Important: to prepare for your role in the in-class mock Supreme Court arguments, listen to one of the oral arguments available on the Oyez.org site. We suggest the arguments from Carpenter v US as it should provide a good starting point for how most of these Justices think about a case like this.
On January 18, 2013, John Cremate was rushed to the emergency room at Mount Auburn Hospital in Cambridge, MA. He had convulsions, racing pulse, and shortness of breath. As Cremate was being examined, he suffered a fatal cardiovascular collapse. The doctors and the Cambridge police were mystified at the cause of the fatality, since Cremate has been in perfect health up until that day. The coroner consulted a forensic pathologist, an MIT HST graduate, identified this as an instance of massive selenium poisoning — a fatal but extremely rare occurrence.
During the ensuing murder investigation police discovered that many tenants in Cremate’s building used WiFi services in public areas of the apartment building operated by WeRelay.com, a local ISP. WeRelay continuously logs both the http traffic through its local cache, and the connection/authentication requests through each individual access point. The detective, Trace Dixy, of the Cambridge police visited WeRelay’s office and requested copies of the logs for users in Cremate’s building for a one month period before Cremate’s demise. The manager turned these over voluntarily without the officer presenting a subpoena or other formal request.
Upon examining the logs, Dixy found the following fragments from the http cache logs:
2013-01-17T15:50:56+01:00 http://www.google.com/search?q=selenium+poisoning
2013-01-17T15:51:21+01:00 http://www.amazon.com/s/ref=nb_sb_noss?field-keywords=selenium
2013-01-17T15:52:45+01:00 http://www.bing.com/search?q=how+to+get+rid+of+your+neighbor
and access logs from the WiFi access point located in the lobby lounge of the building in which both Cremante and Lucille Despair live.
2013-01-17T15:50:46+01:00 192.168.201.197 despairtablet[1172]: Password auth succeeded for 'guest' from 192.168.201.99:55001
2013-01-17T15:53:53+01:00 192.168.201.197 despairtablet[1172]: Exit (guest): Disconnect received
Based on this the police obtained a warrant to search Despair’s apartment. The search yielded a large number of empty bottles of selenium powder and an Android tablet whose lock screen identified the machine name as ‘despairtablet’. Ms. Despair was arrested convicted of second-degree murder.
The United States Supreme Court will hear arguments in the case Despair v US. Lucille Despair is challenging her conviction on Fourth Amendment grounds. The Federal Court of Appeals for the First Circuit affirmed her conviction and the US Supreme Court issued a writ of certiorari to decide the following question:
Did use of the http and WiFi access point logs as evidence at trial violate Lucille Despair’s Fourth Amendment right against unreasonable search and seizure?
Each side should argue this with reference to the Supreme Court’s ruling in Smith v. Maryland, US v. Jones and Carpenter v. United States. Does the Court’s reasoning in Smith apply here? If so, how? If not, what are the differences between these circumstances and those in Smith? Consider both the majority opinion and the dissents. Does the Jones or Carpenter case provide any guidance? Whichever side you argue, say what the applicable standard the government should need to meet in obtaining these records and justify your claim. Note that your research turns up legislative history from 1994 showing that the Congress intended that 18 USC 2703(d) govern law enforcement access to records such as those at issue in this case.
Note, this activity will be split into two parallel sessions. Next to each role will be a [1] or a [2] indicating which session you will be in.
Group 1: Representing Ms Lucille Despair (Petitioner)
Group 2: Representing the United States (Respondent)
Group 3: Supreme Court Justices
Group 4: SCOTUS clerks
Group 5: SCOTUS report