally and what the company 0:04:39.320 --> 0:04:43.520 knew when and how much of it was a design choice, 0:04:43.560 --> 0:04:48.280 how much of it was a well executed incident response, 0:04:48.320 --> 0:04:50.000 was the point at which they found out about it, 0:04:50.600 --> 0:04:55.160 or how much of the conduct around this incident was 0:04:55.920 --> 0:05:00.000 a response that some regulators, for example the EU or 0:05:00.000 --> 0:05:06.839 Australian regulators may deem to not reflect the expectations that 0:05:07.000 --> 0:05:11.600 they have for companies in possession of their residents information. 0:05:11.920 --> 0:05:15.359 So the details and the forensics here are going to 0:05:15.480 --> 0:05:18.240 be this positive. So that's a little bit of a 0:05:18.240 --> 0:05:21.240 wait and see right now. But EU regulators have already 0:05:21.240 --> 0:05:25.200 announced that they will be conducting further inquiries. I would 0:05:25.200 --> 0:05:28.800 expect the FT set of fellow suits in the US, 0:05:28.839 --> 0:05:32.920 and it's possible that the spec will take a look 0:05:32.960 --> 0:05:36.320 depending on what the nature of the disclosures were by 0:05:36.400 --> 0:05:40.000 the company and the relevant tent case statements, because there 0:05:40.000 --> 0:05:45.159 are securities to exchange Commission guidance documents around disclosure of 0:05:45.600 --> 0:05:53.160 security incidents and um. Obviously, public companies have reporting duties 0:05:53.200 --> 0:05:57.640 around material risks to business and material litigation risks on 0:05:57.680 --> 0:06:01.240 an ongoing basis under thirty four. Book has made privacy 0:06:01.279 --> 0:06:07.960 settlements with the FTC twice once in and once in. 0:06:07.960 --> 0:06:10.440 In light of that, how much credibility do they have 0:06:10.600 --> 0:06:15.080 when they say they want to protect users privacy? Critics 0:06:15.080 --> 0:06:19.640 of Facebook have certainly raised that point. UH that in 0:06:20.520 --> 0:06:23.480 UH this point in the history of the company. Critics 0:06:23.480 --> 0:06:28.839 would argue there has been so many sequential problems that 0:06:28.920 --> 0:06:32.719 there is a broader story potentially being told of a 0:06:32.839 --> 0:06:38.479 company that is very interested in public face and statements, 0:06:38.520 --> 0:06:44.320 but not necessarily interested in creating a culture of data 0:06:44.560 --> 0:06:50.120 protection and stewardship. And critics haven't founding this alarms since 0:06:50.600 --> 0:06:57.560 really the UH creation of the company, UH, particularly circa 0:06:57.839 --> 0:07:02.599 two thousands seven two D they're started to be material 0:07:02.680 --> 0:07:07.640 modifications and the privacy default and Facebook um, and so 0:07:07.680 --> 0:07:11.000 there's been a constant UH set of concerns raised by 0:07:11.080 --> 0:07:16.200 privacy advocates, m consumers as well UM, dating back to 0:07:17.200 --> 0:07:19.880 the early days of the company. So your point is 0:07:20.000 --> 0:07:25.320 well taken. Well state attorneys general look into this, It's 0:07:25.480 --> 0:07:30.480 entirely possible that state attorneys general will also inquire as 0:07:30.520 --> 0:07:34.160 to the specifics of these incidents. State attorneys general would 0:07:34.200 --> 0:07:39.960 have authority to potentially engage in state love enforcement action 0:07:40.160 --> 0:07:45.120 under the Mini FTC Acts, meaning the state specific Unfair 0:07:45.120 --> 0:07:49.440 and Deceptive Trade Practices statutes that are a matter of 0:07:49.480 --> 0:07:53.080 state law and generally tend to parallel the structure of 0:07:53.200 --> 0:07:56.160 the FTC Act Section five on the federal level, So 0:07:56.480 --> 0:08:02.040 it would be entirely unsurprising if some state regulators who 0:08:02.120 --> 0:08:06.680 already have Facebook in their cross hairs from previous incidents 0:08:06.720 --> 0:08:14.840 of data stewardships, UM suboptimal incidents, and the concerns over 0:08:14.960 --> 0:08:21.119 tech concentration and competition hindrance that are in the ether 0:08:21.360 --> 0:08:24.120 now both on the state and the federal level, as 0:08:24.160 --> 0:08:27.800 well as UH formal legal proceedings in some cases against 0:08:27.880 --> 0:08:34.640 large technology companies. That environment is one of greater regulatory 0:08:34.960 --> 0:08:38.880 and state attorneys general scrutiny. So I would not at 0:08:38.880 --> 0:08:43.079 all be surprised if the more tech savvy tech engage 0:08:43.160 --> 0:08:47.400 to state attorneys general do indeed have some tough questions 0:08:47.400 --> 0:08:51.920 on this point. What about class action lawsuits? What kind 0:08:51.960 --> 0:08:57.000 of class action lawsuits could we see? So depending on 0:08:57.280 --> 0:09:02.640 the extent to which data Breach no Applications statutes were 0:09:03.240 --> 0:09:09.880 UH complied with or potentially not fully UH followed, there 0:09:09.920 --> 0:09:13.920 may be an individual level positive action in the state 0:09:14.080 --> 0:09:18.960 with more aggressively drafted data breach notifications statutes and Massachusetes 0:09:19.000 --> 0:09:22.679 being one of the UM California potentially giving rise to 0:09:22.840 --> 0:09:26.880 individual level suits. At least some of these cases may 0:09:26.960 --> 0:09:29.440 end up being class actions, and the jurisdictions that are 0:09:29.480 --> 0:09:34.600 more friendly to class actions. In particular, the nature of 0:09:34.640 --> 0:09:37.960 the data that was released will be relevant because some 0:09:38.080 --> 0:09:43.720 of those data breach notification statutes are contingent in the 0:09:43.840 --> 0:09:46.960 rights that they grant based on the nature of the 0:09:47.040 --> 0:09:51.680 information that was disclosed about consumers residing in their states. 0:09:52.320 --> 0:09:56.839 So this is another situation where the specifics of the 0:09:56.960 --> 0:10:01.199 Facebook response at the time that they found out whenever 0:10:01.280 --> 0:10:07.040 that was, and the extent of the data loss of 0:10:07.120 --> 0:10:13.800 control and the extent of response, forensic analysis and overall 0:10:13.920 --> 0:10:17.480 conduct around the incident response will be in play. So 0:10:17.640 --> 0:10:21.480 I would not be surprised to see class actions UM 0:10:21.600 --> 0:10:25.960 they are becoming increasingly frequent in parallel situations to this one. 0:10:26.480 --> 0:10:29.480 It is also possible that, depending on the nature of 0:10:29.800 --> 0:10:34.600 the disclosure in the ten K annual reports that I 0:10:34.679 --> 0:10:39.439 mentioned previously, where Facebook has an obligation under the thirty 0:10:39.440 --> 0:10:43.000 four Acts file periodic reports with the SEC, if the 0:10:43.080 --> 0:10:51.040 disclosure did not extend with um adequate specificity and notice 0:10:51.480 --> 0:10:55.840 in the opinion of securities litigators UH, there is an 0:10:55.880 --> 0:11:00.320 active securities class action bar. It is possible that we 0:11:00.400 --> 0:11:06.240 may see class action attempted based on the tent K 0:11:07.000 --> 0:11:11.760 disclosures or lack thereof. Particularly if this does result in 0:11:12.440 --> 0:11:17.439 a new fine from the FTC, the EU or another 0:11:18.000 --> 0:11:22.680 national regulator. Do the fines effect Facebook at all? Their 0:11:22.800 --> 0:11:25.640 massive fines but there are just a drop in the 0:11:25.679 --> 0:11:30.480 bucket compared to what Facebook is worth it makes. This 0:11:30.559 --> 0:11:34.280 is a critique that has been the topic of discussion, 0:11:34.400 --> 0:11:38.559 certainly the STCs last fine, which was in the neighborhood 0:11:38.600 --> 0:11:45.760 of five billion dollars. The approach that the US regulators 0:11:45.800 --> 0:11:53.400 take is a more constrained one than European regulators. The 0:11:53.480 --> 0:11:57.960 amounts of any subsequent finds may be more aggressive under 0:11:58.040 --> 0:12:00.400 a g d PR based approach because g d p 0:12:00.640 --> 0:12:05.920 R authorizes sign that are contingent on corporate earnings. So 0:12:06.160 --> 0:12:09.640 this question of the proper construction of signs in a 0:12:09.679 --> 0:12:13.080 way to send a message companies is one that that 0:12:13.280 --> 0:12:17.840 has been definitely discussed. It's a fair critique if you can, 0:12:18.360 --> 0:12:22.240 in essence plan and to your business model the amount 0:12:22.360 --> 0:12:25.880 of the fine and the fine is maturely less than 0:12:25.920 --> 0:12:31.760 the revenue generated in UH, say a single quarter, then 0:12:31.880 --> 0:12:37.120 the business incentives UH, some whould argue, are to simply 0:12:37.200 --> 0:12:41.400 view that fine as the cost of doing business, particularly 0:12:42.040 --> 0:12:48.400 when you have waivers by enforcers of finding any personal 0:12:48.480 --> 0:12:53.359 responsibility on the part of officers and directors for oversight failures, 0:12:53.520 --> 0:12:59.200 you set up potentially a situation where that kind of 0:12:59.600 --> 0:13:05.439 cost benefit calculation is more likely, and particularly if a 0:13:05.440 --> 0:13:10.840 company does tend to have a history of repeating kinds 0:13:10.880 --> 0:13:15.920 of problems, you may not be some whould argue creating 0:13:16.040 --> 0:13:21.760 the incentive for an ethical internal self evaluation as to 0:13:21.880 --> 0:13:27.320 whether the current management structures are optimally calibrated to identify 0:13:27.440 --> 0:13:31.800 these kinds of problems early enough in the process and 0:13:32.160 --> 0:13:39.040 correct them quickly enough. Some of the data sharing decisions 0:13:39.040 --> 0:13:46.840 that were made internally may have facilitated the aggregation and 0:13:46.920 --> 0:13:51.959 availability of data that then create a more attractive target 0:13:52.040 --> 0:13:56.840 for attackers. So, assuming that there was a malicious intrusion, 0:13:57.040 --> 0:14:00.920 which we don't know, then the way that you build 0:14:01.080 --> 0:14:05.839 and design your products makes them more or less attractive targets. 0:14:05.920 --> 0:14:09.160 And if there was no intrusion, but instead this was 0:14:09.559 --> 0:14:14.680 the aggressive use of an API or or an interface 0:14:14.720 --> 0:14:18.800 of other sorts that's designed to share information, for example, 0:14:18.880 --> 0:14:24.600 allowing for data scraping, then the question again comes back 0:14:24.640 --> 0:14:30.520 to products design and whether the threat modeling was done 0:14:30.840 --> 0:14:36.280 in a way that accurately legally modeled the risk down 0:14:36.320 --> 0:14:41.080 the road in terms of regulatory action and loss of 0:14:41.160 --> 0:14:46.480 consumer truck arising from problems that may happen because of 0:14:46.520 --> 0:14:49.800 the design choices in the way that the products works. 0:14:50.520 --> 0:14:55.840 And is this data breach particularly problematic in that in 0:14:55.880 --> 0:14:59.760 the amount of information that was given out on person 0:15:00.120 --> 0:15:02.480 you know, for example, you mentioned the phone number that's 0:15:02.520 --> 0:15:07.119 related to two fact authentication. In particular, could that disclosure 0:15:07.160 --> 0:15:11.520 of the phone number be problematic for consumers depending on 0:15:11.960 --> 0:15:16.320 whether the consumer volunteers the phone number or limited purpose, 0:15:16.520 --> 0:15:20.880 or whether it was a generally shared phone number. Those 0:15:20.880 --> 0:15:26.880 specifics I think are relevant to regulators determinations business conduct. 0:15:27.120 --> 0:15:31.600 The question of, say a phone number being published, some 0:15:31.720 --> 0:15:36.479 consumers would certainly view it as at least a material 0:15:36.600 --> 0:15:43.240 inconvenience that their phone numbers are now available for public use, 0:15:43.520 --> 0:15:46.920 potentially leading some consumers to want to change their phone number. 0:15:47.600 --> 0:15:54.359 The consequences of sharing a phone number are potentially less 0:15:54.400 --> 0:15:59.280 direct in some ways than sharing, say birthday or other 0:16:00.080 --> 0:16:03.640 put a personally and unifiable information that can't be changed. 0:16:04.040 --> 0:16:06.880 You can change your phone number, but you can't change 0:16:06.880 --> 0:16:11.680 your birthday. So the nature of the information that is 0:16:11.720 --> 0:16:17.760 included in these exposed databases will be relevant. The way 0:16:17.960 --> 0:16:22.040 that the information was shared originally by consumers will be 0:16:22.080 --> 0:16:28.040 relevant as a matter of privacy. The extent of security practices, 0:16:28.240 --> 0:16:32.800 the product design and data stewardship choices as a matter 0:16:32.840 --> 0:16:36.080 of security will be relevant to the security increase that 0:16:36.120 --> 0:16:40.360 regulators will undertake. Uh So, you know, again, the specifics 0:16:40.480 --> 0:16:44.640 here of what exactly happens and which ss of data 0:16:44.840 --> 0:16:49.560 and how they're integrated will become very relevant. Thanks Andrea. 0:16:49.840 --> 0:16:53.520 That's Professor Andrea ma Tuition, Associate Dean of Innovation and 0:16:53.560 --> 0:16:58.560 Technology at Penn State Law. This week, the Supreme Court 0:16:58.640 --> 0:17:01.760 denied the US Solicitor General's request to argue in an 0:17:01.840 --> 0:17:05.720 upcoming case, something the Court has done just three times 0:17:05.760 --> 0:17:09.040 in the past two decades, but twice now in under 0:17:09.080 --> 0:17:12.240 a year. Joining me is Bloomberg Law. Supreme Court reporter 0:17:12.400 --> 0:17:17.840 Kimberly Strawbridge Robinson explain the Solicitor General's role and how 0:17:17.960 --> 0:17:21.480 this listener general requests to argue in cases where the 0:17:21.560 --> 0:17:24.800 government is not a party. Well, the Solicitor General is 0:17:24.880 --> 0:17:28.040 the federal government's top lawyer at the U s. Supreme Court, 0:17:28.320 --> 0:17:30.760 and while they do some work in the lower appellate 0:17:30.760 --> 0:17:34.760 courts as well, really their focus is on the Supreme Court, 0:17:34.880 --> 0:17:38.240 and they have a really unique place as a litigant. 0:17:38.240 --> 0:17:41.359 They're they're not only the most frequent litigant in the 0:17:41.359 --> 0:17:44.520 Supreme Court by far, but they also hold a special 0:17:44.560 --> 0:17:48.639 place of trust within the Supreme Court. And the office 0:17:48.680 --> 0:17:51.720 is sometimes known as the tenth Justice because of that 0:17:51.840 --> 0:17:54.239 special role. And so we can see that play out 0:17:54.280 --> 0:17:58.520 in many different ways that the Solicitor General interact with 0:17:58.600 --> 0:18:02.560 the justices. But one that we noticed recently is when 0:18:02.600 --> 0:18:06.080 the Solicitor General requests to argue in the case and 0:18:06.119 --> 0:18:08.760 which is not really a party, but in which there's 0:18:08.800 --> 0:18:10.960 some kind of federal interests. So this is what it 0:18:11.160 --> 0:18:13.440 requests argue as a friend of the court rather than 0:18:13.520 --> 0:18:17.239 as a party. And do the justices always honor this 0:18:17.359 --> 0:18:21.120 listener general's request to argue? Well in modern history, yes, 0:18:21.400 --> 0:18:24.520 there's a forthcoming law review article out that looked at 0:18:24.720 --> 0:18:27.600 a period of ten years starting in uh, you know, 0:18:27.720 --> 0:18:30.760 the two thousand and tents that said that when other 0:18:31.080 --> 0:18:35.040 organizations requested argument time as a friend of the court, 0:18:35.359 --> 0:18:37.840 the court only granted it, uh, you know, less than 0:18:37.880 --> 0:18:40.480 half of the time, fourteen out of forty one time. 0:18:40.920 --> 0:18:43.760 But when it was the federal government asking they granted 0:18:43.800 --> 0:18:46.840 it three hundred and eleven, three hundred and twelve times, 0:18:46.840 --> 0:18:51.680 so basically every time. But that's you know, something that's 0:18:51.800 --> 0:18:54.359 very small when they deny it, and so it really 0:18:54.720 --> 0:18:58.320 makes court watchers notice when the justices actually rebuffs a 0:18:58.440 --> 0:19:02.639 solicitor general in this way. So the solicitor General was 0:19:02.720 --> 0:19:08.359 delta rejection recently tell us about that, Well, recently the 0:19:08.520 --> 0:19:11.680 Justices did just that. They told the Solicitor General, no, 0:19:11.840 --> 0:19:14.800 thank you, we don't uh want to give you precious 0:19:14.880 --> 0:19:18.919 argument time in a case about a pellet cost. And 0:19:18.960 --> 0:19:21.520 it's notable because it is one of these rare times 0:19:22.040 --> 0:19:25.160 where they were turned away, but also because it's happened 0:19:25.160 --> 0:19:28.560 twice now in just under a year or something that 0:19:28.840 --> 0:19:31.080 you know, if you look over three hundred and eleven 0:19:31.080 --> 0:19:34.320 out of three hundred and twelve time versus something happening 0:19:34.480 --> 0:19:37.080 twice in one year, you know, that's that's a noticeable 0:19:37.240 --> 0:19:40.400 up chick. Of course, it's too small of a sample 0:19:40.480 --> 0:19:43.639 size to really say that, you know, it's an increasing trend, 0:19:43.960 --> 0:19:47.199 but it's something to watch for sure. Is there something 0:19:47.400 --> 0:19:51.560 similar in the two cases that were denied, Well, you know, 0:19:51.640 --> 0:19:54.439 all we can really do is speculate I've said before 0:19:54.760 --> 0:19:57.439 um on the show that the Supreme Court, you know, 0:19:57.520 --> 0:19:59.879 doesn't really explain a lot. It's a very kind of 0:20:00.000 --> 0:20:03.199 secretive institution. And so it didn't tell us why it 0:20:03.320 --> 0:20:06.760 turned away the solicitor general here, but we can guess that. 0:20:07.160 --> 0:20:11.000 You know, normally the cases where the Solicitor General is 0:20:11.000 --> 0:20:13.800 seeking to argue as a friend of the court, there's 0:20:13.800 --> 0:20:16.280 a pretty strong federal interest. And so there was a 0:20:16.320 --> 0:20:20.320 case earlier this term where we saw a regulated party 0:20:20.440 --> 0:20:23.920 challenging a state law that's that it was preempted by 0:20:24.000 --> 0:20:26.680 another federal law. And you can see, you know, the 0:20:27.080 --> 0:20:31.120 federal interests there and sending, uh, what the federal law means. 0:20:31.160 --> 0:20:33.800 It is pretty strong, and so the Solicitor General was 0:20:33.840 --> 0:20:37.200 allowed to argue in that case. In these other cases, 0:20:37.280 --> 0:20:40.760 the solicitor general stated interest is is really one as 0:20:40.800 --> 0:20:43.399 kind of like a general litigant. Um. So one was 0:20:43.400 --> 0:20:47.160 about jurisdiction and state courts, and this current latest one 0:20:47.200 --> 0:20:51.120 is about appellate cost and so there really isn't an 0:20:51.119 --> 0:20:55.800 explanation about how the United States is situated any differently, 0:20:56.200 --> 0:20:59.320 um than any other litigant would be. So you talked 0:20:59.320 --> 0:21:02.480 to several experts, what did they say about this. Do 0:21:02.560 --> 0:21:05.080 they see it as the courts sending a message to 0:21:05.160 --> 0:21:10.000 the s G. Well, again, it's too few instances right 0:21:10.040 --> 0:21:13.080 now to make any generalized terms. I think, you know, 0:21:14.040 --> 0:21:18.399 with just this, before we had this latest rebuff, you know, 0:21:18.480 --> 0:21:21.080 there was some speculation that the justices are just going 0:21:21.119 --> 0:21:23.240 to do this every once in a while. It's a 0:21:23.320 --> 0:21:26.680 token measure to remind the Solicitor generals that they don't 0:21:26.720 --> 0:21:30.000 get to argue as of course, but you know, there 0:21:30.160 --> 0:21:34.359 is some idea um that perhaps the justices are picking 0:21:34.400 --> 0:21:37.960 up this practice because the Solicitor General has is really 0:21:38.000 --> 0:21:41.440 asking to argue in more cases, uh than it ever 0:21:41.560 --> 0:21:44.720 has before. And so we see them, I think it 0:21:44.800 --> 0:21:47.520 was last term they were in you know, something like 0:21:47.600 --> 0:21:51.800 eighty of the cases. And you know that can really 0:21:51.840 --> 0:21:55.720 skew the you know, the policy arguments that are put 0:21:55.760 --> 0:21:58.240 in front of the justices and ultimately the way that 0:21:58.280 --> 0:22:01.080 they come out. So that's right now a lot of 0:22:01.080 --> 0:22:03.639 speculation and something to watch. But it could be a 0:22:03.720 --> 0:22:07.040 signal that the justices are sending to the Solicitor General 0:22:07.119 --> 0:22:10.240 to kind of be more cautious about when you asked 0:22:10.240 --> 0:22:14.600 for time. Does giving the Solicitor General time cut into 0:22:14.640 --> 0:22:18.400 the time of the other parties who are arguing. It can, 0:22:18.560 --> 0:22:21.240 but it really depends on a case by case basis. 0:22:21.600 --> 0:22:25.119 And and so you know, we saw sometimes the solicitor 0:22:25.160 --> 0:22:28.040 General will be given uh, you know, ten of the 0:22:28.119 --> 0:22:31.560 thirty minutes that decides that they're arguing on it has 0:22:31.640 --> 0:22:34.800 to make their argument. In in a case, the same 0:22:34.880 --> 0:22:37.080 day that they turned away the solicitor general in that 0:22:37.119 --> 0:22:40.680 appellate cost case, they actually granted the solicitor general ten 0:22:40.880 --> 0:22:43.679 extra minutes on top of us thirty minutes that the 0:22:43.720 --> 0:22:47.520 party who they're supporting has. So it really depends. But yes, 0:22:47.640 --> 0:22:51.040 typically it does actually take away from the party's time. 0:22:51.520 --> 0:22:54.400 And you know that's pretty significant when you consider that 0:22:55.080 --> 0:22:58.080 often the solicitor General they're coming down on the side 0:22:58.080 --> 0:23:01.040 of that party, but they're making for an argument and 0:23:01.080 --> 0:23:04.400 putting forth different ways that the justices should decide the case. 0:23:04.800 --> 0:23:08.680 In your story, you talk about a case involving California's 0:23:08.760 --> 0:23:12.959 rule requiring charities to disclose the biggest donors, and in 0:23:13.000 --> 0:23:16.800 that case, the court is refusing to divide the argument 0:23:16.840 --> 0:23:21.480 time among the petitioners. So these are actually two cases 0:23:21.600 --> 0:23:25.440 that have the same issue, but they involved different parties. UH. 0:23:25.520 --> 0:23:29.359 And the Supreme Court has consolidated those cases for just 0:23:29.480 --> 0:23:32.320 one hour of argument since they involved you know, the 0:23:32.400 --> 0:23:35.920 same legal issues, and the parties had asked if they 0:23:35.920 --> 0:23:39.320 could divide the time between you know, both sets of 0:23:39.400 --> 0:23:43.919 petitioners and then give you know, additional time to the respondent, 0:23:44.400 --> 0:23:48.359 but the Supreme Court notably said no, YouTube petitioners have 0:23:48.440 --> 0:23:52.760 to decide one attorney to represent both of your arguments. 0:23:52.960 --> 0:23:55.720 And at the same time it allowed the Solicitor General 0:23:55.840 --> 0:23:58.280 to step in as a friend of the court um. 0:23:58.400 --> 0:24:00.280 So you can see how, you know, there are really 0:24:00.400 --> 0:24:04.879 small differences between the arguments that the petitioners are making, 0:24:05.240 --> 0:24:08.639 but that's pretty significant that the justices told them no, 0:24:09.160 --> 0:24:11.600 they can't have separate time, but at the same time 0:24:11.680 --> 0:24:14.679 gave extra time to the Solicitor General and has the 0:24:14.840 --> 0:24:19.040 SGS record in arguments last term, well, the Solicitor General 0:24:19.080 --> 0:24:21.920 has a pretty good record as a friend of the court. 0:24:21.960 --> 0:24:24.760 That was a pretty good record um in general, even 0:24:24.760 --> 0:24:27.480 including cases whereas a party, you know, the Supreme Court 0:24:27.640 --> 0:24:31.480 usually takes cases to reverse them, so you don't see 0:24:31.480 --> 0:24:34.000 a lot of repeat players coming up with a lot 0:24:34.080 --> 0:24:37.120 of winning streaks at the court. But the Sluicitor General's 0:24:37.160 --> 0:24:41.679 office did prevail in, you know, more than the cases 0:24:41.720 --> 0:24:43.840 in which it was a party, But when you look 0:24:43.840 --> 0:24:45.840 at when it's a friend of the court, those numbers 0:24:45.880 --> 0:24:49.080 are really skewed. Last term, it won twenty two of 0:24:49.160 --> 0:24:52.280 the cases where it weighed in as a friend of 0:24:52.280 --> 0:24:55.280 the court as opposed to a party, saying, so, you know, 0:24:55.440 --> 0:24:58.240 that's pretty significant given that you know, they're not really 0:24:58.240 --> 0:25:02.000 officially a party in the case. Had the justices really 0:25:02.080 --> 0:25:05.399 lean on what they have to say? There's an acting 0:25:05.440 --> 0:25:10.280 solicitor general right now, Is there any word about when 0:25:10.720 --> 0:25:14.600 or who Joe Biden my name as the next listener general. 0:25:15.040 --> 0:25:18.920 I have been paying sources and I haven't heard any 0:25:19.000 --> 0:25:22.960 word on who may be the next solicitor general. The 0:25:23.000 --> 0:25:25.720 only thing that I really heard from the people that 0:25:25.760 --> 0:25:28.480 I've talked to is that they think that the acting 0:25:28.640 --> 0:25:32.800 Solicitor General Solicita's prologar and is doing a great job, 0:25:32.920 --> 0:25:35.960 and they hope that the Biden administration might actually nominate 0:25:36.040 --> 0:25:38.840 her to the top spot, something that's not really unheard of. 0:25:39.160 --> 0:25:42.680 Um that happened with Trump's acting solicitor general. But no, 0:25:42.840 --> 0:25:47.200 that's just I think speculationist point and the Biden administrations 0:25:47.320 --> 0:25:50.480 keeping that s G position. Um, pretty quiet, right. Now, 0:25:51.040 --> 0:25:55.240 let's turn to a Texas judge who has gotten a 0:25:55.280 --> 0:25:58.680 lot of attention over the years. Judge Reid O'Connor. First 0:25:58.680 --> 0:26:01.680 of all, tell us a little bit about him. So, 0:26:02.000 --> 0:26:06.719 Judge O'Connor is really the go to Republican appointed judge 0:26:07.200 --> 0:26:13.000 um for states who want to challenge Democratic administration policies. Um. 0:26:13.080 --> 0:26:17.320 He's based in Texas, and you know, we've seen Texas 0:26:17.480 --> 0:26:21.000 really lead a lot of red states, uh, red state 0:26:21.040 --> 0:26:26.400 coalitions challenging things like Obamacare, challenging immigration policies under Obama 0:26:26.480 --> 0:26:30.200 and now under Biden. Um. And he's really the judge 0:26:30.520 --> 0:26:33.800 and his court is really the court where Texas has 0:26:33.800 --> 0:26:37.200 filed those cases. Now, I want to be clear that 0:26:37.240 --> 0:26:40.399 this is not something that only red states do. Of course, 0:26:40.400 --> 0:26:43.600 blue states do it. Um. It's not just uh, you know, 0:26:44.080 --> 0:26:47.600 political groups that do it. We see even international plaintiffs 0:26:47.920 --> 0:26:51.520 seeking to you know, find a plaintiff friendly judge here 0:26:51.520 --> 0:26:54.080 in the United States. So this idea, what we call 0:26:54.160 --> 0:26:57.720 form shopping, is not anything specific to this judge. Um, 0:26:57.920 --> 0:27:00.720 But this is the judge that's really the to judge 0:27:00.720 --> 0:27:05.320 for challenging democratic policies. And tell us about some a 0:27:05.400 --> 0:27:09.120 few of the cases that um, he drew a lot 0:27:09.160 --> 0:27:13.560 of attention for, particularly the Obamacare decision. That's right. So 0:27:13.680 --> 0:27:17.240 the Obamacare case, which I'm sure your listeners are familiar with, 0:27:17.480 --> 0:27:19.879 is one that's actually in front of the Supreme Court 0:27:20.440 --> 0:27:22.800 right now. It's the case that looks at, you know, 0:27:22.880 --> 0:27:27.399 kind of a tweak that the Republican led Congress made 0:27:27.440 --> 0:27:30.760 to the Affordable Care Act, and the argument is that 0:27:30.960 --> 0:27:34.240 with that tweak, it kind of makes the whole Affordable 0:27:34.280 --> 0:27:38.520 Care Acts fall apart. And this judge actually agreed with 0:27:38.560 --> 0:27:42.239 that argument, struck down the entire Affordable Care Act. And 0:27:42.320 --> 0:27:47.080 that's the decision that the justices are considering right now. Really, 0:27:47.320 --> 0:27:50.000 that decision has got a lot of criticism, not just 0:27:50.040 --> 0:27:52.679 from those on the left, but also those on the right. 0:27:52.840 --> 0:27:56.560 We people who filed in the original Affordable Care Act 0:27:56.640 --> 0:27:59.919 case on the side of those challenging UM that acts 0:28:00.040 --> 0:28:03.000 saying that it was unconstitutional, saying that that ruling now 0:28:03.240 --> 0:28:06.960 just really doesn't follow the law, and it's a really outlier. UM. 0:28:07.000 --> 0:28:10.080 And I think most people expect after oral arguments that 0:28:10.160 --> 0:28:13.479