Case 2:16-cv-00538-JLR Document 104 Filed 01/22/17 Page 1 of 8 The Honorable James L. Robart 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 MICROSOFT CORPORATION, 10 No. 2:16-cv-00538-JLR Plaintiff, 11 v. 12 THE UNITED STATES DEPARTMENT OF 13 JUSTICE, and LORETTA LYNCH, in her official capacity as Attorney General of the 14 United States, 15 MICROSOFT’S SUPPLEMENTAL BRIEF ON MOTION TO DISMISS [DKT. 38] IN RESPONSE TO COURT’S MINUTE ORDER [DKT. 103] Oral Argument Date: January 23, 2016, 10:00 a.m. Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 MICROSOFT’S SUPPLEMENTAL BRIEF ON MOTION TO DISMISS (No. 2:16-cv-00538-JLR) Davis Wright Tremaine LLP L AW O F FI CE S 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax Case 2:16-cv-00538-JLR Document 104 Filed 01/22/17 Page 2 of 8 Microsoft files this brief in response to the Court’s Order directing the parties to “address 1 2 whether case law holding that Fourth Amendment rights are personal rights that cannot be 3 vicariously asserted bars ... Microsoft ... from pursuing its Fourth Amendment claim on behalf of 4 its customers and how that case law is to be reconciled with third-party standing doctrine,” Minute 5 Order [Dkt. 103] 1:20-2:2, and permitting supplemental briefs. Id. 2:17. As explained below, the 6 leading Supreme Court case holding that “Fourth Amendment rights are personal rights that 7 cannot be vicariously asserted” expressly recognizes that third-party standing to assert those rights 8 may be appropriate in “special circumstances.” Under settled Supreme Court authority, this case 9 has the requisite “special circumstances” because Microsoft’s customers cannot effectively protect 10 their own Fourth Amendment rights, which the Government violates under a cloak of secrecy. Microsoft’s First Amended Complaint (“FAC”) [Dkt. 28] asks the Court to declare 11 12 unconstitutional two parts of the Electronic Communications Privacy Act (“ECPA”) that, together, 13 allow the Government surreptitiously to search the private, confidential documents and emails of 14 Microsoft’s customers. First, Microsoft contends Section 2705(b) violates Microsoft’s First 15 Amendment rights by allowing the Government to obtain prior restraints without satisfying settled 16 requirements. FAC ¶ 6. Second, to the extent Section 2703 allows the Government to search and 17 seize the contents of communications stored in the cloud, Microsoft contends Section 2703 1 18 violates its customers’ Fourth Amendment rights by failing to require notice. FAC ¶ 7. As to Microsoft’s second challenge, the Government argues Microsoft lacks standing to 19 20 assert its customers’ Fourth Amendment rights, relying primarily on Rakas v. Illinois, 439 U.S. 21 128, 133 (1978), and Alderman v. United States, 394 U.S. 165, 174 (1969). See MTD 10:13-20. 22 Both cases involved criminal defendants who sought to “assert ... an independent constitutional 23 right of their own to exclude relevant and probative evidence because it was seized from another 24 in violation of the Fourth Amendment.” Alderman, 394 U.S. at 174. (In Alderman, the evidence 25 had been collected by eavesdropping on a third party, allegedly in violation of the third party’s 26 27 1 Microsoft’s customers have privacy interests in the contents of anything they store in the cloud. “Personal email can, and often does, contain all the information once found in the ‘papers and effects’ mentioned explicitly in the Fourth Amendment.” In re Grand Jury Subpoena, -- F.3d --, 2016 WL 3745541, at *5 (9th Cir. July 13, 2016). MICROSOFT’S SUPPLEMENTAL BRIEF ON MOTION TO DISMISS (No. 2:16-cv-00538-JLR) - 1 Davis Wright Tremaine LLP L AW O F FI CE S 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax Case 2:16-cv-00538-JLR Document 104 Filed 01/22/17 Page 3 of 8 1 rights; in Rakas, the evidence came from a search of a third party’s car, which yielded ammunition 2 and a rifle.) In declining to find such a right, the Court in Alderman reiterated “the general rule 3 that Fourth Amendment rights are personal rights which, like some other constitutional rights, may 4 not be vicariously asserted.” Id. (citations omitted). The Court recognized that the “general rule” 5 might sometimes give way—although it found no basis to do so on the facts of that case: 6 7 8 None of the special circumstances which prompted NAACP v. Alabama, 357 U.S. 449 (1958), and Barrows v. Jackson, 346 U.S. 249 (1953), are present here. There is no necessity to exclude evidence against one defendant in order to protect the rights of another. No rights of the victim of an illegal search are at stake when the evidence is offered against some other party. The victim can and very probably will object for himself when and if it becomes important for him to do so. 9 394 U.S. at 174 (emphasis added). Nine years later, the Court in Rakas reiterated that a defendant 10 cannot invoke the exclusionary rule to suppress evidence gathered in violation of a third party’s 11 rights. Rakas, 439 U.S. at 134. As in Alderman, the Court in Rakas emphasized the aggrieved 12 party’s ability to protect its own Fourth Amendment rights, either by moving to suppress or suing 13 “to recover damages for the violation of his Fourth Amendment rights, or seek[ing] redress under 14 state law for invasion of privacy or trespass.” Id. (citations omitted). Alderman and Rakas thus 15 establish a general rule against the vicarious assertion of Fourth Amendment rights, while 16 recognizing that the rule yields in “special circumstances.” 17 According to Alderman, the Court’s decisions in NAACP v. Alabama and Barrows v. 18 Jackson provide guidance as to what special circumstances warrant recognition of third-party 19 standing. Alderman, 394 U.S. at 174. In NAACP, the organization invoked its members’ rights 20 under the Fourteenth Amendment in resisting an order requiring it to produce a membership list. 21 The Court acknowledged (as in Alderman and Rakas) that it “has generally insisted that parties 22 rely only on constitutional rights which are personal to themselves.” NAACP, 357 U.S. at 459 23 (citation omitted). But members’ rights to conceal their association with the organization would 24 be nullified if they were required to step forward to litigate. Id. Thus, NAACP involved a special 25 circumstance in which “constitutional rights of persons who are not immediately before the Court 26 could not be effectively vindicated except through an appropriate representative before the Court.” 27 Id. (citing Barrows). Barrows likewise recognized that “[o]rdinarily, one may not claim standing MICROSOFT’S SUPPLEMENTAL BRIEF ON MOTION TO DISMISS (No. 2:16-cv-00538-JLR) - 2 Davis Wright Tremaine LLP L AW O F FI CE S 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax Case 2:16-cv-00538-JLR Document 104 Filed 01/22/17 Page 4 of 8 1 in this Court to vindicate the constitutional rights of some third party.” Barrows, 346 U.S. at 255. 2 But the Court found Caucasian property owners had standing to assert the constitutional rights of 3 non-Caucasians to assert the invalidity of a discriminatory restrictive covenant. “[I]t would be 4 difficult if not impossible for the persons whose rights are asserted to present their grievance 5 before any court.” Id. at 257. The Supreme Court therefore concluded that “the reasons which 6 underlie our rule denying standing to raise another’s rights, which is only a rule of practice, are 7 outweighed by the need to protect ... fundamental rights[.]” Id. 8 Neither Alderman nor Rakas presented these special circumstances because the parties 9 whose Fourth Amendment rights were at stake could vindicate their rights. Alderman, 394 U.S. at 10 174 (third party “can and very probably will object for himself”); Rakas, 439 U.S. at 134 (third 11 party can “recover damages for the violation of his Fourth Amendment rights, or seek redress 12 under state law for invasion of privacy or trespass”) (citation omitted). So, too, in the other cases 13 the Court cites in its Minute Order. In California Bankers Assoc. v. Shultz, 416 U.S. 21 (1974), 14 the ACLU, a bankers association, and a bank sued to invalidate a regulation imposing reporting 15 obligations on cash transactions over $10,000. The Court found the ACLU lacked standing 16 because it failed to allege its “transactions are required to be reported,” and the Court did not 17 “think that the California Bankers Association or the ... Bank [could] vicariously assert such 18 Fourth Amendment claims on behalf of bank customers in general.” Id. at 68-69. Although the 19 Court offered no hint as to the basis for its view, the reason for denying third-party standing was 20 obvious: any depositor who could allege its “transactions are required to be reported” would have 21 standing to challenge the regulation. And in Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), the 22 children of a person killed by police in a chase sought to rely on the Fourth Amendment rights not 23 only of their decedent but also of a passenger in the decedent’s car. The Court found they could 24 not rely on the passenger’s rights—which her heirs could assert: “If a suit were brought on behalf 25 of Allen [the passenger] under either § 1983 or state tort law, the risk to Allen would be of central 26 concern.” Id. at 2022. Similarly, in Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243 (9th 27 Cir. 1982), a case concerning an ordinance requiring adult video centers to have open booths, the MICROSOFT’S SUPPLEMENTAL BRIEF ON MOTION TO DISMISS (No. 2:16-cv-00538-JLR) - 3 Davis Wright Tremaine LLP L AW O F FI CE S 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax Case 2:16-cv-00538-JLR Document 104 Filed 01/22/17 Page 5 of 8 1 Ninth Circuit disposed of standing by citing Rakas without elaboration—while also finding the 2 Fourth Amendment claim “premature,” since no allegedly unconstitutional searches had been 3 conducted. Id. at 1248. Unlike the aggrieved parties in NAACP and Barrows, any Ellwest patron 2 4 eventually subjected to an unlawful search would be able to assert his own rights. 5 These cases do not undermine NAACP and Barrows or suggest that—contrary to the 6 reference to those cases in Alderman—they do not apply to Fourth Amendment rights. In fact, 7 NAACP and Barrows have become fixtures in third-party standing jurisprudence. The Supreme 8 Court in Singleton v. Wulff, 428 U.S. 106 (1976), relied heavily on NAACP and Barrows in finding 9 that a physician had standing to assert his patients’ constitutional abortion rights, in part because 10 of the impediments to efforts by women to assert those rights on their own behalf. Singleton, 428 11 U.S. at 116-17. And Singleton’s analysis of third-party standing in turn became the foundation for 12 Powers v. Ohio, 499 U.S. 400 (1991), which distilled the principles in NAACP, Barrows, and 3 13 Singleton into a test for determining when special circumstances justify third-party standing. 14 Powers therefore stands as the contemporary articulation of the “special circumstances” 15 acknowledged in Alderman—and those circumstances unquestionably exist here. The combined 16 effect of Sections 2703 and 2705(b) means the Government may rifle through “the same kind of 17 highly sensitive data one would have in ‘papers’ at home,” United States v. Cotterman, 709 F.3d 18 952, 965 (9th Cir. 2013) (en banc), without the affected Microsoft customer ever knowing the 19 Government had engaged in a search and seizure of her most private data. Not knowing of the 20 intrusion, the customer would have no practical means of protesting or challenging any 21 infringement of her Fourth Amendment rights—especially if (as commonly occurs) the 22 investigation does not result in the customer’s indictment. This case thus squarely presents a 23 situation in which the “constitutional rights of persons who are not immediately before the Court 24 25 26 27 2 This was in fact what defendants argued to the Ninth Circuit in Ellwest: “There is no evidence that the customers of Ellwest are incapable of representing their own interests to the [same] extent as third parties whose rights have been asserted by litigants in other cases.” Ellwest Stereo Theatres, Inc. v. Wenner, Ninth Cir. No. 80-5732, Appellees’ Reply (Dec. 1, 1980) at 7 (distinguishing Ellwest patrons from members in NAACP). 3 Powers allows a litigant like Microsoft to assert another’s rights if: “[1] The litigant [has] suffered an ‘injury in fact,’ thus giving him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute; [2] the litigant [has] a close relation to the third party; and [3] there [is] some hindrance to the third party’s ability to protect his or her own interests.” Powers, 499 U.S. at 411 (citations omitted); see also Opp. [Dkt. 44] 17:6-19. MICROSOFT’S SUPPLEMENTAL BRIEF ON MOTION TO DISMISS (No. 2:16-cv-00538-JLR) - 4 Davis Wright Tremaine LLP L AW O F FI CE S 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax Case 2:16-cv-00538-JLR Document 104 Filed 01/22/17 Page 6 of 8 1 could not be effectively vindicated except through an appropriate representative before the 2 Court.” NAACP, 357 U.S. at 459; see Opp. [Dkt. 44] 19:15-20:2. On the facts alleged, the “rule 3 of practice” that generally counsels against allowing assertion of third party constitutional rights 4 must give way to “the need to protect ... fundamental rights[.]” Barrows, 346 U.S. at 257. The Government has never offered a case suggesting a Fourth Amendment exception to 5 6 the doctrine articulated in NAACP, Barrows, and their progeny. Nor has it cited a case rejecting 7 Alderman’s guidance that circumstances such as those considered in NAACP and Barrows—i.e., 8 where “it would be difficult if not impossible for the persons whose rights are asserted to present 9 their grievance before any court,” Barrows, 346 U.S. at 257—could give rise to third-party 10 standing in a proper Fourth Amendment case. In fact, courts do conduct Powers analyses to 11 determine whether litigants may bring claims based on infringement of others’ Fourth Amendment 12 rights. See, e.g., Franklin v. Borough of Carteret Police Dep’t., 2010 WL 4746740, at *3-4 (D. 13 N.J. Nov. 15, 2010) (applying Powers, holding parent had standing to bring excessive force claim 14 under Fourth Amendment on behalf of minor child); Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 234 15 33 (D.D.C. 2010) (applying Powers, concluding father lacked standing to pursue Fourth 16 Amendment claim of adult son); Daly v. Morgenthau, 1998 WL 851611, at *4 (S.D.N.Y. Dec. 9, 17 1998) (citing Rakas before conducting Powers analysis; no standing because “no indication that 18 [the third party] is hindered in her ability to protect her own interests”); Deraffele v. City of 19 Williamsport, 2015 WL 5781409, at *6-7 (M.D. Pa. Aug. 19, 2015) (after conducting Powers 20 analysis, concluding landlord could not assert tenants’ Fourth Amendment rights; “he has not 21 shown that the tenants face a substantial obstacle to asserting their own rights and interests”). Under Alderman and Powers, special circumstances establish Microsoft’s standing to 22 23 assert its customers’ Fourth Amendment rights. See Opp. [Dkt. 44] 16:18-20:2. Microsoft asks 24 the Court to deny the Government’s Motion to Dismiss. 25 26 27 4 In Al-Aulaqi, the Government did not argue Rakas or Alderman barred the father’s assertion of his son’s Fourth Amendment rights; instead, it argued the Powers factors. See Al-Aulaqi v. Obama, D.D.C. No. 10-cv-1469, Def. Reply (Oct. 18, 2010) at 5–9. MICROSOFT’S SUPPLEMENTAL BRIEF ON MOTION TO DISMISS (No. 2:16-cv-00538-JLR) - 5 Davis Wright Tremaine LLP L AW O F FI CE S 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax Case 2:16-cv-00538-JLR Document 104 Filed 01/22/17 Page 7 of 8 1 DATED this 22nd day of January, 2017. Davis Wright Tremaine LLP 2 By s/ Stephen M. Rummage Stephen M. Rummage, WSBA #11168 Ambika K. Doran, WSBA #38237 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 Telephone: 206-757-8136 Fax: 206-757-7136 E-mail: steverummage@dwt.com ambikadoran@dwt.com 3 4 5 6 7 Laura Handman* Davis Wright Tremaine LLP 1919 Pennsylvania Ave NW #800 Washington, DC 20006 Telephone: (202) 973-4200 Fax: (202) 973-4429 E-mail: laurahandman@dwt.com 8 9 10 11 James M. Garland* Alexander A. Berengaut* Katharine R. Goodloe* Covington and Burling LLP One CityCenter 850 10th St., N.W. Washington, DC 20001 Tel: (202) 662-6000 Fax: (202) 662-6291 E-mail: jgarland@cov.com, aberengaut@cov.com, kgoodloe@cov.com 12 13 14 15 16 17 20 Bradford L. Smith David M. Howard Jonathan Palmer Microsoft Corporation One Microsoft Way Redmond, WA 98052 21 *Admitted pro hac vice 22 Attorneys for Microsoft Corporation 18 19 23 24 25 26 27 MICROSOFT’S SUPPLEMENTAL BRIEF ON MOTION TO DISMISS (No. 2:16-cv-00538-JLR) - 6 Davis Wright Tremaine LLP L AW O F FI CE S 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax Case 2:16-cv-00538-JLR Document 104 Filed 01/22/17 Page 8 of 8 1 2 CERTIFICATE OF SERVICE I hereby certify that on January 22, 2017, I electronically filed the foregoing with the Clerk 3 of the Court using the CM/ECF system, which will send notification of such filing to those 4 attorneys of record registered on the CM/ECF system. 5 DATED this 22nd day of January, 2017. 6 Davis Wright Tremaine LLP Attorneys for Microsoft Corporation 7 8 By s/ Stephen M. Rummage Stephen M. Rummage, WSBA #11168 1201 Third Avenue, Suite 2200 Seattle, Washington 98101-3045 Telephone: (206) 622-3150 Fax: (206) 757-7700 E-mail: steverummage@dwt.com 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MICROSOFT’S SUPPLEMENTAL BRIEF ON MOTION TO DISMISS (No. 2:16-cv-00538-JLR) - 7 Davis Wright Tremaine LLP L AW O F FI CE S 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 206.622.3150 main · 206.757.7700 fax