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Law Professors Respectfully Move, Pursuant to This Court’S August 19 23, 2016 Order (Dkt

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Law Professors Respectfully Move, Pursuant to This Court’S August 19 23, 2016 Order (Dkt Case 2:16-cv-00538-JLR Document 49 Filed 09/02/16 Page 1 of 7 1 2 The Honorable James L. Robart 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 10 AT SEATTLE 11 MICROSOFT CORPORATION, No. 2:16-cv-00538-JLR 12 Plaintiff, UNOPPOSED MOTION GRANTING 13 PROPOSED AMICI CURIAE LAW v. PROFESSORS LEAVE TO FILE BRIEF IN 14 SUPPORT OF PLAINTIFF’S OPPOSITION UNITED STATES DEPARTMENT OF TO DEFENDANTS’ MOTION TO DISMISS 15 JUSTICE, and LORETTA LYNCH, in her NOTE ON MOTION CALENDAR: official capacity as Attorney General of the 16 United States, SEPTEMBER 2, 2016 17 Defendants. 18 Proposed amici curiae law professors respectfully move, pursuant to this Court’s August 19 23, 2016 Order (Dkt. 42) and inherent authority, and in accordance with “the applicable rules found 20 in the Federal Rule of Appellate Procedure” (Dkt. 46), for leave to file a brief supporting Plaintiff’s 21 opposition to Defendants’ Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 22 12(b)(1) and 12(b)(6) (Dkt. 38).1 A copy of the proposed brief is attached hereto as Exhibit A, a 23 proposed order granting leave to file is attached as Exhibit B, and a compendium of difficult-to- 24 find authorities cited in the proposed brief is attached as Exhibit C.2 The parties do not oppose this 25 26 1 “In the absence of local rules governing the role of amicus curiae,” amici have formatted this brief to comply with the Federal Rules of Appellate Procedure. See Dkt. 46. 27 2 The proposed brief reflects the views of amici law professors, but does not purport to reflect the views (if any) of 28 any institutions that amici are affiliated with. GIBSON, DUNN & CRUTCHER LLP UNOPPOSED MOTION TO FILE LAW 200 Park Ave. New York, NY 10166-0193 PROFS.’ AMICUS BRIEF (16-cv-538) – 1 Tel 212.351.4000 Case 2:16-cv-00538-JLR Document 49 Filed 09/02/16 Page 2 of 7 1 motion and do not oppose the Court noting this motion and amici’s proposed brief for 2 consideration on September 2, 2016. 3 Amici are a group of 18 law professors whose research and teaching primarily focus on 4 issues of privacy, security, and technology within the broader contexts of constitutional law and 5 criminal procedure. The attached brief addresses issues that are specifically within their areas of 6 scholarly expertise. Amici believe that their perspective—developed through years of academic 7 study and inquiry—will be useful to the Court as it adjudicates the Government’s motion to dismiss 8 (which it should deny). Amici have a strong interest in ensuring that First and Fourth Amendment 9 rights—including rights of liberty, privacy, and speech—are fairly and fully protected and that this 10 case is decided correctly, consistent with precedent. Proposed amici are: 11 Jonathan Manes, Clinical Assistant Professor and Director of the Civil Liberties and 12 Transparency Clinic at the University at Buffalo School of Law, the State University 13 of New York. He writes, teaches, and directs the Clinic’s efforts on issues involving 14 the protection of individual rights and the public’s right of access to information in 15 the areas of national security, law enforcement, privacy, and technology. 16 Derek Bambauer, Professor of Law at the University of Arizona. His research 17 explores freedom of speech, Internet censorship, intellectual property, and 18 cybersecurity. 19 Jane Bambauer, Associate Professor of Law at the University of Arizona. Her 20 research assesses the social costs and benefits of data, and involves many popular 21 privacy laws. 22 Jordan “Jody” Blanke, Distinguished Professor of Computer Information Systems 23 and Law at the Stetson School of Business and Economics at Mercer University in 24 Atlanta. He writes about the law and ethics of privacy and technology and teaches 25 courses such as The Law and Ethics of Big Data in a Business Analytics Master’s 26 Degree program and Privacy Law in an MBA program. 27 28 GIBSON, DUNN & CRUTCHER LLP UNOPPOSED MOTION TO FILE LAW 200 Park Ave. New York, NY 10166-0193 PROFS.’ AMICUS BRIEF (16-cv-538) – 2 Tel 212.351.4000 Case 2:16-cv-00538-JLR Document 49 Filed 09/02/16 Page 3 of 7 1 Catherine Crump, Assistant Clinical Professor at the University of California, 2 Berkeley School of Law and Associate Director of the Samuelson Clinic for Law, 3 Technology, & Public Policy. Her writing, teaching, and clinical work focus on 4 application of the First and Fourth Amendments to new technologies, in both the law 5 enforcement and national security contexts. 6 Susan Freiwald, Professor of Law and Dean’s Circle Scholar at the University of 7 San Francisco School of Law. She teaches courses on criminal procedure, 8 information privacy and internet law and writes extensively on the Fourth 9 Amendment’s application to new technologies and the electronic communications 10 privacy laws. 11 David C. Gray, Professor of Law at the University of Maryland, Francis King Carey 12 School of Law. He teaches courses on criminal procedure and writes extensively on 13 the Fourth Amendment. 14 Dennis D. Hirsch, Professor of Law at The Ohio State University Moritz College of 15 Law and the Capital University Law School. He also serves as director of the 16 Program on Data and Governance at the Moritz College of Law. His research focuses 17 on information privacy law and governance theory. 18 Margot E. Kaminski, Assistant Professor of Law at The Ohio State University 19 Moritz College of Law and an Affiliated Fellow of the Yale Information Society 20 Project. She writes on law and technology, with a focus on First Amendment and 21 privacy law and the intersections between the two. 22 Vivek Krishnamurthy, Assistant Director of the Cyberlaw Clinic at Harvard 23 University's Berkman-Klein Center for Internet & Society and a Clinical Instructor 24 and Lecturer on Law at Harvard Law School. His clinical teaching and academic 25 research focus on the impacts of internet-based technologies on the human rights to 26 privacy and free expression both here in the United States and around the world. 27 28 GIBSON, DUNN & CRUTCHER LLP UNOPPOSED MOTION TO FILE LAW 200 Park Ave. New York, NY 10166-0193 PROFS.’ AMICUS BRIEF (16-cv-538) – 3 Tel 212.351.4000 Case 2:16-cv-00538-JLR Document 49 Filed 09/02/16 Page 4 of 7 1 Yvette Joy Liebesman, Professor of Law at Saint Louis University School of Law. 2 She teaches courses related to intellectual property and her research focuses on the 3 intersection of intellectual property and technology. 4 Neil Richards, Thomas & Karole Green Professor of Law at Washington University. 5 He writes and teaches in the areas of First Amendment Law, Fourth Amendment 6 Law, and privacy and technology law. 7 Jorge R. Roig, Associate Professor of Law at the Charleston School of Law 8 (currently Visiting Associate Professor at the Touro College Jacob D. Fuchsberg Law 9 Center). He writes and teaches on the subjects of Constitutional Law, Internet and 10 Technology Law, and Intellectual Property, with a particular interest in issues 11 regarding freedom of speech and privacy. 12 Ira Rubinstein, Senior Fellow at the Information Law Institute, New York 13 University School of Law, where he is also an Adjunct Professor of Law. He writes 14 and teaches in the areas of privacy, cybersecurity, national security, voter privacy, 15 and the intersection of privacy law and technical design. 16 David A. Schulz, Senior Research Scholar in Law and Clinical Lecturer at Yale Law 17 School. His scholarly writing and legal practice focus on the First Amendment, 18 access to information, and newsgathering law. 19 Adina Schwartz, Professor in the Department of Law, Police Science and Criminal 20 Justice Administration at John Jay College of Criminal Justice, City University of 21 New York. She teaches the required law course for students in the John Jay College 22 Master’s Program in Digital Forensics and Cybersecurity, and is Assistant Director 23 of the Cybercrime Studies Center there. She writes on Fourth Amendment law, law 24 and technology, and comparative legal regimes on data protection and national 25 security. 26 Daniel J. Solove, John Marshall Harlan Research Professor of Law at George 27 Washington University Law School. His work focuses on information privacy law. 28 GIBSON, DUNN & CRUTCHER LLP UNOPPOSED MOTION TO FILE LAW 200 Park Ave. New York, NY 10166-0193 PROFS.’ AMICUS BRIEF (16-cv-538) – 4 Tel 212.351.4000 Case 2:16-cv-00538-JLR Document 49 Filed 09/02/16 Page 5 of 7 1 Katherine J. Strandburg, the Alfred B. Engelberg Professor of Law at the New 2 York University School of Law. She teaches in the areas of patent law, innovation 3 policy, and information privacy law, and her research considers the implications of 4 “big data” for privacy law. 5 As this Court is well aware, federal district courts possess the inherent authority to accept 6 amicus briefs. See Dkt. 42; Dkt. 46 (“The court has ‘broad discretion’ to appoint amicus curiae.” 7 (citation omitted)); see also, e.g., Skokomish Indian Tribe v. Goldmark, No. C13-5071JLR, 2013 8 WL 5720053, at *1 (W.D. Wash. Oct. 21, 2013) (Robart, J.) (same). District courts frequently 9 accept amicus briefs from non-parties “concerning legal issues that have potential ramifications 10 beyond the parties directly involved or if the amicus has unique information or perspective that 11 can help the court beyond the help that the lawyers for the parties are able to provide.” Skokomish, 12 2013 WL 5720053, at *1 (internal quotation marks omitted).
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