NEW YORK LAW SCHOOL MOOT COURT ASSOCIATION
39TH ANNUAL CHARLES W. FROESSEL
MOOT COURT COMPETITION
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2015
DOCKET NO. 10562/15
ALEXA BONAROS,
Petitioner,
- against UNITED STATES,
Respondent.
On Writ of Certiorari to the United States Court of Appeals for the
Thirteenth Circuit
BRIEF FOR PETITIONER
Team 20
Attorney for Petitioner
185 West Broadway
New York, NY 10013
QUESTION PRESENTED
I. Does the president exceed the limits of his constitutional power by ordering the
wholesale collection of metadata of American citizens using a widely-used
platform without respect to a particular threat, but out of concern for national
security?
II. Does an American citizen sharing data through a social media application, which
promises to erase all data after a few minutes, have a reasonable expectation of
privacy in her metadata as recognized in Katz v. United States, such that
collection of that metadata constitutes a “search” under the Fourth Amendment?
i
TABLE OF CONTENTS
QUESTION PRESENTED ………………………………………………… i
TABLE OF CONTENTS…………………………………………………… ii
TABLE OF AUTHORITIES…………………………………………………iii
OPINIONS BELOW…………………………………………………………iv
COUNTERSTATEMENT OF THE CASE…………………………………v
A) PROCEDURAL HISTORY
B) STATEMENT OF THE FACTS
SUMMARY OF ARGUMENT……………………………………………… 1
ARGUMENT………………………………………………………………… 3
I. PRESIDENT’S ORDER TO COLLECT WHOLESALE META DATA FROM A
SOCIAL MEDIA PLATFORM EXEEDS HIS CONSTITUTIONAL POWER
BECAUSE SUCH ORDER IS NOTAUTHORIZED BY THE CONGRESS AND
BECAUSE IT IS NOT SUPPORTED BY HIS INHERENT CONSTITUTIONAL
POWER.
A. PRESIDENT’S EXECUTIVE ORDER 41019 IS INCOMPATIBLE WITH
THE INTENT OF THE CONGRESS BECAUSE THE TWO FEDERAL
STATUTES AT ISSUE DO NOT AUTHORIZE THE PRESIDENT’S
POWER TO ORDER INDISCRIMINATE METADATA COLLECTION
WITHOUT SPECIFIC INVESTIGATION IDENTIFIED.
B. PRESIDENT IS NOT AUTHORIZED TO ISSUE EXECUTIVE ORDER
FOR DOMESTIC METADATA COLLECTION BECAUSE THE
PRESIDENT’S INHERENT CONSTITUTIONAL POWER AS THE
COMMANDER-IN-CHIEF OF MILITARY IS LIMITED TO FOREIGN
AND INTERNATIONAL AFFAIRS.
CONCLUSION……………………………………………………………… 10
ii
TABLE OF AUTHORITIES
CASES
U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304 (U.S. 1936) . . . . . . . . . . . . . .4, 9
ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Zivotofsky v. Kerry, 135 S. Ct. 2076 (U.S. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Hamdi v. Rumsfeld, 542 U.S. 507 (U.S. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 5
U.S. v. U.S. Dist. Court, 407 U.S. 297 (U.S. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (U.S. 1952) . . . . . . . .
1, 3
Clinton v. City of New York, 524 U.S. 417 (U.S. 1998) . . . . . . . . . . . . . . . . .
. 10
Mistretta v. U.S., 488 U.S. 361, 386 (U.S. 1989) . . . . . . . . . . . . . . . .
. . 10
STATUTORY PROVISIONS
50 U.S.C.A. §1541 (Authorization for Use of Military Force (AUMF)) . . . 1, 4, 5
50 U.S.C.A. Preambles………..5
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATIOT ACT) ACT of 2001, 107 P.L. 56,
115 Stat. 272. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 6
U.S.C.A. Const. Art II §1. Cl. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
U.S.C.A. Const. Art II §3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
iii
OPINIONS BELOW
Petitioner Alexa Bonaros brought the case to the United States District Court for
the District of Froessel, seeking a preliminary injunction to bar the Government from
collecting metadata from Glimpse, a widely-used social media platform, because the
President Daniel M. Field’s Executive Order No. 41019 (“Order 41019”) which directs
National Security Administration (“NSA”) to collect metadata from Glimpse is
unconstitutional. Bonaros claimed that Order 41019 is not constitutionally or statutory
authorized and that indiscriminate collection of metadata violates her Fourth Amendment
rights. The District Court granted summary judgment to the United States Government
and concluded that the Order 41019 is authorized by the section 215 of the USA Patriot
Act (“Section 215”) and by the Authorization to Use Military Force (“AUMF”). The
District Court also held that the collection of metadata from a social media platform is
not a search under the Fourth Amendment because there was no reasonable expectation
of privacy.
Bonaros appealed to the United States Court of Appeals for the Thirteenth Circuit
on both issues. Court of Appeals held for the United States Government again that
AUMF authorizes the President to use “all necessary and appropriate force” to protect
national security and that Section 215 authorizes the Executive branch to require “the
production of any tangible things” for an authorized investigation. Court of Appeals
applied third-party doctrine for the second claim and decided that there is no reasonable
expectation of privacy when she voluntarily participated in the social media
communication.
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COUNTERSTATEMENT OF THE CASE
A) PROCEDURAL HISTORY
On March 1, 2015, Bonaros filed suit against the federal government, challenging the
constitutionality of Order 41019. Bonaros moved for a preliminary injunction to bar the
Government from continuing to engage in bulk collection of metadata and to compel the
Government’s destruction of any such metadata in its possession. The Government
moved for summary judgment and Bonaros filed a cross-motion for summary judgment
in response.
On March 24, 2015, the District Court granted summary judgment to the United States
Government finding that Order 41019 was properly authorized by the Congress and that
the order did not violate the Fourth Amendment rights.
On June 2, 2015, Alexa Bonaros appealed from the judgment of the District Court to the
United States Court of Appeals for the Thirteenth Circuit that the District Court erred
because (1) neither the AUMF nor section 215 authorize the domestic collection of
metadata of United States citizens; (2) Order 41019 is unsupported by the President’s
inherent constitutional powers, and; (3) the ongoing daily collection of metadata created
by Glimpse violates her Fourth Amendment right against unreasonable search and seizure.
On June 12, 2015, the Court of Appeals held for the United States Government 3-2 that
Order 41019 is congressionally authorized under section 215 and the AUMF, and that
President Field’s domestic metadata collection is properly within his independent Article
II powers. The court also held that the Government’s actions do not constitute a search
under the Fourth Amendment.
In response to the appeal by Alexa Bonaros of the judgment of the Court of Appeals, the
v
Supreme Court of the United States granted Writ of Certiorari to review the two issues
stated in this brief.
B) STATEMENT OF THE FACTS
Homegrown terrorist attacks have become nationwide concern for the security of
the United States. International terrorist organizations including Islamic State of Iraq and
Kazakhstan (“ISIK”) manipulate young “naïve” American citizens to commit such
attacks. ISIK is known to be responsible for all the four recent indiscriminate mass
killing through 2013 to 2014 by local youth.
Glimpse is a social media cellphone application widely-used in the United States.
ISIK utilized this social media to coordinate the recent attacks while Bonaros and many
other American citizens regularly use Glimpse to share their private stories and political
opinions with their friends. Glimpse is considered as more secure platform because it
deletes all the content data after 10 seconds and because information is shared only with
the people whom the users designate.
President Field issued Order 41019 on April 4, 2014, three days after the attack
that killed 10 people and injured over one-hundred people in New York City. LANZA
Program is created by this Executive Order to collect all domestic metadata on an
ongoing daily basis, which is created and transmitted through Glimpse. President Field
stated that Congress is regularly briefed on the actions taken to combat domestic
terrorism and repeatedly authorized these classified programs. Several members of
Congress clearly support, in their statements, national security programs to protect
American citizens from homegrown terrorism while other legislators have opposite
vi
opinions. They have warned that such programs destruct democracy and civil liberties
protected under the Constitution.
According to Munoz Report surveyed 65,000 people each year since 2001,
expectation of privacy among the users of electronic communications has been
significantly increased in the recent 7 years. In 2007, 71% of Americans believed that
their electronic communications were subject to government surveillance. In 2014, 62%
of American citizens expect their electronic communications are not subject to
government surveillance.
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SUMMARY OF ARGUMENT
I. President Field’s executive order 41019 directed National Security Administration
(“NSA”) to collect all domestic metadata on an ongoing basis, which is created
and transmitted through Glimpse, a social media phone application. This
President’s act is not authorized by the Congress because the Congress did not
intend to authorize such President’s act by either of the two statutes: the
Authorization For Use of United States Armed Forces (“AUMF1”) or Section 215
of the USA PATRIOT ACT (“Section 215”)2. AUMF only authorizes the
president’s exclusive power against nations, organizations or persons related to
September 11 attack. Section 215 may only allow collection of metadata relevant
to a specific authorized investigation.
President’s constitutional power rests on the Vesting Clause 3, the Commander-inChief Clause and the Take Care Clause4. “The President ha[s] primary
responsibility—along with the necessary power—to protect the national security
and to conduct the Nation's foreign relations.” 5 However, “the President is not
Commander in Chief of the country, only of the military.” 6 In terms of the
1
50 U.S.C.A. § 1541
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATIOT ACT) ACT of 2001, 107 P.L. 56, 115 Stat. 272.
3 “The executive Power shall be vested in a President of the United States of America.” U.S.C.A. Const.
Art. II § 1, cl. 1
4 “he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the
United States.” U.S.C.A. Const. Art. II § 3
5
Hamdi v. Rumsfeld, 542 U.S. 507, 580, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (THOMAS, J.,
dissenting)
6
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 643–644, 72 S.Ct. 863, 96 L.Ed. 1153 (1952)
(concurring opinion
2
1
domestic matters, the President may not have such exclusive and conclusive
power. He has the duty to take care the Law be faithfully executed and his act
must be authorized by the Congress. Because collection of the metadata of U.S.
Citizens’ personal communication within the U.S. is the domestic matter, the
President may not have exclusive and conclusive constitutional power.
The President’s order to collect metadata from Glimpse is not authorized by the
Congress. The order is actually opposite from what the Congress intended in the
two Federal Statute that the President relied on. Because this order involves not
only military and foreign intelligence issues but also heavily involves domestic
policy issues. President has the responsibilities as a Commander-in-Chief;
however, the President does not have inherent constitutional power over such
complex issues. Therefore, the executive order 41019 exceeds the limit of
President’s constitutional power.
2
ARGUMENT
ARGUMENT
I.
PRESIDENT’S ORDER TO COLLECT WHOLESALE META DATA
FROM A SOCIAL MEDIA PLATFORM EXEEDS HIS
CONSTITUTIONAL POWER BECAUSE SUCH ORDER IS
NOTAUTHORIZED BY THE CONGRESS AND BECAUSE IT IS NOT
SUPPORTED BY HIS INHERENT CONSTITUTIONAL POWER.
In order to analyze the constitutionality of the President’s act, this court applies to
three-category test from Justice Jackson’s concurrent opinion at Youngstown Street &
Tube Co. v. Sawyer, 343 U.S. 579, 635–638 (U.S.1952).
First, when “the President acts pursuant to an express or implied authorization of
Congress, his authority is at its maximum, for it includes all that he possesses in
his own right plus all that Congress can delegate.” Second, “in absence of either a
congressional grant or denial of authority” there is a “zone of twilight in which he
and Congress may have concurrent authority,” and where “congressional inertia,
indifference or quiescence may” invite the exercise of executive power. Finally,
when “the President takes measures incompatible with the expressed or implied
will of Congress” Zivotofsky v. Kerry, 135 S. Ct. 2076 (U.S. 2015), 2083-2084
(citing Youngstown, 343 U.S. 579 at 635-638)
The first step is to determine what the Congress’s position toward the President’s
specific act in question is. If the Congress authorizes the President’s executive order by
its enacted statutes, the President is authorized to issue Order 41019 based on his
constitutional power and the power properly delegated by the congress. If Congress is
silent about the subject, the President may be authorized to execute his power within his
constitutional limit. If the Congress’s intent was incompatible to the President’s
executive order, the President must have exclusive constitutional power that the
Congress’s interference is unconstitutional.
Second step is to examine whether the President has exclusive power authorized
by the Constitution. If other branch of the government also has the constitutional power
3
over the subject, the President’s power is not exclusive and therefore, his specific act may
be constitutional only if the Congress properly delegates its power to the President. The
President’s act in question in this case involves both domestic matters over which
Congress has the legislative power and international matters that the President has
executive decision-making power. If the subject is “related solely to internal affairs, it
would be open to the challenge that it constituted an unlawful delegation of legislative
power to the Executive.” U.S. v. Curtiss-Wright Export Corp., 57 S.Ct. 216 (U.S. 1936)
at 218. Because domestic metadata collection to protect the country from homegrown
terrorist attacks involves both internal and external area, “joint action by the Executive
and Legislative Branches” may be required.
A. PRESIDENT’S EXECUTIVE ORDER 41019 IS INCOMPATIBLE WITH THE
INTENT OF THE CONGRESS BECAUSE THE TWO FEDERAL STATUTES
AT ISSUE DO NOT AUTHORIZE THE PRESIDENT’S POWER TO ORDER
INDISCRIMINATE MATADATA COLLECTION WITHOUT SPECIFID
INVESTIGATION IDENTIFIED.
1. Two federal statutes are at issue as the Respondent claims; Authorization For Use
of United States Armed Forces (“AUMF7”) or Section 215 of the USA PATRIOT ACT
(“Section 215”)8 will be separately in this brief. First, AUMF only authorizes the
President to take measures against nations, organizations, or persons who are responsible
for the September 11 attacks.
AUMF defines “the President is authorized to use all necessary and appropriate
force … in order to prevent any future acts of international terrorism against the United
States.” 50 U.S.C.A. § 1541. However, “all necessary and appropriate force” may not be
7
50 U.S.C.A. § 1541
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATIOT ACT) ACT of 2001, 107 P.L. 56, 115 Stat. 272.
8
4
used unlimitedly. The force must be used against the specific target groups under AUMF
as defined “the nations, organizations, and persons he (the President) determines planned,
authorized, committed, or aided the terrorist attacks that occurred on September 11,
2001.” 50 U.S.C.A. § 1541. The issues here are 1) whether homegrown terrorist attacks
may be within the targets under AUMF and 2) whether domestic metadata collection
from social media platform constitutes “necessary and appropriate force.”
AUMF, as the form of joint resolution, was announced 10 days after the tragic
attack by Al-Qaeda, a global militant Islamist organization. Al-Qaeda’s attacks created
emergent national security threat for the United States as “such acts continue to pose an
unusual and extraordinary threat to the national security and foreign policy of the United
States.” U.S.C.A. Section §50, Preamble.
In Hamdi v. Rumsfeld, 542 U.S. 507 (U.S. 2004), the government detained an
individual who has fought for Taliban, an Islamic fundamentalist political movement in
Afghanistan which was known to support Al-Qaeda. It was clear that Hamdi was the
targeted person under AUMF.
In order to determine whether a force is “necessary and appropriate force” under
AUMF, Hamdi court established the requirement that President’s act must be “so
fundamental and accepted an incident to war as to be an exercise of the necessary and
appropriate force” Id., at 517-518. The court held that the detention was a fundamental
incident of waging war to prevent a combatant's return to the battlefield. Id., at 519.
Here in this case, Order 41019 was to prevent homegrown terrorist from
committing another attack. Islamic State of Iraq and Kazakhstan (“ISIK”) is
manipulating young Americans to commit mass killing. Because previous crimes were
5
coordinated through Glimpse, a social medial platform, the government wants to analyze
the communication data. First of all, ISIK is not related AL-Qaeda, Taliban, or any other
organization committed or supported September 11 attacks. Young Americans who
actual committed or would commit the terrorist attacks are not responsible for September
11 attacks at all. ISIK nor the Young Americans is targeted under AUMF.
Secondly, the purpose was not related to a war with any other country but crime
prevention. Even if the domestic terrorist attacks may reach to the level of the war,
prevention of unspecified future attacks may not pose the same emergency as the actual
war. Unlike the Hamdi case, where the detention was the only way to keep a combatant
to return to the battlefield, there could be many other ways to prevent the terrorist attacks.
Because homegrown terrorists consisted of young American citizens and ISIK are
not targeted by AUMF and because collection of metadata from social media was neither
fundamental nor incident to war, AUMF does not authorize the Order 41019.
2.
The government also relies on Section 215 of US Patriot Act9 for the
authorization of the President’s Executive Order. Section 215 authorizes the Executive
Branch to seek “tangible things … for an investigation to obtain foreign intelligence
information not concerning a United States person or to protect against international
terrorism or clandestine intelligence activities.” 107 P.L. 56, 115 Stat. 272. Section 215
(b) (1) further defines that the sought information must be related to an authorized
investigation.
9
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATIOT ACT) ACT of 2001, 107 P.L. 56, 115 Stat. 272
6
ACLU v. Clapper, 785 F. 3d 787 (U.S. 2015) clarified the relevance to an authorized
investigation when large-scale collection of telephony metadata was sought for counter
terrorism investigations. The court acknowledged that vast amount of record can be
demanded by a grand jury if that is for a particular subpoena with the subject matter of
the investigation. However, the court struck down the relevance without particular
subject matter identified. Collection of telephonic metadata that at some time in the
future would be relevant to a terrorist activity is not comparable for a specific
investigation authorized for a grand jury. “Counter terrorism investigations without
identifying any specific investigations” was not accepted as “an authorized investigation”
under Section 215. “Section 215 does not permit an investigative demand for any
information relevant to fighting the war on terror, or anything relevant to whatever the
government might want to know.” Id., at 815.
This case, the Order 41019 is to collect internet metadata collection for the
purpose for national security. General purpose to seek the vast amount of data collection
is to protect the country from terrorist attacks. Enhanced national security against
homegrown terrorist is the critical issue; however, Section 215 would not be applied
unless the government identifies the specific investigation for which the data collection is
required.
B. PRESIDENT IS NOT AUTHORIZED TO ISSUE EXECUTIVE ORDER FOR
DOMESTIC METADATA COLLECTION BECAUSE THE PRESIDENT’S
INHERENT CONSTITUTIONAL POWER AS THE COMMANDER-IN-CHIEF
OF MILITARY IS LIMITED TO FOREIGN AND INTERNATIONAL AFFAIRS.
According to the traditional separation of power, the President has constitutional
and exclusive power for foreign affairs and Congress has the legislative authority over
7
the domestic matters. In order to discuss whether the President has the exclusive power
to discretionally issue an executive order, the subject matter should be classified solely
domestic, solely foreign, or somewhat complex area.
1. National security surveillances rest within domestic sphere without connection
between the targeted activities and foreign power. Because the President does not have
exclusive power over the domestic matters, “electronic surveillance in domestic security
matters requires an appropriate prior warrant procedure.” U.S. v. U.S. Dist. Court, 92
S.Ct. 2125 (U.S. 1972) 298. On the other hand, the President has the surveillance power
over “the activities of foreign power within or without this country.” Id., 308. In Keith,
the court found it unconstitutional that electronic surveillance conducted without prior
judicial approval against three defendants charged with bombing of a government
building. Id., 297-299. The purpose of national security did not give the President an
exclusive authority to conduct such surveillance on purely domestic activities.
LANZA program, the application made under Order 41019, domestically collects
metadata from a social media platform that American citizens use for daily
communication. The process, the affected people and the actual record to be analyzed
have no difference from the record collected from the domestic surveillance on the three
criminals in Keith. Because metadata does not include contents, ideological information
related to international terrorism will not be collected or analyzed. The same as Keith’s
court, the purpose of national security alone will not justify the surveillance without prior
judicial approval.
Executive Order 41019 directs indiscriminate domestic data collection without the
President’s exclusive constitutional power to issue such order. This executive order was
8
issued three days after the most recent attack by the homegrown terrorists in New York.
Because there is no record that the order was properly presented to the Congress and it
was enacted by both houses’ approval. If Youngstown’s second or third category is
applied, the President’s order is determined as exceeding his constitutional limit. Even if
the first category applied, because Congress did not properly delegate its authority to the
President, Order 41019 is not within the limit of the President’s constitutional authority.
2. If the Order 41019 is classified as solely foreign matters, it may survive through
any of the three categories of the Youngstown test because the President has the
exclusive power as the Commander-in-Chief of the military. However, it would be an
extraordinary interpretation if the domestic metadata collection for national security
purpose is considered solely foreign or war related matter.
In order to activate the President’s war powers, his act must be related to the
actual war or conflicts with other countries. In Curtiss, without the President’s emergent
interception, arms and munitions of war would have been soled to the countries at war.
U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304 (U.S. 1936), 312. The court
rationalized the President’s war power that “he (the President), not Congress, has the
better opportunity of knowing the conditions which prevail in foreign countries, and
especially is this true in time of war.” Id., at 320.
In this case, there was no actual war with any other countries. Sporadic attacks by
homegrown terrorists not actually connected each other are not comparable to the
September 11 attacks that Al-Qaeda declared the war against the United States. Also,
there is no reason to determine that the President has better understanding about domestic
9
crimes committed by young Americans and their usage of the social media
communications.
Because the Order 41019 cannot be separated from domestic matters, the
President does not have exclusive power. Therefore, the President’s order to collect
domestic metadata exceeds the limit of his authorized power.
3. Homegrown terrorist attacks may not be labeled either domestic or foreign issue.
National security against such homegrown terrorist attack is a new area that traditional
separation of power by the Constitution does not clearly authorized to any branch of the
government. It may fall within the “twilight area” in which the activities of the separate
Branches merge. Mistretta v. U.S., 488 U.S. 361 (U.S. 1989), 386.
The President has exclusive power if the Constitution specifically authorizes.
President may also have authority in the other area not specified in the Constitution but
his power may not be exclusive. In such other area, the President must be properly
delegated by Congress, Clinton v. City of New York, 524 U.S. 417 (U.S. 1998) at 434436.
In this complex area, the President may have authority to issue executive order
only if the Youngstown’s first category applied. As discussed before, because Congress
did not delegate its authority to the President properly by the presentment and
bicameralism, the condition for the first category was not satisfied. Therefore, Oder
41019 exceeds the limit of President’s constitutional power.
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CONCLUSION
For the foregoing reasons, this Court must reverse the decision of the Court of
Appeals for the Thirteenth Circuit.
Respectfully submitted,
By: Team 20
.
Attorney for Petitioner
Submitted: August 14, 2015
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