บทถอดความฉบับเต็มของ Order in the Pod

basically charging too much for coal freight that it was that it was hauling in violation of the Interstate Commerce Act. And during this investigation there was statutory there there was basically like statutory immunity for anyone testifying at the at at the at the committee and the the auditor said, man, look, like this is gonna make me look really bad. Like I'm a bad accountant if I'm letting and a bad auditor if I'm letting this railway company overcharge in violation of federal law for the colder haul and from from Pittsburgh to upstate New York. And I I think the the term he used in argument was like this is a personal disgrace for me. So even if I have immunity for whatever crimes I may have committed, I I still don't want to testify because It's gonna make me look bad as a as a bean counter. And the the Supreme Court said n no, that does not cover your your your personal disgrace is not covered under the F fifth Amendment. So it the the lank the language from that is it's a necessary corollary that if the witness has already received a pardon, he can no longer set up his privilege since he stands with respect to such offense as it has never been committed. So that's like eighteen ninety six Ryan: Okay. Brendan Philbin: Supreme Court diction. So it's basically like, Hey, you there there's no more crime because you've been pardoned, so y you don't have you you can't be you can't use the the the Fifth Amendment because there's no more crime. Ryan: So it kinda works a lot like getting a grant of immunity then in exchange for your testimony. Brendan Philbin: Right. Yep, exactly. So that's all the way back in eighteen ninety four, so we could be suspicious of that, right? 'Cause that's a long that's a long time ago. But come in the fifties, there is a another legis congressional investigation, this time a little sexier than coal, Soviet spying, right? this dude, if this is Alman versus United States back in nineteen fifty-six, he again had this statutory immunity to testify, and he again exercised his fifth amendment right. This time, a little more legitimate argument than the auditor back in eighteen ninety-six for the Railway Company. This guy said, Hey look, man, this is the mid-50s. if if I have to testify that I'm a communist, nobody's giving me a job anymore. So I'm gonna exercise my Fifth Amendment rights across the board, regardless of what happened. and whether I had contact with KGB agents or not, doesn't matter. I'm not answering any of your questions because I don't wanna be labeled a a communist because I'll never work again in this country. so the court said again, we're gonna we're gonna reaffirm Brown V. Walker. And your Fifth Amendment does not cover personal disgrace, nor does it cover these this idea that you may not get a job because you're a communist. It's only for crimes that were that that could be linked to you through your through your testimony. So since you have this statutory immunity for this commission, go ahead

and and you have to testify. And so that is kind of the the stage that Senator Hawley was setting and and it it is relatively clear Right, so w we have to ask ourselves what was Fauci doing? and I I think he kind of gave it away a little bit when in his opening remarks the only thing he did say is he accused Senator Rand Paul of having an unhinged obsession aimed at securing his prosecution. And so I think I'm not on his legal team, thankfully. but I I think this is this is more about potential state law prosecutions, because federal pardons are only for federal crimes. so if there are potential state criminal claims that could be brought, his his Fauci's pardon wouldn't cover those. So he is kind of preventing those cutting those off at the at at the knees as far as his as far as his testimony goes. Ryan: Yeah, and I I think that's an important distinction because he was always back back in COVID quick to say, I didn't order any of the schools closed. I didn't order any of the nursing homes, the the people go from the hospital back to the nursing homes. I don't have the power to do all that. Yeah, but the people that did have the power took his advice and made their decisions based on what he said. So if he was contradicting himself, then you're right. Maybe the states could come up with some some kind of argument like some kind of a fraud on the government or some kind of other kind of trouble they can make Brendan Philbin: Right. And and keep in mind the the other potential avenue of prosecution is that his pardon expired or was only for conduct that ended in January twenty twenty five. So any new crimes now, on the federal level wouldn't be covered by that pardon. So of course lying to Congress has has been a crime de jour, it seems like for the past decade, no matter what party's in office, we're always trying to get people who have lied to who have lied to Congress. So potentially if if there's a lot of gotcha questioning going on, perhaps Fauci would also be concerned that he would lie to Congress, So that that's the other potential criminal exposure he would have in that sense. Reilly: Yeah well but Ryan: I never heard if anybody on the committee wanted to have him held in contempt for not answering based on the theory that he he was he should have, 'cause with his pardon and everything. Did did was there any indication of that? Brendan Philbin: I I I think it wa I think it's being discussed right now. I'm not sure I didn't see any I didn't see any like news headlines, but it's it's I'm sure they're out there if we could we could find Reilly: well, I mean, Congress can give him immunity, right? I mean if if they're if Holly means what he says that he that the pardon already prevents them from charging him with anything, then Congress can immunize his testimony. and force him Brendan Philbin: Ex yeah. Reilly: to testify. Now the trick with that is then he's immune. including Brendan Philbin: Right. Reilly: from anything he says, right? And

so you know, we were talking about some other famous Americans previously. there's another guy named Oliver North, who some people might remember. And the reason he di and the reason his conviction for the Iran Contra stuff got overturned was because the DC Circuit ruled that the witnesses might have relied on his i on his immunized congressional testimony, even though the prosecutors had actually been sequestered and unable to witness it on the theory that look if the prosecutor hears it then they can come up with some evidence based on that, even if it's not quoting from the testimony. Courts are very protective of that. Brendan Philbin: Yeah, and and that those those two Supreme Court cases that are at the heart of this both did that. St statutory there's act of Congress, statutory immunity, so those people were able to testify. and I think if if the goal of this more importantly, I think for the Republic is learning lessons from the massive insanity that happened during that time. And look, Fauci is the guy who was doing it all, pretty much. So it would be great to learn and and have lessons learned from that. and I think maybe that that immunity that Riley talked about would be a good way to to go forward. Reilly: Well, except maybe what they're trying to do is they're trying to get him in a perjury trap and so they're not gonna wanna do that. Brendan Philbin: Right. Ryan: then he could just you got immunity he could just lie and that'd be that but I I'm with Brendan. You know it'd be really like nice to know the truth from everything that happened back in back in 2020 and even before that because his cause his journal talked about stuff like before in twenty nineteen stuff was going on they were learning from China and figure out what was going on. But I I we don't want to get too far into it but I'm kind of with John Stewart. Like if there was a chocolate syrup outbreak in Hershey, Pennsylvania, I think I know where I would Brendan Philbin: Ha ha ha ha. Ryan: look first for see where the chocolate came from. Brendan Philbin: Yep, yeah, absolutely. Ryan: We discussed two cases earlier this year that did not have a decision at the time we talked about them. Those were the birthright citizenship and trans athlete cases. And Riley, our predictive powers were pretty good in those cases. Reilly: Well, yeah, certainly when it comes to the birthright citizenship, it I mean it was pretty much as expected. so Trump versus Barbara is the name of the case, and the opinion the majority opinion from the Chief Justice basically holds that birthright citizenship is the constitutional rule under the Fourteenth Amendment and therefore or you know, the way we have done this, for a hundred and fifty years and arguably we g you know, there's a lot of discussion of history in these papers, going back much further, you know, back to English Commonwealth. Law is the rule, and you know, his opinion, as with the opinion we got in our tariff case, it's about twenty

odd pages. It's pretty short and sweet, it's pretty to the point, and pretty much clearly says, this has been the rule, this was the ri this was the the understanding of the rule, this has been the rule going back to English common law, all the things that the traditional defenders of birthright citizenship pointed out in terms of president and history. the chief and the majority pretty wholeheartedly endorse. Ryan: Yeah, but the the there was like over a hundred pages written down, so what was everything else about? Reilly: Well, th but everything else is there's concurrences and dissents, right? So for instance Justice Kavanaugh, he is technically in the majority in that he voted, to invalidate the executive order. That is d you know, technically what is at issue here is the president's executive order declaring that birthright and citizenship is no longer the rule and the you know accompany policies that come from the agencies do that executive order. Kavanaugh would have held that it violated the statute, basically that the Congress in the Immigration and Nationality Act pull some language in from the Fourteenth Amendment, and it's pretty clear that what they meant by that is birthright citizenship, as understood. And so Kavanaugh's p position is that Congress already answered this by statute and that makes the administration's policy illegal. He does not agree with the historical analysis. His view is that these categories which we talked about, people can go back to the prior episode of exemption, things like this the children of diplomats, members of Indian tribes, that you know, we can thematically look at those and you know, based on the principles by which those people were denied birthright citizenship, he would also deny it to the children of illegal immigrants. Right. so that's Kavanaugh's gloss on the history as he thinks you treat the history thematically, right, and that it is not the group of categories that they were thinking of at the time are not is not the exclusive group of categories. Thomas takes go ahead. Ryan: And and just real quick for our non-lawyers out there, Kavanaugh was in the majority, and it is a six Reilly: Kind of. Ryan: six to five decisions because he agreed he concurred at least in the judgment, which means he concurred in the outcome, but the final decision of it all. And he also, just for the non-lawyers out there, if you read the various amendments to the constitution, the last clause, a lot of them has a little phrase in there that says, and Congress shall have the power to enact legislation. To carry out what this amendment's trying to do. So he was basically saying with this act, they were trying to carry out the the citizenship clause of the Reilly: Correct, yes. And so, and and so yet there's lots of details of the history of, you know, how the English did it and how and what this treatise says or that treatise said. the rule that the Chief Justice put down for the majority is very much that birthright citizenship, as it's been practiced, is the constitutional rule and if you want to change that you need a constitutional amendment is the ultimate punchline of the case. Ryan: Yeah, and I guess the the the the disagreement can case with Kavanaugh saying, you know, Congress could change the rule by statute, but you know, this comes out correct because Congress did write a statute, and and so but then the dissenters, they disagreed about history, I think, didn't isn't that what Justice Thomas did? Reilly: Well so just as Thomas takes issue with the historical analysis and draws on a lot of these other principles and tries to endorse a a different understanding of the history, which doesn't really hold up to my eyes, but you know, this goes back to the what we mean by jurisdiction, what we mean by they want to introduce this concept of allegiance. again they c people can go back and listen to our prior episode where we get in some of the more of the details of this. But you know, the truth i but the ch chief and the majority, you know, they look at one K Mark, which is a Supreme Court case that held that there was birthright citizenship, at least for the children of legal residents. and they they follow that logic to its conclusion and f and find that this is how it was understood at the time and what and how it has always been done since then, which of course there's also significant reliance interests when you're talking about people's citizenship, if they have citizenship here and nowhere else, if you're saying they didn't value get citizenship here, that creates all sorts of of messes and complications and things. And so I I don't think you are ever gonna see a majority of this Supreme Court creating that big a mess, to be honest with you. Ryan: Indeed, you know, they turning like millions of people into Tom Hanks in one of his lesser known great movies, The Terminal, if you ever saw that, where he was a a man from a fictitious Eastern European country and while he was in the air, there was a civil war and his government was overthrown and when he landed his passport was invalid and he couldn't leave. I think it was I think he was stuck in LaGuardia. It may have been JFK, but eventually, spoiler alert, peace was destroyed and he got to go visit the last jazz musician that was one of his father's favorite and get to get his autograph. So all is well it ends well for Tom Hanks as it usually does. As far as the other case goes, with the trans athlete case, our predictive powers were there saying, hey, based on the oral argument, we don't think the playings are going to win. And they didn't. I'll just read a little bit of summary here. I got says male athletes who identify as female challenge these laws in West Virginia and Idaho under Title Nine and the Equal Protection Clause. the regulations implementing Title IX require schools provide equal protection. Athletic opportunity for members of both sexes. And Justice Kavanaugh looked at

the term sex in Title IX and wrote it cannot plausibly be interpreted to refer to anything other than biological sex. In addition, Title IX expressly allows for separate teams for male and female students, quote, precisely because of the biological differences between the sexes. Neither Title IX nor its implementing regulations even hint at any exception as the plaintiff sought. For males who identify as female and have taken drugs or hormones to nullify that advantage. And under the Equal Protection Clause, laws that classify by sex, as we discussed in our previous discussion, must be evaluated under intermediate scrutiny, which requires they be substantially related to achieving an important government objective. And the court held that by separating male and female sports and limiting females, the female sports to females, These laws make a sex-based classification that triggers intermediate scrutiny. And the undisputed proposition that biological males generally possess inherent physical advantages in sport makes ensuring safety and preserving fair competition important government objectives. And leaving female sports to females is substantially related to that. interestingly, as far as the judgment goes, as we talked about a minute ago, I think it was 9-0. the three dissenters, the more liberal justices, wanted to reach some kind of standard for transgender people. And the majority didn't want to go there because they said they didn't have to, because either under rational basis or intermediate scrutiny, the law was going to pass. A lot of folks kind of thought, well, you know, what's Justice Gorsuch gonna say because of his employment discrimination case from Boston? And you know, he thinks he took it head on. I think he kind of dodged it. he thought Bostic supports rather than undermines the court's conclusions in the transgender athletes' cases. Gorsus distinguished the classification and these laws from discrimination because of transgender status. So anyway, the the athletes, the the plant challengers there were unsuccessful in their attempt to to compete in women's sports. Reilly: Yeah, no the the And the th the Title Nine decision, I you said, is pretty much unanimous. I mean there was I don't think they were ever gonna get very far with that. I I think the more interesting thing for the future i is less about the trans aspect of this and more about how the court is looking at what we call what whatever we call as applied challenges, right? Because it wasn't j you know, there was a claim in this case, not just that, you know, they had a a Title Nine right, but they also said as applied under the Equal Protection Clause they should be able to sue for essentially individual exemptions where they could show that there a as to a particular student athlete there was not an issue because of they had undergone whatever transition treatments that there was not a issue of competition or safety that someone should be able to make that showing and Kavanaugh kind of waves that away in kind of a paragraph that he just kinda says, we don't have to worry about that. I I think that's a really interesting approach to you know, as applied challenges and a and you know, exemptions for people exercising their rights. You know, we talk about things like employment division versus Smith and the religious exemptions this court has been very, very eager to recognize from various things. I I don't know if I think i that paragraph might come back to bite them. Ryan: It could. And if you remember or excuse me, in our last podcast, we talked about how the Justice Sodomayer I think in particular was open to this as applied challenges. But, you know, people raised the the the complications that would would bring about in in sports because would you have to g a blood test for each athlete that day to see what their hormone level was to see if they had some kind of advantage in the race that day? Reilly: Well by d well, I I I I think the assumption though is if you're doing the app as by challenge, the assumption is it's on the burden is on the student athlete to show that they have th you know, that that they can make that evidentiary showing, right? So you're y you know, you're kind of assuming that was part of the ass supply Ryan: Yeah. Well, for now though, there there is no Title IX claim for transgender athletes and they kind of dodged it on whether or not there's an equal protection claim. But as I think as you just said, Riley, the the the this is not gonna go away. It'll come back again someday and want to see what happens then. Other cases we have not discussed yet have to do with guns in paradise, Hawaii is paradise on Earth. Officials out there wanted to make it a gun free paradise. So they held aloft their magic tiki torch and said, By the power of Aloha. But instead of turning into he man Kamehameha, They declared all guns were forbidden from private property unless the property owner gave you express permission to bring your gun inside. The Supreme Court said this was unconstitutional and a 6 3 decision written by Justice Alito. And he wrote, and I'll I'll read from the opinion because it was it was fully interesting, and I apologize if I go at length here. He talks about after Bruin, which was the the Supreme Court case that struck down New York's gun permit law. Hawaii and four other states singled out in that decision flipped the default rule. The default rule was a common law, opening up a private property to the general public implied a license to all persons to enter, meaning that no person is a trespasser by merely coming on the property unless the property owner had given due notice that such a person is banned. And that's at Hawaii flipped it. You had to be given due notice that your gun was welcome before you could come in the property or you couldn't come on there. Hawaii generally prohibited licensed individuals from carrying a firearm, even if unloaded or inoperable, on private

property of another. But and it applied unless express authorization had been given by the owner, lessee, operator, manager of the property. So there had to be a sign out front that said. Guns welcome, like a welcome mat, and I have like a firearm instead of the firearm with the circle and a slash. I guess it would have just been a gun and a smiley face of some sort. I don't know. so that's author, and so that's what was going on there. And you can imagine this would have some complications. And Justice Lelo wrote, Hawaii's new default rule burdens those wishing to exercise their Second Amendment right. Some proprietors who do not. themselves object to entry by carry permit holders may be reluctant to post a sign welcoming such individuals for fear of alienating other customers. So under Hawaii's new default rule, a proprietor in this category may only be willing to consent discreetly to the entry of permit holders who make the effort to ask them. And this arrangement imposes new burden on permit holders who will have to somehow obtain permission to carry a firearm on the property before stepping. Onto it. And he then did a an interesting example from a case that that he was in concurring in back in 2016 about a woman with an abusive ex-boyfriend. he writes, to see what Hawaii's new default rule means in practice, consider its impact on a resident of Hawaii whose situation is like that of Jamie Katano, a young Boston woman who wanted to carry a weapon to defend herself from a violent ex-boyfriend. But was criminally prosecuted when she used non-lethal weapon to offend him off. He says, suppose our hypothetical one young woman, after clearing all the hurdles needed to get a Hawaii gun permit, left her home on a weekday morning and carried her handgun or in her purse. And on the way to work, she intends to fill up her car at a gas station. During her lunch break, she plans to walk to a fast food restaurant and then buy some items at a large drugstore. And after work, she wants to pick up her clothes at a dry cleaner. Then shop for groceries. Unless each of these establishments has posted a sign saying guns welcome or something to that effect, each visit could expose her to criminal liability. And he goes on here to talk about, well, you know, just her pulling in the parking lot there and having her gun on and was breaking the law. And then, you know, if she wanted to take it with her inside, she would have to find somebody who worked there that had the authority to give her permission at each and every place that she went to. And this is essentially nullifying her abil ability, her constitutional right to carry a gun in public for self-defense. And particularly if somebody, if you know somebody's out there with a possibility to harm you, this is really problematic having to get permission multiple times to take your gun places. So ultimately, the bottom line is Supreme Court didn't like this, and they said Hawaii's law violated the Second Amendment

and they struck it down. moving on. Brendan, can you tell us about the bank robby, how the cops found the guy that did it, and how the Fourth Amendment is involved? Brendan Philbin: Alright, so this is a case of basically th the law that's been on the book since the sixties, nineteen sixties, being applied to modern day technology. And we could we could unpack that. So this is a a run-of-the-mill old school bank robbery stick-up down in the Richmond, Virginia area. And I actually have a personal not with this bank robbery, but I do have personal experience kind of of doing these doing these warrants and it is fascinating. So Reilly: You have personal sorry, you have personal experience with bank robberies? What, sorry? Okay. Brendan Philbin: No, not not with bank robberies. Not with bank robberies, but with with with getting these geo the what what are called geofence warrants. So basically what happens is law enf there there's a crime committed, in this case this bank robbery, and law enforcement will call up Google and and the cell providers and they'll say, Hey, give us all the people who were around the bank at this time and we'll we'll we'll narrow it down. So you can imagine that that sucks up a ton of data and that of individuals. people go and buy we had a case when I was at DHS, somebody stole some federal government property from a facility that was right next to the highway and they ended up getting a geofence warrant and there were thousands of people because it was a busy highway at rush hour and everyone driving by with their phone are getting are getting sucked up. So this is a huge issue for privacy advocates, the ability of law enforcement to get massive amounts of data on people just for doing good law good police work, right? Trying to find trying to find this bank robber. So the the the police they they got this geofence warrant and they found Mr Shattery and they they prosecuted him but his his defense attorneys challenged the warrant because of it was it was basically overbroad under the fourth amendment. So in order to understand all this, we gotta go back to the sixties and and prior to around I think nineteen sixty five what is a search under the Fourth Amendment. It used to be trespass, old school trespass. Government agents physically coming on to your property and searching. but then in the mid sixties there's this guy named it Mr. Katz out in California and he was running a sports book for the this is the this is the Irish mob in Boston he was running numbers basketball games and stuff for for them. So he goes out to what our older listeners will remember is a phone booth. And he walks into the phone booth and he closes the soundproof door and he dials and he sends his numbers back to the the bookies in in Boston. But the FBI was on to him because Mr. Katz did not have good OPSEC and he kept using the same phone booth over and over and over again. And they said they they put a listening device on the wire on top of the on top of the phone booth. And Mr. Cass was prosecuted and they thought it was gonna be an easy day because they said, Hey, look, this is tr like this isn't a search because we didn't trespass anywhere. We had it on public property on the on this wire. But the court changed the game in Fourth Amendment in Cass v United States and it created a whole new test. And that test revolves around the reasonable expectation of privacy. Ryan: so did they get any audio off of him just saying numbers or was it like the pushing of the buttons is what it was recording? Okay. Brendan Philbin: yeah. No, no, no. They got yeah, that was a listening device. So they got him saying like, you know, Cal Berkeley minus four for five times or whatever. Ryan: Or the Celtics. Brendan Philbin: Yeah, yeah, yeah yeah, yeah, for yeah, for the home team for the for Whitey Ryan: Mm-hmm. Brendan Philbin: Bulger and that crew. anyway, so the the the court came up with this cast test and it involves a search is the government intrusion into a space where an individual has a reasonable expectation of privacy. And so what is a reasonable expectation of privacy? It's two, it's subjective and objective. So one is we as a s as a society have to recognize that the right that the expectation of privacy is reasonable. So in the cats case, yeah, of course, because that's why we have phone booths, right? We we have people have the ability to close and be shut off. So that society recognizes that your your phone conversations in a phone booth, you have expectation of privacy. And then did the individual exhibit that? And in cats, yes he did, because cats he closed the door and he he shut himself off. So that that is a search. So fast forward now there's no more phone booths, now there's now there's cell phones, and so does Does a reasonable does a person like this bank robber and millions of others, like all of our listeners, do you have a reasonable expectation of privacy in your location information that's beaming from your cell phone every second? and there are it this is a very unsettled area of the law because the technology is changing and there there is a balance, right? Because it's good for law enforcement to have these tools because we can catch bad guys, but at the same time, you know what I I I can't go about Yeah, Ryan: It makes it easier for them to follow you around if they want to. Brendan Philbin: and look, I can't exist in this world without giving my information to third parties. Like my my entire life is in the cloud, right? And that's a third party provider. I can't do I I can't even buy lunch some places in paying cash anymore. So I have to have a credit card transaction and that all that information, all my financial information, goes up. Too so that there's this exception to one area where individuals generally don't have a right to privacy is if they give their information to a third party. Right. and so that that makes sense in the old days, but now w when we

can't go about our daily lives without giving our information to third parties, it is an exception that tends to swallow the rule of the of the of the Fourth Amendment. So that's that's like what's at issue here in this search is does did the the bank robber Have an reasonable expectation of privacy in the records held by the cell phone provider about his location. And the court said yes, which is big for privacy advocates and those of us who don't want the government following us around. Ryan: But that was the only issue alive in this case, right? It wasn't that whether or not the search was good or bad, it was like whether or not did he have that expectation of privacy. Brendan Philbin: Right. Yep. And so yeah, people people have a reasonable expectation of privacy in their records about their cell phone's location. so the geo offense warrants are not per se unconstitutional, and the the court didn't warrant them or didn't label them as general warrants, which I believe I know Riley worked on the LJC amicus for this. I I think that was what we were pushing, right, Riley, is that these are these are general warrants. Reilly: Yeah, I I I I mean the for the Fourth Amendment says that you have to you know you have to you know, get a warrant, f for the particular like place and the particular things, right? I i the idea and we call this the particularity requirement. Meaning they can't just come like let's say w they have evidence that you have a murder weapon in your underwear drawer. They can come look in your underwear drawer without warrant. They can't go in your basement, at least in theory. And we can talk about I obviously Brendan, you you know better than I do probably all the different ways that gets complicated and the scopes of searches and these kinds of things. But in theory, you're supposed to have a particular thing you're searching for, and that is kind of the opposite of what they do with these warrants, where so w you know, we talked about bank robbers. This is also what they did to the January sixth people, is they got the you know, the coordinates of the Capitol building and they ran which phones had Google location data to be in the building. That's how they track some of these people down. but and so that was actually a a warrant that was thrown out by the judge in I guess it was the Eastern District of Virginia maybe, Brendan Philbin: Yeah. Reilly: saying, there is no particularity here. There this is a a dragnet, literally. You're just throwing out the net Brendan Philbin: Right. Reilly: and seeing who you pick up, and that generally has been something the Fourth Amendment has frowned upon, right? So that is that has kind of been our angle on it that I've written about before, that there's no way to do this with any particularity. Brendan Philbin: Right, right. So that after this case, that's gonna be the challenge for prosecutors is courts are gonna be taking a lot closer eye at that particularity requirement of these of these warrants. So what does that mean in the in the in this cell phone context? It's like how big is the geographic space that you're pulling information from? it it that aperture is gonna close because it used to be like hey anywhere in like four square blocks from the bank, let's suck up all that information and take a look and see what kind of what kind of bad dudes are out there who could have robbed a bank. Reilly: Or or we don't like this people these this Black Lives Matter rally, or if you wanna switch Brendan Philbin: Right. Reilly: it, make it a Tea Party rally or a MAGA rally, you know, pick your politics, right? You just or the NRA convention Brendan Philbin: Right, right. Reilly: or the D Democratic Socialist America Convention. You just pull every cell phone of everyone who was there. Or Brendan Philbin: Right, right. Reilly: everyone who was going to the Planned Parenthood or the gun store, right? Again, I can make we can make this whatever politics you want, right? Brendan Philbin: Yep. to yeah, to Riley's point about particularity, this this case is gonna go back in courts, not just the Eastern District of Virginia, but now district courts and state trial courts throughout the country are gonna be taking a lot closer look at the processes that are involved with this geofence warrants. They're gonna take they're gonna take a look at how wide or narrow is the aperture for geographic searching, where before maybe law enforcement could get away with searching four blocks or six blocks around this bank that was robbed in Virginia. Now they're not then now they're gonna have to close that and only search a a narrower area. And the same goes with time, where you used to be able to maybe pull a couple hours on each end of the robbery or of the crime, now they're going to tighten that, tighten that aperture too. And then the third process that they're probably going to look at for for particularity is this kind of this unmasking process. So these warrants are pretty technical and the first round, your first ask as a law enforcement officer for give me all the phones within five block radius of the bank between 1 p.m And 4 p.m. And you're going to get a list, and it's not names and phone numbers, it's all anonymous. an anonymous list provided by the cell phone, and then from there you narrow down which phones you want to look at, you kick that back over to the cell phone provider, and then they give you the names and numbers, and then you can go about doing your police work. So Ryan: And so and this this all goes to the reasonableness of the search. Like the Supreme Court said, Okay, this is a search and the things you've been talking about is like the reasonableness Brendan Philbin: Mm-hmm. Ryan: of it. Do you are you are you looking for too many blocks? Are you looking for too much time? That that kind of goes to the reasonableness. Brendan Philbin: Right. Yep. Yeah. Yeah. so yeah, it it's it's stay tuned for this. I I think this is a

area of the certainly of the Fourth Amendment law that's been trying desperately to catch up with technology, like going back to the Carpenter v. United States case where they put a tracking the the law enforcement put a tracking device on someone's car. Yeah, and Ryan: The GPS tracker. Yeah. Brendan Philbin: they were able to find out where this dude was driving 247 and Yeah, i the court said, Well yeah, I I guess you don't have a reasonable expectation of privacy 'cause you're out driving your car around on the public highway, but w court was really uncomfortable with how much data and how much that tells about someone Ryan: Sure. Brendan Philbin: And so they came up with this this mosaic theory that didn't really set a standard, but it said, Hey, like, yeah, if you're if you're getting all this little information and you're able to piece together something that eventually will rise to the level of a search because someone has a reasonable expectation of privacy that way. and that wasn't I mean, that was before the iPhones were around then, but I I think that was technology has moved forward. Yeah. Yeah. S yes. Ryan: Yeah. Yeah, that was back in twelve. I I think that case came out in twelve or something around there about. And of course the police argued back in that, well, we could just follow the guy around all the time. This saves us manpower and we can just track him. But then again, Brendan Philbin: Yeah. Right. Ryan: you could have a car outside the bank twenty four seven too and watching it see who's coming and going. And so the th th this Brendan Philbin: Right. Right. Ryan: the it gets technology's making fourth amendment law really tricky. Brendan Philbin: Yeah, and I think we're Riley, is are we is mosaic theory for the the traffic camps that we have or are we going on? Reilly: I mean I I mean I I don't know if w we would call it the Mavaic theory. I I Because that you know the court has not formally interdo endorsed that as a theory. That's that's kind of a gloss that some people like Oren Keir and others have put on what was said in Carpenter, what was said in Jones, etc. and etcetera. and so I I don't know if w you know, I I resist biting off everything that that involves 'cause there's a whole bunch of different discourse around what that's supposed to mean. the but the general I sense that you know metadata, as we call it, and these small little pieces pieces of information about you can be assembled to create a bigger picture. We we all c we all kind of understand this now, I think. We all understand that you know, they can scrape our data and, you know, they can target us with ads and do all these sorts of things. Well the p government can also do that too. The police can also do that too. and they can put together a a really interesting picture of you. I don't know if you've ever tried to download your Facebook data or your Twitter data or anything like that. It it's very interesting sometimes to see the you know, things they've tagged you with. Right, but these things but you know, these things can s you know, it's one thing to say, well, you're driving on a street. That was the old fourth amendment theory. You know, you could be driving anywhere and you're in public, you don't really have a r expectation of privacy when you're walking around in public. What what we now understand is if you know, they follow your car to again, we can talk about the Plan Perrin Clinic, we could talk about the NRA convention, you can make it whatever political angle you want. Right? We have Illinois actually banned where we're suing, they've banned the use of life. point data to track women traveling for abortions. which if you think that's unrealistic, apparently in Texas they've actually done this now with some people who were leaving the state to get an abortion. and so y these things can draw these very comprehensive pictures of our lives even if any individual element is not and the court has been concerned with that. I don't know whether or not they want to you know I don't know they're gonna officially endorse the mosaic theory if the law professors have thought it through, but But I think that is the d the direction they're going is caring more and more about these aggregations of data. Brendan Philbin: Yeah, it's interesting to watch and just how the how this test develops over time, I think prosecutors will be get will get pretty smart at it, but it'll be interesting to watch. Ryan: All right. Well, I guess we'll leave it there for for our special trip to Motown for this month. They are Riley Stevens and Brendan Philbin. I'm Ryan Morrison. We're all with the Liberty Justice Center. Thank you for being with us today. Please subscribe to the Beyond a Reasonable Docket podcast and tell your friends to subscribe as well. We appreciate your five-star ratings and your kind reviews. They are a big help to us. Follow the Liberty Justice Center on all social media platforms and come visit our home on the web, LibertyJusticeCenter.org, where you can sign up for the Beyond a Reasonable Docket Substack. We hope you had a great time with us today, and please join us again for the next Beyond a Reasonable Docket.