SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - TIMOTHY IVORY CARPENTER, Petitioner, v. ) ) ) No. 16-402 UNITED STATES, ) Respondent. ) - - - - - - - - - - - - - - - - - - Pages: 1 through 81 Place: Washington, D.C. Date: November 29, 2017 HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 206 Washington, D.C. 20005 (202) 628-4888 www.hrccourtreporters.com Official - Subject to Final Review 1 1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - - - - 3 TIMOTHY IVORY CARPENTER, 4 Petitioner, 5 v. 6 UNITED STATES, 7 8 ) ) ) No. 16-402 ) Respondent. ) - - - - - - - - - - - - - - - - - - 9 Washington, D.C. 10 Wednesday, November 29, 2017 11 12 The above-entitled matter came on for oral 13 argument before the Supreme Court of the United 14 States at 10:05 a.m. 15 16 APPEARANCES: 17 NATHAN F. WESSLER, New York, N.Y.; on 18 19 behalf of the Petitioner MICHAEL R. DREEBEN, Deputy Solicitor General, 20 Department of Justice, Washington, D.C.; on behalf 21 of the Respondent 22 23 24 25 Heritage Reporting Corporation Official - Subject to Final Review 2 1 C O N T E N T S 2 ORAL ARGUMENT OF: 3 NATHAN F. WESSLER 4 On behalf of the Petitioner 5 ORAL ARGUMENT OF: 6 MICHAEL R. DREEBEN 7 On behalf of the Respondent 8 REBUTTAL ARGUMENT OF: 9 NATHAN F. WESSLER 10 On behalf of the Petitioner 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation PAGE: 3 40 75 Official - Subject to Final Review 3 1 P R O C E E D I N G S 2 (10:05 a.m.) 3 CHIEF JUSTICE ROBERTS: We'll hear 4 argument this morning in Case 16-402, Carpenter 5 versus United States. 6 though, I'd like to advise counsel that I'll 7 provide an additional 10 minutes of them to 8 their argument time. 9 -- I don't think you'll have trouble filling 10 11 12 13 14 Before we commence, I don't think you'll have it. Mr. Wessler. ORAL ARGUMENT OF NATHAN F. WESSLER ON BEHALF OF THE PETITIONER MR. WESSLER: Thank you. Mr. Chief 15 Justice, and may it please the Court: 16 At issue in this case is the 17 government's warrantless collection of 127 days 18 of Petitioner's cell site location information 19 revealing his locations, movements, and 20 associations over a long period. 21 As in Jones, the collection of this 22 information is a search, as it disturbs 23 people's long-standing, practical expectation 24 that their longer-term movements in public and 25 private spaces will remain private. Heritage Reporting Corporation Official - Subject to Final Review 4 1 JUSTICE KENNEDY: So what -- what is 2 the rule that you want us to adopt in this 3 case, assuming that we keep Miller -- Miller 4 and Smith versus Maryland on the books? 5 MR. WESSLER: The rule we seek is that 6 longer-term periods or aggregations of cell 7 site location information is a search and 8 requires a warrant. 9 Court to overturn those older cases. We are not asking the We think 10 that the -- the lesson to be drawn from Riley 11 and Jones and Kyllo is that any extension of 12 pre-digital precedents to these kinds of 13 digital data must rest on their own bottom. 14 15 16 JUSTICE ALITO: How would you distinguish Miller? MR. WESSLER: Miller involved more 17 limited records, certainly they could reveal 18 some sensitive information, but more limited 19 records and, as this Court held, they were 20 voluntarily conveyed in that they were created 21 by the passing of negotiable instruments into 22 the stream of commerce to transfer funds. 23 24 25 What we have here is both more sensitive and less voluntary. JUSTICE ALITO: Why is it more -- why Heritage Reporting Corporation Official - Subject to Final Review 5 1 is it more sensitive? 2 location information more sensitive than bank 3 records, which particularly today, when a lot 4 of people don't use cash much, if at all, a 5 bank record will disclose purchases? 6 not only disclose -- everything that the person 7 buys, it will not only disclose locations, but 8 it will disclose things that can be very 9 sensitive. 10 Why is cell site MR. WESSLER: It will I absolutely agree, 11 Justice Alito, that the information in bank 12 records can be quite sensitive, but what it 13 cannot do is chart a minute-by-minute account 14 of a person's locations and movements and 15 associations over a long period regardless of 16 what the person is doing at any given moment. 17 JUSTICE ALITO: Yeah, I understand 18 that. But why is that more sensitive than bank 19 records that show, for example, periodicals to 20 which a person -- to which a person subscribes 21 or hotels where a person has stayed or 22 entertainment establishments -- establishments 23 that a person has visited -­ 24 JUSTICE KENNEDY: 25 JUSTICE ALITO: And particularly -­ -- and all sorts of Heritage Reporting Corporation Official - Subject to Final Review 6 1 other things. 2 JUSTICE KENNEDY: Particularly because 3 the information in the bank records that 4 Justice Alito referred to are not publicly 5 known. 6 People can see you. 7 follow you. 8 less private than -- than the case that Justice 9 Alito is discussing. 10 MR. WESSLER: Your whereabouts are publicly known. Surveillance officers can It seems to me that this is much Well, I -- I don't 11 agree, Your Honor, for the following reason: 12 When a person is engaged in a financial 13 transaction, passing a -- a check, a negotiable 14 instrument, that's an interpersonal transaction 15 where a person has full knowledge that they are 16 putting something into the stream of commerce 17 to transfer funds directed at their -- their 18 bank. 19 As the five concurring justices made 20 clear in Jones, although we may, when we step 21 outside, have a reasonable expectation that 22 someone may see where we go in a short period, 23 nobody has expected in -- in a free society 24 that our longer-term locations will be 25 aggregated and tracked in the way that they can Heritage Reporting Corporation Official - Subject to Final Review 7 1 be here. 2 JUSTICE GINSBURG: 3 emphasizing longer term. 4 JUSTICE KENNEDY: 5 You keep Yes, I was going to ask about that. 6 JUSTICE GINSBURG: Now, suppose what 7 was sought here was the CSLI information for 8 the day of each robbery, just one day, the day 9 of each robbery. Does that qualify as short 10 term in your view that would not violate the 11 Fourth Amendment? 12 MR. WESSLER: So the -- Your Honor, 13 the -- the rule we proposed would be a single 14 24-hour period, contiguous 24-hour period. 15 Now, the only other court to address this 16 question is the -­ 17 JUSTICE SOTOMAYOR: I'm sorry, which 18 -- in which way are you talking about? 19 rule? 20 MR. WESSLER: So -- sorry. What So we 21 don't think the Court needs to -- to draw a 22 bright line here, to define exactly where the 23 line between short and long term is, but as we 24 -- as we pointed out in our reply brief -­ 25 JUSTICE SOTOMAYOR: But Justice Heritage Reporting Corporation Official - Subject to Final Review 8 1 Ginsburg is not asking you about 24 hours or 2 anything else. 3 dump. 4 says or doesn't say that the robber -- she saw 5 the robber on the phone at some point. She's asking you about a tower A crime happens at a bank, the teller 6 Could the police just get a tower dump 7 of the cell site to see who was in that area at 8 that time? 9 MR. WESSLER: Justice Sotomayor, yes. 10 I -- I think that would not be affected at all 11 by -- by this case. 12 term. 13 That would be quite short JUSTICE SOTOMAYOR: So what's the 14 difference between a tower dump and targeting a 15 particular individual? 16 call came in that said John X or John Doe was 17 at a particular -- was the robber. 18 Let's say an anonymous Could the police then say to the 19 telephone company let me see the records of 20 John Doe for that hour or for that day or 21 whatever the -- the duration of the crime was? 22 MR. WESSLER: 23 perfectly acceptable. 24 25 Yes. JUSTICE SOTOMAYOR: That would be All right. differentiate that situation. Heritage Reporting Corporation So Official - Subject to Final Review 9 1 JUSTICE GINSBURG: 2 we go back to my question? 3 roughly. 4 we could get that information, but now there 5 are how many, eight? 6 eight, but we can get it for the one? 7 Excuse me. Could You said 24 hours So, if there were only one robbery, So we can't get it for MR. WESSLER: So, Your Honor, we've 8 suggested 24 hours. I think that the most 9 administrable line, if the Court wishes to draw 10 a bright line, would be a single 24-hour 11 period. 12 But this Court could -- could craft 13 other reasonable ways to -- to draw that 14 intentional line. 15 JUSTICE GINSBURG: Well, what if it's 16 reasonable for one robbery one day, why 17 wouldn't it be reasonable -- equally reasonable 18 for each other robbery? 19 MR. WESSLER: Well, I -- I think the 20 risk is a risk of circumvention of this Court's 21 rule from Jones and of whatever the durational 22 requirement is. 23 would be quite easy to delineate a certain set, 24 limited set, of days that -- that information 25 might be worth getting. With some types of crimes, it Others would be more Heritage Reporting Corporation Official - Subject to Final Review 10 1 2 difficult. Now, in this case, it doesn't matter 3 to us, actually, where the Court draws that 4 line because 127 days of data -­ 5 JUSTICE KENNEDY: But the -- the 6 longer term is more corroborative perhaps of 7 innocence. 8 for 120 days. That's because of where he shops 9 and so forth. So what difference? Suppose he's in the area every day 10 MR. WESSLER: Well -­ 11 JUSTICE KENNEDY: It seems to me that 12 the rule you're proposing might be avoid in -­ 13 exculpatory information. 14 MR. WESSLER: Well, Your Honor, we 15 would fully expect that if the government 16 obtained a short period of data that was 17 appeared to be inculpatory, that would provide 18 probable cause for a warrant to gather a much 19 wider amount of data if -- if needed, or in the 20 pretrial process, the defendant, him- or 21 herself, could obtain other records from the 22 carrier and use those as exculpatory evidence. 23 Though the concern here is with the 24 privacy invasion, which is quite severe over 25 the long term, over these more than four months Heritage Reporting Corporation Official - Subject to Final Review 11 1 of data. 2 JUSTICE KAGAN: It would help me -­ 3 CHIEF JUSTICE ROBERTS: I want to 4 understand the -- the basis for the 24-hour, or 5 however long you want it to be, exception. 6 seems to me if there's going to be protection 7 extended to the information, it has to involve 8 some compromise of the third-party doctrine, 9 and if that is altered, I don't see why it It 10 wouldn't also apply to, you know, one day of 11 information. 12 MR. WESSLER: So the -- the only other 13 court to address this question is the Supreme 14 Judicial Court of Massachusetts, which drew the 15 line at six hours. 16 because we -­ 17 We have suggested 24 hours CHIEF JUSTICE ROBERTS: Well, I don't 18 understand. 19 It seems to me the line is between information 20 to which the authorities have access and 21 information to which they don't. 22 why we're bothering about a line between six 23 hours, three weeks, whatever. 24 MR. WESSLER: 25 What is the line we're drawing? I don't know Well, Your Honor, certainly we would be perfectly happy with a Heritage Reporting Corporation Official - Subject to Final Review 12 1 rule from this Court requiring a warrant as a 2 per se matter. 3 is a -- a suggestion to the Court that takes 4 into account the rationale of the concurrences 5 in Jones and that accords with people's 6 reasonable expectation that although police 7 could have gathered a limited set or span of 8 past locations traditionally by canvassing 9 witnesses, for example, never has the What we are trying to advance 10 government had this kind of a time machine that 11 allows them to aggregate a long period of 12 people's movements over time. 13 CHIEF JUSTICE ROBERTS: Well, another 14 thing the government's never had is the ability 15 to go back even for 24 hours and basically test 16 everybody, everybody in the whole community or 17 anyone who happened to be there. 18 So I don't know why that isn't a 19 consideration that cuts against preserving 24 20 hours two months ago. 21 The government didn't have the 22 capability of tracking a particular individual 23 or every individual, and they find out later 24 that's the one they want, so I -- I don't 25 understand the coherence of your argument on Heritage Reporting Corporation Official - Subject to Final Review 13 1 that point. 2 MR. WESSLER: Well, I -- I do think 3 that a different concern would be raised by the 4 -- the tower dump type situation that Justice 5 Sotomayor posited. 6 about a dragnet search, sweeping in a large 7 number of innocent people. That might involve concerns 8 That's not the same concern, I think, 9 directly before the Court here, which involves 10 11 -JUSTICE SOTOMAYOR: But isn't that the 12 same concern here? 13 differentiating between incident-related 14 searches and basically dragnet searches when 15 you're looking at what a person is doing over 16 127, 30, 40, even 24 hours, which is it's not 17 related to any legitimate police need to invade 18 the privacy of a person over a 24-hour period, 19 unless there's a suggestion that the crime 20 occurred during that entire 24-hour period. 21 And that's why I -- I'm So that's why I asked you is there a 22 difference between saying if police have cause 23 to believe a crime has been committed, can they 24 ask for records related to that individual 25 crime, even if it happened on one day, a second Heritage Reporting Corporation Official - Subject to Final Review 14 1 day, a fourth day, a 10th day, so long as 2 they're limiting their search as related to a 3 criminal activity, as opposed to a dragnet 4 sweep of everybody's intimate details? 5 Because, right now we're only talking 6 about the cell sites records, but as I 7 understand it, a cell phone can be pinged in 8 your bedroom. 9 doctor's office. It can be pinged at your It can ping you in the most 10 intimate details of your life. 11 some point even in a dressing room as you're 12 undressing. 13 Presumably at So I am not beyond the belief that 14 someday a provider could turn on my cell phone 15 and listen to my conversations. 16 So I'm not sure where your 24-hour 17 rule comes from. 18 on incident-related rather than the essence of 19 your complaint, which is that we're permitting 20 police to do a dragnet search of your life? 21 Shouldn't your rule be based MR. WESSLER: Your Honor, first, 22 you're absolutely correct that today, in the 23 seven years that have elapsed since the data 24 was gathered in this case, network technology 25 has advanced quite markedly. Heritage Reporting Corporation Official - Subject to Final Review 15 1 And today not only is data gathered 2 for phone calls but also text messages and data 3 connections, including when a phone is in a 4 pocket passively and automatically checking for 5 new e-mails or social media messages or weather 6 alerts, and today the government is able to 7 obtain historical cell site location 8 information that can locate a person as 9 precisely as half the size of this courtroom. 10 JUSTICE ALITO: Well, you know, Mr. 11 Wessler, I -- I agree with you, that this new 12 technology is raising very serious privacy 13 concerns, but I need to know how much of 14 existing precedent you want us to overrule or 15 declare obsolete. 16 And if I could, I'd just like to take 17 you back briefly to -- to Miller and ask on 18 what grounds that can be distinguished. 19 don't say we should overrule it, and you had -­ 20 you said the information here is more 21 sensitive. 22 about that. 23 24 25 You We maybe could agree to disagree I don't know. But what else? What -- on what other ground can Miller possibly be distinguished? MR. WESSLER: So both Miller and Smith Heritage Reporting Corporation Official - Subject to Final Review 16 1 identified at least two factors to take into 2 account in the reasonable expectation of 3 privacy analysis: 4 their sensitivity and whether they're 5 voluntarily conveyed. 6 the nature of the records or And I think here there is also a great 7 distinction on voluntariness. Unlike a 8 negotiable instrument passed into commerce or, 9 for that matter, a phone number punched into a 10 touch tone phone, people when they make or 11 receive a phone call, receive a text message, 12 and certainly when their phone is automatically 13 making a data connection, do not provide their 14 location information to the carrier. 15 JUSTICE ALITO: Well, I mean, that's a 16 debatable empirical point whether people 17 realize what's -- what's going on, and there's 18 reason to think maybe they do. 19 I mean, people know, there were all 20 these commercials, "can you hear me now," our 21 company has lots of towers everywhere. 22 they think that's about? 23 What do The contract, the standard MetroPCS 24 contract seems to say -- and I guess we don't 25 have the actual contract in the record here -­ Heritage Reporting Corporation Official - Subject to Final Review 17 1 does seem to say that -- advise the customer 2 that we can disclose this information to the -­ 3 to the government if we get a court order. 4 So I don't know whether that will hold 5 up. And even if it were to hold up today, what 6 will happen in the future if people -­ 7 everybody begins to realize that this is -­ 8 this is provided? 9 shows where this is shown, then everybody will If you have enough police TV 10 know about it, just like they know about CSI 11 information. 12 MR. WESSLER: Three points, Your 13 Honor. 14 amicus brief at pages 3 through 4, they run 15 through a result of a survey that I think quite 16 strongly shows that a strong majority of 17 Americans do not understand that this 18 information is even accessible to, much less 19 retained by the service providers. 20 First, in the empirical scholars' Second, I agree that the MetroPCS 21 contract in -- in effect in 2010 and the other 22 company's privacy policies today do disclose 23 that location information can be obtained, but 24 I actually think the disclosures more broadly 25 in those documents accrue to our favor. Heritage Reporting Corporation Official - Subject to Final Review 18 1 I'll explain why that is in one 2 moment, although I -- I think I should caution 3 the Court that -- that relying too heavily on 4 those contractual documents in either direction 5 here would, to paraphrase the Court in Smith, 6 threaten to make a crazy quilt of the Fourth 7 Amendment because we may end up with a, you 8 know, hinging constitutional protections on the 9 happenstance of companies' policies. But those 10 -- those contractual documents to a company 11 restate and contractualize the protections of 12 the Telecommunications Act and quite strongly 13 promise people that their information will 14 remain private without consent. 15 And lastly -­ 16 JUSTICE ALITO: 17 18 Except as provided by law. JUSTICE GINSBURG: As to -- as to 19 other -- as to other private persons, not as to 20 the government. 21 MR. WESSLER: That's right. There -­ 22 there's a provision to disclose, as required by 23 law, those four words need to be read in 24 context and in compliance with the 25 Constitution. So if -- if there is a Heritage Reporting Corporation Official - Subject to Final Review 19 1 reasonable expectation of privacy in these 2 records, then a warrant is required. 3 But even looking at the statutory 4 framework itself, the government points to the 5 Stored Communications Act as the -- the law 6 requiring disclosure. 7 amended that statute in 1994, it provided two 8 mechanisms for access to records: 9 order, as used here, and a warrant under 10 11 But when Congress a 2703(d) Section 2703(c)(1)(A). And I think a person looking at that 12 statute would be quite reasonable and right to 13 assume that the reason there's a warrant prong 14 is to deal with records like these in which 15 there's a strong privacy interest. 16 JUSTICE KENNEDY: But your argument, 17 as I understood it from the brief and I'm 18 hearing it today, makes the Stored 19 Communications Act and the 2703(d) order 20 irrelevant. 21 You don't even talk about it. In an area where we're searching for a 22 compromise, where it's difficult to draw a 23 line, why shouldn't we give very significant 24 weight to the Congress's determination that 25 there should be and will be some judicial Heritage Reporting Corporation Official - Subject to Final Review 20 1 supervision over this -- over -- over these 2 investigations? 3 MR. WESSLER: Justice Kennedy, 4 Congress enacted the Stored Communications Act 5 in 1986 and amended it in relevant part in 6 1994. 7 had cell phones in 1986, only 9 percent in 8 1994. 9 10 Three-tenths of 1 percent of Americans There were about 18,000 cell towers in 1994. Today there are over 300,000. 11 And -­ 12 JUSTICE KENNEDY: Well, you mean -­ 13 you mean the Act was more necessary when there 14 were fewer cell phones? 15 MR. WESSLER: 16 JUSTICE KENNEDY: 17 18 No, not -- not -­ It seems to me just the opposite. MR. WESSLER: Not at all, Your Honor. 19 My point is that Congress quite clearly was not 20 thinking about the existence of and certainly 21 not law enforcement interest in historical cell 22 site location information. 23 the historical legislative record for -- for 24 the members of the Court who would look there 25 to indicate any cognizance of these kinds of There is nothing in Heritage Reporting Corporation Official - Subject to Final Review 21 1 records. 2 So -­ JUSTICE KENNEDY: Well, again, my 3 question is, you give zero weight in your 4 arguments to the fact that there is some 5 protection? 6 MR. WESSLER: Your Honor, we 7 acknowledge fully that there is some 8 protection, a touch more than a traditional 9 subpoena because a judge is involved, but we 10 think it is insufficient in the context of 11 records held by a third-party in which the 12 subject of the investigation -­ 13 JUSTICE GINSBURG: And yet you said, I 14 think you said in your brief, that in most of 15 the cases where you get one of these 2703(d) 16 orders, in the mine run of cases, you said 17 there was probably enough there to get a 18 warrant. 19 confessed robber identifies his collaborators 20 and there are details about the collaborator. 21 Why isn't that enough to get a warrant? 22 So let's take this very case: MR. WESSLER: A In this case, it -- it 23 is quite possible that the government could 24 have. 25 probable cause on the face of their application Now, I -- I don't think they stated Heritage Reporting Corporation Official - Subject to Final Review 22 1 for the court order. 2 mentioned only once in a conclusory sentence at 3 the end. 4 at that point, a cooperating codefendant. 5 I -- I can't say whether, had they wanted to, 6 they could have made out probable cause. 7 entirely possible. 8 9 Mr. Carpenter's name is They did have a cooperating witness And It's I -- I want to return, Justice Alito, to your question because I think it's important 10 to -- to remember that Miller and Smith were 11 decided four decades ago. 12 have -- have imagined the technological 13 landscape today. 14 government's invitation to -- to, in my view, 15 radically extend those cases would place beyond 16 the protection of the Fourth Amendment not only 17 those locations records -­ 18 The Court could not And accepting the JUSTICE SOTOMAYOR: Are we -- are we 19 radically extending them? 20 beginning, Smith, for example, basically said 21 the disclosure at issue doesn't disclose the 22 content of the conversation. 23 pointed out, the provider had access to the -­ 24 to the content of the conversation. 25 From the very As the dissent Yet, we drew a line in saying cell Heritage Reporting Corporation Official - Subject to Final Review 23 1 phone numbers, telephone numbers are 2 disclosable because everybody knows that the 3 telephone company is keeping track of those 4 numbers. 5 end of each month. 6 You get it in your phone bill at the But we said people don't know or even 7 if they realize that the phone company can 8 listen in to their conversation, that there's a 9 reasonable expectation that the phone company 10 won't, absent some urgent circumstance, a death 11 threat, almost a special needs circumstance. 12 That suggests, as you started to say 13 earlier, that it never was an absolute rule, 14 the third-party doctrine. 15 when -- in Bond and Ferguson when we said 16 police can't get your medical records without 17 your consent, even though you've disclosed your 18 medical records to doctors at a hospital. 19 We limited it They can't touch your bag to feel 20 what's in your bag because an individual may 21 disclose his or her bag to the public. 22 one of my colleagues here said you can -- why 23 shouldn't people expect others to touch their 24 bag as well? 25 because you expose what your bag looks like, I think Well, and the Court said no Heritage Reporting Corporation Official - Subject to Final Review 24 1 but you don't have an expectation that people 2 are going to touch your bag. 3 So is it really that far off to say, 4 yes, I can believe that my location at one 5 moment or other moments might be searched by 6 police, but I don't expect them to track me 7 down for 24 hours over 127 days? 8 9 MR. WESSLER: Absolutely, Your Honor. We agree that the contents of electronic 10 communications should be protected, as I think 11 the government agrees in its -- its brief. 12 in the digital age, content as a category is 13 both under-inclusive and unadministrable. 14 But Certainly, I think that's one lesson 15 from Jones, from the concurrences. 16 not the content of communication. 17 location over time in public. 18 protected. 19 digital records like search queries entered 20 into Google, a person's complete web browsing 21 history showing everything we read on-line, 22 medical information or fertility tracking data 23 from a smartphone would -- would be vulnerable. 24 25 That was It was But it was still And a great many highly sensitive JUSTICE ALITO: Suppose that in this -- suppose that in this case there was a Heritage Reporting Corporation Official - Subject to Final Review 25 1 subpoena for the -- the numbers called from the 2 cell phone. 3 in your opinion? 4 Would there be a problem with that MR. WESSLER: No, Your Honor. I think 5 that would fall squarely within the -- the rule 6 of Smith. 7 voluntary, and I think -- we can disagree, but 8 I think less sensitive. 9 It would certainly be more JUSTICE ALITO: You think the numbers 10 called, the people that somebody is calling is 11 -- is less -- that's less sensitive than the 12 person's location? 13 MR. WESSLER: 14 JUSTICE ALITO: I certainly -­ How -- how are we 15 going to judge the sensitivity of -- of 16 information like this? 17 MR. WESSLER: Well, I -- I think that 18 the -- the concurring opinions in -- in Jones, 19 Your Honor, already judge the sensitivity of 20 this information. 21 every other context -­ 22 The Court need not address JUSTICE KENNEDY: Suppose law 23 enforcement officers had followed this person 24 for 127 days. 25 followed him for 24 hours? That would be worse than if they Heritage Reporting Corporation Official - Subject to Final Review 26 1 MR. WESSLER: Well, as the 2 concurrences made clear in Jones, that would be 3 a highly unlikely endeavor, but even more 4 unlikely here because this is not real-time. 5 JUSTICE KENNEDY: Well, for the 6 hypothetical, suppose it happened. 7 there can be very serious crimes in which law 8 enforcement devotes a tremendous amount of time 9 to surveillance with -- with multiple vehicles, There -­ 10 multiple agents. 11 too long, then it's an invasion of privacy? 12 And you say if it lasts for MR. WESSLER: No, I think, you know, 13 people's normal expectation is that that 14 typically won't happen, but if it does, the 15 Fourth Amendment does not protect against that. 16 Now, here -­ 17 JUSTICE KENNEDY: Well, frankly, if -­ 18 if we're going to talk about normal 19 expectations and we have to make the judgment, 20 it seems to me there's a much more normal 21 expectation that businesses have your cell 22 phone data. 23 everybody, knows that. 24 does. 25 I think everybody, almost If I know it, everybody (Laughter.) Heritage Reporting Corporation Official - Subject to Final Review 27 1 JUSTICE KENNEDY: But I -- I don't 2 think there's an expectation that people are 3 following you for 127 days. 4 5 MR. WESSLER: there's -­ 6 7 JUSTICE KENNEDY: Which is my hypothetical. 8 9 Well, I -- I agree, but MR. WESSLER: Well, I agree, Your Honor, but I think that the -- the concurrences 10 in Jones laid out a -- an analysis of why 11 there's a difference between using technology 12 to make that trailing -- tailing possible in 13 every case as opposed to the very rare 14 circumstance where it might happen. 15 it's even a step more removed. 16 could police have decided today to track me 24 17 hours a day, seven days a week, five months 18 ago. 19 But here, Here, never That is a categorically new power that 20 is made possible by these perfect tracking 21 devices that 95 percent of Americans carry in 22 their pockets. 23 JUSTICE KAGAN: Mr. Wessler, can I ask 24 you about your understanding of the state of 25 the technology now? Because the government Heritage Reporting Corporation Official - Subject to Final Review 28 1 represents in -- in its briefs, and it has 2 those pictures in its briefs, suggesting that 3 you -- you -- that the information that's 4 gleaned from this is -- is very -- it's sort of 5 general, it's vague, it doesn't pinpoint 6 exactly where you are, and in order to make 7 effective use of it, it has to be combined with 8 many other pieces of information. 9 And, you know -- you know, A, do you 10 agree with that, but, B, what is your view of 11 -- of the relevance of the fact that 12 information may not be useful in itself but may 13 be useful in combination with other 14 information? 15 Does that make a difference? MR. WESSLER: Justice Kagan, so on the 16 first point, we agree that, as of 2010 and 2011 17 where the records in this case come from, they 18 were generally less precise than the GPS data 19 in Jones, but we don't think that that makes a 20 difference for the Fourth Amendment rule for a 21 few reasons. 22 First, to go to the second part of 23 your -- your question, even in Jones, the data 24 lacked precision. 25 within 50 to 100 feet and only tracked where a It was accurate only to Heritage Reporting Corporation Official - Subject to Final Review 29 1 car went. 2 lot or on a street, that GPS data by itself 3 can't tell if they go to a jewelry store for a 4 stick-up or a medical clinic for a checkup or a 5 cafe to meet with a friend. 6 of evidence or inference was required. 7 makes it no less a search in that the same is 8 true here. 9 So, if a person parks in a parking Some other amount That Now, in the intervening seven years, 10 the data has become markedly more precise. 11 proliferation of small cells which can have a 12 broadcast radius as small as 10 meters, about 13 half the size of this -- this courtroom, the 14 ability now of providers to estimate the actual 15 location of the phone based on the time and 16 angle that the signal from the phone reaches 17 the towers, and the just skyrocketing amount of 18 data usage by normal smartphone users means 19 that even the large traditional cell towers are 20 much closer together in urban and dense 21 suburban areas, so the distance between them is 22 less, so they are significantly -- the location 23 information is more precise. 24 25 The It's also more voluminous because now data connections create location information. Heritage Reporting Corporation Official - Subject to Final Review 30 1 And so the -- the 101 data points per day on 2 average in this case pale in comparison to what 3 -- 4 JUSTICE GORSUCH: Just, Mr. Wessler, 5 along those lines, one more kind of technical 6 question. 7 that some of this information is required to be 8 kept by governmental regulation, the E911 9 program. 10 There was a suggestion in the briefs Do you have any insight on that for us? 11 MR. WESSLER: Yeah, there's no -­ 12 there's no direct requirement that these 13 location records be kept. 14 that the -- the capability of the cell 15 companies to track cell phones in real-time is 16 a government mandate as part of the E911 17 system. 18 Now, what is true is That is -- that capability is related 19 to the -- the capability that is relatively 20 newer to estimate the actual location of the 21 phone based on time and angle of the signal, 22 historically, coming in. 23 But there's -- there's no data 24 retention mandate for these historical cell 25 phone location records. Heritage Reporting Corporation Official - Subject to Final Review 31 1 JUSTICE BREYER: Are -­ 2 CHIEF JUSTICE ROBERTS: Counsel, you 3 avoid taking a position on the question in your 4 brief, but I'd like you to do -- take one 5 today. 6 subpoenas differently than you would treat 7 subpoenas under other -- under legislation? 8 9 Is there any reason to treat grand jury MR. WESSLER: there is any reason. No, I -- I don't think This Court's Fourth 10 Amendment decisions involving grand jury 11 subpoenas has held on to the same Fourth 12 Amendment standard as any other subpoena. 13 Now, a grand jury subpoena is not at 14 issue here, but - but we think it would be held 15 to the same standard as any other subpoena or 16 subpoena-like request for these highly 17 sensitive records. 18 JUSTICE BREYER: Since I'm seeing your 19 argument, it -- it -- it starts with a place 20 where I completely agree. 21 had a fallible memory and didn't follow people 22 for 127 days. 23 The village snoop The electronic information is 24 infallible. You can follow them forever. 25 That's a big change. So, I agree that that Heritage Reporting Corporation Official - Subject to Final Review 32 1 change is there. 2 life, not just location. 3 It's there in many aspects of Now, on the other side of it is that 4 probably, I'm not sure, but probably police and 5 FBI and others, when they get word of white 6 collar crime, money laundering, drugs, 7 financing terrorism, we can go through the 8 list, large numbers of cases, of important 9 criminal cases, they don't have probable cause. 10 They do have reasonable ground to think. 11 they start with bank records, with all kinds of 12 financial information, purchases. 13 And So, if I accept your line, there's no 14 such thing in the law as location. 15 but, I mean, people immediately say and why? 16 And then, when they say why, we're going to 17 have to say something like: 18 arbitrary, but X days, are very personal. 19 was given under circumstances where they didn't 20 know they were giving it or they certainly 21 didn't consent to it. 22 There is, X days, at least It And that is basically the reason. 23 Maybe we throw a few other things in there to 24 get an exception from Miller. 25 taken immediately to the lower courts, and That will be Heritage Reporting Corporation Official - Subject to Final Review 33 1 eventually here, and people will say: 2 what about financial information, i.e., credit 3 card purchases where the most intimate credit 4 card purchases, wherever they are, are 5 immediately records, and what about -- and 6 they'll think of five others -- I can only 7 think of one or two, but, believe me, the legal 8 profession and those interested in this 9 understand it very well. 10 So where are we going? Well, Is this the 11 right line? 12 Not, you see, for location. 13 trouble with that. 14 you say -- it's a very open question, but I'm 15 very interested in your reactions. 16 How do we, in fact, write it? I have less But where is it going? MR. WESSLER: Can Justice Breyer, I think 17 in -- in future cases in the lower courts and 18 perhaps back before Your Honors, it would be 19 relatively straightforward to define discrete 20 categories of information that may be 21 protected. 22 I think perhaps certain other types of 23 location records, information about the state 24 of the body, like heart rate data from a smart 25 watch, or fertility tracking data from a Heritage Reporting Corporation Official - Subject to Final Review 34 1 smartphone app, information about the interior 2 of a home, for example, from a smart thermostat 3 that knows when the homeowner is at home and 4 perhaps what room they're in, communicative 5 contents, not only the contents of e-mails but 6 I think search queries to Google, not every 7 record will or should be protected, and I think 8 it is totally consistent with the role of the 9 lower courts to take an interpretive principle 10 from this Court and begin to apply it and over 11 time -­ 12 CHIEF JUSTICE ROBERTS: 13 MR. WESSLER: 14 JUSTICE BREYER: 15 -- clarity will emerge. You want to add one -- 16 17 One -­ CHIEF JUSTICE ROBERTS: I'm sorry. 18 One thing -­ Please. JUSTICE BREYER: Maybe you want to add 19 one thing, because I suspect you'll hear in a 20 minute that all the imperfections of Miller, 21 given your answer, and I'm thinking, too, I 22 quite agree with you, this is an open box. 23 know not where we go. 24 cetera. 25 Unadministrable, et Anything else you want to add? Heritage Reporting Corporation We Official - Subject to Final Review 35 1 MR. WESSLER: Well, Your Honor, lower 2 courts have been struggling mightily to apply 3 Miller and Smith to highly sensitive digital 4 age records. 5 And as to these historical location 6 records, the five courts of appeals to address 7 this have generated 20 majority concurring and 8 dissenting opinions, many of them virtually 9 begging this Court to provide guidance for how 10 to protect these sensitive digital records that 11 the Court simply could not have imagined four 12 decades ago. 13 CHIEF JUSTICE ROBERTS: A lot of what 14 you're talking about and a lot of what the 15 questions concern, I think, is addressed under 16 the question whether a warrant should issue as 17 opposed to whether a warrant is required. 18 Under current practice, when you're 19 getting a warrant, it makes a difference if you 20 go in and say I want to search the entire house 21 for anything I can find and if you say I want 22 to search the drawers for business records that 23 we think are related to blah, blah, blah. 24 25 And so it's the same thing here. Yes, the technology affects every aspect of -- of Heritage Reporting Corporation Official - Subject to Final Review 36 1 life. 2 to. 3 focus on, you know, we want to talk about 4 simply whatever it is, purchases, because we 5 have reason to believe he's purchasing the 6 stuff that goes in to make, you know, 7 methamphetamine, but that doesn't mean we're 8 going to go look at location information. 9 That doesn't mean that the warrant has And in terms of reasonableness, if you can MR. WESSLER: Your Honor, we certainly 10 think that the -- the probable cause and 11 particularity requirements of a warrant will -­ 12 will do a lot of work to -- to focus 13 investigations. 14 In an investigation like this, perhaps 15 127 days or 152, as the original request was, 16 would not all be appropriate. 17 warrant a two or three-day span around each of 18 the robberies would actually be particularly 19 relevant to the probable cause determination. 20 Maybe under a But -- but our basic submission is 21 that a warrant is required in this context 22 because it's unlike the other subpoena cases 23 that the government has identified. 24 normal subpoena case, this Court has identified 25 two factors that weigh on -- on the In the Heritage Reporting Corporation Official - Subject to Final Review 37 1 reasonableness categorically of subpoenas: 2 first that the recipient complies with it, they 3 -- they select the responsive records and 4 provide them to the government, which is -­ 5 poses less of a risk of -- of abuse, and, 6 second, that there is notice and an opportunity 7 for pre-compliance review. 8 9 Neither of those obtained here, where the subpoena goes to a third-party, but the 10 subject of the investigation receives no notice 11 and has no opportunity to -­ 12 JUSTICE GINSBURG: Can you tell me 13 what is the difference between the 2703(d) 14 order and warrant? 15 you could get the order but not a warrant? 16 What are situations where MR. WESSLER: So the -- the standard 17 for issuance of the order is lower. 18 courts have likened it to a reasonable 19 suspicion standard. 20 touch above pure reasonableness, but it's 21 certainly short of probable cause. 22 Some lower I think it's probably a It also lacks a requirement for a 23 sworn statement. There's no affidavit. 24 -- it's placed before a magistrate judge by a 25 prosecutor. Heritage Reporting Corporation It's Official - Subject to Final Review 38 1 And it lacks a particularity 2 requirement, which has led in -- in cases to 3 extraordinarily broad requests. 4 our reply brief one case where the government 5 obtained 454 days of historical location data 6 for one defendant, 388 for another. 7 We identify in You have 127 days here, 221 days in 8 Graham from the Fourth Circuit, with a cert 9 petition currently pending. 10 11 12 13 That is a quite extraordinary amount of time. If I could, I'd like to reserve the balance of my time. JUSTICE GORSUCH: Mr. Wessler, I'm 14 sorry, one quick question. 15 property-based approach, putting aside 16 reasonable expectation for just a moment, what 17 do we know about what state law would say about 18 this information? 19 Focusing on the So say -- say a thief broke into T 20 Mobile, stole this information and sought to 21 make economic value of it. 22 conversion -- would your client have a 23 conversion claim, for example, under state law? 24 Have you explored that at all? 25 MR. WESSLER: Would you have a So I -- I think it's Heritage Reporting Corporation Official - Subject to Final Review 39 1 possible. And I think conversion is the -- the 2 closest -­ 3 JUSTICE GORSUCH: 4 MR. WESSLER: 5 to what we have here. 6 source of the property right here in federal 7 law, not state law. 8 9 -- sort of tort analog But we -- we placed the JUSTICE GORSUCH: 222. Uh-huh. No, I understand I've got that argument. I am just 10 wondering have you -- have state courts 11 developed this at all? 12 MR. WESSLER: State -- state courts 13 have not, to my knowledge. 14 analogous contexts, like trade secrets -­ 15 JUSTICE GORSUCH: 16 MR. WESSLER: 17 Right. -- certainly conversion applies -­ 18 JUSTICE GORSUCH: 19 MR. WESSLER: 20 I think in roughly Right. -- but not directly here. 21 JUSTICE GORSUCH: 22 MR. WESSLER: 23 CHIEF JUSTICE ROBERTS: 24 25 Okay. Thank you. Thank you. Thank you, counsel. Mr. Dreeben. Heritage Reporting Corporation Official - Subject to Final Review 40 1 ORAL ARGUMENT OF MICHAEL R. DREEBEN 2 ON BEHALF OF THE RESPONDENT 3 4 MR. DREEBEN: Mr. Chief Justice, and may it please the Court: 5 The technology here is new, but the 6 legal principles that this Court has 7 articulated under the Fourth Amendment are not. 8 9 The cell phone companies in this case function essentially as witnesses being asked 10 to produce business records of their own 11 transactions with customers. 12 The cell systems cannot function 13 without information about where the phones are 14 located. 15 service will communicate that information to 16 towers in order to receive calls. 17 phone companies get that information to operate 18 the cell network. 19 own business records of that information. 20 not a government mandate. 21 Anyone who subscribes to a cell phone The cell They choose to make their It's They make decisions based on their own 22 business needs about what they're going to 23 retain. 24 them to produce it, it is doing the same thing 25 that it did in Smith. And when the government comes and asks It is doing the same Heritage Reporting Corporation Official - Subject to Final Review 41 1 thing that it did in Miller. It is asking a 2 business to provide information about the 3 business's own transactions with a customer. 4 And under the third-party doctrine, 5 that does not implicate the Fourth Amendment 6 rights of the customer. 7 JUSTICE SOTOMAYOR: 8 CHIEF JUSTICE ROBERTS: 9 But asking -­ This is not simply created by the company, though. It's a 10 joint venture with the individual carrying the 11 phone. 12 the record by being there and sending out the 13 pings or whatever. 14 That person helps the company create MR. DREEBEN: Well, that's certainly 15 true, but it's no less true in Smith and 16 Miller. 17 a record of who a person called, the person has 18 to make the call. 19 phone company. 20 information to route the call. 21 In order for the phone company to have The information goes to the The phone company uses that Here, the cell phone provider gets 22 information from the phone about where the 23 phone is so that it can route calls to the 24 phone and that it can route calls from the 25 phone. Heritage Reporting Corporation Official - Subject to Final Review 42 1 That's just the basic technological 2 nature of cell phones, but it doesn't differ in 3 principle from what was going on in Smith. 4 you could say the same thing about Miller. 5 Somebody has to engage in banking And 6 transactions through a bank. 7 check. 8 bank uses it to carry out the bank's business. 9 They give the check to the bank. JUSTICE SOTOMAYOR: 10 give it to the bank. 11 who gives it to the bank. 12 difference. 13 They write a The No, they don't They give it to a person, MR. DREEBEN: It's a big Well, Justice Sotomayor, 14 I think that there are a zillion different ways 15 to carry out financial transactions, including 16 some that involve giving a check to a person. 17 Many involve going to the bank directly and 18 having the bank conduct the financial 19 transaction. 20 Anybody who writes a check understands 21 that the check will be submitted to the bank so 22 that the bank can pay. 23 JUSTICE SOTOMAYOR: Mr. Dreeben, why 24 is it not okay, in the way we said about 25 beepers, to plant a beeper in somebody's Heritage Reporting Corporation Official - Subject to Final Review 43 1 bedroom, but it's okay to get the cell phone 2 records of someone who I -- I don't, but I know 3 that most young people have the phones in the 4 bed with them. 5 (Laughter.) 6 JUSTICE SOTOMAYOR: All right? I know 7 people who take phones into public restrooms. 8 They take them with them everywhere. 9 appendage now for some people. 10 It's an If it's not okay to put a beeper into 11 someone's bedroom, why is it okay to use the 12 signals that phone is using from that person's 13 bedroom, made accessible to law enforcement 14 without probable cause? 15 MR. DREEBEN: So, Justice Sotomayor, I 16 will answer the question about cell phone 17 location in a house, but I think it's important 18 that the Court understand that this case 19 involves very generalized cell sector 20 information -­ 21 JUSTICE SOTOMAYOR: That's today, Mr. 22 Dreeben, but we need to look at this with 23 respect to how the technology is developing. 24 25 MR. DREEBEN: Well, I think Justice Sotomayor -­ Heritage Reporting Corporation Official - Subject to Final Review 44 1 2 JUSTICE SOTOMAYOR: We can leave phones in a bedroom now. 3 MR. DREEBEN: You -- you -- well, 4 there's a distinction between acquiring GPS 5 information from a phone and acquiring cell 6 site information from a business. 7 involves acquiring cell site information from a 8 business. 9 attempted to illustrate how in Detroit -­ 10 It's a wide area. JUSTICE SOTOMAYOR: This case Our brief Well, this is no 11 different than a telephone company having 12 access to your telephone conversations. 13 protected those in Smith. 14 MR. DREEBEN: But we No, I think it's -- it's 15 very different from it. 16 privacy about the contents of a one-to-one 17 communication or a one-to-many communication 18 are quite different. 19 bedrock understanding that a letter mailed 20 through the mail, the routing information is 21 available to the government, the address of 22 where it's going -­ 23 The expectations of They grow out of the JUSTICE SOTOMAYOR: Yeah, but -- but 24 an -- in an envelope, you seal the envelope. 25 You can -- you can yourself control the public Heritage Reporting Corporation Official - Subject to Final Review 45 1 disclosure. 2 But with telephones, the telephone 3 company could have plugged in and listened to 4 your conversation just as easily as these 5 telecommunications companies can read your 6 e-mails if they choose. 7 would protect e-mail content. 8 MR. DREEBEN: 9 Yet, we've said we That is true. And I think that that is because there is a 10 difference between content and routing 11 information that the Court recognized in Smith 12 itself. 13 We're dealing here with routing 14 information. 15 contents of communications. 16 that Katz makes clear that incidental access of 17 a provider to the contents of a communication 18 when the -- when the provider is functioning as 19 an intermediary doesn't vitiate Fourth 20 Amendment protection. 21 We're not dealing with the I agree with you We're not here to argue that it does. 22 We're here to argue that routing information of 23 the sort that was available in Smith and the 24 sort that's available here functions as a 25 business record because the business is using Heritage Reporting Corporation Official - Subject to Final Review 46 1 it in its transaction with the customer to 2 route the calls. 3 The content information is being 4 provided through a provider as an intermediary 5 so that somebody can communicate with another 6 person. 7 And -­ JUSTICE KAGAN: Mr. Dreeben, how is 8 this different from Jones? You know, in Jones, 9 there were a couple of different opinions, but 10 five justices, as -- as I count it, said 11 this -- this is from Justice Alito's opinion: 12 "Society's expectation has been that law 13 enforcement and others would not, and indeed in 14 the main simply cannot, monitor and catalogue 15 every single movement of an individual's" -­ 16 there it was a car -- "for a long period." 17 So how is it different from that? 18 MR. DREEBEN: I think it's 19 fundamentally different, Justice Kagan, because 20 this involves acquiring the business records of 21 a provider which has determined to keep these 22 records of the cell site information. 23 Jones involved government 24 surveillance. It involved attaching a GPS 25 device to the car. Five members of the Court Heritage Reporting Corporation Official - Subject to Final Review 47 1 regarded that as a trespatory search. 2 other members of the Court were prepared to 3 analyze that under reasonable expectations of 4 privacy. 5 surveillance of the suspect in the crime. 6 Five But in both cases, it was direct JUSTICE KAGAN: So the question is why 7 that should make more of a difference than the 8 obvious similarity between this case and Jones? 9 And the obvious similarity is that, in both 10 cases, you have reliance on a new technology 11 that allows for 24/7 tracking. 12 Now, you're exactly right, there were 13 different means, but in both cases, you have a 14 new technology that allows for 24/7 tracking 15 and a conclusion by a number of justices in 16 Jones that that was an altogether new and 17 different thing that did intrude on people's 18 expectations of who would be watching them 19 when. 20 MR. DREEBEN: So the -- the people who 21 are watching in this case are the phone 22 companies because people have decided to sign 23 up for cellular service in which it is a 24 necessity of the service that your phone 25 communicate with a tower and a business record Heritage Reporting Corporation Official - Subject to Final Review 48 1 is generated. 2 People who dial phone numbers on calls 3 know that they're being routed through a cell 4 phone or a landline provider. 5 can be made available to the government. 6 could be made available for quite extensive 7 periods of time. 8 9 Those records They I think in many ways it's far more revealing to know who a person is calling than 10 to know the generalized cell sector where their 11 phone is located. 12 doesn't tell you the person was with the phone; 13 it doesn't tell you -­ 14 The cell site information JUSTICE SOTOMAYOR: Mr. Dreeben, what 15 do you do with the survey mentioned by your 16 opposing colleague that says that most 17 Americans, I still think, want to avoid Big 18 Brother. 19 government will be able to see and locate you 20 anywhere you are at any point in time. They want to avoid the concept that 21 Is it -- do you really believe that 22 people expect that the government will be able 23 to do that without probable cause and a 24 warrant? 25 MR. DREEBEN: I don't -­ Heritage Reporting Corporation Official - Subject to Final Review 49 1 JUSTICE SOTOMAYOR: The -- the 2 Constitution protects the rights of people to 3 be secure. 4 don't you think, that that would include the 5 government searching for information about your 6 location every second of the day -­ 7 8 MR. DREEBEN: So in instances like this, Justice Sotomayor -­ 9 10 Isn't it a fundamental concept, JUSTICE SOTOMAYOR: -- for months and months at a time? 11 MR. DREEBEN: -- involving rapidly 12 changing technology and privacy expectations 13 that are being measured here by surveys, the 14 proper body to address that is Congress. 15 And Congress has been active in this 16 area. 17 failure -­ 18 This is not an instance of political JUSTICE SOTOMAYOR: Well, the question 19 is, was it -- the fact that Congress recognized 20 how sensitive this information is, is quite 21 laudatory, but did it understand the measure of 22 the constitutional requirement of what 23 protections should be given to that? 24 25 I mean, I -- I can defer to Congress's understanding of the privacy needs, but does Heritage Reporting Corporation Official - Subject to Final Review 50 1 that create an obligation for me to defer to 2 their judgment of what protections the 3 Constitution requires? 4 The Constitution has always said 5 government can't intrude, except in some 6 carefully defined situation, special needs 7 being foremost among them -- can't intrude on 8 those privacy interests without a warrant. 9 We're not saying they can't ever. They've just 10 got to have articulable facts based on reliable 11 information, sworn to in an affidavit, that can 12 provide probable cause to believe that this 13 individual is involved in criminal activity. 14 That's not a new standard. 15 16 That's an old standard. MR. DREEBEN: But the new standard 17 here would be saying that the business records 18 of a third party, when acquired by the 19 government, constitute a -­ 20 JUSTICE SOTOMAYOR: 21 MR. DREEBEN: 22 JUSTICE SOTOMAYOR: But we have -­ -- search of -­ -- we have said -­ 23 you know, we have made exceptions all the time, 24 Ferguson, Bond, even in creating Smith and 25 Miller, we created an exception. People Heritage Reporting Corporation Official - Subject to Final Review 51 1 disclose the content of telephone calls to 2 third parties. 3 can't intrude without a warrant in that 4 situation. 5 But we said the government MR. DREEBEN: I think there was a 6 well-developed framework at the time of Smith 7 and Miller that the Court applied to Smith and 8 Miller. 9 if you communicate information to a third And it basically says, in our society, 10 person, the public has an interest in that 11 person's witnessing of what they heard or what 12 they said, and it can acquire it through means 13 short of a warrant. 14 That was the basic framework that led 15 the Court in Katz to conclude that what you 16 maintain privately in your house or in the 17 content of your phone calls requires special 18 process. 19 JUSTICE GORSUCH: Mr. Dreeben, I'd 20 like to -- I'd like to drill down on that and 21 return to Justice Kagan's question. 22 the facts here wind up looking a lot like 23 Jones. 24 25 You know, One thing Jones taught us is -- and reminded us, really, is that the property-based Heritage Reporting Corporation Official - Subject to Final Review 52 1 approach to privacy also has to be considered, 2 not just the reasonable expectation approach. 3 So, if we put aside the reasonable 4 expectation approach for just a moment, Katz, 5 Miller, Smith, and ask what is the property 6 right here, let's say there is a property 7 right. 8 the conversion case I posited with your 9 colleague. Let's say I have a property right in 10 so that if someone were to steal my 11 location information from T-Mobile I'd have a 12 conversion claim, for example, against them for 13 the economic value that was stolen. 14 Wouldn't that, therefore, be a search 15 of my paper or effect under the property-based 16 approach approved and reminded us in Jones? 17 MR. DREEBEN: I suppose that if you 18 are insisting that I acknowledge that it's a 19 property right, some consequences are going to 20 follow -­ 21 JUSTICE GORSUCH: Right. 22 MR. DREEBEN: -- from that. 23 JUSTICE GORSUCH: 24 MR. DREEBEN: 25 JUSTICE GORSUCH: Okay. I don't think you can -­ But let's just -­ Heritage Reporting Corporation Official - Subject to Final Review 53 1 let's -­ 2 3 MR. DREEBEN: I don't think you can make that assumption. 4 JUSTICE GORSUCH: -- let's stick with 5 my hypothetical, counsel, okay? 6 don't like it. I got that. 7 (Laughter.) 8 JUSTICE GORSUCH: 9 I know you But let's say that, in fact, I've got positive law that indicates 10 it is a property right. Would you there, 11 therefore, agree that that's a search of my 12 paper and effect? 13 MR. DREEBEN: 14 JUSTICE GORSUCH: 15 MR. DREEBEN: 16 19 But why not? Because it's not your paper or your effect. 17 18 I wouldn't, and I -­ JUSTICE GORSUCH: If property law says it is. MR. DREEBEN: Well, I don't think 20 property law does say that it is. 21 think that -­ And I 22 JUSTICE GORSUCH: Well, that's 23 fighting the hypothetical, counsel. 24 I -- I didn't like hypotheticals, too, when I 25 was a lawyer sometimes, but I'm asking you to And I know Heritage Reporting Corporation Official - Subject to Final Review 54 1 stick with my hypothetical. 2 MR. DREEBEN: Justice Gorsuch, I think 3 that the problem with the hypothetical is that 4 it creates a property interest out of transfers 5 of information. 6 JUSTICE GORSUCH: Please -- please, 7 could you stick with my hypothetical and then 8 you can tell me why it's wrong. 9 MR. DREEBEN: 10 All right. JUSTICE GORSUCH: Under my 11 hypothetical, you have a property right in this 12 information. 13 14 15 Would it be a search of my paper and effect? Yes or no. MR. DREEBEN: I am not sure. And the 16 reason that I am not sure is there has never 17 been a property right recognized in information 18 that's conveyed to a business of this 19 character. 20 If we were talking about e-mail, as 21 Your Honor's opinion in Ackerman sought to 22 analogize to property, I think we would have a 23 more complex discussion about it. 24 that it would achieve any different result. 25 JUSTICE GORSUCH: I'm not sure You're not here to Heritage Reporting Corporation Official - Subject to Final Review 55 1 deny that there might be a property interest 2 and, therefore, a search? 3 MR. DREEBEN: No, I am -- I'm here to 4 deny there's a property interest in cell site 5 information about e-mail -­ 6 JUSTICE GORSUCH: In my -- in my 7 hypothetical, if there were a property 8 interest, you're not here to deny that that 9 would be a search of my paper and effect? 10 11 MR. DREEBEN: I'm not here to concede it either. 12 JUSTICE GORSUCH: 13 MR. DREEBEN: 14 (Laughter.) 15 JUSTICE GORSUCH: 16 MR. DREEBEN: Okay. And the reason that -­ Okay. The reason that I can't 17 concede it is it's a property right that 18 resembles no property right that's existed. 19 JUSTICE GORSUCH: 20 JUSTICE ALITO: I think you -­ Yeah, Mr. Dreeben, 21 along those lines, I was trying to think of an 22 example of a situation in which a person would 23 have a property right in information that the 24 person doesn't ask a third-party to create, the 25 person can't force the third-party to create it Heritage Reporting Corporation Official - Subject to Final Review 56 1 or to gather it. 2 company from gathering it. 3 force the company to destroy it. 4 can't prevent the company from destroying it. 5 The person can't prevent the The person can't The person And according to Petitioner, the 6 customer doesn't even have a right to get the 7 information. 8 9 MR. DREEBEN: So, Justice Alito, those are a lot of good reasons on why this should 10 not be recognized as a property interest. 11 can't think of anything that would be 12 characterized as a property interest with those 13 traits. 14 watershed change in the law to treat 15 transferred information as property. 16 I And it would be a -- really a JUSTICE GORSUCH: Well, what does 17 Section 222 do, other than declare this 18 customer proprietary network information -­ 19 MR. DREEBEN: 20 JUSTICE GORSUCH: 21 22 So that -­ -- that the carrier cannot disclose? MR. DREEBEN: It -- it does that in 23 conjunction with a provision that it shall be 24 disclosed as required by law. 25 JUSTICE GORSUCH: So -- so, let me ask Heritage Reporting Corporation Official - Subject to Final Review 57 1 you that. 2 acknowledge a property right but then strip it 3 of any Fourth Amendment protection. 4 the government's position? 5 6 So -- so the government can MR. DREEBEN: Is that No, no, but I think that the -­ 7 JUSTICE GORSUCH: And so -- so could 8 we also say maybe that they also get this 9 property right subject to having a non-Article 10 III judge decide the case, or quartering of 11 troops in your home? 12 property interests of all constitutional 13 protection? 14 MR. DREEBEN: 15 far afield. 16 here -­ Could we strip your Well, those are pretty I -- I think what's going on 17 JUSTICE GORSUCH: 18 MR. DREEBEN: Are they? -- is that Congress has 19 set up a regime to protect privacy interests in 20 information. 21 illustration of why this Court does not have to 22 leap ahead with the Fourth Amendment to 23 constitutionalize interests in property. 24 25 I think this is also an And Congress has calibrated under what circumstances that privacy interest shall be Heritage Reporting Corporation Official - Subject to Final Review 58 1 protected. 2 statutes that Congress has also passed -­ 3 It yields in the face of legal JUSTICE GORSUCH: But does Congress's 4 determination also yield in the face of the 5 Fourth Amendment, Mr. Dreeben? 6 MR. DREEBEN: 7 JUSTICE GORSUCH: 8 It does not. MR. DREEBEN: But what interests the statute -­ 11 JUSTICE GORSUCH: In the government's 12 -- in the government's view. 13 that right? 14 Amendment? 15 16 I think I said the opposite. JUSTICE GORSUCH: right. 19 20 Is that -- is The statute trumps the Fourth MR. DREEBEN: 17 18 The Fourth Amendment is trumped by this statute? 9 10 It does not. Oh, good. All I hoped so. MR. DREEBEN: So I think we're on common ground that the Fourth -­ 21 JUSTICE GORSUCH: So the Fourth 22 Amendment controls, not -- not what the statute 23 says -­ 24 MR. DREEBEN: Well -­ 25 JUSTICE GORSUCH: -- with respect to Heritage Reporting Corporation Official - Subject to Final Review 59 1 2 the disclosure of the information? MR. DREEBEN: -- the Fourth Amendment 3 applies once the Court has identified what 4 interest the statute creates. 5 6 JUSTICE GORSUCH: MR. DREEBEN: 8 JUSTICE GORSUCH: 10 11 12 The statute creates customer proprietary information -­ 7 9 Right. Well, it -­ -- in Section 222 and then the Fourth Amendment will determine when it can be revealed. MR. DREEBEN: Right? No. The statute actually creates -­ 13 JUSTICE GORSUCH: 14 control the Constitution? 15 saying the statute controls the Constitution. 16 MR. DREEBEN: Why does the statute I think you are No, I think that the 17 interests that the statute creates have to be 18 looked at as a whole. 19 very careful to -­ 20 21 22 And this Court has been JUSTICE GORSUCH: So the bitter -- the bitter with the sweet. MR. DREEBEN: Yeah, I know the Court 23 has rejected that in the due process context, 24 but here we are looking at what interests 25 Congress has sought to protect and -­ Heritage Reporting Corporation Official - Subject to Final Review 60 1 JUSTICE GORSUCH: So why -- why -- why 2 couldn't Congress also say you don't get an 3 Article III judge to determine this issue? 4 MR. DREEBEN: That seems so 5 non-germane to what Congress was trying to do. 6 In Section 222, what Congress was trying to do 7 was to say, look, the -- the companies are 8 collecting a large amount of information. 9 We recognize that there are privacy 10 interests in this. 11 to those privacy interests. 12 hamper legitimate law enforcement. 13 interests -­ 14 We want to give recognition JUSTICE ALITO: We do not want to So the Yeah, Mr. Dreeben, I 15 would read the -- the -- the phrase "customer 16 proprietary information" to mean that it is 17 proprietary to the cell phone company and, 18 therefore, not to the customer. 19 information, but it's proprietary information 20 about the cell phone company because, if you 21 got that information in the aggregate, you 22 could tell a lot about the company's operation. 23 It's customer I assume that -- that that kind of 24 information would be available to the FCC. 25 so, if the FCC obtained it, they would have to Heritage Reporting Corporation And Official - Subject to Final Review 61 1 treat it as proprietary information of the 2 company. 3 MR. DREEBEN: 4 JUSTICE ALITO: 5 MR. DREEBEN: Justice Alito -­ Am I wrong in that? I am not sure that that 6 is the way that Congress intended it, but I 7 think that what is significant is not the label 8 but what actual underlying rights were created. 9 JUSTICE ALITO: Well, if it were 10 proprietary to the customer, in what sense is 11 it proprietary to the customer, since it has 12 all of those attributes that I mentioned? 13 MR. DREEBEN: That's precisely my 14 point. As a label to indicate that Congress 15 wanted to show some respect for privacy 16 interests, when people interact with 17 telecommunications companies, it provided 18 certain nondisclosure rules. 19 It also made clear that it -­ 20 JUSTICE SOTOMAYOR: Could the 21 government say to telecommunications providers 22 you cannot use this kind of information, you 23 can't keep it? 24 25 MR. DREEBEN: Yes, I'm sure that in regulating that telephone companies are given a Heritage Reporting Corporation Official - Subject to Final Review 62 1 broad range. 2 JUSTICE SOTOMAYOR: So what's the 3 difference between that and saying, if you want 4 to create this information, you are taking this 5 information from customers and it's the 6 customer's information? 7 without the customer saying yeah or nay. You can't disclose it 8 MR. DREEBEN: 9 JUSTICE SOTOMAYOR: 10 Congress -­ Isn't what that Congress did? 11 MR. DREEBEN: No, because Congress 12 provided that it shall be disclosed as required 13 by law. 14 And the same Congress has passed -­ JUSTICE SOTOMAYOR: Well, but then we 15 -- then you're begging the question, which is 16 Justice Gorsuch's question, which is what's the 17 -- what does the law, the Fourth Amendment, 18 require in those circumstances? 19 20 21 MR. DREEBEN: So this Court has been -JUSTICE SOTOMAYOR: You're saying 22 Congress can set the level of what the 23 Constitution requires, but I don't know that 24 that's true. 25 MR. DREEBEN: Well, I think it's Heritage Reporting Corporation Official - Subject to Final Review 63 1 definitely not true. 2 of the Fourth Amendment, but it has already 3 decided that question. 4 This Court is the arbiter It has decided two things: One, under 5 the third-party doctrine, business information 6 that is obtained from a company in the ordinary 7 course of its business is not a search of the 8 customer. 9 JUSTICE SOTOMAYOR: But that's begging 10 the question. 11 information when Congress says it's customer 12 information? 13 Is it the third-party's MR. DREEBEN: Well, Congress can say a 14 lot of things, and I think that the important 15 thing that this Court has said as a corollary 16 to my point about what the third-party doctrine 17 is, is the Court has made clear that state laws 18 that provide additional enhanced privacy 19 protection do not alter Fourth Amendment 20 baselines. 21 It said that in Greenwood. It said 22 that in Moore. It said it most recently in 23 Quon, where it confronted a claim that the 24 Stored Communications Act, the same law that's 25 at issue here, created some sort of an Heritage Reporting Corporation Official - Subject to Final Review 64 1 expectation of privacy above and beyond what 2 the Fourth Amendment required, and the Court 3 said: 4 about privacy expectations in text messaging by 5 what Congress has provided in the context of 6 the Stored Communications Act. We don't measure Fourth Amendment rules 7 And I think it, in fact, illustrates 8 that Congress's efforts to provide enhanced 9 protection above and beyond what the Fourth 10 Amendment requires do not alter the content of 11 the Fourth Amendment. 12 13 14 15 16 JUSTICE KAGAN: Mr. -- Mr. Dreeben, can I -­ CHIEF JUSTICE ROBERTS: Justice -­ Justice Breyer. JUSTICE BREYER: I just want your 17 reaction to what I asked the other side. 18 agree with you that the law is at the moment 19 third-party information is third-party, with a 20 few exceptions, but it may. 21 JUSTICE ALITO: I Now, yeah, Mr. 22 Dreeben, in order to understand the issue here 23 and to see the difference between this case and 24 Jones, isn't it necessary to go back to old 25 Supreme Court cases that describe -- that Heritage Reporting Corporation Official - Subject to Final Review 65 1 explain how the Fourth Amendment applies to a 2 subpoena? 3 Asking another -- asking a party or 4 ordering a party to produce documents is not a 5 search in the literal sense of the word, nor is 6 it a seizure in the literal sense of the word, 7 but cases going back to Boyd, and Hale versus 8 Henkel, old cases say that it's a -- it's a 9 constructive search, but in the situation where 10 there's this constructive search, then the 11 Fourth Amendment standards that apply to a 12 literal search, what the Court called an actual 13 search, are different. 14 fundamentally -­ 15 MR. DREEBEN: 16 JUSTICE ALITO: Isn't that -- so it's a 17 18 Yes. -- different framework. MR. DREEBEN: It is a completely 19 different framework because of both a lesser 20 degree of intrusion, because the government is 21 not going in itself and conducting search 22 activity, and because there's an opportunity 23 for pre-compliance judicial review. 24 25 JUSTICE BREYER: Right. And maybe you've got the answer to -- right there. Heritage Reporting Corporation You Official - Subject to Final Review 66 1 say how do we distinguish this case from all 2 the cases where you wanted to get the 3 commercial information. 4 In respect to the commercial 5 information, banking and, you know, all the 6 things for white-collar crime, it's commercial 7 information. 8 you can perhaps have the protections there that 9 -- that you were talking about here, but this And you have the subpoenas and 10 is highly personal information on a -- on a 11 line, you say, it's somewhat closer to the 12 diagnostic testing than it is to purely 13 commercial information. 14 Now, I could imagine writing a 15 paragraph like that and saying leaving the 16 other for the future. 17 -- Does that work or does 18 MR. DREEBEN: 19 JUSTICE BREYER: 20 23 24 25 It -­ Now, I know you'd say no -­ 21 22 No. MR. DREEBEN: It doesn't -- doesn't work. JUSTICE BREYER: -- but I need to know the reason. MR. DREEBEN: Well, let me -- the Heritage Reporting Corporation Official - Subject to Final Review 67 1 basic principle here in the Fourth Amendment is 2 how the government acquires information 3 matters, not the sensitivity of the 4 information. 5 I have to disagree, Justice Breyer, 6 that medical information is given heightened 7 protection under the Fourth Amendment. 8 9 JUSTICE BREYER: MR. DREEBEN: Well, no. The Ferguson case, which I think -­ 12 JUSTICE BREYER: 13 MR. DREEBEN: 14 But the diagnostic -­ the diagnostic test to the hospital. 10 11 This -­ Yeah. -- you're referring to -­ 15 JUSTICE BREYER: 16 MR. DREEBEN: Yeah, I am. -- involved a compelled 17 search by the government, a urine test that the 18 Court assumed was given without informed 19 consent, so it was a government search by 20 government hospital personnel that acquired the 21 urine -­ 22 JUSTICE BREYER: 23 MR. DREEBEN: All right. -- for law enforcement 24 purposes. That's the government search. 25 think this also answers Justice Sotomayor's Heritage Reporting Corporation I Official - Subject to Final Review 68 1 question about acquiring GPS information under 2 E911 from a handset. 3 into the phone, pulls out information. 4 would concede, is a search. The government reaches That, I 5 What we're doing here is not going to 6 the individual and extracting information from 7 him. 8 third-party provider, relying on the line of 9 cases that Justice Alito alluded to, that allow 10 11 We're getting information from a us to use subpoenas. JUSTICE KAGAN: But -- but, Mr. 12 Dreeben, that line of cases was developed in a 13 period in which third parties did not have this 14 kind of information, valid -­ 15 MR. DREEBEN: Not this kind 16 specifically, Justice Kagan, but in the 17 dissenting opinion in Smith, Justice Stewart 18 warned that you're getting incredibly intimate 19 information when you get the phone numbers of 20 people who you have called. 21 And I would submit that if the Court 22 thinks about it, the information you get if you 23 know who you are calling and the inferences you 24 can draw about what kinds of conversations 25 people are having are extremely sensitive with Heritage Reporting Corporation Official - Subject to Final Review 69 1 -- 2 JUSTICE KAGAN: Yeah, but if -­ 3 MR. DREEBEN: -- dialed phone numbers. 4 JUSTICE KAGAN: -- I understand what 5 you're saying, you're basically saying, well, 6 because the government is going to a 7 third-party here and doing it by subpoena, it 8 doesn't matter how sensitive the information 9 is. It doesn't matter whether there's really a 10 lack of voluntariness on the individual's part 11 in terms of conveying that information to the 12 third-party. 13 And we could go on and we could give, 14 you know, other factors that you might think in 15 a sensible world would matter to this question. 16 And you're saying that all of that is trumped 17 by the fact that the government is doing this 18 by subpoena, rather than by setting up its own 19 cell towers. 20 MR. DREEBEN: I don't think I did say 21 that, Justice Kagan, because there is an 22 element here of voluntariness in deciding to 23 contract with a cell company, just like there's 24 an element of voluntariness in getting a 25 landline phone and making calls, and there's an Heritage Reporting Corporation Official - Subject to Final Review 70 1 element of voluntariness in signing up for a 2 bank account and using a debit card to purchase 3 -- 4 CHIEF JUSTICE ROBERTS: 5 MR. DREEBEN: 6 That -­ -- everything in your life. 7 CHIEF JUSTICE ROBERTS: 8 inconsistent with our decision in Riley, 9 though, which emphasized that you really don't 10 have a choice these days if you want to have a 11 cell phone. 12 MR. DREEBEN: -- that sounds Well, and not -- not in 13 a practical sense, I agree with you, Chief 14 Justice Roberts, that Riley did point out that 15 cell phones were necessities. 16 Smith and Miller pointed out that a private 17 telephone has become a necessity of business 18 and personal life, and a bank account is a 19 necessity of carrying out financial 20 transactions. 21 JUSTICE GINSBURG: 22 MR. DREEBEN: 23 JUSTICE GINSBURG: The dissents in Mr. Dreeben -­ The fact that -­ -- what you do in 24 bringing up Riley with the distinction you made 25 between -- you say it's the means that the Heritage Reporting Corporation Official - Subject to Final Review 71 1 government is using -- ­ 2 MR. DREEBEN: Uh-huh. 3 JUSTICE GINSBURG: -- we must be 4 concerned about, not the information it 5 obtains. 6 traditional means. 7 arrest. 8 9 But in Riley, it was the most It was a search into an MR. DREEBEN: Yes, it was a search. And I think that that's the key point. The 10 Court in footnote 1 of Riley actually reserved 11 whether acquiring aggregated information 12 through other means would be subject to a 13 different Fourth Amendment analysis. 14 JUSTICE GORSUCH: Mr. Dreeben, it 15 seems like your whole argument boils down to if 16 we get it from a third-party we're okay, 17 regardless of property interest, regardless of 18 anything else. 19 original understanding of the Constitution and 20 writs of assistance? 21 But how does that fit with the You know, John Adams said one of the 22 reasons for the war was the use by the 23 government of third parties to obtain 24 information forced them to help as their 25 snitches and snoops. Why -- why isn't this Heritage Reporting Corporation Official - Subject to Final Review 72 1 argument exactly what the framers were 2 concerned about? 3 MR. DREEBEN: Well, I think that those 4 -- those were writs that allowed people acting 5 under governmental power to enter any place 6 they wanted to search for anything that they 7 wanted. 8 9 10 JUSTICE GORSUCH: Isn't that exactly your argument here, that so long as a third party's involved, we can get anything we want? 11 MR. DREEBEN: Well, I think the search 12 is being carried out under a writ of assistance 13 by a government agent, operating under 14 government authority; whereas here, we -- the 15 -- if there's a search in the acquisition of 16 cell site information, then it's the cell site 17 company that is acquiring that information 18 without governmental instigation, without -­ 19 JUSTICE GORSUCH: 20 MR. DREEBEN: 21 22 23 24 25 The subpoena -­ -- governmental agency -­ JUSTICE GORSUCH: -- being, though, the equivalent of a writ of assistance? MR. DREEBEN: Oh, I don't think a subpoena is an equivalent of a writ of Heritage Reporting Corporation Official - Subject to Final Review 73 1 assistance. 2 agent to go into any house, to rip open 3 anything looking for contraband, no 4 limitations. 5 A writ of assistance allowed the JUSTICE GORSUCH: Yeah. And you can 6 subpoena anything that any company has anywhere 7 in the globe regardless of any property rights, 8 regardless of any privacy interests, simply 9 because it's a third-party? 10 MR. DREEBEN: So I -- I think that, as 11 Justice Alito was explaining, there is a 12 traditional understanding that dates back to 13 the time of the founding that subpoenas stand 14 on a different footing from search warrants. 15 And they do that because they are less 16 intrusive, since they do not require the 17 government going into private property and 18 searching itself. 19 20 CHIEF JUSTICE ROBERTS: Why does that -­ 21 MR. DREEBEN: 22 CHIEF JUSTICE ROBERTS: 23 that make a difference? 24 person who gets it: 25 do. And -­ -- why does The subpoena tells the this is what you have to Heritage Reporting Corporation Official - Subject to Final Review 74 1 2 MR. DREEBEN: Well, I think that most -- 3 CHIEF JUSTICE ROBERTS: Why is that 4 less intrusive? 5 the information is accessible to the 6 government. 7 The whole question is whether MR. DREEBEN: So I -- I think most 8 basically it makes a difference because this 9 Court's cases have said so from time 10 immemorial. 11 is that if I go into your house to search, I 12 will expose a great deal of additional 13 information to government view beyond what is 14 sought by the terms of an authorization. 15 16 And the reason why it has said so And so, if I could just complete the answer. 17 CHIEF JUSTICE ROBERTS: 18 MR. DREEBEN: Sure. The -- the difference 19 here is that the government is operating under 20 court supervision with an order that provides 21 particularity. 22 of a neutral magistrate between the government 23 and the acquisition of information. 24 does require a showing that is less than 25 probable cause but is above what a traditional It provides the interposition And it Heritage Reporting Corporation Official - Subject to Final Review 75 1 subpoena requires. 2 So even if the Court does think that 3 there is a search here, Congress has properly, 4 in our view, calibrated the balancing of 5 interests, and the Court should affirm it as a 6 constitutionally reasonable order. 7 8 CHIEF JUSTICE ROBERTS: counsel. 9 10 Four minutes, Mr. Wessler. REBUTTAL ARGUMENT OF NATHAN F. WESSLER 11 ON BEHALF OF PETITIONER 12 13 14 Thank you, MR. WESSLER: Thank you, Mr. Chief Justice. If I could begin, I have several 15 points, but to begin on that subpoena point. 16 And, Justice Alito, to your question about the 17 historical pedigree of the subpoena doctrine, I 18 think this Court made absolutely clear in Riley 19 that the historical pedigree of older Fourth 20 Amendment doctrines does not automatically 21 determine the outcome in the digital age. 22 And as you yourself, Your Honor 23 recognized in your concurrence there, the 24 search incident to arrest doctrine had its 25 origins at least a century before the -- the Heritage Reporting Corporation Official - Subject to Final Review 76 1 framing of the Fourth Amendment, and yet it 2 yielded to a new understanding. 3 And I think that -­ 4 JUSTICE ALITO: That's certainly true, 5 but you'd want to -- so this is -- this would 6 be revolutionary, to fundamentally change the 7 understanding of the application of the Fourth 8 Amendment to subpoenas. 9 that? 10 MR. WESSLER: Do you want us to do Well, I -- I don't think 11 it's revolutionary at all. And I think the 12 reason that is is the government's concession, 13 as I hear it, that the contents of electronic 14 communications should be protected. 15 Once we recognized that there is an 16 exception for the contents of e-mails, we've 17 already acknowledged that the subpoena doctrine 18 can't stand in its most severe form. 19 if the contents of e-mails are to be protected, 20 it's not because they are sealed in transit, 21 as, Justice Sotomayor, you pointed out. 22 And if -­ They're unlike in a fundamental way 23 the paper letters at issue in 1877 in Ex Parte 24 Jackson. 25 accessed by the service providers, as the They are actually accessible to and Heritage Reporting Corporation Official - Subject to Final Review 77 1 government has argued in other cases, including 2 the Microsoft case to be heard later this -­ 3 this term. 4 So, if they're to be protected, it's 5 because of their sensitivity and because of 6 people's long-standing expectation that their 7 communications are highly sensitive and would 8 remain private. 9 And as the concurrences at least 10 recognized in Jones, also highly private and 11 sensitive are these kinds of longer-term 12 location records. 13 Second, I just want to highlight that 14 the -- the government, Mr. Dreeben, as I heard 15 him, conceded that the precision of these 16 records doesn't matter at all to the 17 government's theory here. 18 They could be precise, I take it, to 19 within a single inch. And the fact that a 20 third party has custody of them would, in the 21 government's view, vitiate any expectation of 22 privacy; which we think would be a very 23 destructive rule. 24 Third, this is not an area where the 25 Court should pause and wait for Congress to -­ Heritage Reporting Corporation Official - Subject to Final Review 78 1 to act. My -- my colleague intimated that in 2 an area of -- of rapidly changing technology, 3 it's appropriate to -- to perhaps abstain and 4 let Congress step in. 5 two decades into the cell phone age. 6 an area where, as the Court recognized in 7 Riley, people's use of this technology is well 8 settled and only becoming more pervasive over 9 time. We -- we are well over This is We know the -- the direction, the cases 10 before the Court now, and -- and it is crucial 11 that the Court act. 12 And, finally, to the property 13 principles, first one -- one statutory point, 14 Justice Alito, Section 222(c)(2) actually does 15 give the customer the right to obtain the 16 information. 17 brief, the carriers have not reliably complied 18 with that, at least as of several years ago, 19 but -­ 20 Now, as we pointed out in our JUSTICE ALITO: No, I understand that, 21 but you said in your brief that the -- that the 22 companies wouldn't comply. 23 MR. WESSLER: That I -- I don't know 24 what the state of -- of play is today. 25 few years ago, the last time I have Heritage Reporting Corporation As of a Official - Subject to Final Review 79 1 information, they were not complying. 2 but under Fourth Amendment property principles, 3 and property law more generally, it's of course 4 quite common for a property right to be divided 5 between different -- different parties; for the 6 bundle of sticks to be split up. 7 people have a right to exclude and a right to 8 determine use of the data secured by the 9 Telecommunications Act. 10 But -­ And here Certainly, we acknowledge that the -­ 11 the provider itself has some property right, 12 maybe several of those sticks in the bundle, 13 but that doesn't eliminate some right on -- on 14 the part of -- of -- of the customer. 15 16 17 If the Court has no further questions, we ask that you reverse the Sixth Circuit. JUSTICE ALITO: Could I just ask you 18 this question: Is any of this going to do any 19 good for -- for Mr. Carpenter? 20 (Laughter.) 21 MR. WESSLER: 22 JUSTICE ALITO: Uh -­ Is he going to get 23 anything suppressed? Because under Illinois 24 versus Krull, if a search is conducted in 25 reliance on a statute authorizing the search in Heritage Reporting Corporation Official - Subject to Final Review 80 1 accordance with a certain procedure, the 2 exclusionary rule doesn't apply. 3 4 MR. WESSLER: So the -- that question is not before this -- this Court. 7 JUSTICE ALITO: 8 MR. WESSLER: 9 Thank you. 5 6 May I answer? remand. No, I understand that. It will be dealt with on I think that we have arguments on -­ 10 on both of the -- the types -- quite strong 11 arguments on both of the prongs of the good 12 faith exception. 13 On the statutory prong, the Stored 14 Communications Act provides two mechanisms, an 15 order and a warrant. 16 makes this fundamentally different than other 17 statutes that may clearly provide a means. 18 And we think that that And, second, on the court order, this 19 is unlike a warrant, and all of this Court's 20 cases on the good faith exception have dealt 21 with warrants based on affidavits from an 22 investigating officer, this is an unsworn 23 application from a prosecutor who we think 24 should know better. 25 Thank you. Heritage Reporting Corporation Official - Subject to Final Review 81 1 2 3 4 CHIEF JUSTICE ROBERTS: counsel. Thank you, The case is submitted. (Whereupon, at 11:27 a.m., the case in the above-entitled matter was submitted.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation 82 Official - Subject to Final Review � 1 1 [2] 20:6 71:10 10 [2] 3:7 29:12 10:05 [2] 1:14 3:2 100 [1] 28:25 101 [1] 30:1 10th [1] 14:1 11:27 [1] 81:3 120 [1] 10:8 127 [9] 3:17 10:4 13:16 24:7 25:24 27:3 31:22 36:15 38:7 152 [1] 36:15 16-402 [1] 3:4 18,000 [1] 20:9 1877 [1] 76:23 1986 [2] 20:5,7 1994 [4] 19:7 20:6,8,10 2 20 2010 [2] 17:21 28:16 2011 [1] 28:16 2017 [1] 1:10 221 [1] 38:7 222 [4] 39:9 56:17 59:8 60:6 222(c)(2 [1] 78:14 24 [10] 8:1 9:2,8 11:15 12:15,19 13: [1] 35:7 16 24:7 25:25 27:16 24-hour [7] 7:14,14 9:10 11:4 13: 18,20 14:16 24/7 [2] 47:11,14 2703(c)(1)(A [1] 19:10 2703(d [4] 19:8,19 21:15 37:13 29 [1] 1:10 3 3 17:14 30 [1] 13:16 300,000 [1] 20:10 388 [1] 38:6 [2] 2:4 4 4 40 [2] 2:7 13:16 454 [1] 38:5 [1] 17:14 agree [17] 5:10 6:11 15:11,21 17: 18 abstain [1] 78:3 abuse [1] 37:5 accept [1] 32:13 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[16] 1:13 2:2,5,8 3:4,8, 12 12:25 19:16 31:19 39:9 40:1 71:15 72:1,9 75:10 arguments [3] 21:4 80:9,11 around [1] 36:17 arrest [2] 71:7 75:24 Article [1] 60:3 articulable [1] 50:10 articulated [1] 40:7 aside [2] 38:15 52:3 asks [1] 40:23 aspect [1] 35:25 aspects [1] 32:1 assistance [5] 71:20 72:12,23 73: 1,1 associations [2] 3:20 5:15 assume [2] 19:13 60:23 assumed [1] 67:18 assuming [1] 4:3 assumption [1] 53:3 attaching [1] 46:24 attempted [1] 44:9 attributes [1] 61:12 authorities [1] 11:20 authority [1] 72:14 authorization [1] 74:14 authorizing [1] 79:25 automatically [3] 15:4 16:12 75: 20 available [6] 44:21 45:23,24 48:5, 6 60:24 average [1] 30:2 avoid [4] 10:12 31:3 48:17,18 B back [7] 9:2 12:15 15:17 33:18 64: 24 65:7 73:12 bag [6] 23:19,20,21,24,25 24:2 balance [1] 38:12 balancing [1] 75:4 bank [19] 5:2,5,11,18 6:3,18 8:3 32: 11 42:6,7,8,10,11,17,18,21,22 70: 2,18 bank's [1] 42:8 banking [2] 42:5 66:5 based [6] 14:17 29:15 30:21 40:21 50:10 80:21 baselines [1] 63:20 basic [4] 36:20 42:1 51:14 67:1 basically [7] 12:15 13:14 22:20 32: 22 51:8 69:5 74:8 basis [1] 11:4 become [2] 29:10 70:17 becoming [1] 78:8 bed [1] 43:4 bedrock [1] 44:19 bedroom [5] 14:8 43:1,11,13 44:2 beeper [2] 42:25 43:10 beepers [1] 42:25 begging [3] 35:9 62:15 63:9 begin [3] 34:10 75:14,15 beginning [1] 22:20 Heritage Reporting Corporation Sheet 1 1 - beginning 83 Official - Subject to Final Review � begins [1] 17:7 car [3] 29:1 46:16,25 behalf [8] 1:18,20 2:4,7,10 3:13 40: card [3] 33:3,4 70:2 2 75:11 careful [1] 59:19 belief [1] 14:13 carefully [1] 50:6 believe [6] 13:23 24:4 33:7 36:5 CARPENTER [3] 1:3 3:4 79:19 48:21 50:12 Carpenter's [1] 22:1 better [1] 80:24 carried [1] 72:12 between [17] 7:23 8:14 11:19,22 carrier [3] 10:22 16:14 56:20 13:13,22 27:11 29:21 37:13 44:4 carriers [1] 78:17 45:10 47:8 62:3 64:23 70:25 74: carry [3] 27:21 42:8,15 22 79:5 carrying [2] 41:10 70:19 beyond [5] 14:13 22:15 64:1,9 74: Case [28] 3:4,16 4:3 6:8 8:11 10:2 14:24 21:18,22 24:25 27:13 28:17 30:2 36:24 38:4 40:8 43:18 44:6 47:8,21 52:8 57:10 64:23 66:1 67: 11 77:2 81:2,3 cases [22] 4:9 21:15,16 22:15 32:8, 9 33:17 36:22 38:2 47:4,10,13 64: 25 65:7,8 66:2 68:9,12 74:9 77:1 78:9 80:20 cash [1] 5:4 catalogue [1] 46:14 13 65:19 80:10,11 categorically [2] 27:19 37:1 bothering [1] 11:22 categories [1] 33:20 bottom [1] 4:13 category [1] 24:12 box [1] 34:22 cause [12] 10:18 13:22 21:25 22:6 32:9 36:10,19 37:21 43:14 48:23 Boyd [1] 65:7 BREYER [15] 31:1,18 33:16 34:14, 50:12 74:25 18 64:15,16 65:24 66:19,23 67:5, caution [1] 18:2 8,12,15,22 cell [45] 3:18 4:6 5:1 8:7 14:6,7,14 15:7 20:7,9,14,21 22:25 25:2 26: brief [10] 7:24 17:14 19:17 21:14 21 29:19 30:14,15,24 40:8,12,14, 24:11 31:4 38:4 44:8 78:17,21 16,18 41:21 42:2 43:1,16,19 44:5, briefly [1] 15:17 7 46:22 48:3,10,11 55:4 60:17,20 briefs [3] 28:1,2 30:6 69:19,23 70:11,15 72:16,16 78:5 bright [2] 7:22 9:10 bringing [1] 70:24 cells [1] 29:11 broad [2] 38:3 62:1 cellular [1] 47:23 broadcast [1] 29:12 century [1] 75:25 broadly [1] 17:24 cert [1] 38:8 broke [1] 38:19 certain [4] 9:23 33:22 61:18 80:1 Brother [1] 48:18 certainly [14] 4:17 11:25 16:12 20: 20 24:14 25:6,13 32:20 36:9 37: browsing [1] 24:20 21 39:16 41:14 76:4 79:10 bundle [2] 79:6,12 business [17] 35:22 40:10,19,22 cetera [1] 34:24 41:2 42:8 44:6,8 45:25,25 46:20 change [4] 31:25 32:1 56:14 76:6 47:25 50:17 54:18 63:5,7 70:17 changing [2] 49:12 78:2 business's [1] 41:3 character [1] 54:19 businesses [1] 26:21 characterized [1] 56:12 buys [1] 5:7 chart [1] 5:13 check [6] 6:13 42:7,7,16,20,21 C checking [1] 15:4 cafe [1] 29:5 checkup [1] 29:4 calibrated [2] 57:24 75:4 CHIEF [23] 3:3,14 11:3,17 12:13 call [4] 8:16 16:11 41:18,20 31:2 34:12,16 35:13 39:23 40:3 called [5] 25:1,10 41:17 65:12 68: 41:8 64:14 70:4,7,13 73:19,22 74: 20 3,17 75:7,12 81:1 calling [3] 25:10 48:9 68:23 choice [1] 70:10 calls [9] 15:2 40:16 41:23,24 46:2 choose [2] 40:18 45:6 48:2 51:1,17 69:25 Circuit [2] 38:8 79:16 came [2] 1:12 8:16 circumstance [3] 23:10,11 27:14 cannot [5] 5:13 40:12 46:14 56:21 circumstances [3] 32:19 57:25 61:22 62:18 canvassing [1] 12:8 circumvention [1] 9:20 capability [4] 12:22 30:14,18,19 claim [3] 38:23 52:12 63:23 13 big [3] 31:25 42:11 48:17 bill [1] 23:4 bitter [2] 59:20,21 blah [3] 35:23,23,23 body [2] 33:24 49:14 boils [1] 71:15 Bond [2] 23:15 50:24 books [1] 4:4 both [9] 4:23 15:25 24:13 47:4,9, clarity [1] 34:13 concession [1] 76:12 clear [6] 6:20 26:2 45:16 61:19 63: conclude [1] 51:15 17 75:18 conclusion [1] 47:15 clearly [2] 20:19 80:17 conclusory [1] 22:2 client [1] 38:22 concurrence [1] 75:23 clinic [1] 29:4 concurrences [5] 12:4 24:15 26: 2 27:9 77:9 closer [2] 29:20 66:11 closest [1] 39:2 concurring [3] 6:19 25:18 35:7 codefendant [1] 22:4 conduct [1] 42:18 cognizance [1] 20:25 conducted [1] 79:24 coherence [1] 12:25 conducting [1] 65:21 collaborator [1] 21:20 confessed [1] 21:19 collaborators [1] 21:19 confronted [1] 63:23 collar [1] 32:6 Congress [26] 19:6 20:4,19 49:14, 15,19 57:18,24 58:2 59:25 60:2,5, colleague [3] 48:16 52:9 78:1 6 61:6,14 62:8,10,11,13,22 63:11, colleagues [1] 23:22 13 64:5 75:3 77:25 78:4 collecting [1] 60:8 collection [2] 3:17,21 Congress's [4] 19:24 49:24 58:3 64:8 combination [1] 28:13 combined [1] 28:7 conjunction [1] 56:23 come [1] 28:17 connection [1] 16:13 comes [2] 14:17 40:23 connections [2] 15:3 29:25 coming [1] 30:22 consent [4] 18:14 23:17 32:21 67: 19 commence [1] 3:5 commerce [3] 4:22 6:16 16:8 consequences [1] 52:19 commercial [4] 66:3,4,6,13 consideration [1] 12:19 commercials [1] 16:20 considered [1] 52:1 committed [1] 13:23 consistent [1] 34:8 common [2] 58:20 79:4 constitute [1] 50:19 communicate [4] 40:15 46:5 47: Constitution [8] 18:25 49:2 50:3, 25 51:9 4 59:14,15 62:23 71:19 [3] 18:8 49:22 57: 17 45:17 12 Communications [10] 19:5,19 20: constitutionalize [1] 57:23 4 24:10 45:15 63:24 64:6 76:14 constitutionally [1] 75:6 77:7 80:14 constructive [2] 65:9,10 communicative [1] 34:4 content [10] 22:22,24 24:12,16 45: 7,10 46:3 51:1,17 64:10 community [1] 12:16 companies [9] 30:15 40:8,17 45:5 contents [9] 24:9 34:5,5 44:16 45: 47:22 60:7 61:17,25 78:22 15,17 76:13,16,19 companies' [1] 18:9 context [6] 18:24 21:10 25:21 36: company [23] 8:19 16:21 18:10 23: 21 59:23 64:5 3,7,9 41:9,11,16,19,19 44:11 45:3 contexts [1] 39:14 56:2,3,4 60:17,20 61:2 63:6 69:23 contiguous [1] 7:14 72:17 73:6 contraband [1] 73:3 company's [2] 17:22 60:22 contract [5] 16:23,24,25 17:21 69: 23 comparison [1] 30:2 compelled [1] 67:16 contractual [2] 18:4,10 complaint [1] 14:19 contractualize [1] 18:11 complete [2] 24:20 74:15 control [2] 44:25 59:14 completely [2] 31:20 65:18 controls [2] 58:22 59:15 complex [1] 54:23 conversation [4] 22:22,24 23:8 45:4 compliance [1] 18:24 complied [1] 78:17 conversations [3] 14:15 44:12 68: 24 complies [1] 37:2 comply [1] 78:22 conversion [6] 38:22,23 39:1,16 52:8,12 complying [1] 79:1 compromise [2] 11:8 19:22 conveyed [3] 4:20 16:5 54:18 concede [3] 55:10,17 68:4 conveying [1] 69:11 conceded [1] 77:15 cooperating [2] 22:3,4 concept [2] 48:18 49:3 corollary [1] 63:15 concern [5] 10:23 13:3,8,12 35:15 correct [1] 14:22 concerned [2] 71:4 72:2 corroborative [1] 10:6 concerns [2] 13:5 15:13 couldn't [1] 60:2 communication [4] 24:16 44:17, constitutional Heritage Reporting Corporation Sheet 2 begins - couldn't 84 Official - Subject to Final Review � counsel [7] 3:6 31:2 39:24 53:5, 23 75:8 81:2 count [1] 46:10 couple [1] 46:9 course [2] 63:7 79:3 COURT [60] 1:1,13 3:15 4:9,19 7: 15,21 9:9,12 10:3 11:13,14 12:1,3 13:9 17:3 18:3,5 20:24 22:1,11 23: 24 25:20 34:10 35:9,11 36:24 40: 4,6 43:18 45:11 46:25 47:2 51:7, 15 57:21 59:3,18,22 62:19 63:1, 15,17 64:2,25 65:12 67:18 68:21 71:10 74:20 75:2,5,18 77:25 78:6, 10,11 79:15 80:6,18 Court's [4] 9:20 31:9 74:9 80:19 courtroom [2] 15:9 29:13 courts [8] 32:25 33:17 34:9 35:2,6 37:18 39:10,12 craft [1] 9:12 crazy [1] 18:6 create [6] 29:25 41:11 50:1 55:24, 25 62:4 created [5] 4:20 41:9 50:25 61:8 63:25 creates [5] 54:4 59:4,6,12,17 creating [1] 50:24 credit [2] 33:2,3 crime [8] 8:3,21 13:19,23,25 32:6 47:5 66:6 crimes [2] 9:22 26:7 criminal [3] 14:3 32:9 50:13 crucial [1] 78:10 CSI [1] 17:10 CSLI [1] 7:7 current [1] 35:18 currently [1] 38:9 custody [1] 77:20 customer [17] 17:1 41:3,6 46:1 56: 6,18 59:6 60:15,18,18 61:10,11 62:7 63:8,11 78:15 79:14 customer's [1] 62:6 customers [2] 40:11 62:5 cuts [1] 12:19 decided [5] 22:11 27:16 47:22 63: 3,4 deciding [1] 69:22 decision [1] 70:8 decisions [2] 31:10 40:21 declare [2] 15:15 56:17 defendant [2] 10:20 38:6 defer [2] 49:24 50:1 define [2] 7:22 33:19 defined [1] 50:6 definitely [1] 63:1 degree [1] 65:20 delineate [1] 9:23 dense [1] 29:20 deny [3] 55:1,4,8 Department [1] 1:20 Deputy [1] 1:19 describe [1] 64:25 destroy [1] 56:3 destroying [1] 56:4 destructive [1] 77:23 details [3] 14:4,10 21:20 determination [3] 19:24 36:19 58: 4 determine [4] 59:9 60:3 75:21 79: 8 determined [1] 46:21 Detroit [1] 44:9 developed [2] 39:11 68:12 developing [1] 43:23 device [1] 46:25 devices [1] 27:21 devotes [1] 26:8 diagnostic [3] 66:12 67:8,9 dial [1] 48:2 dialed [1] 69:3 differ [1] 42:2 difference [16] 8:14 10:9 13:22 27: discussion [1] 54:23 dissent [1] 22:22 dissenting [2] 35:8 68:17 dissents [1] 70:15 distance [1] 29:21 distinction [3] 16:7 44:4 70:24 distinguish [2] 4:15 66:1 distinguished [2] 15:18,24 disturbs [1] 3:22 divided [1] 79:4 doctor's [1] 14:9 doctors [1] 23:18 doctrine [8] 11:8 23:14 41:4 63:5, 16 75:17,24 76:17 doctrines [1] 75:20 documents [4] 17:25 18:4,10 65: eight [2] 9:5,6 either [2] 18:4 55:11 elapsed [1] 14:23 electronic [3] 24:9 31:23 76:13 element [3] 69:22,24 70:1 eliminate [1] 79:13 emerge [1] 34:13 emphasized [1] 70:9 emphasizing [1] 7:3 empirical [2] 16:16 17:13 enacted [1] 20:4 end [3] 18:7 22:3 23:5 endeavor [1] 26:3 enforcement [7] 20:21 25:23 26:8 43:13 46:13 60:12 67:23 engage [1] 42:5 4 engaged [1] 6:12 Doe [2] 8:16,20 enhanced [2] 63:18 64:8 doing [7] 5:16 13:15 40:24,25 68:5 enough [3] 17:8 21:17,21 69:7,17 enter [1] 72:5 down [3] 24:7 51:20 71:15 entered [1] 24:19 dragnet [4] 13:6,14 14:3,20 entertainment [1] 5:22 draw [5] 7:21 9:9,13 19:22 68:24 entire [2] 13:20 35:20 drawers [1] 35:22 entirely [1] 22:7 drawing [1] 11:18 envelope [2] 44:24,24 drawn [1] 4:10 equally [1] 9:17 draws [1] 10:3 equivalent [2] 72:23,25 DREEBEN [100] 1:19 2:6 39:25 40: essence [1] 14:18 1,3 41:14 42:13,23 43:15,22,24 essentially [1] 40:9 44:3,14 45:8 46:7,18 47:20 48:14, establishments [2] 5:22,22 25 49:7,11 50:16,21 51:5,19 52: estimate [2] 29:14 30:20 17,22,24 53:2,13,15,19 54:2,9,15 et [1] 34:23 55:3,10,13,16,20 56:8,19,22 57:5, even [17] 12:15 13:16,25 14:11 17: 14,18 58:5,6,9,15,19,24 59:2,7,11, 16,22 60:4,14 61:3,5,13,24 62:8, 11,19,25 63:13 64:12,22 65:15,18 66:18,21,25 67:10,13,16,23 68:12, 15 69:3,20 70:5,12,21,22 71:2,8, 11 28:14,20 35:19 37:13 42:12 45: 14 72:3,11,20,24 73:10,21 74:1,7, 18 77:14 10 47:7 62:3 64:23 73:23 74:8,18 different [20] 13:3 42:14 44:11,15, dressing [1] 14:11 18 46:8,9,17,19 47:13,17 54:24 drew [2] 11:14 22:25 65:13,16,19 71:13 73:14 79:5,5 drill [1] 51:20 80:16 drugs [1] 32:6 D differentiate [1] 8:25 due [1] 59:23 D.C [2] 1:9,20 differentiating [1] 13:13 dump [4] 8:3,6,14 13:4 data [23] 4:13 10:4,16,19 11:1 14: differently [1] 31:6 duration [1] 8:21 23 15:1,2 16:13 24:22 26:22 28: difficult [2] 10:1 19:22 durational [1] 9:21 18,23 29:2,10,18,25 30:1,23 33:24, digital [6] 4:13 24:12,19 35:3,10 during [1] 13:20 25 38:5 79:8 75:21 E dates [1] 73:12 direct [2] 30:12 47:4 day [14] 7:8,8,8 8:20 9:16 10:7 11: directed [1] 6:17 e-mail [3] 45:7 54:20 55:5 10 13:25 14:1,1,1 27:17 30:1 49:6 direction [2] 18:4 78:9 e-mails [5] 15:5 34:5 45:6 76:16, 19 days [16] 3:17 9:24 10:4,8 24:7 25: directly [3] 13:9 39:19 42:17 [3] 30:8,16 68:2 24 27:3,17 31:22 32:17,18 36:15 E911 disagree [3] 15:21 25:7 67:5 [5] 7:8,9 9:18 23:5 36:17 38:5,7,7 70:10 each [1] disclosable 23:2 [1] deal [2] 19:14 74:12 disclose [12] 5:5,6,7,8 17:2,22 18: earlier 23:13 [1] 45:4 dealing [2] 45:13,14 easily 22 22:21 23:21 51:1 56:21 62:6 dealt [2] 80:8,20 easy [1] 9:23 disclosed [3] 23:17 56:24 62:12 [2] death [1] 23:10 disclosure [4] 19:6 22:21 45:1 59: economic 38:21 52:13 [6] 17:21 52:15 53:12,16 54: debatable [1] 16:16 effect 1 14 55:9 debit [1] 70:2 disclosures [1] 17:24 decades [3] 22:11 35:12 78:5 effective [1] 28:7 discrete [1] 33:19 decide [1] 57:10 efforts [1] 64:8 discussing [1] 6:9 5,18 19:3,20 23:6,17 26:3 27:15 28:23 29:19 50:24 56:6 75:2 eventually [1] 33:1 everybody [8] 12:16,16 17:7,9 23: 2 26:22,23,23 everybody's [1] 14:4 everything [3] 5:6 24:21 70:5 everywhere [2] 16:21 43:8 evidence [2] 10:22 29:6 Ex [1] 76:23 exactly [5] 7:22 28:6 47:12 72:1,8 example [7] 5:19 12:9 22:20 34:2 38:23 52:12 55:22 Except [2] 18:16 50:5 exception [6] 11:5 32:24 50:25 76: 16 80:12,20 exceptions [2] 50:23 64:20 exclude [1] 79:7 exclusionary [1] 80:2 exculpatory [2] 10:13,22 Excuse [1] 9:1 existed [1] 55:18 existence [1] 20:20 existing [1] 15:14 expect [4] 10:15 23:23 24:6 48:22 expectation [17] 3:23 6:21 12:6 16:2 19:1 23:9 24:1 26:13,21 27:2 38:16 46:12 52:2,4 64:1 77:6,21 expectations [6] 26:19 44:15 47: 3,18 49:12 64:4 expected [1] 6:23 Heritage Reporting Corporation Sheet 3 counsel - expected 85 Official - Subject to Final Review � explain [2] 18:1 65:1 explaining [1] 73:11 explored [1] 38:24 expose [2] 23:25 74:12 extend [1] 22:15 extended [1] 11:7 extending [1] 22:19 extension [1] 4:11 extensive [1] 48:6 extracting [1] 68:6 extraordinarily [1] 38:3 extraordinary [1] 38:10 extremely [1] 68:25 F face [3] 21:25 58:1,4 fact [9] 21:4 28:11 33:11 49:19 53: 9 64:7 69:17 70:22 77:19 factors [3] 16:1 36:25 69:14 facts [2] 50:10 51:22 failure [1] 49:17 faith [2] 80:12,20 fall [1] 25:5 fallible [1] 31:21 far [3] 24:3 48:8 57:15 favor [1] 17:25 FBI [1] 32:5 FCC [2] 60:24,25 federal [1] 39:6 feel [1] 23:19 feet [1] 28:25 Ferguson [3] 23:15 50:24 67:10 fertility [2] 24:22 33:25 few [4] 28:21 32:23 64:20 78:25 fewer [1] 20:14 fighting [1] 53:23 filling [1] 3:9 finally [1] 78:12 financial [6] 6:12 32:12 33:2 42: 15,18 70:19 financing [1] 32:7 find [2] 12:23 35:21 first [6] 14:21 17:13 28:16,22 37:2 26:15 28:20 31:9,11 38:8 40:7 41: 5 45:19 57:3,22 58:5,8,13,20,21 59:2,9 62:17 63:2,19 64:2,3,9,11 65:1,11 67:1,7 71:13 75:19 76:1,7 79:2 framers [1] 72:1 framework [5] 19:4 51:6,14 65:17, 19 framing [1] 76:1 frankly [1] 26:17 free [1] 6:23 friend [1] 29:5 full [1] 6:15 fully [2] 10:15 21:7 function [2] 40:9,12 functioning [1] 45:18 functions [1] 45:24 fundamental [2] 49:3 76:22 fundamentally [4] 46:19 65:14 76: 6 80:16 funds [2] 4:22 6:17 further [1] 79:15 future [3] 17:6 33:17 66:16 G gather 56:1 gathered [3] 12:7 14:24 15:1 gathering [1] 56:2 General [2] 1:19 28:5 generalized [2] 43:19 48:10 generally [2] 28:18 79:3 generated [2] 35:7 48:1 gets [2] 41:21 73:24 getting [5] 9:25 35:19 68:7,18 69: [2] 10:18 24 GINSBURG [11] 7:2,6 8:1 9:1,15 18:18 21:13 37:12 70:21,23 71:3 give [8] 19:23 21:3 42:7,10,10 60: 10 69:13 78:15 given [7] 5:16 32:19 34:21 49:23 61:25 67:6,18 35:5 38:5 75:17,19 gives [1] 42:11 giving [2] 32:20 42:16 78:13 gleaned [1] 28:4 fit [1] 71:18 globe [1] 73:7 five [7] 6:19 27:17 33:6 35:6 46:10, Google [2] 24:20 34:6 25 47:1 GORSUCH [45] 30:4 38:13 39:3,8, 15,18,21 51:19 52:21,23,25 53:4,8, focus [2] 36:3,12 14,17,22 54:2,6,10,25 55:6,12,15, Focusing [1] 38:14 19 56:16,20,25 57:7,17 58:3,7,11, follow [4] 6:7 31:21,24 52:20 17,21,25 59:5,8,13,20 60:1 71:14 followed [2] 25:23,25 72:8,19,22 73:5 following [2] 6:11 27:3 footing [1] 73:14 Gorsuch's [1] 62:16 footnote [1] 71:10 got [6] 39:9 50:10 53:6,9 60:21 65: 25 force [2] 55:25 56:3 forced [1] 71:24 government [47] 10:15 12:10,21 15:6 17:3 18:20 19:4 21:23 24:11 foremost [1] 50:7 27:25 30:16 36:23 37:4 38:4 40: forever [1] 31:24 20,23 44:21 46:23 48:5,19,22 49: form [1] 76:18 5 50:5,19 51:2 57:1 61:21 65:20 forth [1] 10:9 67:2,17,19,20,24 68:2 69:6,17 71: founding [1] 73:13 1,23 72:13,14 73:17 74:6,13,19,22 four [5] 10:25 18:23 22:11 35:11 75:9 Fourth [37] 7:11 14:1 18:6 22:16 14 57:4 58:11,12 76:12 77:17,21 77:1,14 I governmental [4] 30:8 72:5,18,20 [1] GPS [5] 28:18 29:2 44:4 46:24 68: i.e 33:2 [4] 16:1 36:23,24 59:3 identified 1 [1] 21:19 identifies Graham [1] 38:8 identify [1] 38:3 grand [3] 31:5,10,13 III [2] 57:10 60:3 great [3] 16:6 24:18 74:12 Illinois [1] 79:23 Greenwood [1] 63:21 illustrate [1] 44:9 ground [3] 15:24 32:10 58:20 illustrates [1] 64:7 grounds [1] 15:18 illustration [1] 57:21 [1] grow 44:18 imagine [1] 66:14 guess [1] 16:24 imagined [2] 22:12 35:11 guidance [1] 35:9 immediately [3] 32:15,25 33:5 H immemorial [1] 74:10 Hale [1] 65:7 imperfections [1] 34:20 half [2] 15:9 29:13 implicate [1] 41:5 hamper [1] 60:12 important [4] 22:9 32:8 43:17 63: 14 handset [1] 68:2 happen [3] 17:6 26:14 27:14 inch [1] 77:19 happened [3] 12:17 13:25 26:6 incident [1] 75:24 happens [1] 8:3 incident-related [2] 13:13 14:18 happenstance [1] 18:9 incidental [1] 45:16 happy [1] 11:25 include [1] 49:4 hear [4] 3:3 16:20 34:19 76:13 including [3] 15:3 42:15 77:1 heard [3] 51:11 77:2,14 inconsistent [1] 70:8 hearing [1] 19:18 incredibly [1] 68:18 heart [1] 33:24 inculpatory [1] 10:17 heavily [1] 18:3 indeed [1] 46:13 heightened [1] 67:6 indicate [2] 20:25 61:14 held [4] 4:19 21:11 31:11,14 indicates [1] 53:9 help [2] 11:2 71:24 individual [8] 8:15 12:22,23 13:24 23:20 41:10 50:13 68:6 helps [1] 41:11 Henkel [1] 65:8 individual's [2] 46:15 69:10 herself [1] 10:21 infallible [1] 31:24 highlight [1] 77:13 inference [1] 29:6 highly [7] 24:18 26:3 31:16 35:3 inferences [1] 68:23 66:10 77:7,10 information [120] 3:18,22 4:7,18 5: 2,11 6:3 7:7 9:4,24 10:13 11:7,11, hinging [1] 18:8 historical [8] 15:7 20:21,23 30:24 19,21 15:8,20 16:14 17:2,11,18,23 historically [1] 30:22 history [1] 24:21 hold [2] 17:4,5 home [3] 34:2,3 57:11 homeowner [1] 34:3 Honor [16] 6:11 7:12 9:7 10:14 11: 24 14:21 17:13 20:18 21:6 24:8 25:4,19 27:9 35:1 36:9 75:22 Honor's [1] 54:21 Honors [1] 33:18 hoped [1] 58:18 hospital [3] 23:18 67:9,20 hotels [1] 5:21 hour [1] 8:20 hours [12] 8:1 9:2,8 11:15,15,23 12:15,20 13:16 24:7 25:25 27:17 house [5] 35:20 43:17 51:16 73:2 74:11 however [1] 11:5 hypothetical [9] 26:6 27:7 53:5, 23 54:1,3,7,11 55:7 hypotheticals [1] 53:24 government's [9] 3:17 12:14 22: 18:13 20:22 24:22 25:16,20 28:3, 8,12,14 29:23,25 30:7 31:23 32: 12 33:2,20,23 34:1 36:8 38:18,20 40:13,15,17,19 41:2,18,20,22 43: 20 44:5,6,7,20 45:11,14,22 46:3, 22 48:11 49:5,20 50:11 51:9 52: 11 54:5,12,17 55:5,23 56:7,15,18 57:20 59:1,6 60:8,16,19,19,21,24 61:1,22 62:4,5,6 63:5,11,12 64:19 66:3,5,7,10,13 67:2,4,6 68:1,3,6,7, 14,19,22 69:8,11 71:4,11,24 72:16, 17 74:5,13,23 78:16 79:1 informed [1] 67:18 innocence [1] 10:7 innocent [1] 13:7 insight [1] 30:9 insisting [1] 52:18 instance [1] 49:16 instances [1] 49:7 instigation [1] 72:18 instrument [2] 6:14 16:8 instruments [1] 4:21 insufficient [1] 21:10 intended [1] 61:6 Heritage Reporting Corporation Sheet 4 explain - intended 86 Official - Subject to Final Review � intentional [1] 9:14 interact [1] 61:16 interest [12] 19:15 20:21 51:10 54: 38:13 39:3,8,15,18,21,23 40:3 41: 7,8 42:9,13,23 43:6,15,21,24 44:1, 10,23 46:7,11,19 47:6 48:14 49:1, 4 55:1,4,8 56:10,12 57:25 59:4 71: 8,9,18 50:20,22 51:19,21 52:21,23, 17 25 53:4,8,14,17,22 54:2,6,10,25 interested [2] 33:8,15 55:6,12,15,19,20 56:8,16,20,25 57: interests [13] 50:8 57:12,19,23 58: 7,17 58:3,7,11,17,21,25 59:5,8,13, 9 59:17,24 60:10,11,13 61:16 73: 20 60:1,14 61:3,4,9,20 62:2,9,14, 8 75:5 16,21 63:9 64:12,14,14,15,16,21 interior [1] 34:1 65:16,24 66:19,23 67:5,8,12,15,22, intermediary [2] 45:19 46:4 25 68:9,11,16,17 69:2,4,21 70:4,7, interpersonal [1] 6:14 14,21,23 71:3,14 72:8,19,22 73:5, interposition [1] 74:21 11,19,22 74:3,17 75:7,13,16 76:4, interpretive [1] 34:9 21 78:14,20 79:17,22 80:7 81:1 intervening [1] 29:9 justices [3] 6:19 46:10 47:15 intimate [4] 14:4,10 33:3 68:18 K intimated [1] 78:1 [12] 11:2 27:23 28:15 46:7, KAGAN intrude [4] 47:17 50:5,7 51:3 19 47:6 64:12 68:11,16 69:2,4,21 intrusion [1] 65:20 [1] 51:21 Kagan's [2] intrusive 73:16 74:4 [3] 45:16 51:15 52:4 Katz invade [1] 13:17 keep [4] 4:3 7:2 46:21 61:23 invasion [2] 10:24 26:11 keeping [1] 23:3 investigating [1] 80:22 [16] 4:1 5:24 6:2 7:4 investigation [3] 21:12 36:14 37: KENNEDY 10:5,11 19:16 20:3,12,16 21:2 25: 10 22 26:5,17 27:1,6 investigations [2] 20:2 36:13 kept [2] 30:8,13 invitation [1] 22:14 key [1] 71:9 [4] involve 11:7 13:5 42:16,17 kind [6] 12:10 30:5 60:23 61:22 68: involved [7] 4:16 21:9 46:23,24 14,15 50:13 67:16 72:10 [5] 4:12 20:25 32:11 68:24 kinds [4] involves 13:9 43:19 44:7 46:20 77:11 involving [2] 31:10 49:11 knowledge [2] 6:15 39:13 irrelevant [1] 19:20 [2] isn't [9] 12:18 13:11 21:21 49:3 62: known 6:5,5 [3] 23:2 26:23 34:3 knows 9 64:24 65:13 71:25 72:8 Krull [1] 79:24 issuance [1] 37:17 Kyllo [1] 4:11 issue [8] 3:16 22:21 31:14 35:16 60:3 63:25 64:22 76:23 itself [7] 19:4 28:12 29:2 45:12 65: 21 73:18 79:11 IVORY [1] 1:3 L label [2] 61:7,14 lack [1] 69:10 lacked [1] 28:24 lacks [2] 37:22 38:1 J laid [1] 27:10 Jackson [1] 76:24 landline [2] 48:4 69:25 [1] jewelry 29:3 landscape [1] 22:13 John [4] 8:16,16,20 71:21 large [4] 13:6 29:19 32:8 60:8 joint [1] 41:10 [1] [21] Jones 3:21 4:11 6:20 9:21 12: last 78:25 [1] 18:15 lastly 5 24:15 25:18 26:2 27:10 28:19, [1] 26:10 lasts 23 46:8,8,23 47:8,16 51:23,24 52: later [2] 12:23 77:2 16 64:24 77:10 [1] judge [6] 21:9 25:15,19 37:24 57: laudatory 49:21 [5] 26:25 43:5 53:7 55: Laughter 10 60:3 14 79:20 judgment [2] 26:19 50:2 laundering [1] 32:6 Judicial [3] 11:14 19:25 65:23 law [25] 18:17,23 19:5 20:21 25:22 jury [3] 31:5,10,13 Justice [193] 1:20 3:3,15 4:1,14,25 26:7 32:14 38:17,23 39:7,7 43:13 5:11,17,24,25 6:2,4,8 7:2,4,6,17, 25,25 8:9,13,24 9:1,15 10:5,11 11: 2,3,17 12:13 13:4,11 15:10 16:15 18:16,18 19:16 20:3,12,16 21:2, 13 22:8,18 24:24 25:9,14,22 26:5, 17 27:1,6,23 28:15 30:4 31:1,2,18 33:16 34:12,14,16,18 35:13 37:12 46:12 53:9,17,20 56:14,24 60:12 62:13,17 63:24 64:18 67:23 79:3 laws [1] 63:17 lawyer [1] 53:25 leap [1] 57:22 least [5] 16:1 32:17 75:25 77:9 78: 18 leave [1] 44:1 leaving [1] 66:15 led [2] 38:2 51:14 legal [3] 33:7 40:6 58:1 legislation [1] 31:7 legislative [1] 20:23 legitimate [2] 13:17 60:12 less [15] 4:24 6:8 17:18 25:8,11,11 28:18 29:7,22 33:12 37:5 41:15 73:15 74:4,24 lesser [1] 65:19 lesson [2] 4:10 24:14 letter [1] 44:19 letters [1] 76:23 level [1] 62:22 life [6] 14:10,20 32:2 36:1 70:6,18 likened [1] 37:18 limitations [1] 73:4 limited [5] 4:17,18 9:24 12:7 23:14 limiting [1] 14:2 line [17] 7:22,23 9:9,10,14 10:4 11: 15,18,19,22 19:23 22:25 32:13 33: 11 66:11 68:8,12 lines [2] 30:5 55:21 list [1] 32:8 listen [2] 14:15 23:8 listened [1] 45:3 literal [3] 65:5,6,12 locate [2] 15:8 48:19 located [2] 40:14 48:11 location [27] 3:18 4:7 5:2 15:7 16: 14 17:23 20:22 24:4,17 25:12 29: 15,22,25 30:13,20,25 32:2,14 33: 12,23 35:5 36:8 38:5 43:17 49:6 52:11 77:12 locations [6] 3:19 5:7,14 6:24 12: 8 22:17 long [10] 3:20 5:15 7:23 10:25 11: 5 12:11 14:1 26:11 46:16 72:9 long-standing [2] 3:23 77:6 longer [2] 7:3 10:6 longer-term [4] 3:24 4:6 6:24 77: 11 look [4] 20:24 36:8 43:22 60:7 looked [1] 59:18 looking [6] 13:15 19:3,11 51:22 59:24 73:3 looks [1] 23:25 lot [9] 5:3 29:2 35:13,14 36:12 51: 22 56:9 60:22 63:14 lots [1] 16:21 lower [6] 32:25 33:17 34:9 35:1 37: 17,17 majority [2] 17:16 35:7 mandate [3] 30:16,24 40:20 many [7] 9:5 24:18 28:8 32:1 35:8 42:17 48:8 markedly [2] 14:25 29:10 Maryland [1] 4:4 Massachusetts [1] 11:14 matter [9] 1:12 10:2 12:2 16:9 69: 8,9,15 77:16 81:4 matters [1] 67:3 mean [9] 16:15,19 20:12,13 32:15 36:1,7 49:24 60:16 means [7] 29:18 47:13 51:12 70: 25 71:6,12 80:17 measure [2] 49:21 64:3 measured [1] 49:13 mechanisms [2] 19:8 80:14 media [1] 15:5 medical [5] 23:16,18 24:22 29:4 67:6 meet [1] 29:5 members [3] 20:24 46:25 47:2 memory [1] 31:21 mentioned [3] 22:2 48:15 61:12 message [1] 16:11 messages [2] 15:2,5 messaging [1] 64:4 meters [1] 29:12 methamphetamine [1] 36:7 MetroPCS [2] 16:23 17:20 MICHAEL [3] 1:19 2:6 40:1 Microsoft [1] 77:2 might [7] 9:25 10:12 13:5 24:5 27: 14 55:1 69:14 mightily [1] 35:2 Miller [19] 4:3,3,15,16 15:17,24,25 22:10 32:24 34:20 35:3 41:1,16 42:4 50:25 51:7,8 52:5 70:16 mine [1] 21:16 minute [1] 34:20 minute-by-minute [1] 5:13 minutes [2] 3:7 75:9 Mobile [1] 38:20 moment [6] 5:16 18:2 24:5 38:16 52:4 64:18 moments [1] 24:5 money [1] 32:6 monitor [1] 46:14 month [1] 23:5 months [5] 10:25 12:20 27:17 49: 9,10 Moore [1] 63:22 morning [1] 3:4 most [11] 9:8 14:9 21:14 33:3 43:3 M 48:16 63:22 71:5 74:1,7 76:18 machine [1] 12:10 movement [1] 46:15 made [12] 6:19 22:6 26:2 27:20 43: movements [4] 3:19,24 5:14 12: 13 48:5,6 50:23 61:19 63:17 70: 12 24 75:18 much [7] 5:4 6:7 10:18 15:13 17: magistrate [2] 37:24 74:22 18 26:20 29:20 mail [1] 44:20 multiple [2] 26:9,10 mailed [1] 44:19 must [2] 4:13 71:3 main [1] 46:14 N maintain [1] 51:16 Heritage Reporting Corporation Sheet 5 intentional - must 87 Official - Subject to Final Review � N.Y [1] 1:17 name [1] 22:1 NATHAN [5] 1:17 2:3,9 3:12 75:10 nature [2] 16:3 42:2 nay [1] 62:7 necessary [2] 20:13 64:24 necessities [1] 70:15 necessity [3] 47:24 70:17,19 need [6] 13:17 15:13 18:23 25:20 43:22 66:23 needed [1] 10:19 needs [5] 7:21 23:11 40:22 49:25 50:6 negotiable [3] 4:21 6:13 16:8 Neither [1] 37:8 network [3] 14:24 40:18 56:18 neutral [1] 74:22 never [5] 12:9,14 23:13 27:15 54: 16 New [11] 1:17 15:5,11 27:19 40:5 47:10,14,16 50:14,16 76:2 newer [1] 30:20 nobody [1] 6:23 non-Article [1] 57:9 non-germane [1] 60:5 nondisclosure [1] 61:18 nor [1] 65:5 normal [5] 26:13,18,20 29:18 36: 24 nothing [1] 20:22 notice [2] 37:6,10 November [1] 1:10 number [3] 13:7 16:9 47:15 numbers [9] 23:1,1,4 25:1,9 32:8 48:2 68:19 69:3 O obligation [1] 50:1 obsolete [1] 15:15 obtain [4] 10:21 15:7 71:23 78:15 obtained [6] 10:16 17:23 37:8 38: 5 60:25 63:6 obtains [1] 71:5 obvious [2] 47:8,9 occurred [1] 13:20 office [1] 14:9 officer [1] 80:22 officers [2] 6:6 25:23 Okay [10] 39:21 42:24 43:1,10,11 52:23 53:5 55:12,15 71:16 old [3] 50:15 64:24 65:8 older [2] 4:9 75:19 on-line [1] 24:21 once [3] 22:2 59:3 76:15 one [28] 7:8 9:3,6,16,16 11:10 12: 24 13:25 18:1 21:15 23:22 24:4, 14 30:5 31:4 33:7 34:12,14,16,19 38:4,6,14 51:24 63:4 71:21 78:13, 13 one-to-many [1] 44:17 one-to-one [1] 44:16 only [15] 5:6,7 7:15 9:3 11:12 14:5 15:1 20:7 22:2,16 28:24,25 33:6 34:5 78:8 open [3] 33:14 34:22 73:2 operate [1] 40:17 operating [2] 72:13 74:19 operation [1] 60:22 opinion [4] 25:3 46:11 54:21 68: 17 opinions [3] 25:18 35:8 46:9 opportunity [3] 37:6,11 65:22 opposed [3] 14:3 27:13 35:17 opposing [1] 48:16 opposite [2] 20:17 58:16 oral [5] 1:12 2:2,5 3:12 40:1 order [15] 17:3 19:9,19 22:1 28:6 37:14,15,17 40:16 41:16 64:22 74: 20 75:6 80:15,18 ordering [1] 65:4 orders [1] 21:16 ordinary [1] 63:6 original [2] 36:15 71:19 origins [1] 75:25 other [30] 6:1 7:15 9:13,18 10:21 11:12 15:23 17:21 18:19,19 24:5 25:21 28:8,13 29:5 31:7,12,15 32: 3,23 33:22 36:22 47:2 56:17 64: 17 66:16 69:14 71:12 77:1 80:16 Others [5] 9:25 23:23 32:5 33:6 46: 13 out [17] 7:24 12:23 22:6,23 27:10 41:12 42:8,15 44:18 54:4 68:3 70: 14,16,19 72:12 76:21 78:16 outcome [1] 75:21 outside [1] 6:21 over [16] 3:20 5:15 10:24,25 12:12 13:15,18 20:1,1,1,10 24:7,17 34: 10 78:4,8 overrule [2] 15:14,19 overturn [1] 4:9 own [6] 4:13 40:10,19,21 41:3 69: 18 P PAGE [1] 2:2 pages [1] 17:14 pale [1] 30:2 paper [6] 52:15 53:12,16 54:13 55: 9 76:23 paragraph [1] 66:15 paraphrase [1] 18:5 parking [1] 29:1 parks [1] 29:1 part [5] 20:5 28:22 30:16 69:10 79: 14 Parte [1] 76:23 particular [3] 8:15,17 12:22 particularity [3] 36:11 38:1 74:21 particularly [4] 5:3,24 6:2 36:18 parties [4] 51:2 68:13 71:23 79:5 party [4] 50:18 65:3,4 77:20 party's [1] 72:10 passed [3] 16:8 58:2 62:13 passing [2] 4:21 6:13 passively [1] 15:4 past [1] 12:8 pause [1] 77:25 pay [1] 42:22 pedigree [2] 75:17,19 pending [1] 38:9 people [30] 5:4 6:6 13:7 16:10,16, 19 17:6 18:13 23:6,23 24:1 25:10 27:2 31:21 32:15 33:1 43:3,7,9 47: 20,22 48:2,22 49:2 50:25 61:16 68:20,25 72:4 79:7 people's [7] 3:23 12:5,12 26:13 47:17 77:6 78:7 per [2] 12:2 30:1 percent [3] 20:6,7 27:21 perfect [1] 27:20 perfectly [2] 8:23 11:25 perhaps [7] 10:6 33:18,22 34:4 36: 14 66:8 78:3 period [12] 3:20 5:15 6:22 7:14,14 9:11 10:16 12:11 13:18,20 46:16 68:13 periodicals [1] 5:19 periods [2] 4:6 48:7 permitting [1] 14:19 person [30] 5:6,16,20,20,21,23 6: 12,15 13:15,18 15:8 19:11 25:23 29:1 41:11,17,17 42:10,16 46:6 48:9,12 51:10 55:22,24,25 56:1,2, 3 73:24 person's [5] 5:14 24:20 25:12 43: 12 51:11 personal [3] 32:18 66:10 70:18 personnel [1] 67:20 persons [1] 18:19 pervasive [1] 78:8 petition [1] 38:9 Petitioner [7] 1:4,18 2:4,10 3:13 56:5 75:11 Petitioner's [1] 3:18 phone [50] 8:5 14:7,14 15:2,3 16:9, 10,11,12 23:1,4,7,9 25:2 26:22 29: 15,16 30:21,25 40:8,14,17 41:11, 16,19,19,21,22,23,24,25 43:1,12, 16 44:5 47:21,24 48:2,4,11,12 51: 17 60:17,20 68:3,19 69:3,25 70: 11 78:5 phones [9] 20:7,14 30:15 40:13 42:2 43:3,7 44:2 70:15 phrase [1] 60:15 pictures [1] 28:2 pieces [1] 28:8 ping [1] 14:9 pinged [2] 14:7,8 pings [1] 41:13 pinpoint [1] 28:5 place [3] 22:15 31:19 72:5 placed [2] 37:24 39:5 plant [1] 42:25 play [1] 78:24 please [5] 3:15 34:17 40:4 54:6,6 plugged [1] 45:3 pocket [1] 15:4 pockets [1] 27:22 point [14] 8:5 13:1 14:11 16:16 20: 19 22:4 28:16 48:20 61:14 63:16 70:14 71:9 75:15 78:13 pointed [5] 7:24 22:23 70:16 76: 21 78:16 points [4] 17:12 19:4 30:1 75:15 police [11] 8:6,18 12:6 13:17,22 14: 20 17:8 23:16 24:6 27:16 32:4 policies [2] 17:22 18:9 political [1] 49:16 poses [1] 37:5 posited [2] 13:5 52:8 position [2] 31:3 57:4 positive [1] 53:9 possible [5] 21:23 22:7 27:12,20 39:1 possibly [1] 15:24 power [2] 27:19 72:5 practical [2] 3:23 70:13 practice [1] 35:18 pre-compliance [2] 37:7 65:23 pre-digital [1] 4:12 precedent [1] 15:14 precedents [1] 4:12 precise [4] 28:18 29:10,23 77:18 precisely [2] 15:9 61:13 precision [2] 28:24 77:15 prepared [1] 47:2 preserving [1] 12:19 Presumably [1] 14:10 pretrial [1] 10:20 pretty [1] 57:14 prevent [2] 56:1,4 principle [3] 34:9 42:3 67:1 principles [3] 40:6 78:13 79:2 privacy [24] 10:24 13:18 15:12 16: 3 17:22 19:1,15 26:11 44:16 47:4 49:12,25 50:8 52:1 57:19,25 60:9, 11 61:15 63:18 64:1,4 73:8 77:22 private [9] 3:25,25 6:8 18:14,19 70: 16 73:17 77:8,10 privately [1] 51:16 probable [11] 10:18 21:25 22:6 32: 9 36:10,19 37:21 43:14 48:23 50: 12 74:25 probably [4] 21:17 32:4,4 37:19 problem [2] 25:2 54:3 procedure [1] 80:1 process [3] 10:20 51:18 59:23 produce [3] 40:10,24 65:4 profession [1] 33:8 program [1] 30:9 proliferation [1] 29:11 promise [1] 18:13 prong [2] 19:13 80:13 prongs [1] 80:11 proper [1] 49:14 properly [1] 75:3 property [33] 39:6 52:5,6,7,19 53: 10,17,20 54:4,11,17,22 55:1,4,7, 17,18,23 56:10,12,15 57:2,9,12,23 71:17 73:7,17 78:12 79:2,3,4,11 property-based [3] 38:15 51:25 52:15 proposed [1] 7:13 proposing [1] 10:12 proprietary [8] 56:18 59:6 60:16, Heritage Reporting Corporation Sheet 6 N.Y - proprietary 88 Official - Subject to Final Review � 17,19 61:1,10,11 prosecutor [2] 37:25 80:23 protect [5] 26:15 35:10 45:7 57:19 59:25 protected [9] 24:10,18 33:21 34:7 44:13 58:1 76:14,19 77:4 protection [10] 11:6 21:5,8 22:16 45:20 57:3,13 63:19 64:9 67:7 protections [5] 18:8,11 49:23 50: 2 66:8 protects [1] 49:2 provide [10] 3:7 10:17 16:13 35:9 37:4 41:2 50:12 63:18 64:8 80:17 provided [7] 17:8 18:16 19:7 46:4 61:17 62:12 64:5 provider [10] 14:14 22:23 41:21 45:17,18 46:4,21 48:4 68:8 79:11 providers [4] 17:19 29:14 61:21 76:25 provides [3] 74:20,21 80:14 provision [2] 18:22 56:23 public [6] 3:24 23:21 24:17 43:7 44:25 51:10 publicly [2] 6:4,5 pulls [1] 68:3 punched [1] 16:9 purchase [1] 70:2 purchases [5] 5:5 32:12 33:3,4 36:4 purchasing [1] 36:5 pure [1] 37:20 purely [1] 66:12 purposes [1] 67:24 put [2] 43:10 52:3 putting [2] 6:16 38:15 Q qualify [1] 7:9 quartering [1] 57:10 queries [2] 24:19 34:6 question [25] 7:16 9:2 11:13 21:3 22:9 28:23 30:6 31:3 33:14 35:16 38:14 43:16 47:6 49:18 51:21 62: 15,16 63:3,10 68:1 69:15 74:4 75: 16 79:18 80:5 questions [2] 35:15 79:15 quick [1] 38:14 quilt [1] 18:6 quite [17] 5:12 8:11 9:23 10:24 14: 25 17:15 18:12 19:12 20:19 21:23 34:22 38:9 44:18 48:6 49:20 79:4 80:10 Quon [1] 63:23 R radically [2] 22:15,19 radius [1] 29:12 raised [1] 13:3 raising [1] 15:12 range [1] 62:1 rapidly [2] 49:11 78:2 rare [1] 27:13 rate [1] 33:24 rather [2] 14:18 69:18 rationale [1] 12:4 reaches [2] 29:16 68:2 reaction [1] 64:17 reactions [1] 33:15 read [4] 18:23 24:21 45:5 60:15 real-time [2] 26:4 30:15 realize [3] 16:17 17:7 23:7 really [6] 24:3 48:21 51:25 56:13 69:9 70:9 reason [13] 6:11 16:18 19:13 31:5, 9 32:22 36:5 54:16 55:13,16 66: 24 74:10 76:12 reasonable [17] 6:21 9:13,16,17, 17 12:6 16:2 19:1,12 23:9 32:10 37:18 38:16 47:3 52:2,3 75:6 reasonableness [3] 36:2 37:1,20 reasons [3] 28:21 56:9 71:22 REBUTTAL [2] 2:8 75:10 receive [3] 16:11,11 40:16 receives [1] 37:10 recently [1] 63:22 recipient [1] 37:2 recognition [1] 60:10 recognize [1] 60:9 recognized [8] 45:11 49:19 54:17 56:10 75:23 76:15 77:10 78:6 record [8] 5:5 16:25 20:23 34:7 41: 12,17 45:25 47:25 records [41] 4:17,19 5:3,12,19 6:3 8:19 10:21 13:24 14:6 16:3 19:2,8, 14 21:1,11 22:17 23:16,18 24:19 28:17 30:13,25 31:17 32:11 33:5, 23 35:4,6,10,22 37:3 40:10,19 43: 2 46:20,22 48:4 50:17 77:12,16 referred [1] 6:4 referring [1] 67:13 regarded [1] 47:1 regardless [5] 5:15 71:17,17 73:7, 8 regime [1] 57:19 regulating [1] 61:25 regulation [1] 30:8 rejected [1] 59:23 related [5] 13:17,24 14:2 30:18 35: 23 relatively [2] 30:19 33:19 relevance [1] 28:11 relevant [2] 20:5 36:19 reliable [1] 50:10 reliably [1] 78:17 reliance [2] 47:10 79:25 relying [2] 18:3 68:8 remain [3] 3:25 18:14 77:8 remand [1] 80:9 remember [1] 22:10 reminded [2] 51:25 52:16 removed [1] 27:15 reply [2] 7:24 38:4 represents [1] 28:1 request [2] 31:16 36:15 requests [1] 38:3 require [3] 62:18 73:16 74:24 required [9] 18:22 19:2 29:6 30:7 35:17 36:21 56:24 62:12 64:2 requirement [5] 9:22 30:12 37:22 24:19 29:7 34:6 35:20,22 47:1 50: 21 52:14 53:11 54:13 55:2,9 63:7 65:5,9,10,12,13,21 67:17,19,24 68: requirements [1] 36:11 4 71:6,8 72:6,11,15 73:14 74:11 requires [6] 4:8 50:3 51:17 62:23 75:3,24 79:24,25 64:10 75:1 requiring [2] 12:1 19:6 searched [1] 24:5 resembles [1] 55:18 searches [2] 13:14,14 reserve [1] 38:11 searching [3] 19:21 49:5 73:18 reserved [1] 71:10 second [7] 13:25 17:20 28:22 37:6 49:6 77:13 80:18 respect [4] 43:23 58:25 61:15 66: 4 secrets [1] 39:14 Respondent [4] 1:7,21 2:7 40:2 Section [5] 19:10 56:17 59:8 60:6 78:14 responsive [1] 37:3 rest [1] 4:13 sector [2] 43:19 48:10 restate [1] 18:11 secure [1] 49:3 restrooms [1] 43:7 secured [1] 79:8 result [2] 17:15 54:24 see [8] 6:6,22 8:7,19 11:9 33:12 48: 19 64:23 retain [1] 40:23 retained [1] 17:19 seeing [1] 31:18 retention [1] 30:24 seek [1] 4:5 return [2] 22:8 51:21 seem [1] 17:1 reveal [1] 4:17 seems [9] 6:7 10:11 11:6,19 16:24 20:16 26:20 60:4 71:15 revealed [1] 59:10 revealing [2] 3:19 48:9 seizure [1] 65:6 reverse [1] 79:16 select [1] 37:3 review [2] 37:7 65:23 sending [1] 41:12 revolutionary [2] 76:6,11 sense [4] 61:10 65:5,6 70:13 rights [4] 41:6 49:2 61:8 73:7 sensible [1] 69:15 Riley [8] 4:10 70:8,14,24 71:5,10 sensitive [19] 4:18,24 5:1,2,9,12, 75:18 78:7 18 15:21 24:18 25:8,11 31:17 35: 3,10 49:20 68:25 69:8 77:7,11 rip [1] 73:2 risk [3] 9:20,20 37:5 sensitivity [5] 16:4 25:15,19 67:3 77:5 robber [4] 8:4,5,17 21:19 robberies [1] 36:18 sentence [1] 22:2 robbery [5] 7:8,9 9:3,16,18 serious [2] 15:12 26:7 ROBERTS [20] 3:3 11:3,17 12:13 service [5] 17:19 40:15 47:23,24 31:2 34:12,16 35:13 39:23 41:8 76:25 64:14 70:4,7,14 73:19,22 74:3,17 set [5] 9:23,24 12:7 57:19 62:22 75:7 81:1 setting [1] 69:18 role [1] 34:8 settled [1] 78:8 room [2] 14:11 34:4 seven [3] 14:23 27:17 29:9 roughly [2] 9:3 39:13 several [3] 75:14 78:18 79:12 route [4] 41:20,23,24 46:2 severe [2] 10:24 76:18 routed [1] 48:3 shall [3] 56:23 57:25 62:12 routing [4] 44:20 45:10,13,22 She's [1] 8:2 rule [14] 4:2,5 7:13,19 9:21 10:12 shops [1] 10:8 12:1 14:17,17 23:13 25:5 28:20 short [7] 6:22 7:9,23 8:11 10:16 77:23 80:2 37:21 51:13 rules [2] 61:18 64:3 Shouldn't [3] 14:17 19:23 23:23 run [2] 17:14 21:16 show [2] 5:19 61:15 showing [2] 24:21 74:24 S shown [1] 17:9 same [11] 13:8,12 29:7 31:11,15 shows [2] 17:9,16 35:24 40:24,25 42:4 62:13 63:24 side [2] 32:3 64:17 saw [1] 8:4 sign [1] 47:22 saying [12] 13:22 22:25 50:9,17 59: signal [2] 29:16 30:21 15 62:3,7,21 66:15 69:5,5,16 signals [1] 43:12 says [6] 8:4 48:16 51:8 53:17 58: significant [2] 19:23 61:7 23 63:11 significantly [1] 29:22 scholars' [1] 17:13 signing [1] 70:1 se [1] 12:2 similarity [2] 47:8,9 seal [1] 44:24 simply [5] 35:11 36:4 41:9 46:14 sealed [1] 76:20 73:8 search [39] 3:22 4:7 13:6 14:2,20 since [4] 14:23 31:18 61:11 73:16 38:2 49:22 Heritage Reporting Corporation Sheet 7 proprietary - since 89 Official - Subject to Final Review � single [4] 7:13 9:10 46:15 77:19 site [13] 3:18 4:7 5:1 8:7 15:7 20: statute [13] 19:7,12 58:8,10,13,22 59:4,5,11,13,15,17 79:25 22 44:6,7 46:22 48:11 55:4 72:16, statutes [2] 58:2 80:17 16 statutory [3] 19:3 78:13 80:13 sites [1] 14:6 stayed [1] 5:21 situation [6] 8:25 13:4 50:6 51:4 steal [1] 52:10 55:22 65:9 step [3] 6:20 27:15 78:4 situations [1] 37:14 Stewart [1] 68:17 six [2] 11:15,22 stick [3] 53:4 54:1,7 Sixth [1] 79:16 stick-up [1] 29:4 size [2] 15:9 29:13 sticks [2] 79:6,12 skyrocketing [1] 29:17 still [2] 24:17 48:17 small [2] 29:11,12 stole [1] 38:20 smart [2] 33:24 34:2 stolen [1] 52:13 smartphone [3] 24:23 29:18 34:1 store [1] 29:3 Smith [19] 4:4 15:25 18:5 22:10,20 Stored [6] 19:5,18 20:4 63:24 64:6 25:6 35:3 40:25 41:15 42:3 44:13 80:13 45:11,23 50:24 51:6,7 52:5 68:17 straightforward [1] 33:19 70:16 stream [2] 4:22 6:16 snitches [1] 71:25 street [1] 29:2 snoop [1] 31:20 strip [2] 57:2,11 snoops [1] 71:25 strong [3] 17:16 19:15 80:10 social [1] 15:5 strongly [2] 17:16 18:12 society [2] 6:23 51:8 struggling [1] 35:2 Society's [1] 46:12 stuff [1] 36:6 Solicitor [1] 1:19 subject [4] 21:12 37:10 57:9 71:12 somebody [3] 25:10 42:5 46:5 submission [1] 36:20 somebody's [1] 42:25 submit [1] 68:21 someday [1] 14:14 submitted [3] 42:21 81:2,4 someone [3] 6:22 43:2 52:10 subpoena [19] 21:9 25:1 31:12,13, 15 36:22,24 37:9 65:2 69:7,18 72: someone's [1] 43:11 19,25 73:6,23 75:1,15,17 76:17 sometimes [1] 53:25 somewhat [1] 66:11 subpoena-like [1] 31:16 sorry [4] 7:17,20 34:17 38:14 subpoenas [8] 31:6,7,11 37:1 66: 7 68:10 73:13 76:8 sort [5] 28:4 39:4 45:23,24 63:25 sorts [1] 5:25 subscribes [2] 5:20 40:14 SOTOMAYOR [33] 7:17,25 8:9,13, suburban [1] 29:21 24 13:5,11 22:18 41:7 42:9,13,23 suggested [2] 9:8 11:15 43:6,15,21,25 44:1,10,23 48:14 suggesting [1] 28:2 49:1,8,9,18 50:20,22 61:20 62:2,9, suggestion [3] 12:3 13:19 30:6 14,21 63:9 76:21 suggests [1] 23:12 Sotomayor's [1] 67:25 supervision [2] 20:1 74:20 sought [5] 7:7 38:20 54:21 59:25 suppose [7] 7:6 10:7 24:24,25 25: 74:14 22 26:6 52:17 sounds [1] 70:7 suppressed [1] 79:23 source [1] 39:6 SUPREME [4] 1:1,13 11:13 64:25 spaces [1] 3:25 Surveillance [4] 6:6 26:9 46:24 47:5 span [2] 12:7 36:17 special [3] 23:11 50:6 51:17 survey [2] 17:15 48:15 specifically [1] 68:16 surveys [1] 49:13 split [1] 79:6 suspect [2] 34:19 47:5 squarely [1] 25:5 suspicion [1] 37:19 stand [2] 73:13 76:18 sweep [1] 14:4 standard [8] 16:23 31:12,15 37:16, sweeping [1] 13:6 19 50:14,15,16 sweet [1] 59:21 standards [1] 65:11 sworn [2] 37:23 50:11 start [1] 32:11 system [1] 30:17 started [1] 23:12 systems [1] 40:12 starts [1] 31:19 T state [10] 27:24 33:23 38:17,23 39: [1] 52:11 T-Mobile 7,10,12,12 63:17 78:24 tailing [1] 27:12 stated [1] 21:24 targeting [1] 8:14 statement [1] 37:23 taught [1] 51:24 [4] STATES 1:1,6,14 3:5 technical [1] 30:5 technological [2] 22:12 42:1 technology [12] 14:24 15:12 27: 11,25 35:25 40:5 43:23 47:10,14 49:12 78:2,7 Telecommunications [5] 18:12 45:5 61:17,21 79:9 telephone [9] 8:19 23:1,3 44:11, 12 45:2 51:1 61:25 70:17 telephones [1] 45:2 teller [1] 8:3 tells [1] 73:23 term [7] 7:3,10,23 8:12 10:6,25 77: 3 terms [3] 36:2 69:11 74:14 terrorism [1] 32:7 test [3] 12:15 67:9,17 testing [1] 66:12 text [3] 15:2 16:11 64:4 theory [1] 77:17 there's [25] 11:6 13:19 16:17 18: 22 19:13,15 23:8 26:20 27:2,5,11 30:11,12,23,23 32:13 37:23 44:4 55:4 65:10,22 69:9,23,25 72:15 therefore [4] 52:14 53:11 55:2 60: 18 thermostat [1] 34:2 they'll [1] 33:6 They've [1] 50:9 thief [1] 38:19 thinking [2] 20:20 34:21 thinks [1] 68:22 third [8] 50:18 51:2,9 68:13 71:23 72:9 77:20,24 third-party [16] 11:8 21:11 23:14 37:9 41:4 55:24,25 63:5,16 64:19, 19 68:8 69:7,12 71:16 73:9 third-party's [1] 63:10 though [6] 3:6 10:23 23:17 41:9 70:9 72:22 threat [1] 23:11 threaten [1] 18:6 three [2] 11:23 17:12 three-day [1] 36:17 Three-tenths [1] 20:6 throw [1] 32:23 TIMOTHY [1] 1:3 today [13] 5:3 14:22 15:1,6 17:5,22 19:18 20:10 22:13 27:16 31:5 43: 21 78:24 together [1] 29:20 tone [1] 16:10 tort [1] 39:4 totally [1] 34:8 touch [6] 16:10 21:8 23:19,23 24:2 37:20 tower [5] 8:2,6,14 13:4 47:25 towers [6] 16:21 20:9 29:17,19 40: 16 69:19 track [4] 23:3 24:6 27:16 30:15 tracked [2] 6:25 28:25 tracking [6] 12:22 24:22 27:20 33: 25 47:11,14 trade [1] 39:14 traditional [5] 21:8 29:19 71:6 73: 12 74:25 traditionally [1] 12:8 trailing [1] 27:12 traits [1] 56:13 transaction [4] 6:13,14 42:19 46: 1 transactions [5] 40:11 41:3 42:6, 15 70:20 transfer [2] 4:22 6:17 transferred [1] 56:15 transfers [1] 54:4 transit [1] 76:20 treat [4] 31:5,6 56:14 61:1 tremendous [1] 26:8 trespatory [1] 47:1 troops [1] 57:11 trouble [2] 3:9 33:13 true [8] 29:8 30:13 41:15,15 45:8 62:24 63:1 76:4 trumped [2] 58:8 69:16 trumps [1] 58:13 trying [4] 12:2 55:21 60:5,6 turn [1] 14:14 TV [1] 17:8 two [9] 12:20 16:1 19:7 33:7 36:17, 25 63:4 78:5 80:14 type [1] 13:4 types [3] 9:22 33:22 80:10 typically [1] 26:14 U unadministrable [2] 24:13 34:23 under [23] 19:9 31:7,7 32:19 35:15, 18 36:16 38:23 40:7 41:4 47:3 52: 15 54:10 57:24 63:4 67:7 68:1 72: 5,12,13 74:19 79:2,23 under-inclusive [1] 24:13 underlying [1] 61:8 understand [14] 5:17 11:4,18 12: 25 14:7 17:17 33:9 39:8 43:18 49: 21 64:22 69:4 78:20 80:7 understanding [7] 27:24 44:19 49:25 71:19 73:12 76:2,7 understands [1] 42:20 understood [1] 19:17 undressing [1] 14:12 UNITED [4] 1:1,6,13 3:5 unless [1] 13:19 Unlike [4] 16:7 36:22 76:22 80:19 unlikely [2] 26:3,4 unsworn [1] 80:22 up [10] 17:5,5 18:7 47:23 51:22 57: 19 69:18 70:1,24 79:6 urban [1] 29:20 urgent [1] 23:10 urine [2] 67:17,21 usage [1] 29:18 useful [2] 28:12,13 users [1] 29:18 uses [2] 41:19 42:8 using [5] 27:11 43:12 45:25 70:2 71:1 Heritage Reporting Corporation Sheet 8 single - using 90 Official - Subject to Final Review � V white [1] 32:5 white-collar [1] 66:6 whole [4] 12:16 59:18 71:15 74:4 wide [1] 44:8 wider [1] 10:19 will [25] 3:25 5:5,5,7,8 6:24 17:4,6, vague [1] 28:5 valid [1] 68:14 value [2] 38:21 52:13 vehicles [1] 26:9 venture [1] 41:10 9 18:13 19:25 32:24 33:1 34:7,13 versus [4] 3:5 4:4 65:7 79:24 36:11,12 40:15 42:21 43:16 48:19, view [7] 7:10 22:14 28:10 58:12 74: 22 59:9 74:12 80:8 13 75:4 77:21 wind [1] 51:22 village [1] 31:20 wishes [1] 9:9 violate [1] 7:10 within [3] 25:5 28:25 77:19 virtually [1] 35:8 without [11] 18:14 23:16 40:13 43: visited [1] 5:23 14 48:23 50:8 51:3 62:7 67:18 72: vitiate [2] 45:19 77:21 18,18 voluminous [1] 29:24 witness [1] 22:3 voluntarily [2] 4:20 16:5 witnesses [2] 12:9 40:9 voluntariness [5] 16:7 69:10,22, witnessing [1] 51:11 24 70:1 wondering [1] 39:10 word [3] 32:5 65:5,6 words [1] 18:23 work [3] 36:12 66:16,22 W world [1] 69:15 wait [1] 77:25 [1] wanted [5] 22:5 61:15 66:2 72:6,7 worse 25:24 [1] 9:25 worth [1] war 71:22 writ [4] 72:12,23,25 73:1 warned [1] 68:18 [2] warrant [23] 4:8 10:18 12:1 19:2,9, write 33:11 42:6 [1] 42:20 writes 13 21:18,21 35:16,17,19 36:1,11, [1] 66:14 writing 17,21 37:14,15 48:24 50:8 51:3, [2] 71:20 72:4 writs 13 80:15,19 voluntary [2] 4:24 25:7 vulnerable [1] 24:23 warrantless [1] 3:17 warrants [2] 73:14 80:21 Washington [2] 1:9,20 watch [1] 33:25 watching [2] 47:18,21 watershed [1] 56:14 way [5] 6:25 7:18 42:24 61:6 76:22 ways [3] 9:13 42:14 48:8 weather [1] 15:5 web [1] 24:20 Wednesday [1] 1:10 week [1] 27:17 weeks [1] 11:23 weigh [1] 36:25 weight [2] 19:24 21:3 well-developed [1] 51:6 WESSLER [64] 1:17 2:3,9 3:11,12, Y years [4] 14:23 29:9 78:18,25 yield [1] 58:4 yielded [1] 76:2 yields [1] 58:1 York [1] 1:17 young [1] 43:3 yourself [2] 44:25 75:22 Z zero [1] 21:3 zillion [1] 42:14 14 4:5,16 5:10 6:10 7:12,20 8:9, 22 9:7,19 10:10,14 11:12,24 13:2 14:21 15:11,25 17:12 18:21 20:3, 15,18 21:6,22 24:8 25:4,13,17 26: 1,12 27:4,8,23 28:15 30:4,11 31:8 33:16 34:13 35:1 36:9 37:16 38: 13,25 39:4,12,16,19,22 75:9,10,12 76:10 78:23 79:21 80:3,8 whatever [5] 8:21 9:21 11:23 36:4 41:13 whereabouts [1] 6:5 whereas [1] 72:14 Whereupon [1] 81:3 wherever [1] 33:4 whether [9] 16:4,16 17:4 22:5 35: 16,17 69:9 71:11 74:4 Heritage Reporting Corporation Sheet 9 vague - zillion