The presentation said that since the Supreme Court first ruled on wiretapping law in 1928 in a Prohibition-era case involving a bootlegger, “subtler and more far-reaching means of invading privacy have become available to the government.” Technological breakthroughs, it continued, have made it possible for the government “to obtain disclosure in court of what is whispered in the closet.” In interviews, lawyers and law enforcement officials agreed that there was uncertainty over what information the police are entitled to get legally from cell companies, what standards of evidence they must meet and when courts must get involved. A number of judges have come to conflicting decisions in balancing cellphone users’ constitutional privacy rights with law enforcement’s need for information. In a 2010 ruling, the United States Court of Appeals for the Third Circuit, in Philadelphia, said a judge could require the authorities to obtain a warrant based on probable cause before demanding cellphone records or location information from a provider. (A similar case from Texas is pending in the Fifth Circuit.) “It’s terribly confusing, and it’s understandable, when even the federal courts can’t agree,” said Michael Sussman, a Washington lawyer who represents cell carriers. The carriers “push back a lot” when the police urgently seek out cell locations or other information in what are purported to be life-or-death situations, he said. “Not every emergency is really an emergency.”How bad was SG Verrilli's argument? Here's Law.com with some analysis:
CNN commentator Jeffrey Toobin, author of a best-selling book on the Court, went outside on March 27 to pronounce on the air that the argument was a "train wreck" for the government. Toobin asserted that Verrilli had done a "simply awful" job and was not "ready with good answers." Carrie Severino, a former Clarence Thomas clerk, chief counsel to the Judicial Crisis Network and an ardent opponent of the Affordable Care Act, also spoke of Verrilli's "rough start" and "stumbling" presentation. Other critics took Verrilli to task for failing to give a crisp answer to the request by conservative justices for a "limiting principle" that would reassure them that Verrilli was not asking for unlimited federal power to cure all ills. In addition, some said Verrilli should have repeatedly focused attention on Court precedents like Gonzales v. Raich in which the Court gave an expansive reading to the commerce power of Congress. But supporters of the law quickly came to Verrilli's defense, asserting that the contrasting styles of the lawyers who argued should not obscure the fact that the SG had made all the points he had intended to make. Mayer Brown's Andrew Pincus, another veteran advocate who was in the audience for most of the three days, said the government had "the harder side of the stick," adding that "the justices asked probing questions, which is what you would expect of an argument of this moment and magnitude.…I think Don did a good job of explaining why this market is unique." Thomas Goldstein of Goldstein & Russell, who also watched the arguments, said the "optics" of an argument can be affected by factors entirely outside the control of the lawyers. The Court's conservative justices are sharper questioners, for example, making their target — in this case Verrilli — seem like he is always on the defensive. "It's easy for Paul to look brilliant when he has them on his side," said Goldstein, referring to Bancroft partner Paul Clement, the lead lawyer arguing against the statute.Romney was fooled yesterday:
Campaign workers took Romney to a room he thought was packed with supporters gathered for a pancake brunch. It was supposed to be his first campaign stop Sunday as he courted Wisconsin voters ahead of Tuesday's primary. Romney said Rep. Paul Ryan walked out into the ballroom first and introduced Romney as he waited backstage with his newest supporter, Sen. Ron Johnson, R-Wis. There were the standard backstage cues for where to stand, along with Secret Service protection. As Romney stood behind a black curtain, Ryan offered his usual enthusiastic endorsement, singing Romney's praises as applause filtered backstage. His staff warned him not to expect a big crowd. That was an understatement. Finally, it was time for Romney and Johnson to step into the room. "The two of us go out there, and it's completely empty. There's nobody there," a smiling Romney said when his staff later brought him to the right room, where supporters had gathered, upstairs. "Not only do they do that, but they caught it on camera," Romney said. "This is known as forgive, but remember." Staffers plan to post a video of the prank on their blog.