good morning forty may it please the court my name is jeff johnson and i represent claims of the palin cow walker who was present in the court this morning in this case involving claims under the working indications act i would like to reserve three action under section two thousand seven hundred and seven a because she is a person aggrieved by a knowing and intentional violation of the act how was she agree if we read the previous work or opinion for the proposition she had no right to privacy rights e mails yes you know i would not use what the opinion says thank you that leads me to the nd point which is this court's prior opinion in walker one was expressly limited to my client dismissed th amendment claim it expressed no judgment one way or the other on her claim under the store communications act and it's very important because congress and we cited in our brief google case from two thousand and fifteen and other to recognize this to congress passed the store communications act to provide roger privacy protections than were otherwise provided for e mails under the th amendment and other federal statutes so congress intended it to be broader to impose a th and then the overlay and before this court only focused on the constitutional question under the th and then that this involved a separate right under the store communications act that she has and that is what makes her a person aggrieved it would be inconsistent with congress's intent in passing the work communications act to impose a th amendment constitutional overlay on to the separate statutory violation that occurred here s state actually are there's a provision in the statute she should be suing the defendants for their knowing and in time for the violation of the act st there's a provision in the statute that actually talks about don't sue the provider and that's two and three f so here she's agreed by the defendants conduct and we've decided to proceed against the defendants for their conduct so you are right we focusing in on the statute if we look at  help me understand how it is that what we're talking about here constitutes something in electronic storage because if i read the statute right the definition section i'm interested to know whether we're whether the story communications act even applies here so you got to get yourself within the realm of this being an electronic communication electric scuse me storage of those communications yes you are part of the definition of electronics the words we're focusing on is storage for purposes of backup protection ok so you would knowledge that it's not and indeed under  now what's your what's your authority for that the authority for that is the fraser decision frazier frazier said it had some doubt about what the district court did but it assumed without deciding said it didn't it didn't decide that it wasn't just had a question about it and then said assuming without deciding the e mail in question was a backup storage that's all it did said well you know we got a question about that but we can assume that without deciding it and they did so let's leave qualified busy busy immunity to the side for me because unless you get a lot of traction there and just take the question is open because we expressly left it open this backup storage i would look to the plain language of the statute at the outset and if you look at the plain language back up storage there's a copy that remains on the server of penn state on their computer systems and that's wants to find it doesn't the thing that remains there though is the original is it not i mean back up by the very by the plain language back up means there is an original at this is another thing it's a copy which we're making to back up with the original is this isn't the a backup is it it is the communication it's the original communication isn't it i think there's there is a what's the other copy where's the where's the original to have a back up you've got to have an original if this thing which remains on the system which was the thing that she opened and which they later looked at is not the original what is the original version is the original version is it not it's the thing that was there to start with it's just still there back up implies i'm not just using the original i got a backup i did i made a copy and that copy is stored someplace else to back it up and make sure it's safe how is under ordinary parlance how is this thing that still there a back up and not just the original still hanging around because i mean if you follow the logic of the paces it seems to me that they envision this is starting to point and then being up at point b and the idea of post transmissive storage looks that the the version that's the liver to the recipient i guess is actually kind of being the original and the version that remains in the version there's more than this thing that was what was originally opened we've led what we were able to at this point there's no indication really the intricacies of the actual system the penn state employees we would love to get discovery in this case so these factually driven questions we're asking you yes your honor absolutely and i want to address all of judge jordan's questions but if i may because i'm running out of time i would like to pivot to the fact that this me ask you about two thousand seven hundred and three because you've got a claim under that two right yes you are all right and that that one deals with remote computer services right not in this case if you read through seven o three am it says if you want to require a provider to disclose the contents of communications and electronic storage for one hundred and eighty dollars days or less you need a warrant the last sentence in two  about the facts and this is a twelve b six procedural posture and the facts need to be viewed in the light most favorable to the plaintiff on a twenty six dollars there's been an alternate narrative that's be introduced into this case that's not in the pleadings which is the penn state voluntarily eagerly participated in what we allege with the defendant scheme to surreptitiously obtain my client's e mails with an invalid subpoena and that's really important because this subpoena was not just a technically deficient subpoena it was a subpoena that was used in knowing violation of the express limitations on the attorney general subpoena power in pennsylvania which says you cannot use if you're the attorney general a subpoena for an investigative purpose only to produce documents for a trial grand jury or here but so i just want to be very clear on this point that that narrative is not in the record so when we say that the law is clearly established for example purposes it to seventy three it's clearly established that if you require a service provider to do this stuff that you have travers you don't comply with its terms then you respectfully respond with well it was voluntary but one of the masters of the facts at this point that's a narrative that if developed at all is only appropriate after fact discovery it hasn't happened yet ok so you will you are the masters of this back to this point can you point us to anything in the complaint that says this was what was contained in the record was back up that there was some other copy made that this wasn't simply the quote of using scare quotes here the original that is the same thing that she opened months and months before still the original version i think the other words i'm trying to find out have you pled that this is in fact a back up and therefore electronic storage thank you god your honor i think the reasonable inference from what we like you fell sets the standard everybody fell behind it there's plenty orts that say let's roll i think in this circuit respect believe that the law out after frasier fraser was fair warning and after that marker strategic well integrated way solutions all these cases judge brody your honor was the district court judge in frazier and she went the other way after frazier and all the other cases that we've referenced she said the parties agree that what you're listening counsel there's a new things here well i was trying to follow it but as you perceived i'm taking a somewhat different approach i might that's my plan as far as we're concerned and i should introduce myself for the record most likely have to sort of from the attorney general's office on behalf of the at least in walker one this court explicitly decided that with respect to miss walker's e mails she did not enjoy a reasonable expectation of privacy these are the they're they're not allowed to say to characterize this we've alleged that penn state reacted to an invalid subpoena well i think they have overlooked a few details that are planned and a reasonable inferences to draw from the complaint with regard to the fact that there was a contact with penn state initially the e mails were not provided then there was a the doorstep of the defendants not the players i don't i don't read it that way and i don't think this court read it that way and walker won and i don't think this court now can backtrack from what it understood from the complaint and walker won or just wasn't coerced it said it was consent it was and they had the authority to come to consent they independently did consent and it wasn't coerce if it wasn't coerced it must have been routine and voluntary this is this feeds into all the issues that i was intending to discuss this morning one of which of course in light of the court's letter standing mr johnson argues that walker one is cabined the th amendment standing and that she has a separate claim and should be analyzed separately under the store communications act where you say well she is the th amendment claim and this story communications and claim are technically two different things but if i understood mr johnson's point he said that the the story communications act was intended to broaden the th amendment the way i read the history of the act is it was intended to  give internet service providers and other providers of stored communications and holders of stored communications protection that's analogous to the th amendment because they aren't normally dealing with invest g criminal investigations where a question about the consent or non consent to a search would come up their their business transactions and customer transactions where the th amendment has no role ordinarily and again as i understand it the the law was created to to give some structure and protection to the providers of stored communications so that they could defend themselves if people complained about what they were doing that's not the kind of situation that we have here but i think you can't just divorce the reality that consent under the th amendment and authorization which is a word that runs all through the stored communications act are synonyms in fact because of what the court decided in walker one and because of the principle that if a case is decided and then returns for a nd land the law of the case the doctrine applies to any legal issue that was actually decided either expressly or by implication so are are overarching september is that the consent ruling and walker one necessarily by implication tracks the authorization issue to the extent that that controls what's going on now in the  nd round of the lawsuit would we would we be just in something bad behavior here by government actors if we said we just let this go you know how does how does one get compliance with the strictures that congress put in place stored communications if you can have government actors and for the purposes of argument let's leave good faith bad faith out of this ok let's just for purposes of argument let's assume we're not talking about this case we're talking about a case for you had bad actors on the bad part of the government they knew they were producing a bad  there was independent consent because there wasn't coercion and we know that there was bad action here but they were doing it because they were fooled at how do we avoid  giving you know an incentive for bad behavior by government agents i think that would really be it a diversion from the issue the court really has to decide here i'm not in the least ma'am allegation here is that these people were behaving in a way that was bad that they knew they had a bad subpoena and they forced penn state's hand and that they should pay the consequences of it so that's exactly what we're dealing with well think i don't want you have to admit that so i've said take it out of the realm of this particular one imagine a world where that is the case how is it that we avoided sending bad behavior if we say in a case like this that's ok forget about well i think that the the technical answer that occurs to me is that that's why qualified immunity was invented to clarify the law so that future actors know what the law is and they don't have the uncertainty that exists in our view over some aspects of reports of all there's the standing question which i haven't quite gotten to speak about but i want to touch quickly on the fact that there isn't an injury to her she has to have a ledge of concrete and particularized in injury to a legally protected interest traceable to these defendants and i submit that she did not do that but moving on on the merits of the case the access to the facility without authorization and the claim that there were compelled disclosures here must all be viewed in terms of the scenario that the complaint sets forth weir's you do assume that like your colleague that the story communication act applies but that's the that's the argument base that you've got there in the questions that i was asking mr johnson are does the story communications act even apply if these are not back up stories i think that that's very much in doubt and that is the core of the district court's conclusion on qualified immunity for that very reason if these were not that type of communications in that type of storage then there was no by lation for that reason as opposed and not as opposed to but in addition to the other reasons that we've tried to set forth in our briefs can we make a determination if the store applies on the factual record or lack thereof in front of us i don't think that that question needs a factual record because either way the state of the law on what is or isn't in backup protection at the time of these events was not clear how do you respond to your adversary spoke about hey we've made our allegations in the government and on with things that just aren't part of the record you heard what he said do you give any response to that other words or perhaps things like whether the there was agreement here and other things i mean there there are allegations are pretty clear i think the other thing i think he said narrative the government's going to come up with a different narrative that is sort of pleadings i don't think that's a justifiable accusation i think that the pleading that we have has in it things for example about the interaction between the general counsel's office and the investigator and the directive to that person to please cooperate and to provide the information that was requested so i think that if anybody is trying to embellish the in allegations it's not jus t on the merits that same ruling about pence state having the authority to consent and having actually consented leads to the the the scenario that is contemplated under twenty seven thousand and one dollars which talks about anyone who accesses a facility without authorization is  potentially liable for a violation criminally or civilly and the authorization part of that scenario is important there's also in the state later subsection an exception for situations where the holder of the communications of the provider of the electronic communications can do what it wants in a sense that's what the gist of this court's decision and fraser was all about so what the complaint here seems to do is to try and construct a story communications act claim based on the acts of the two defendants even though they're stored communications act obligations were that were not at issue as far as the penn state it's not a it's not a fanciful claim right if it were we wouldn't be sitting here the claim is pretty straight forward  your your clients cooked up a bogus subpoena and extract the information that they were entitled to get and that the only reason they got it was because they used a bogus subpoena and that that's not authorization that's a abuse of the system that's covered by the act that's the you know not to put too fine a point on it that's the character of the allegation that's the level that your clients so i'm not sure where you're going by by saying th a doesn't seem to be getting at this when it talks about without authorization when that act itself is all about the kinds of things the government has to do to properly get off the recession and the nature of their claim is you did none of those things in fact  something contrary to what the that brings us back to the standing in korea and the injury to her interest that is or isn't played in this case because if there is no standing there is no case no matter what the underlying merits turn would turn out to be and the nature of that argument is she has no injury because she had no expectation of privacy correct among that is the key to it she had no expectation of privacy in those e mails and therefore what was done did not interfere with a legally protected right that she had so you saying there's no way to tease the th amendment and the s c a claims part i think that's that's correct under this situation and the events that she raised in that she pleads she had no expectation of privacy therefore what happened did not violate a legally cognizable right even if it happened the way she says which i'm not prepared to agree with but let's say it that it did because she has to we have to take her complaint at face value but it did not interfere with a legally protected right and nothing that i've seen since walker one has changed my mind about that in terms of storage communications th amendment or anything else just on a very tiny note i wanted to bring one more case to to the court's attention is that this is about qualified immunity is located at communications act but those are two different titles within the same law so i think it might be helpful to the court to be reassured about the availability of quite qualified immunity so you counsel thank you officer could possibly have been confused no reasonable officer could be left in doubt and it is to show that people will be on the hook for personal liability it's not enough to show well there's a question out there you go to show that on the contrary that there was no question no thoughtful person could have thought that what that officer did was lawful the your honor i believe the standard in this  circuit as applied in the context of what you're talking about is fair warning i think braider and all the cases i like there's a lot of other points i'd like to speak about and so but electronic storage i think fraser gave fair warning and i respect police met but everything that followed that in th circuit establishes that can frazier give fair warning when frazier by its terms says well we've got a doubt about that but we're just going to assume that without deciding it not only didn't decide it but expressed we did decided not unanimous as your honor recognizing the souers decision controlling precedent in the jurisdiction that we're in and that's that's the rd circuit and i know what your response will be will be will say but they left the question open but i think that the meant to protect was meant to expand the th amendment like my colleagues that it was meant to provide broader privacy protections under federal law for e mail communications and this court since spokeo and i really want to answer your honest question i'm out of time and i act to make it clear that these were directed when it comes to remote computer services for example the public i used pieces is not a public eye as peter says her work place private internet service provider so how do you tease out and i don't mean to jump on judge or struck his question but how do you tease out from the th amendment question of expectation of privacy standing to say i've got an injury and a store communication act if the store communications act if it's open to question whether you even have a right to privacy in those e mails i mean penn state can do whatever want to cheat she was not entitled to do whatever she wanted with the e mail i'm sure she had she was under obligations to employer and they could do what they wanted with it right i think so i think we can add to both these questions at the same time hopefully in fraser that was a private employer and the court didn't question whether or not that that the whole thing a situation in that case involved a provider that properly thought with me at the app uses the words to the public sometimes to describe providers and sometimes it just says electronic communication service provider there is looking to common law privacy torts as well as looking to congress intent and passing statutes after spokeo two tests in ascertaining whether or not the violation of a statutory right the reasonable expectation of privacy that's a legal concept that occurs when you think about catch the united states in law school and everything that follows it that's not this case this case involves the assertion of a statutory right that was passed by congress specifically to protect privacy in communications and here the defendant's conduct resulted in the unlawful disclosure to rd parties of my client's private e mail communications that's the nickelodeon case that's judge ambrose recent decision in the google case where he