Amicus Curiae Brief — Ross William Ulbricht, Petitioner v. United States

No. 17-950

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In The

Supreme Court of the United States

-----------------------------------------------------------------ROSS WILLIAM ULBRICHT,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

-----------------------------------------------------------------BRIEF OF AMERICAN BLACK CROSS AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

-----------------------------------------------------------------ALAN GURA

Counsel of Record

GURA PLLC

916 Prince Street, Suite 107

Alexandria, VA 22314

703.835.9085

alan@gurapllc.com

February 2018

Counsel for Amicus Curiae

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ........................................

i

TABLE OF AUTHORITIES ...................................

ii

INTEREST OF AMICUS CURIAE ........................

1

SUMMARY OF ARGUMENT ................................

2

ARGUMENT ...........................................................

2

I.

Given the Overlap of First and Fourth

Amendment Interests, Courts Should Closely

Review Searches and Seizures That Implicate Freedoms of Speech and Association .....

2

II. The Warrantless Search and Seizure of Internet Routing Data Violates the First

Amendment ..................................................

4

III.

Warrantless Search and Seizure of Internet

Routing Data Deters the Enjoyment of First

Amendment Rights ...................................... 12

CONCLUSION .......................................................

16

ii

TABLE OF AUTHORITIES

Page

CASES

ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015) ...........13

American Communications Ass’n v. Douds, 339

U.S. 382 (1950) ........................................................12

Americans for Prosperity Found. v. Harris, 182

F. Supp. 3d 1049 (C.D. Cal. 2016) ...........................15

Baird v. State Bar of Ariz., 401 U.S. 1 (1971) ...............5

Bates v. City of Little Rock, 361 U.S. 516 (1960) ..........5

Brown v. Socialist Workers ’74 Campaign Comm.,

459 U.S. 87 (1982) ............................................. 5, 6, 7

Buckley v. Valeo, 424 U.S. 1 (1976) ...............................7

Cal. Bankers Ass’n v. Shultz, 416 U.S. 21 (1974) .........6

Citizens United v. FEC, 558 U.S. 310 (2010) ..............16

Doe v. Reed, 561 U.S. 186 (2010) ...................................7

Elrod v. Burns, 427 U.S. 347 (1976) .............................7

Ex parte Jackson, 96 U.S. 727 (1877) ...........................8

Gibson v. Fla. Legislative Investigation Comm.,

372 U.S. 539 (1963) ...................................................5

Kusper v. Pontikes, 414 U.S. 51 (1973) ..................... 3, 6

Marcus v. Search Warrant of Property, 367 U.S.

717 (1961) .............................................................. 2, 3

NAACP v. Alabama ex rel. Patterson, 357 U.S.

449 (1958) .......................................................... 4, 5, 6

Nat’l Org. for Marriage, Inc. v. United States, 24

F. Supp. 3d 518 (E.D. Va. 2014) ...............................15

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TABLE OF AUTHORITIES – Continued

Page

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377

(2000) .........................................................................6

Riley v. California, 134 S. Ct. 2473 (2014) ...................8

Roberts v. United States Jaycees, 468 U.S. 609

(1984) .........................................................................6

Rumsfeld v. Forum for Academic & Institutional

Rights, Inc., 547 U.S. 47 (2006) .................................5

Smith v. Maryland, 442 U.S. 735 (1979) ......................8

Stanford v. Texas, 379 U.S. 476 (1965) ..................... 3, 4

United States v. Forrester, 512 F.3d 500 (9th Cir.

2008) ..........................................................................8

United States v. Jones, 565 U.S. 400 (2012) ...............11

United States v. United States Dist. Court, 407

U.S. 297 (1972) ..........................................................4

Walter v. United States, 447 U.S. 649 (1980) ................3

Zurcher v. Stanford Daily, 436 U.S. 547 (1978) ....... 3, 4

Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975) ......... 10

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ........................................... passim

U.S. Const. amend. IV ......................................... passim

STATUTES

26 U.S.C. § 6104(c)(3) ..................................................15

26 U.S.C. § 6104(d)(3)(A) ............................................14

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TABLE OF AUTHORITIES – Continued

Page

RULE

U.S. Sup. Ct. Rule 37.....................................................1

OTHER AUTHORITIES

Diala Shamas, Nermeen Arastu, Mapping Muslims: NYPD Spying and Its Impact on American Muslims, Long Island City, NY: Muslim

American Civil Liberties Coalition (MACLC),

and Creating Law Enforcement Accountability & Responsibility (CLEAR) Project, 2013 .... 13, 14

Kieran Healy, Using Metadata to Find Paul Revere, Kieran Healy Blog (June 9, 2013), https://

kieranhealy.org/blog/archives/2013/06/09/usingmetadata-to-find-paul-revere/ ................................11

Laura K. Donohue, The Fourth Amendment in a

Digital World, 71 N.Y.U. Ann. Surv. Am. L. 553

(2017) .......................................................................11

Matthew J. Tokson, The Content/Envelope Distinction in Internet Law, 50 Wm. & Mary L.

Rev. 2105 (2009) .................................................... 8, 9

Shin-Kap Han, The Other Ride of Paul Revere:

The Brokerage Role in the Making of the American Revolution, 14 Mobilization 143 (June

2009) ........................................................................11

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INTEREST OF AMICUS CURIAE1

Founded in 2015, American Black Cross is a Section 501(c)(3) charitable organization dedicated to reforming our nation’s prison-industrial complex, and

aiding Americans imprisoned as a consequence of their

principled opposition to government policies.

Amicus advocates for positions that elicit disapproval in some corners of society. In today’s environment, where expressing any opinion that may touch on

a growing list of controversial matters significantly

risks one’s livelihood and social standing, amicus cannot function without guaranteeing its supporters’ privacy.

The need to shield one’s associations from government surveillance is particularly acute, as Americans

reasonably fear exposure and retaliation for holding

or advancing dissenting views. The government’s asserted power to monitor private Internet communication without a warrant impacts amicus’s ability to

attract, retain, and communicate with its supporters,

who are justifiably reluctant to afford the government

a view into their conscience.

------------------------------------------------------------------

1

Per U.S. Sup. Ct. Rule 37: statement: All parties received

timely notice of intent to file this brief, and have consented. No

counsel for any party authored this brief, in whole or in part, and

no person or entity other than amicus funded its preparation or

submission.

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SUMMARY OF ARGUMENT

The First and Fourth Amendments secure overlapping interests. Accordingly, this Court has long understood that the need to protect speech and

associational interests weighs upon the question of

whether a particular search or seizure is unreasonable

in violation of the Fourth Amendment.

The right to assemble and organize for political

and social action requires freedom from unwarranted

surveillance of the sort the government employed

in this case. The government’s continued at-will gathering of Internet communication, revealing people’s

private associations, interests, and beliefs without judicial authorization or exigent circumstance, offends

the First Amendment and dissuades Americans from

exercising fundamental rights essential to the functioning of a free, self-governing society. This type of

search and seizure should require a warrant.

------------------------------------------------------------------

ARGUMENT

I.

Given the Overlap of First and Fourth

Amendment Interests, Courts Should Closely

Review Searches and Seizures That Implicate Freedoms of Speech and Association.

“The Bill of Rights was fashioned against the

background of knowledge that unrestricted power of

search and seizure could also be an instrument for stifling liberty of expression.” Marcus v. Search Warrant

of Property, 367 U.S. 717, 729 (1961). “[T]he struggle

3

from which the Fourth Amendment emerged is largely

a history of conflict between the Crown and the press.”

Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978) (internal quotation marks omitted). That history, having

“been fully chronicled in the pages of this Court’s reports,” Stanford v. Texas, 379 U.S. 476, 482 (1965) (footnote omitted), requires no detailed recitation. What

matters here is that the First and Fourth Amendments

“are indeed closely related” in securing, among other

interests, “conscience and human dignity and freedom

of expression as well.” Walter v. United States, 447 U.S.

649, 655 n.6 (1980) (plurality opinion) (internal quotation marks omitted).

“[I]n issuing warrants and determining the reasonableness of a search, state and federal magistrates

should be aware that unrestricted power of search and

seizure could also be an instrument for stifling liberty

of expression.” Zurcher, 436 U.S. at 564 (internal quotation marks omitted). But while “the use by government of the power of search and seizure as an adjunct

to a system for the suppression of objectionable publications is not new,” Marcus, 367 U.S. at 724, the right

of free speech is not the only First Amendment freedom

imperiled by an unrestrained appetite for surveillance.

The “freedom to associate with others for the

common advancement of political beliefs and ideas is

a form of orderly group activity protected by the First

and Fourteenth Amendments.” Kusper v. Pontikes,

414 U.S. 51, 56-57 (1973) (internal quotation marks

omitted). “Inviolability of privacy in group association

may in many circumstances be indispensable to

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preservation of freedom of association, particularly

where a group espouses dissident beliefs.” NAACP v.

Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958) (citation omitted).

History abundantly documents the tendency

of Government – however benevolent and benign its motives – to view with suspicion those

who most fervently dispute its policies. Fourth

Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy

in their political beliefs.

United States v. United States Dist. Court, 407 U.S. 297,

314 (1972).

Courts must thus police the government’s “temptation to utilize [ostensible ‘security’] surveillances to

oversee political dissent.” Id. at 320. “Where the materials sought to be seized may be protected by the First

Amendment, the requirements of the Fourth Amendment must be applied with ‘scrupulous exactitude.’ ”

Zurcher, 436 U.S. at 564 (quoting Stanford, 379 U.S. at

485).

II.

The Warrantless Search and Seizure of Internet Routing Data Violates the First

Amendment.

1. On its face, this is a Fourth Amendment case

questioning the government’s ability to seize people’s

data. Not deep beneath the surface, however, this case

concerns the government’s power to uncover First

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Amendment-secured associations that it could never

demand people disclose. “Freedoms such as [the rights

of speech and association] are protected not only

against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.”

Gibson v. Fla. Legislative Investigation Comm., 372

U.S. 539, 544 (1963) (quoting Bates v. City of Little

Rock, 361 U.S. 516, 523 (1960)). When the government

“attempts to make inquiries about a person’s beliefs or

associations, its power is limited by the First Amendment.” Baird v. State Bar of Ariz., 401 U.S. 1, 6 (1971).

The government should not be able to accomplish

what the First Amendment forbids, by eroding Fourth

Amendment standards.

2. “It is hardly a novel perception that compelled

disclosure of affiliation with groups engaged in advocacy may constitute [an] . . . effective . . . restraint on

freedom of association.” Gibson, 372 U.S. at 544 (quoting NAACP, 357 U.S. at 462). Such prying “[makes]

group membership less attractive, raising . . . First

Amendment concerns about affecting the group’s ability to express its message.” Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 69

(2006).

“The Constitution protects against the compelled

disclosure of political associations and beliefs. Such

disclosures can seriously infringe on privacy of association and belief guaranteed by the First Amendment.”

Brown v. Socialist Workers ’74 Campaign Comm., 459

U.S. 87, 91 (1982) (internal quotation marks and citations omitted). “[A]bsent a countervailing governmental

6

interest, [organizational membership] information

may not be compelled.” Cal. Bankers Ass’n v. Shultz,

416 U.S. 21, 55 (1974) (citations omitted).

The government faces a heavy burden when seeking to unmask Americans’ private associations. This

Court “ha[s] never accepted mere conjecture as adequate to carry a First Amendment burden.” Nixon v.

Shrink Mo. Gov’t PAC, 528 U.S. 377, 392 (2000). “As our

past decisions have made clear, a significant encroachment upon associational freedom cannot be justified

upon a mere showing of a legitimate state interest.”

Kusper, 414 U.S. at 58 (citations omitted).

The right to privacy in one’s political associations and beliefs will yield only to a subordinating interest of the State that is compelling,

and then only if there is a substantial relation

between the information sought and an overriding and compelling state interest.

Brown, 459 U.S. at 91-92 (internal quotation marks, citations and punctuation omitted); see also Roberts v.

United States Jaycees, 468 U.S. 609, 623 (1984) (infringements on associational freedom must “serve compelling state interests, unrelated to the suppression of

ideas, that cannot be achieved through means significantly less restrictive of associational freedoms”) (citation omitted).

“Since NAACP v. Alabama we have required that

the subordinating interests of the State [in seeking disclosure] must survive exacting scrutiny. We also have

insisted that there be a ‘relevant correlation’ or

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‘substantial relation’ between the governmental interest and the information required to be disclosed.”

Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per curiam)

(footnotes and citation omitted). Under exacting scrutiny, “[t]he interest advanced must be paramount, one

of vital importance, and the burden is on the government to show the existence of such an interest.” Elrod

v. Burns, 427 U.S. 347, 362 (1976) (citations omitted).

“The gain to the subordinating interest provided by the

means must outweigh the incurred loss of protected

rights, and the government must employ means closely

drawn to avoid unnecessary abridgment.” Id. at 362-63

(citation, internal quotation marks and punctuation

omitted). “[T]he strength of the governmental interest

must reflect the seriousness of the actual burden on

First Amendment rights.” Doe v. Reed, 561 U.S. 186,

196 (2010) (internal quotation marks and footnote

omitted).

3. At-will warrantless search and seizure of pen/

trap Internet routing data cannot survive exacting

scrutiny. If there exists a “substantial relation between

the information sought and an overriding and compelling state interest,” Brown, 459 U.S. at 92 (internal

quotation marks and bracket omitted), the government

should not mind carrying its burden of proving that relationship in applying for a warrant. Considering the

sensitive, highly-revealing nature of such information,

the cost to associational freedom of allowing such

searches and seizures on anything less than probable

cause is too high.

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Just as “[a]n Internet search and browsing history

. . . could reveal an individual’s private interests or

concerns,” Riley v. California, 134 S. Ct. 2473, 2490

(2014), so, too, can the data seized here offer a window

into one’s conscience. Details of how a person communicates with the outside world via the Internet –

from the privacy of the home, no less, and including

with what particular device – may detail the range and

intensity of political and social associations. Analogizing data such as IP addresses and port usage to the

dialed phone numbers of Smith v. Maryland, 442 U.S.

735 (1979), let alone to envelopes carried by horse-andbuggy in the era of Ex parte Jackson, 96 U.S. 727

(1877), see United States v. Forrester, 512 F.3d 500, 511

(9th Cir. 2008), simply fails to comprehend the Internet’s pervasive role in twenty-first century civic engagement.

The information seized here without benefit of a

warrant or exigent circumstance deeply implicates

First Amendment freedoms. At a minimum, IP addresses may reveal that a person regularly spends

time exchanging information with a server assigned to

a political, religious, or other social advocacy organization. While “IP addresses probably do not reveal anything about the underlying content of web surfing

communications, courts must recognize the possibility

that the purpose or subject matter of certain communications might be exposed simply through the disclosure of an IP address.” Matthew J. Tokson, The

Content/Envelope Distinction in Internet Law, 50 Wm.

& Mary L. Rev. 2105, 2150 (2009) (emphasis added).

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Indeed, IP addresses need not directly relate to

matters of conscience to unmask a user’s beliefs or

intended actions. IP addresses assigned to neutral

commercial websites may suggest, by themselves or in

light of other information, First Amendment-protected

activity, e.g., that a person intends to travel to a demonstration or political conference. Even the volume of

transmitted data may reveal a communication’s content. For example, if a website has files of varying sizes,

learning how much data a visitor downloaded may reveal which specific political manifestos he or she read.

Id. at 2151.2

And by aggregating and sorting data relating to

people’s various associations, the government could

fairly approximate, if not reverse-engineer, the sort of

membership lists that it could not directly demand of

targeted organizations. Indeed, the government might

use its unfettered access to Americans’ online habits to

identify a movement’s potential adherents, donors, and

activists in ways that political organizers could not

dream of approximating.

Long before the Internet’s advent, courts appreciated the danger that this sort of surveillance posed to

2

The record does not disclose that the government targeted

petitioner’s URL data, but the rationale for allowing the pen/trap

search and seizure here might readily be stretched to support that

level of intrusion. That URLs containing search terms are inherently communicative may be obvious, but by focusing on this fact,

“many scholars have ignored or given insufficient attention to the

fact that all URLs reveal underlying web surfing communications,

exposing the website content requested by and sent to users.” Tokson at 2137 (footnote omitted).

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First Amendment associational freedom. Condemning

the warrantless seizure of an advocacy group’s phone

calls, a D.C. Circuit plurality agreed that merely logging “the names and addresses of many individuals

who called the organization, contributed funds or membership dues, and gave the office receptionist information regarding their mailing addresses” would be

unconstitutional. Zweibon v. Mitchell, 516 F.2d 594,

634 (D.C. Cir. 1975) (en banc) (plurality) (quotation

omitted).

A broadside attempt to obtain such a membership list would plainly violate the First

Amendment’s protection for association, and

to obtain it by such clandestine means is a patent evasion of the constitutional liberty.

Id. (quotation and citations omitted). The seizure of Internet pen/trap data could easily be put to the same

purpose. It ought to require a warrant.

But Internet pen/trap data enables far more mischief than the mere compilation of lists. Sifted, organized, and properly understood,

communication patterns also reveal degrees

of intimacy. Frequent contact with an individual denotes a closer relationship than those

with whom one rarely interacts. Mapping the

strength of these relationships, in turn, help

to elucidate broader social networks and an

individual’s relationship to others in the network. From this, leaders can be identified. By

mapping social networks, critical connections

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between different groups also can be identified.

Laura K. Donohue, The Fourth Amendment in a Digital

World, 71 N.Y.U. Ann. Surv. Am. L. 553 (2017) (footnotes omitted).

In this way, “the government’s unrestrained power

to assemble data that reveal private aspects of identity

is susceptible to abuse.” United States v. Jones, 565 U.S.

400, 416 (2012) (Sotomayor, J., concurring). While the

Framers might never have imagined the Internet, one

can predict what George III might have done with unfettered access to the Colonists’ IP address information. Writing as a “junior analytical scribe” at the

“Royal Security Administration,” Duke Professor

Kieran Healy showed how social network analysis of

eighteenth-century “metadata” – the mere knowledge

of which of 254 people belonged to which of seven Bostonarea patriotic groups – revealed “a picture of a kind of

social network between individuals, a sense of the degree of connection between organizations, and some

strong hints of who the key players are in this world.”

Kieran Healy, Using Metadata to Find Paul Revere,

Kieran Healy Blog (June 9, 2013), https://kieranhealy.

org/blog/archives/2013/06/09/using-metadata-to-find-paulrevere/; see also Shin-Kap Han, The Other Ride of Paul

Revere: The Brokerage Role in the Making of the American Revolution, 14 Mobilization 143 (June 2009). The

First and Fourth Amendments secure the American

people’s right to decline entrusting the government

with such knowledge.

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As technology – including the government’s data

mining capabilities – advances and becomes ever-more

complex, it stands to reason that Internet routing information may reveal ever-more about a user’s conscience and associations. The law of search and seizure

must catch up, and keep up, with technology’s evolving

consequences for First Amendment freedoms.

III. Warrantless Search and Seizure of Internet

Routing Data Deters the Enjoyment of First

Amendment Rights.

“Awareness that the Government may be watching

chills associational and expressive freedoms.” Jones,

565 U.S. at 416 (Sotomayor, J., concurring). People need

not be computer science experts to intuitively grasp

the threat posed by warrantless surveillance – and to

react to that intrusion by voluntarily foregoing protected First Amendment activity.

[T]he fact that no direct restraint or punishment is imposed upon speech or assembly

does not determine the free speech question.

Under some circumstances, indirect “discouragements” undoubtedly have the same coercive effect upon the exercise of First

Amendment rights as imprisonment, fines, injunctions or taxes.

American Communications Ass’n v. Douds, 339 U.S.

382, 402 (1950). As the Second Circuit recently determined, “[w]hen the government collects [groups’]

metadata, [their] members’ interests in keeping their

associations and contacts private are implicated, and

13

any potential ‘chilling effect’ is created at that point.”

ACLU v. Clapper, 785 F.3d 787, 802 (2d Cir. 2015).

Recent experiences have confirmed the suppressive impact of government surveillance on core First

Amendment freedom. In 2001, New York City’s Police

Department “established a secret surveillance program that has mapped, monitored and analyzed American Muslim daily life throughout New York City, and

even its surrounding states.” Diala Shamas, Nermeen

Arastu, Mapping Muslims: NYPD Spying and Its Impact on American Muslims, Long Island City, NY: Muslim American Civil Liberties Coalition (MACLC), and

Creating Law Enforcement Accountability & Responsibility (CLEAR) Project, 2013 at 4.3 Unsurprisingly,

this “surveillance of Muslims’ quotidian activities has

created a pervasive climate of fear and suspicion, encroaching upon every aspect of individual and community life.” Id.

“Surveillance has chilled constitutionally protected rights – curtailing religious practice, censoring

speech and stunting political organizing.” Id. All Muslims interviewed by researchers into the impact of

such surveillance

noted that they were negatively affected by

surveillance in some way – whether it was by

reducing their political or religious expression, altering the way they exercised those

rights (through clarifications, precautions, or

3

Available at http://www.law.cuny.edu/academics/clinics/

immigration/clear/Mapping-Muslims.pdf

14

avoiding certain interlocutors), or in experiencing social and familial pressures to reduce

their activism.

Id.

Fear of governmental harassment as a consequence of associating in disfavored ways is not the only

deterrent to First Amendment freedom posed by uncontrolled surveillance. Americans may rightfully be

skeptical of the government’s efforts to maintain the

confidentiality of the fruits of such surveillance. Even

where the government’s motives are benign and the

surveillance is constitutional, there always exists some

risk that the fruits of the surveillance would be disclosed.

The IRS’s collection of charitable organizations’

confidential donor lists illustrates the dangers in aggregating and storing such data. While the IRS requires that such organizations file a “Schedule B”

identifying their leading donors, federal law forbids “the

disclosure of the name and address of any contributor

to [a § 501(c)] organization.” 26 U.S.C. § 6104(d)(3)(A).

Alas, “mistakes” happen. In 2011, an IRS agent

forwarded a copy of the National Organization for Marriage’s (“NOM”) unredacted Schedule B to a political

activist, who shared the data with NOM’s ideological

opponent, the Human Rights Campaign. That group,

in turn, saw to it that NOM’s private donor information was published in the Huffington Post. Another

activist, using the Post’s images of NOM’s Schedule B,

then prosecuted meritless legal actions against the

15

organization. See Nat’l Org. for Marriage, Inc. v. United

States, 24 F. Supp. 3d 518 (E.D. Va. 2014).

Although the IRS cannot share Schedule Bs of 501(c)(3)

groups with state officials, 26 U.S.C. § 6104(c)(3), some

states have begun demanding that charitable organizations provide that material as a condition of permission to solicit funds. But, wherever sensitive data

may be stored, it may be leaked. Notwithstanding the

assurances by California’s Attorney General that she

would safeguard the donor lists of controversial

groups, a trial recently “made abundantly clear” that

“the Attorney General has systematically failed to

maintain the confidentiality of Schedule B forms.”

Americans for Prosperity Found. v. Harris, 182 F. Supp.

3d 1049, 1056-57 (C.D. Cal. 2016). The Attorney General had leaked a total of 1,778 Schedule Bs, including

the potentially “very damaging” list of the names and

addresses of the top donors to Planned Parenthood Affiliates of California. Id. at 1057.

These disclosures are dangerous. The Central District of California “heard ample evidence establishing

that [Americans for Prosperity], its employees, supporters and donors face public threats, harassment, intimidation, and retaliation once their support for and

affiliation with the organization becomes publicly

known.” Id. at 1055. “Charles and David Koch, two of

AFP’s most high-profile associates, have faced threats,

attacks, and harassment, including death threats”

against themselves and their families, including

grandchildren. Id. at 1056. “Many supporters [of California’s same-sex marriage ban] (or their customers)

16

suffered property damage, or threats of physical violence or death, as a result” of having their support revealed. Citizens United v. FEC, 558 U.S. 310, 481 (2010)

(Thomas, J., dissenting).

The government’s accumulation of data about people’s private associations is never without risk, and

that risk, appreciated by the public, seriously damages

First Amendment freedoms. That damage weighs on

the Fourth Amendment balance, and compels a finding

that it is unreasonable to allow the casual, warrantless

search and seizure of Internet routing data.

------------------------------------------------------------------

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

ALAN GURA

Counsel of Record

GURA PLLC

916 Prince Street, Suite 107

Alexandria, VA 22314

703.835.9085

alan@gurapllc.com

Counsel for Amicus Curiae

February 2018