Subscribe
Share
Share
Embed
Every day, each of us produce more data that ends up in the hands of third parties: browsing data, shopping data, stored images, writings, and communications. And each of us expects a certain degree of privacy and protections. But when that data can play a critical role in criminal justice, our regulations have struggled to balance the need for personal privacy while also serving the fair and equal pursuit of justice.
Join us as we explore the intersection of data privacy, evidence law, and criminal defense with Professor Rebecca Wexler. Discover the challenges of accessing digital evidence, the evolving legal landscape, and the potential wide-ranging impacts of Snap v. Pina on data privacy laws. And learn how you, as a law student, can play a role in redefining how our laws manage data in the future.
Additional Resources:
Snap v. Pina
Court of Appeal Decision
Docket
Additional Resources:
Snap v. Pina
Court of Appeal Decision
Docket
- (00:00) - Introduction
- (04:00) - Why Every Lawyer Needs to Understand Data Privacy
- (06:24) - How The Law Has Adapted to Digital Evidence
- (08:54) - Unequal Access to Digital Data in Criminal Cases
- (12:50) - Understanding Snap v Pina
- (18:36) - The Intersection of Intellectual Property and Data Privacy
- (22:47) - How Law Students Can Impact the Law
- (26:43) - Host Discussion
Creators and Guests
What is ABA Law Student Podcast?
Presented by the American Bar Association’s Law Student Division, the ABA Law Student Podcast covers issues that affect law students, law schools, and recent grads. From finals and graduation to the bar exam and finding a job, this show is your trusted resource for the next big step.
Todd Berger (00:00):
It's hard to underestimate the power that data represents today. For most people, data exists to quantify our personalities, our spending habits, our relationships, even our best and worst decisions. And access to or control of that data can be simultaneously liberating and destructive. Our legal system strives to manage the risks and benefits of data, but often struggles to meet each new threat or adapt to the pace of change. Today we're going to discuss data issues of privacy and a current case that may have substantial ramifications on how we balance data privacy and the pursuit of justice. This is the a, a law student podcast. Hey, Manny, Che, how are you guys doing? It's Todd doing
Chay Rodriguez (00:57):
Good. Hey, you guys doing great. Thanks for asking. How are you?
Todd Berger (01:00):
I'm good. I'm good. Definitely busy time of year, but despite that, I still had some time to check out Manny's Awesome interview, interesting issues. I know that probably got a lot of listeners out there who themselves are interested in what Manny's going to talk about, maybe specifically, I mean very generally. So Manny, why don't you tell us who we're going to hear from and what you guys are going to talk about?
Manny Fernandez (01:23):
Yeah. This month's guest is Professor Rebecca Wexler, and what we're going to be hearing about is something that I think most of us have very rudimentary knowledge of at best because her scholarship really deals with the very unique part of the law and it's this intersection between data privacy and the criminal justice system and evidence law. To me, it's very interesting as a law student because these are all themes that we know of in a vacuum, but we don't see so much of how they intersect, even though nowadays we're probably going to be seeing more kinds of litigation and more kinds of disputes of evidence when it comes to data privacy and when it comes to these kinds of high tech things. So she's going to shed a lot of light into a topic that I think a lot of us should be a bit more informed about. Professor Wexler's work has been at the forefront of this new and kind of emerging field. Sha, is this
Todd Berger (02:23):
An area that interests you?
Chay Rodriguez (02:24):
Yes, I am in the middle of a cybersecurity class right now. I work at my company in tech communications where I do run the data privacy and awareness program. So I'm excited to hear more about this
Todd Berger (02:41):
Very cool kind of maps on perfectly to what you're doing right now, and I'm sure you're not the only one. I'm sure there's a lot of our listeners who fall into that category. I'm excited to hear your conversation and I'm excited to be demystified and I'm sure some magic's going to happen, but magic we will all understand. Ready to get into it, man? Oh, I sure am.
Manny Fernandez (03:05):
Today I have the luxury of speaking with Professor Rebecca Wexler. Hello, professor. How are you?
Rebecca Wexler (03:11):
I'm great. Please call me Rebecca. I'm thrilled to be here.
Manny Fernandez (03:14):
Well, it's great to meet you, Rebecca. Like I said, I'm super excited to have you here today because hopefully I'll get to pick your brain a little bit on some really relevant topics. For a lot of law students, data privacy is something that's kind of floating out there. We know about it. We know that this is an emerging and very important topical area of the law, but there's really not much that people actually know about it. So I guess maybe an appropriate way to start this would be to ask you about first just data privacy. Generally, a lot of law students, most law students, I would say probably don't think of this concept of data privacy as central to their future careers unless they're going into some kind of tech law or tech-centric field of law. Why do you think this is something that every lawyer should care about? And even more so because of your expertise in the intersection between data privacy and criminal justice, why do you think it's becoming increasingly important for law students and young lawyers and future lawyers to kind of understand data privacy a little bit better?
Rebecca Wexler (04:20):
Well, for any lawyer going into professional practice, it's now an ethics duty to understand how to protect attorney-client communication. So that's your first just obligation. You've got to understand data privacy and data security enough to know whether you're putting client communications on a server that's unsecured. So that's one aspect is just as any attorney, no matter what field you're in, if you have a client, you have confidentiality duties, you have to understand data privacy to some extent. But I would say that there's also just really fascinating issues coming up in the field of information privacy and data privacy law more generally where law students could imagine becoming a specialist. And one of the big tipping points that say scholars have focused on a lot of US privacy law has put the responsibility on users to opt in or opt out, mainly opting out of what they share. And that means users have to read terms of services from large corporations, from their social media providers, their Gmail providers or TikTok or whatever it is, and decide whether they want to participate or not. That model is sort of individualists, maybe libertarian contract focused, and most critics or most commentators who aren't, I'd say financially conflicted, think it's failed.
Manny Fernandez (05:54):
Yeah, it sounds very uniquely American. You put the impetus on the individual, and this kind of speaks to what I think is one of the most fascinating aspects of your scholarship, which is this sort of unseen power struggle that exists within data privacy. Who does the responsibilities fall on? Does it fall on the individual? And there's a lot of shifting ground on this that permeates into the criminal justice system with some very often perverse consequences. Before we get into those kinds of conversations about power struggles, I'm wondering if you have seen within your time studying this that the legal profession has adapted or failed to adapt to the rise of things like digital evidence. Do you think that we've been adapting? Do you think we could be adapting better and where do you see the biggest gaps?
Rebecca Wexler (06:46):
Yeah, well thank you. Thanks for focusing us on that question. I teach evidence loss, so I love talking about evidence and I think it's a little bit of some and a little bit of the other. So most of the scholarship, most of the litigation around updating the criminal legal system for new types of digital evidence has happened around law enforcement access to evidence. So you'll hear things like, well, should the fourth Amendment apply to cell site location information for instance, or should the Fourth Amendment particularity requirement be satisfied when law enforcement seizes an entire email account? Right? Is there something different in kind, not only different in degree about that volume of information that the digital world has enabled? And those are fascinating problems, and I do think that the courts have attempted to address them for better or for worse. Whether you like the results or you don't like the results, people are aware of them. People are less aware that similar issues face criminal defendants as well when they're trying to investigate their cases. So that's a disparity that I've been particularly interested in.
Manny Fernandez (08:14):
I'm very glad that you're doing this kind of work, I must say, because it's super prevalent as a law student, I sit in law school courses and the thing that really wakes up a law student is when you're like, Hey, wait a minute, why does the court say this here? And then it says that there, or this seems like a very obvious disparity here, what's going on with our system? And so what I'm saying is these are the kinds of things that really rouse the spirit in a law student and really motivates a law student. But we don't talk about how often these disparities exist in the context of data privacy. So our listeners out there, if you could tell us a little bit about some examples of this that you found.
Rebecca Wexler (08:54):
One the issues that I've written about is that a lot of information privacy laws have exemptions that allow law enforcement to keep getting access to data but don't have exemptions that would allow criminal defendants to get access to the same kind of data. And lemme just set the stage a little bit by saying, as you all know, we have an adversarial criminal legal system, and that means we rely on law enforcement and prosecutors to investigate evidence and build the government's case about guilt, and we rely on criminal defense counsel to investigate evidence and build the defense case for innocence and no government agent from police to prosecutors. Yes, you've heard about Brady and due process. If they have possession of exculpatory evidence, they have to hand it over. But no government agent is obliged to actively investigate evidence of innocence. The only person that does that is defense counsel and they have to do it to satisfy effective assistance of counsel requirements.
(10:12):
So it's a big problem when privacy laws come in thinking legislatures thinking, they're not regulating the criminal legal system thinking they're regulating some kind of consumer contract other space and have this perverse effect, but wanting is concrete example that I am excited to share is actually before the California Supreme Court right now in a case called SNAP versus Pina, this is an issue where there's a federal data privacy law, one of the central data privacy laws called the Stored Communications Act. It imposes some confidentiality duties on tech companies who provide communication services. So your social media company, your email, if the company has possession of the contents of those communications, then this law imposes certain restrictions on what the company can do with them. So they can't just sell your private communications to the newspaper, for instance. And they also can't give it to law enforcement unless law enforcement comes with certain types of procedures or process like a warrant or certain kind of subpoena. But unfortunately, most courts, not all of them, but most courts that have faced this statute in the context of a criminal defense investigation have said that because the statute's confidentiality rule is silent on criminal defense access, therefore tech companies can't comply with criminal defense subpoenas for that information. So it sets up this asymmetry that we were just talking about where there's a whole category of evidence, it's huge, right? All of our communications, digital communications pretty much, and law enforcement can go to those service providers and say, hand this over and criminal defense investigators can't.
Manny Fernandez (12:12):
The infrastructure just is not in place for criminal defendants to get the same kind of evidence that they would need.
Rebecca Wexler (12:19):
Yeah. Well, it's interesting that you use the word infrastructure. Criminal defendants can issue subpoenas, and they do that to serve the true seeking process of the courts and make sure that the criminal process is fair. So in terms of legal infrastructure, they have that statutory right. There's also the sixth Amendment compulsory process clause, which you might think would give them a constitutional basis to subpoena evidence for their defense. But this federal privacy law kind of layers on top of that and messes it all up, and it's been a problem for justice. And so this current case that's before the California Supreme Court in the trial court, it's a homicide case, and the defendant is arguing self-defense, Mr. Pina, he's trying to get access to the contents of the social media accounts from the deceased in order to show evidence of violent character. So if you took Evidence law, you know that one of the ways that you can introduce character for propensity evidence actually is if you're a criminal defendant and you are trying to argue self-defense and you can introduce evidence of the victims or the alleged victims or the deceased violent character to show you were defending yourself.
(13:33):
Again, you were rightfully scared. And so in this case, the trial court actually ruled that Mr. Pina's subpoena satisfied, good cause that he had established a need for this evidence for his defense. And California law also balances that interest against privacy interests. And the court did the balancing and ruled for Mr. Pina, and then when it went up on appeal, and I'm sorry, he's litigating against Snap and Meta, so it's a Facebook or meta accounts and SNAP accounts that they're trying to get access to. It went up on appeal and the California Court of Appeal for the fourth district, again ruled for the defense. And in this case, yes, and it was a extremely broad ruling. So what the Court of Appeals said was, well, we agree the defense should be able to subpoena this evidence. And we agree, the Stored Communications Act doesn't block the subpoena. The reason it doesn't block the subpoena in the appellate court's view was that any company that engages in data mining for advertising purposes falls entirely outside the definition of the Stored Communications Act. That's the ruling. As they say, stored Communications Act doesn't apply to Facebook at all. It doesn't apply to meta at all. It doesn't apply to Snap at all. The law enforcement privacy provisions don't apply. You can't sell my communications contents to the newspaper, doesn't apply. It just eviscerates one of the only federal data privacy statutes on the books.
Chay Rodriguez (15:11):
Wow.
Rebecca Wexler (15:11):
So it's a massive ruling for data privacy and understandably, A-C-L-U-E-F-F, other folks all joined forces to try to get the California Supreme Court to review it and they agreed to review it. And so either they uphold it on that basis, which will be a shock. The system for data privacy law like Congress is going to have to wake up and try to enact a new one, which could be a great thing because people think we need an updated statute in this domain or Congress might not do it. And then we just want to have the data privacy on the books where the big fight is happening around whether the Store Communications Act is just going to be killed by this criminal defense subpoena. It's like a David and Goliath story.
Manny Fernandez (15:55):
It really sounds like it. Yeah. So this case is called Snap v Pina, you said, right?
Rebecca Wexler (16:01):
Yeah, it's the Mr. Pina, the defendant's name is, it's spelled PINA. And the party's briefing has just been completed. Amicus briefs will be due on February 24th, I think. And then at some point after that, the court will schedule oral argument and that's available online. So anybody listening to this podcast who wants to tune in, could listen.
Manny Fernandez (16:25):
Yeah. So for our listeners, this is going to be a monumental case and I am sure you would predict that this is going to have massive ramifications all around the country.
Rebecca Wexler (16:34):
I have an alternate theory that I think that the California Supreme let's Supreme Court should have adopt. Let hear it. Okay. Alright. So this will be this my pitch. So my alternate theory is that the California Supreme Court should uphold this subpoena, but on a much, much narrower basis and the much, much narrower basis is that this confidentiality rule, it says that the service providers shall not divulge to any person the contents of these communications. That confidentiality rule is actually a confidentiality rule, not a evidentiary privilege. And so it doesn't block judicial compulsory process, it can't block a court order. We have lots of confidentiality rules, lots of privacy rules that don't rise to the level of blocking a court order and interfering with judicial true seeking. So leave the SCI in place, Hey, California Supreme Court, you don't even have to address this other question that call it the business model theory of whether the SEI applies. You don't have to uphold this defense subpoena simply by ruling that this SCA is silent on subpoenas requested by criminal defendants and other non-governmental litigants. So it's ambiguous about whether it blocks those subpoenas. So you should construe it to be consistent with California law, which says that criminal defendants can subpoena relevant evidence
Manny Fernandez (18:12):
So they could in theory resolve the case without having to stick their head in the sand and take a completely different avenue, which would have much less detrimental ramifications for cases like this going forward. Yeah, we'll be right back. I want to talk to you just a little bit more about in your studies about that involve criminal justice and data privacy, I think very often rubs up on intellectual property law. And so I can see where in a previous podcast we discussed how innovation in technology in the United States really centers on this idea of moving fast and breaking things. And it's so often that our legal system is trying to catch up with the new advances in tech. This is where you come into conflicts like trade secret law. Sometimes a criminal defendant really needs some piece of information to build a case, but part of what they need is protected under trade secret law or under some other facet of intellectual property. How do we reconcile all these different parts of the law?
Rebecca Wexler (19:28):
I'm glad you're interested in this issue and because this is an issue that I got interested in when I was a law student. So I think I was a two L and I was just reading a news article about a person, a criminal defendant who was trying to access source code in a forensic software used against them, and the vendor had argued that the code was a trade secret and so the defendant shouldn't be able to subpoena it. And I got really interested in this and I wrote in op-ed for Slate about this issue when I was a law student and a staff member from Congress member Mark Anos, a California Congress member, staff member, read the op-ed and called me up and I remember walking around between my classes and talking to this staffer. It was so thrilling.
(20:25):
And he said he wanted to try to do something about this issue that he had learned about from my op-ed. And so we started talking and it took a couple of years, actually, they ended up a couple of years later hiring a tech Congress fellow to come in and assist them. By the way, this is a fellowship some listeners be interested in. It's called Tech Congress, and you can spend a year if you have a technical background inside a congressional office helping create tech informed policy. And with that fellows help, they actually introduced a bill into the House of Representatives called the Justice in Forensic Algorithms Act. It was first introduced in 2019, so I think I started talking to the staffer in maybe 2015. Yeah, that's right. So maybe it took four years that it is been reintroduced a few times. I'm not super hopeful it's going to become law, but you never know.
(21:25):
And it's great that it's out there. It establishes a state raises awareness, and actually there has been a state codification of a version of this. And so it is law in a version of it is law in Idaho, but that law would actually resolve a tension you're talking about and say that there is no trade secret privilege to refuse to disclose relevant evidence to criminal defendants. And it would shape the entitlements that intellectual property law offers and say, we don't offer an entitlement to interfere with judicial truth seeking because we care about accuracy and fairness in criminal proceedings. And also because by the way, you can just disclose the stuff under a protective order and you get to keep your intellectual property whole and you walk away with all your for-profit, whatever. It's just like a tiny bit of a risk, but not any more of a risk than businesses generally undertake when they disclose trade secrets to employees or contract negotiators.
(22:31):
So that was a proposal that I started developing in law school, and then I ended up writing a law review article about it called Life Liberty and Trade Secrets. And I made this argument and I got hired to be a professor. So one of the things that's kind of how I joined the academy. And so what I like to tell students this story, because I like to say, look, the insights you are having, and part of what I was doing was taking criminal law classes, taking intellectual property law classes, saying, wait a second, these things kind of don't mesh. And that opportunity to be taking classes as a novice who hasn't yet been indoctrinated to think that whatever you see around you is reasonable is the way things should be. They happens after you've been in a field for a particular certain amount of time. So you have a kind of advantage as a novice, as a student coming to these fields for the first time and learning about them adjacent to each other. And so you should really believe that insights you have in your classes where you say, this doesn't really make sense. I wonder why is that way instead of this way, that those are valuable insights that people who have been in practice much longer might not be able to see. So listen to your own voices.
Manny Fernandez (23:48):
That perspective is super refreshing actually, because it's almost, I mean with the example of trade secrets as law students, and this is maybe just commentary on education in general, as law students, we want to go, we want to sit in the class, we want to learn the black letter law, we want to learn the material, we want to memorize it, we want to do good on the test. That's the instinct of so many students. And not surprisingly, a lot of people who end up in law school are good students who all of undergrad sat down, got lectured at by the professor, learned that two plus two equals four memorized it, internalized it, took it to be gospel and did well on the exam. In a lot of ways, we come with the same mentality into law school and with the example of trade secrets, the first thing you learn about trade secrets is it's only as strong as your efforts to zealously protect it and keep it secret.
(24:43):
And so it's almost like this is something that can't be challenged, but truly how secret is a trade secret? You are always disclosing it to your employees. You are always kind of disclosing it to some extent when you're doing company mergers or things like that, or even when you're just, when companies are just in talks and negotiations to merge with other companies or do buyouts or whatever. And so really the truth is it's not so concrete. And when you encounter these kinds of issues, you have to think outside the box and you have to think, well, how sacred is this trade secret protection really? And the ability to be able to do that makes the good law student the ability to be able to challenge these core untouchable principles. So that's really cool, and that's a super cool story. You can draw a direct line to where you are today and real changes that have happened in our legal system to an op-ed that you wrote when you were in law school, which is crazy because also often as law students we're like, I'm just a law student, there's nothing I can do. And truly, there are things as law students you could be doing today that makes an impact and influences the world around you. So that's a really great story. Wow.
Rebecca Wexler (26:02):
I think it's totally right. I think you don't realize as a law student very quickly, especially when you're talking about the right size issue, you can very quickly become an expert in that issue. And then you have more training, more ability to understand and act in the world around that issue than the vast majority of other people who haven't even been to one year of law school. So you should feel empowered for sure.
Todd Berger (26:34):
We'll be right back after this. Manu, really fascinating discussion about a fascinating area of law and somebody who was able to do things as a law student that significantly impacted not just their own life and career, but apparently has had some broader impact in the world at large, or it's even resulted in legislation in different places. What were your big takeaways from this interview with the professor?
Manny Fernandez (27:06):
Yeah, well, that was huge for me, right? Because like I mentioned in the interview, there's so many of us who are in law school and we kind of think, keep your head down, do your classes. There's not really much you can do as a law student that you're really at your nascent stage in your career. And it was really inspiring to see that professor Rebecca Wexler was doing things from the moment that she was in law school. And something that I continue to hear among my classmates and among other law students is kind of like this aspect of the law that deals with data privacy and phones and the internet and all the rest that has to do with tech is more and more getting offloaded to young associates at firms. It's almost like oftentimes the older lawyers assume that as young people, we're going to have expertise or at least some better knowledge of how these things work. And so it's in a way almost symbolic because this field, this area of data privacy almost lends itself very well to law students making a difference and to young lawyers and to the next generation making their mark more and more. I think as students in law school and as young associates, it's going to be very important to understand this field of law.
Chay Rodriguez (28:30):
Manny, I think you're absolutely right that younger lawyers will get these types of assignments because it's kind of assumed that you would know and can move around these different types of technology quicker.
(28:44):
It makes me think of when a professor that's like, you're a doctor, even an undergrad, you're a doctor, you have all these agrees. You're like so accomplish and you walk in the room and you can't turn on the projector and everybody is like, you just rambled about how you are. You have this great job at this great company. You've been to school all these years, and I had to help you turn the light bulb on, but I completely understand why that would be something that some firms think is the right way to go. But sometimes that's not fair because we might not be interested in data or cybersecurity or things that are techie just because we're younger and our generation has kind of adapted to some of these things quicker. I also think that it's interesting, maybe not in the criminal defense world specifically, but when you think about how these massive corporations have eDiscovery departments and cybersecurity departments, a lot of the times when an employee does something unsavory and they need to go back and look at their emails and go and look, that's all combing through data.
Todd Berger (29:57):
Absolutely.
Chay Rodriguez (29:57):
When they're building a case, when something gets leaked or when there's some sort of audit, when data gets leaked, unfortunately, it all kind of deals with that. And then they are able to go back to a data manager and kind of see, Hey, why did this happen like this? How did this leak? How was this not stopped? Now we're in litigation because of X, Y, Z. So it was just interesting to hear it from that criminal defense side specifically, and then also Mary knowing how it works incorporations too. So I think that's really cool.
Manny Fernandez (30:27):
To me, the aspect of the criminal justice side that was super striking to me is just, and even more so, I had researched some of Professor Wexler's work before this, but after talking to her, it just became even more striking, the kind of asymmetry that exists that undermines all of our ideas of basic due process. How can you mount an effective defense if you're not allowed to scrutinize the tools used to convict you?
Chay Rodriguez (30:57):
And so Manny, maybe you can clear this up too. I was wondering this, I was wondering if I didn't catch it as I was listening, is it that the government is able to access this information from snap or meta, but the defendant can't access it as easy?
Manny Fernandez (31:10):
That is my understanding from talking to Professor Wexler. Basically, the mechanisms are not in place to give criminal defendants the access that they need to evidence that would help them prove affirmative defenses such as the Snap case. Right.
Chay Rodriguez (31:27):
So I wanted to ask Todd, because when I was listening to it immediately, the first thing that popped in my head was Brady. And I wanted to know if a prosecutor was able to get that information and it was something that could help the defense's case, would they be obligated to then turn that over? But how would they even know? How would the defense even know if they can't even get a glimpse into this information from Meta or Snap or whoever the case?
Todd Berger (31:54):
That's a great question. So from a doctrinal perspective, as much as this is all new and fancy stuff involving data collection and data privacy, the Brady question is a relatively straightforward one to the extent that anyone would think Brady itself is relatively straightforward. But if I'm the prosecutor and I get this information and I find that there's something in there that meets the standard for Brady that I need to pass, then there should be nothing. I think that would prevent the, not prevent, but should be the prosecutor should be affirmatively required to disclose it. So under Brady, which is itself kind of its own complicated animal, but the evidence is to be favorable, meaning that it would tend to be something that in a trial scenario the cues could use to raise reasonable doubt. But beyond that, it also has to be material which is not just favorable.
(32:43):
And that's where a lot of this stuff gets hung up. It has to be the kind of thing that the prosecutor could say, well, I think this is significant enough that it's likely to impact the outcome of the trial. So not just that it's favorable, but that it will actually have an impact. Because there presumably could be things that are conceptually favorable, but in light of all of the other evidence or whatever it might be that aren't going to impact the trial. And that's why Brady becomes really controversial. If you're out there thinking about this as a law student, you're like, well, how would you know that when the trial hasn't occurred yet? And that becomes a sort of a quintessential component of Brady. And so there's a belief that a lot of Brady material, true Brady, Brady material that should be passed that would have a potential impact on the trial, that defense never sees it, right?
(33:25):
Because the prosecutor can kind of rationalize it as saying, well, I don't think it would make a difference if I passed this, and how is the defense ever going to get it? And so in a lot of these cases, the way the defense ends up getting it, sometimes someone gets convicted. Now, in most cases, there's not substantial post-conviction litigation, but in serious cases, there will be, and the defense gets, the defendant gets convicted and maybe they file a Freedom of Information Act requests, or they have a bunch of investigators who can go around to overturn the death penalty and can find witnesses will say, oh no, I gave this information to the prosecutor. But in that sense, I think one thing to think about is this is a new area of law, but in a lot of ways this sort of the classic Brady doctrine, so old areas of law, because Brady dates back to the sixties with some refinement throughout the pursuing decades, but it's an area of law that's been around for a long time. But there's an intersection that maps on between this sort of new emerging area of law and data issues and this older area of law on Brady issues that you've kind of pointed out. So it's one of the things I think that makes kind of law fascinating is we are constantly trying to apply new technologies to legal doctrines that themselves are written on parchment and faded parchment at that.
Manny Fernandez (34:41):
I think a lot of the stickiness also comes from the fact that this is also so like inextricable from intellectual property law also, and there's a lot of tension between private control of certain information than the public's right to access it. And it can, I think, become so much more complicated. So quickly when you talk about fishing expeditions and when lawyers come in looking for certain data that might help their clients, but it brushes up against Snapchat's proprietor information and their algorithm and their desire to protect their trade secrets, and then you end up with a whole hornet's nest. I just imagined
Todd Berger (35:29):
A couple of things. I obviously work with law students and I teach criminal procedure and I also teach evidence and things I found that were really interesting. So as we talk about how the law has to adapt to emerging technologies, and the professor had talked a little bit about particularity requirements with getting emails. So kind of what's really interesting about this, but she didn't exactly get into, but, and I won't nerd out on it exactly. I know there's not going to be a quiz at the end of this discussion, but there's also this intersection between something in fourth amendment jurisprudence called the third party doctrine and emails. Essentially, the third party doctrine is this idea that if you give something to a third party, you no longer have an expectation of privacy in it, and the government only has to get a warrant when there's an expectation of privacy.
(36:15):
So if you think about how you send emails and where they're stored, they're all given to a third part, they're given to a Gmail or Yahoo or whoever it is, and they're all sent through those different servers. And so there are some circuits that have said, well, the defendant doesn't have a, you don't need to get a warrant. You may have to get something less than a warrant under the Stored Communications Act, but you don't have to get a warrant to get those emails you gave them. You voluntarily gave them to a third party. So you surrendered your expectation of privacy. And the most influential case that's out there that addresses emails and whether or not the government has to get a warrant is this case called Wars Shack. And it's a sixth circuit case. And basically what that court said is that the fourth Amendment has to adapt to changing times.
(37:04):
And for some of our listeners, many of 'em are law students. There's these things that you may have heard of called letters. So they were like, there was paper and people would write stuff down on the paper and they'd put it in an envelope in a stamp, and they'd give it to the post office, post office would mail it. But this court basically said, look, the world changes. And the reality of it is now, as people use email, the way people used to use letters, and clearly when you put a letter in an envelope and you seal it, you have an expectation of privacy in the contents of that envelope. So it doesn't really matter whether you give it to the post office or you give it to Gmail. Gmail's become the new post office and technologies, Ford Amendment has to adapt to emerging technologies, and the law has to adapt to emerging technologies.
(37:51):
And so for our students who are out there who hear this, because technology is going to continue to change and always does, but it certainly feels like we're in a time of rapid technological expansion. I don't know if that's actually accurate from the perspective of a technological historian, but it certainly feels like technological whiplash all the time. The people on the front lines of it, and this is a point you touched on, Manny, the people on the front lines of it saying, no, the law has to change. The law has to adapt. You have to think of Gmail as the new post office that's going to be our students. That's not going to be the, it could be right, but it might not be the 70 or 80-year-old lawyers. It's going to be, frankly, I'm 46 and sometimes I feel like I watch the stuff that my students do with technology and it blows me away.
(38:38):
So it's going to be younger generational lawyers who are going to be at the forefront of convincing courts through their advocacy as to how the law should adapt and change. And so someone once told me that it's very hard in medical school to find anatomy professors, and the reason it's very hard is because we know everything there is to know about the physical structure of the human body. There's nothing left to study. There's no emerging area that nobody looks at something in the body anymore goes, what is that ligament? We've never seen that before. So when there's no room for intellectual expansion, when there's no room for conceptual growth, it's not as fun. But when you think about the intersection of the law and emerging technologies, that is an area of tremendous potential and tremendous growth. And more than anyone, our students and young lawyers are well situated to take advantage of that. So something to think about in your future careers,
Chay Rodriguez (39:34):
And I think it's about asking the questions. Right? Todd, you brought up a really good point comparing the letters to emails, right?
(39:41):
Something that I am wondering about this case in particular is what makes social media different from, in terms of the providers and the companies itself different from a Verizon or a Sprint when it comes to text messaging, especially because you look at the Justin Baldini case with Blake Lively, that's out right now, and when those text messages were published, the difference, the difference was like an emoji, right? So reaching out to the carrier to ask for those original text messages when they were sent so that I could see when the emojis were there to then influence how the conversation should have been perceived or how each person might've took the conversation. What's the difference from you publishing that one that was a one-on-one conversation from phone to phone to post that someone makes on Facebook that shows their characters or propensity for violence or anything like that as talked about in that peanut case, I think being able to ask the question, you're training as a law student opens your mind up to different scenarios that educate you enough to continue to ask questions and continue to want to know more.
Todd Berger (40:48):
A lot of this stuff is governed statutorily by the Stored Communications Act, which I think was enacted in 1984. So it's enacted sort of at the very early days of the internet, there was no Snapchat or WhatsApp or TikTok or Face Page or anything like that. So as the technology emerges and changes, the law has to adapt to it as well. And she talked about the need to update this act. And so I think that's something that our listeners are going to have to grapple with moving forward is how does the act change? And maybe some of you will even be out there doing your work to try and update the statutory framework that can help us figure all of this stuff out. At least help us figure it out for the next 10, 15 minutes before it changes again. We can only hope. Once again, thanks to Professor Rebecca Wexler for joining us for this episode.
(41:43):
To learn more about her work, you can find the link to her publications in our show notes. And if you want to follow along with the Snap first Pina case we discussed, you'll find the links in there as well. If you're looking for even more content curated just for you, head over to the a, a Law Student Division website and become a member. We want to make sure we're making the best content for you. Let us know what you'd like to learn more about by telling us in a review on Apple Podcasts or Spotify. Finally, we'd like to thank our production partners at Marine Media and to thank the a, a law student division for making this show a reality. You'll be back next month with our next episode. See you then.