The Third Circuit held oral argument today in the case on the legal standard for historical cell-site information. I blogged about this important case here last week, and the oral argument audio from this morning has been posted here at the Third Circuit’s website. It was a very unusual and free-ranging argument that went for almost an hour-and-a-half, more than twice the scheduled 40 minutes. I wanted to blog my thoughts on the argument as I listened to it, as well as provide some of the key exchanges based on my best effort to transcribe them.
To set the scene, the presiding judge is Dolores Sloviter, a former Chief Judge of the Third Circuit, together with Judge Wallace Tashima, a visiting judge from the Ninth Circuit. Judge Jane Roth was also assigned to the panel, but she was absent from the hearing. Judge Sloviter is a Carter appointee; Judge Tashima a Clinton appointee; and Roth a Bush 41 appointee. The lawyer for the United States is Mark Eckenwiler, DOJ’s guru on electronic surveillance. Kevin Bankston from EFF and U of San Francisco lawprof Susan Freiwald argued as amici. This is a very strong group of advocates: All three work in this area regularly and know their way around these issues.
Here are my thoughts about the argument as I listen to it:
Around 5 minutes in, Judge Sloviter has lots of general questions about the Stored Communications Act. Her questions are somewhat surprising, as they concern sections of the statute that are not actually implicated by this case: Judge Sloviter is asking Eckenwiler to opine on why Congress drew a distinction between 2703(a) and 2703(b), while this case is about 2703(c). (I answer Judge Sloviter’s questions in my article A User’s Guide to the Stored Communications Act, if you’re [...]