OA15: #SaveTheInternet

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:18 Thomas: Hello and welcome to Opening Arguments. This is episode 15. How's it going, Andrew Torrez?

0:01:24 Andrew: It's going great, Thomas Smith. How are you?

0:01:26 Thomas: I'm doing fantastically. Now, we are slated for You Be the Supreme Court part two, but we thought, you know, there's no reason we need to do part two right away, and there's some interesting news that came out that I think would be a good chance for Andrew to tell us all exactly how to to think. For Andrew to give us the tools we need to think about it. And so we thought, let's do this current event and tackle that. And then we can do You Be the Supreme Court next episode. So that's what we're going to do. But first, we've got to get to our first segment. Do you want to just sing it, Andrew? Breaking down the law.

0:02:07 Andrew: Yeah,

0:02:09 Clip: The law breaking down

0:02:16 Thomas: All right, breaking down the lie. What is injunctive relief?

0:02:22 Andrew: So this is going to turn out to be relevant for our main segment, but essentially, when we've been talking about civil lawsuits so far, are. One of the things that's core of a civil lawsuit is a request for money. And sometimes that is a request for money in the form of the actual damages that you've suffered. Like we've talked about breach of contract, right? If I promise to pay you a hundred dollars for you performing a service, you perform the service. You never pay me. I sue you for breach of of contract, I get the $100. Sometimes in civil lawsuits, no,

0:02:58 Thomas: Does that not work when it comes to Trump? I'm wondering. He just doesn't pay and then he just ties people up in court forever or something.

0:03:06 Andrew: I mean, really what Trump is doing, this is a good rabbit trail to go down. What Trump is doing is taking advantage of the fact that in individual contracting circumstances, it's very, very difficult difficult to sue for breach of contract for anything that is not really a six-figure claim against a huge company, against somebody that has, you know, an army of lawyers at their disposal, because it's really, really difficult, right? So if somebody owes you $75,000 and they come to you and say, and they, you Know, they're unscrupulous and they Come to you And say, Well, we're going to pay you, you know, 50,000. And if you don't like it, you can sue us. Um, oftentimes it is a very rational, uh, decision by the, by that party to accept the partial payment rather than to say, no, I'm going to take zero and try and sue you in court.

0:04:02 Andrew: Uh, because yeah, I mean, it's, you know、 filing fees, lawyers, and all of that.

0:03:34 Thomas: Gosh. Yeah, time and money and lawyers and all that. Boy,

0:04:07 Andrew: And, um, yeah, yeah.

0:04:07 Thomas: That's even worse than I thought it was. I mean, so he's just taking advantage. He's a bully. He- He's just taking advantage of a sort of loophole in a way, not, I guess, not technically speaking a loophole, but like a reality loophole which is that nobody's going to be able to really fight him on it. So he's just like, oh yeah, sure, I'll pay you that money and how about I pay you half of it or a quarter of it and just take a gamble on it,

0:04:30 Andrew: And what, and, and what makes, I should be very clear, what makes that loophole work is the fact that when you sue for breach of contract, you are capped at the actual value of the contract. And Look, there are good reasons to think about that, right? Right. Like we've talked about this before. One of the elements of a free market economy is the idea that we don't want people to be locked into long-term contracts that are below market value. Right. So you break a contract. We want the person with whom you've broken the contract to get the expectancy out of it.

But but the law doesn't want to assign sort of moral approbation to that because we want you to be we want to encourage business efficiency. Right. So if you remember the apple example from from a previous episode, right, if you have a contract supplying apples to another company for a dollar and, you know, that it turns out the market for apples changes and I'm willing to pay you a buck and a quarter, then what the law wants is for you to break your contract, pay the first person the full dollar in damages, but you make that extra quarter right because they don't want they don't want to be subsidizing the first person to get super cheap apples, um, you know, by by

0:04:44 Thomas: Right?

0:05:56 Andrew: Law

0:05:56 Thomas: So, and just so people know that was on Atheistically Speaking, actually, that was the, that's

0:05:56 Andrew: Right, yeah, oh okay, okay I I forget it was on one of one of your four shows and one of the uh uh

0:06:02 Thomas: Okay. Okay. Yeah. Yeah, we'll get you on shoeshine one of these days. But yeah, that was so in case anyone was confused. That was an example about breach of contract and emotional damages and all that stuff over on that show. But anyway, I wanted to say, can't, there's got to be some way to at least go partially over to the others, because I get the danger of like, locking people into these contracts forever. But when the worst case scenario for Donald Trump, you know, bully extraordinaire is that he can just, oh, worst case area, I'll pay the actual amount I owed the guy. If when that's the worstcase scenario, you Know, plus a little bit of legal fees, I guess, but like, it doesn't that just set him up to always do this?

0:06:07 Andrew: Yep right but yeah It- it can, where you cross the line is when you move from breach of contract, which uh ascribes no moral fault to the character of the actors, to something like fraud right uh, or fraudulent inducement or anything, but the problem with those cases uh is that the

0:07:01 Thomas: Oh, okay. Do you have to like prove intent or something? Thing or well

0:07:09 Andrew: The yeah the pleading the pleading requirements are much, much higher and, you know, you actually have to show, you know, that when Donald Trump uh sends you uh an email confirmation that says oh yeah this is great, uh, and finish this up and then we'll pay you the balance, that he didn't intend to pay the balance at the time that that was sent, and right, that can can be really, really difficult to prove.

0:07:32 Thomas: And I'm guessing his a-hole legal team is probably pretty used to making that defense or whatever they've had a lot of practice so they're probably like oh this is easy the

0:07:38 Andrew: Yeah. Well, I mean, you saw that. Yeah, you saw that come out at the debate, right? Like instantly when Hillary Clinton raised the issue, and I should add that there are a number of Clinton ads that are kind of long form ads that focus on contractors who have been stiffed by Donald Trump. And when she was making reference to those contractors, Trump interrupted and cut in and said, well, maybe Maybe I wasn't happy with the work. Right. And, you know, again, that's I think the reason he was able to come up with that off the cuff is because, you know, as a lawyer who's been in these kinds of cases, is very, very difficult to prove that somebody that somebody made a false statement at the time that they said it and that, you the response answer of No, I really did intend to pay you. But, you know, the contract has a satisfaction clause and I wasn't satisfied, you know, what weren't you satisfied by? Well, you know, it, and, and well,

0:08:33 Thomas: Part where I have to give him money, that's the part I want, yeah, I just wasn't satisfied with the money leaving my bank account and going to another person, that's wasn't good, I

0:08:40 Andrew: And it, it highlights the importance of reviewing your contracts and, you know, when they have a satisfaction provision, you know, a satisfaction clause makes sense when you have a services agreement with somebody on an ongoing basis, right? You know, you provide marketing for me and I pay you a hundred dollars a month. Well, you know the contract you would then say would be terminable by either side upon satisfaction, right. This is, I don't feel like I'm getting my a hundred bucks worth out anymore. I'm going to stop paying you. I feel like you're not doing a good job marketing my business, whatever. In those cases, it works. But when you have something like a tangible construction project, there's actually a lot of litigation over that, you know, that notion of satisfaction clauses. That's our trail.

0:09:33 Thomas: Was gonna say you. Okay. So, but what is an, what is injunctive relief?

0:09:34 Andrew: I haven't gotten remotely close to... Right.

0:09:39 Thomas: Let's play the song again. Hold on. Well,

0:09:39 Andrew: So, yeah. So injunctive relief is when you don't seek monetary damages, but instead you seek the court imposing an order compelling somebody either to do something or not to do something, right? So let me give you an example of where you don't get injunctive relief. I pay you a hundred dollars, uh, to paint my house. You take my hundred dollars and you abscond with it.

0:10:06 Thomas: Maybe you should have offered me more than a hundred dollars. Jeez, paint your entire house. You're a monster too.

0:10:08 Andrew: Right. Right. It's a small, it's mostly brick on the outside. The I

0:10:13 Thomas: Okay. Andrew lives in a shed. It would have been an easy job.

0:10:17 Andrew: Do. It's, it's a shack. It's actually a van with no tires on it.

0:10:18 Thomas: Yeah.

0:10:25 Andrew: So what you do is can go to court and you can get, I could go to Court and get the hundred dollars back, but I would not be able to get an order from you requiring you to paint my house, right? The Court would say, look, you're either going to get your hundred bucks back or you can get, you know, in some cases I could get the the market value of the replacement costs, right? What it would cost somebody else to paint my house. But the court isn't going to specifically require you to come out and do it, even though that's what you promised to do.

0:10:57 Thomas: So the, so this is important because the Seinfeld plot of the, getting getting in a car accident and then the guy has to be the guy's butler.

0:11:00 Andrew: It has to be your butler for you. It was that, that is, yeah, that has called specific performance. It almost never It we could go down.

0:11:04 Thomas: Yeah. So what you're saying is that won't happen in our legal system. Wow. And it makes sense because it makes sense that you wouldn't really want to be in the business as a government of like controlling someone's like actions and body and saying you have to do like, I kind of get that's kind of icky in a way. It feels, it feels a little, you know, I don't know, fascist or something. So it kind of makes sense to me that we wouldn't really want to do that. We'd rather just say, pay some money or something.

0:11:32 Andrew: That's right. But there are some lawsuits where it is not possible to reduce the damages that the plaintiff claims that he's going to suffer to money. Right. So, for example, if there is legislation that's about to go through and that legislation would sort of profoundly alter the landscape, we would say, well, I don't really know how to turn that into money. Money go into example we're not going to talk about in this episode. Think about like House Bill 2 in North Carolina, right, which, uh, prohibited, um, transgendered individuals from using the bathroom, that, you know, required them to use a bathroom of their biological, uh, sex at birth, right, that the, uh, right, the party saw what they said was. Yeah, you're, you're what, what you're going to do is you're going to change how people interact with us in society. And once you do that, we can't really, even if we turn out to be right, we're not going to be able to turn around and get, you know, an appropriate notion of damages from that because, because the whole world has been changed.

0:12:22 Thomas: Yeah, how much money is that, really, to a trans person? Yeah, right. Therefore, the lawmakers have to become our butlers, I think is what you're saying, right?

0:12:47 Andrew: Yeah, right. So, so what you do in cases like that, and in cases, like what we talk, what we're going going to talk about in our main sequence, is you would apply for a preliminary injunction and or a temporary restraining order? And those are two forms of injunctive relief that basically say, going to bring a lawsuit. We know that bringing a lawsuit challenging a potential law is time-consuming, but this law is going to take effect tomorrow. And if it does, it's going to radically change the landscape. And so we want the court to rule now. We want you to rule upfront before the evidence has come in that in order to best protect the parties and preserve the status quo, we want to court to issue injunctive relief, stopping that law from going going into effect.

0:13:41 Andrew: Okay. Um, now instantly, I mean, you could probably see at least one kind of major, uh, red flag of, Hey, wait a minute. Right. And that is you're asking the court to prejudge a case before anything has come in. Right? So what that means is when you seek a preliminary injunction, the standards that are required are really, really, really, really high. And in fact, what you have to do is you have to show four things. And of those four things that I'm going to tell you about, the first two are really the most important. OK, so the first thing you have to show is that the plaintiff will suffer irreparable harm if the injunction is not granted. And irreparable means.

0:14:21 Thomas: All right. Can I ask you real quick, was this, is it, I mean, you're using the, that bill about, you know, the bathroom thing as an example. Was this sought in that case? Could we tangibly, it was denied. Oh, that. Okay, that's interesting.

0:14:24 Andrew: Oh, yeah, sure, sure. Yeah. Mm hmm. It was sought and it was denied. And and yeah. Yeah. And so it's the lesson. I mean, you've sort of cut ahead to the punchline, but that's

0:14:37 Thomas: Oh, I'm sorry. I'm sorry, I thought that was just an example you were bringing up. So I didn't. Oh,

0:14:43 Andrew: OK. No, no, no. It's quite all right. No, it's fine. The lesson is when you read a news story that says, you injunction denied, for example, as it was in the House Bill 2 case, like that's a bad thing. Don't get me wrong. But it is not necessarily an indication that the case on the merits is going to go the other way, right? In other words, you still have a chance of prevailing on the merits of the case itself. So it's another area where, as you're seeing news stories, particularly, you know, partisan news stories designed to whip you up one way or the other, if they involve a preliminary injunction, you should know, because a preliminary injunction is coming at the very outset of the case, it's hard to prove. It's hard to get. So you might lose on a preliminary injunction, but still win on the case. I'm going to give an example of that in a more mundane setting that happened to me in

0:15:03 Thomas: I see, yeah.

0:15:36 Thomas: That makes

0:15:36 Andrew: A minute.

0:15:37 Thomas: That makes a ton of sense. I, I that makes sense because you would want that, I mean, you wouldn't want to just be able to strike something down immediately based on a low standard of proof. It does make sense that you'd want a very high standard, to me.

0:15:38 Andrew: Yeah, that's exactly right. So to get preliminary injunction one, you have to show irreparable harm. And what irreparable means is not capable of being reduced to money. So anything where you might have money, if it's kind of difficult to calculate, the court will say, well, you know what, let's not issue an injunction. Let's let this take place. And then if you turn out to be right, we'll give you more damages later on.

0:15:49 Thomas: Right. Makes sense.

0:16:15 Andrew: Number two, this is what makes these really, really tricky. You have to prove that there is a reasonable likelihood that your lawsuit will be successful on the merits. OK. And now you can imagine, you know, what how those how those arguments take place. Right. Because, again, this is before any discovery. This is before anything. But basically, you have to go to the court and say this is a slam dunk case. The evidence is.

0:16:42 Thomas: I was gonna say, to Go back to a topic from earlier, this sounds very Trumpian to me. Oh, your honor, we're going to have the best case, we're gonna make the best arguments, several people called me the other day and they said your arguments, they're the best. Is it like that? Is that what you

0:16:55 Andrew: Yeah, it is. And so, look, like when an injunction is granted, I mean, we've been been talking about the situations when where they're not granted, obviously, where an injunction is granted, um, that signals an awful lot about how the judge views, you know, your case, right? If you have an injuction granted against you, um, in my experience, uh, you, those cases almost always settle because, right, you've now essentially had the judge say, yes, I think ultimately you're going to lose this case. And that's a pretty strong indication, you know, unless you have something really, really good up your sleeve, that things aren't going to go well for you. Third factor is whether the injunction would serve the public interest. And then the fourth is whether the balances of the harms favor the plaintiff.

0:16:56 Thomas: Okay,

0:17:44 Andrew: So in other words, without the injunction, the plaintiffs will suffer far more than the defendant will suffer if the injunction is granted. And those last two, you know, as you can see, I mean, you're sort of you're talking about the is there a public interest and what are the balances, the harms that they're often subsumed in the inquiry on the first two. Right. Like it's unlikely that a court's going to say you're overwhelmingly likely to win this case. But, you know, it's a totally unjust case that you're bringing or, you Know, this is you have an irreparable injury plaintiff, but, you you know, the defendant will suffer even worse. Although look like that can happen. You could imagine a situation where the plaintiff might have irreparable harm, but stopping something from going through would be an even greater hardship.

So, you know for example, I do, I litigate government contracts and even if you could show that, suppose you, Suppose the allegation was that the government contract should have gone to Thomas's company, but instead went to some other company, right? And you show your company is going to go bankrupt without getting the revenues from that contract. So there's really, it's truly irreparable harm. You won't be able to, do business anymore. So back damages aren't going to help. Help. But then the government comes forward and says, look, if we grant an injunction and stop this, then this road is not going, this bridge is not going to get repaired and will collapse. And people will no longer be able to drive from Maryland into Virginia.

0:18:15 Thomas: Yeah. Yeah.

0:18:36 Thomas: And

0:19:23 Andrew: Then you would say, okay, well, the balance of harms, even if you had all of the other factors, I think a court in that case would say I'm sorry, this is a terrible But like, we can't let you know, that would that would have both the public interest and the balance of harms factors would would weigh against the injunction, no matter how badly your company is getting screwed in those cases. Yeah.

0:19:44 Thomas: I Could imagine an argument for that, for the trans bathroom thing, would be, yeah, this is, it's so bad that, you know, the bathrooms will have to be used, like they've been used for normally for the past two billion years, that's too much of a harm, we can't let that happen. I'm sorry, it's a travesty.

0:19:59 Andrew: Yeah, look, I don't, I'm not trying to defend the outcome in that case.

0:20:04 Thomas: Yeah. No.

0:20:05 Andrew: But, yeah,

0:20:05 Thomas: I know. No, I know. Well, and I was waiting to ask you which of the things, if you knew, the injunction failed for in that case, but I

0:20:14 Andrew: And I assume that it probably failed on the likelihood of success on the merits prong. That is almost always where injunctions, you know, sort of go to die is that the court will say everything else is kind of in line or close, but we just can't conclude at this stage that the plaintiff has, you yeah,

0:20:22 Thomas: Ah, yeah.

0:20:39 Thomas: How Political do you think that is? I mean, if the court is, say, for some reason, way more liberal than the conservative lawmakers, would that have maybe gone through, or is it just a question of... there

0:20:51 Andrew: I mean, look, I don't think you could have a nonpolitical review of something as partisan as SB2, right? So, you know, I certainly think that that played a role. One of the things I tried to say to help, you know, talk my fellow lefties off the ledge was, look, losing the injunction doesn't mean you've lost the argument. Right. It doesn't mean that ultimately, you know, we can't turn around and this declared unconstitutional.

0:20:51 Thomas: Right. Right. Okay. All

0:21:23 Andrew: So that's sort of the general principle of what is a preliminary injunction. And now I think we're going to look at that in a current issue.

0:21:33 Thomas: Yeah, I Can't wait to, we're going to apply it sounds like to our case for the day.

0:21:43 Thomas: All right, main topic for the day. It involves Ted Cruz, because we just can't get enough of Ted Cruz at any given time. Uh, refresher, you guys were classmates. Classmates, sort of school. Yeah.

0:21:57 Andrew: Yeah, he was two years ahead of me at at Harvard Law School and would would not recognize me on the street right now, even after the podcasting, which I think hurts a little bit.

0:22:00 Thomas: Okay. Yeah, so you weren't there for any of his Zodiac killing or anything. That probably happened before you.

0:22:12 Andrew: I did. I could not witness any of those, nor can I provide an alibi. I have to say that in in all honesty, I cannot testify. Justifies.

0:22:14 Thomas: Yeah you didn't see him not being the Zodiat killer. So You know, 50-50. All right, let's talk about it. This seems too complicated for me to even introduce, but maybe we'll find out it isn't. That's what you're here for. All

0:22:21 Andrew: Exactly. Okay. Yeah, It's it's definitely not, so So this is actually, we are recording on a Saturday, and um, this is breaking legal news from this morning, uh, so here's, here's the facts as I understand it. U.S. government had a contract with the Internet Assigned Numbers Authority, IANA. And what IANA does is they assign domain names on the Internet. Okay. And the contract was set to expire and, in fact, did expire as of September 30th, 2016, which was Friday, yesterday. And the United States had stated its intention, which is now being effected, to transfer its authority to administer that contract with IANA over to ICANN, I-C-A-N-N, which, which is the Internet Corporation for Assigned Names and Numbers, which is a Los Angeles-based company, just a private corporation.

0:23:45 Thomas: Right, okay.

0:23:45 Andrew: And here's what the significance of that is. Without IANA, intermediary line, we would no longer have openargs.com, for example, may remember in some of the formative days of the Internet typing in actual numerical values to go to a particular site. And so what IANA does is they turn those numerical values into the written domain names that we have. OK. And in particular, the area that is kind of somewhat controversial or about which there is considerable interest, I should say, is the administration of top level domain names. Right. So dot com, dot gov. And those have been expanded in recent years, you know, and that expansion now is going to come. That approval previously was with a U.S. government entity. In fact, there were some overlapping authorities, the Secretary of Commerce, the Assistant Secretary for Communications and Information, and the National Telecommunications and Information Administration.

0:24:19 Thomas: Yeah.

0:25:05 Andrew: So essentially, to get a new top-level domain name added, you had to go through the government, and explicitly

0:25:13 Thomas: Right. But now we can probably go and register Open Args dot don't take legal advice from a podcast. It's not? It rolls off the tongue, it's a perfect, you know, domain for us, we'll just, uh, Open Args don't take legal advice from podcasts, it's perfect. Print it, yeah.

0:25:24 Andrew: Right. Right, I think we should, we should definitely start petitioning for that, that top level domain. Domain. Um, so now with the, um, with the transfer, those applications will go directly to ICANN. Um. And ICAN is no, you know, sort of stranger to this process, right? If you have ever had a domain name dispute, right, ICAN has an arbitration procedure. It's, it's a voluntary arbitration procedure, so it doesn't stop you from going to the courts. They have a built-in arbitration process. They review domain name disputes and resolve those kinds of issues. So you so what we have as a proposal is we have a proposal to take something that profoundly affects global commerce, take it out of the hands of a series of interlocking government bureaucracies and put it in the hands of a private company.

0:25:35 Thomas: Yeah.

0:26:29 Andrew: And ordinarily, you might think that that would make Republicans and libertarians exceptionally happy, right? Right. Like, isn't right.

0:26:35 Thomas: Yeah, good point.

0:26:36 Andrew: I mean, isn'T this really the definition of, you know, sort of shrinking the scope of government and, you know, reducing?

0:26:36 Thomas: Yeah, finally the profit motive is really gonna make sure all those top level domains are performing at their, or something, I don't know, competition, yeah.

0:26:52 Andrew: Yeah, exactly. Cruz disagrees. In fact, Ted Cruz thinks that without the U.S. government, assuming control over the ICANN contract, over the IANA contract, that ICAN will get bullied by foreign governments. And in particular, he's worried about them being bullied by Russia and China, and that if they are bullied by Russian China, then they will not be subject to the provisions of the First Amendment and could be, you know, coerced into applying international law standards and otherwise shutting down top level domains on the Internet for, know, violations of free speech.

0:27:43 Andrew: What happened yesterday, the states of Arizona, Texas, Oklahoma, and Nevada went into U.S. District Court in the Southern District of Texas and filed a complaint. And the complaint seeks declaratory relief. We've talked about that before. That is a declaration that this contract is wrong, that the transfer of the authority that we've just described is violative of U.S. law and a temporary restraining order and preliminary injunction preventing that transfer from taking place. Right. And in our intro segment, we explained that component of injunctive relief. So important thing to know from a news perspective is that the application for injunutive relief was denied. OK, so the transfer has taken place. The United States has pulled out its governmental oversight from ICANN, from the IANA and transferred that contract to ICAN. I I should point out that ICAN is and we said this at the beginning of the segment, a U.S. based company. Right. Their offices are in Los Angeles. So the company, it's not like it's not like the what.

0:28:21 Thomas: Right.

0:28:33 Thomas: It's not owned in China. Or

0:29:02 Andrew: Yeah.

0:29:02 Thomas: Something, yeah.

0:29:02 Andrew: It's not a Chinese company. It'S not a Russian company. It's not the wild west where, you know, nobody knows where I can is located. Like, no, no. You can go down to their offices. You can knock on their doors,

0:29:11 Thomas: But What initiated the IANA to ICANN thing to begin with, like, why did they want to do this? They just don't want, want to manage it anymore. Oh,

0:29:18 Andrew: Uh, that yet did no, to, to be honest, what, really served as the The massive governmental reason for it was when the Snowden leaks came out in 2013, right? And they revealed sort of the extent of the United States NSA security apparatus entanglement on the Internet. The fact that, you know, there were, there was the longstanding FISA court order that required Verizon to turn over phone records, that sort of thing. And so the idea was having exclusively the United States control access to top level domains, like, it was a bad thing, and it was a bad thing for, you know.

0:29:33 Thomas: Yeah, I was gonna say I don't really get how that matters, but okay, but it's in response to a general paranoia now about the government, our government, having too much, like, access to our information or something, yeah.

0:30:17 Andrew: Yeah, that's exactly right. And I should add that, that there is, I think there's probably also a globalist idea. Um, there was an op-ed written by, um, Tim Berners-Lee, who is a Swiss citizen, uh who is credited as the inventor of the worldwide web, uh which is not a bad credit to have on your resume. And uh, and

0:30:36 Thomas: I mean, I put that in my resume too, but, it sure, I mean, lots of people, yeah, hmm.

0:30:42 Andrew: Daniel Weitzner, um, who is the uh, former White House policy director and uh, deputy chief technology officer, uh, and I think they are both now MIT professors, uh, and so they, they put out a, an op-ed in the Washington Post a couple of days ago, I'm going to link it, uh, in the show notes, um. But one of of the points that Berners-Lee made was, you know, he invented the World Wide Web while, you know, as a Swiss citizen, and, you know, was invented at the CERN physics lab in Geneva. He's actually a British citizen, as I'm flipping through the article. So in other words, that the Internet is not exclusively a U.S.

0:31:19 Thomas: Yeah, it's not, it's we don't own it. But

0:31:24 Andrew: Creation. Yeah, right.

0:31:24 Thomas: Yeah, that makes sense.

0:31:25 Andrew: The idea there is that while the United States is going to, uh, give up that control, right. And let me, let me take another step. I mean, you, you sort of said, I don't see what the significance is from an end user standpoint, right? From us open args.com. Um, I, I don't think there is really a significant, like, I don't, I think, uh, you know, 99.

0:31:48 Thomas: Didn't mean to say it wasn't significant in some way, I just didn't get what initiated it was all I was saying, I mean,

0:31:54 Andrew: Yeah, yeah, yeah. Yeah. No. So that, so those are the causes that initiate it. I don'T think, I mean, this is how things operate behind the scenes. So, you Know, I DON'T expect that anybody, I mean, think about it, like you know by the.

0:32:05 Thomas: We'd certainly notice it if something went wrong. If all of a sudden we type in Google.com and it points to some porn site because they crossed the wires of the numbers or whatever, we would notice that

0:32:08 Andrew: Yeah. Yes, it's exactly like those 1950s style switchboards. There's somebody, you know, plugging in a cable in pole number seven.

0:32:22 Thomas: Exactly, It's a bunch of monkeys, they just plug in the little cable. Yeah, I know how technology works.

0:32:24 Andrew: Yeah. No, I mean, that's why people tune into the show. Legal advice and how technology works and But no. So, right. So this is about how the internal workings are going to be handled. And, you know, people will be getting this episode three or four days later and, you know, will not have noticed any change in their, you how they use the Internet.

0:32:30 Thomas: Yeah. And tech tech news. Oh,

0:32:52 Andrew: But, right, I've turned out I've had a pretty good projection, prediction, projection rate on that so far. I mean, when we talked about the the Facebook policy on hate speech, do you remember that from way back? And again, you know, we're now, what, six or seven months out? And I haven't seen anything, right? And people still seem to be as hateful as ever online.

0:32:52 Thomas: Last words. Oh, Yeah, Facebook has not crumbled to the ground with just being banning everybody. We ought, we ought, to me and the listeners ought to keep a report card for you, like a prediction report card.

0:33:20 Andrew: Yeah. Yeah? No, I think you should. Because it's really instructive when, you predict something and it turns out to be wrong too. So I'd like to figure out why if I do. Um, so, okay. So, so basically what you have is that that's the internal structure. And then the question is, um, you know, what's the worst case scenario, right? Right. And so certainly the worst case scenario is if if the entire without the intermediary. Right. We would lose domain names, which would absolutely be catastrophic to global commerce. Right. Like that would be terrible if we had to point people to, numerical address instead of to, to, you know, open arcs. Um, that doesn't seem to be even that, right. So that's the, that's

0:33:22 Thomas: Oh, okay, yeah, yeah, oh, so we're evaluating our injunction now, are we back to that? Sure.

0:34:09 Andrew: Right. Yeah. So, so that's, that'S the worst case scenario, but THAT'S not the argument that Ted Cruz is making. I'm going to link the complaint that, uh, that they filed. And I keep saying that this is Ted Cruz. Uh, like I said, this was filed by, uh, the attorneys general of the four states, Arizona, Texas, Oklahoma, and Nevada. But I'm going to continue to give credit to Ted Cruz because he's really the person who's pushed this.

0:34:32 Thomas: He's the face you want on your legislation, yeah, sounds

0:34:37 Andrew: Yeah. Their argument, is as follows. And this starts at page 8, paragraph 22. If the government is allowed to relinquish its rights and interests under the contract, plaintiffs will lose the predictability, certainty, and protections that currently flow from federal stewardship of the internet and instead be subjected to ICANN's unchecked control. Okay, that's paragraph 22. Okay. So in other words, there's no oversight on ICAN. ICAN can do sort of whatever the hell it wants. Then I'm going to skip a couple of paragraphs, paragraph 25, ICANN has a documented history of ignoring or operating outside of its governing bylaws. He cites just some congressional oversight opinions. In addition, even under the government's oversight, ICAND's current practices often foster a lack of transparency that in turn allows illegal activity to occur.

0:35:33 Andrew: Nothing protects the plaintiffs from additional occurrences of ICAN oversight failures or actions outside of the bylaws that could expose plaintiffs to significant and expense or harm through illegal activities. The states operate multiple websites, this is now paragraph 27, that use the .gov top-level domain name. They are well-known, established sources of reliable and authoritative information for citizens and private companies, and persons are not allowed to use .gov addresses. Paragraph 29, the sole control that the U.S. government would have to safeguard .gov and .mil, the military top-level domain name, just through an exchange of letters which are non-binding and lack the certainty of a legal contract that would guarantee U.S. control and ownership. For example, ICANN could eventually delete the .gov top-level domain name or transfer it to some other entity, cutting off communications between the states and their citizens and forcing the states to use ordinary top-level domain names, such as .com, to try and communicate with their citizens.

0:36:27 Andrew: ICANN could also charge GSA additional fees for its services, and the GSA could pass these fees on to the states. Paragraph 29, paragraph 30, substituting unchecked ICANN oversight also exposes plaintiffs to possible interference in its property interests from foreign governments. ICAND's transition proposal outlines a distinct role for governments outside the United States as voting participants in a government advisory committee that may send advice directly to ICANN's boards. That's it. That's their argument. Then there's another section.

0:36:59 Thomas: Like a very pro-regulation argument, like, these companies, we've got to stop letting them do business, right, we got to just regulate the shit out of them. It's really weird, like you said, like you pointed out initially, that it's coming from a conservative point of view. You would think it would be the opposite.

0:37:16 Andrew: Yeah, no, and I don't think, well, I would be curious to hear, that is defended. I would point out that I think this, this marks, you know, sort of an existing, you interesting shift between the pro business wing of the Republican Party with the, you America First wing of the Republican Party, right? Because even though this is sort of very pro-regulation, it is, it's important to make sure we're the ones doing the regulation, and not, you know, I can because, and I mean, you heard this is their allegation. This is the strongest they can word it in their own complaint, that foreign governments could be voting participants in a government advisory committee that may send, quote, advice directly to ICANN's board.

0:38:05 Andrew: Right. So, you know, this this company has promised to listen to foreign governments and that and literally that's sort of the trigger for for the harm. And that is, you Know, that's how it's outlined in the complaint itself.

0:38:13 Thomas: Oh, we can't have that. Yeah, that one's a little weak. I mean, the argument, if you're talking about the harm, you know, and we're talking about that particular element of the injunction, the part where they're like, well, they could just shut down .gov or move it somewhere. I mean I guess I get that. I don't know what evidence they provided for whether or not that was likely or probable or whatever. But I suppose on a harm level, I at least understand the potential for harm there. But yeah, the one you're talking about now is kind of weak. They might accidentally take advice from another country or something.

0:38:38 Andrew: Right.

0:38:53 Andrew: Yeah. As it as it turns out, right, you have to demonstrate irreparable harm. So saying it's possible that they could do X is not a particularly strong argument. In fact, there's no evidence that ICANN is going to delete any top-level domains. Means.

0:39:02 Thomas: Oh, really?

0:39:15 Thomas: So it's not enough to show, and that makes sense. I sort of Was, I probably was messing it up in my mind, because it's not enough to show a potential, like, you have to show this is harming, yeah, like this is going to happen or already happening

0:39:18 Andrew: Right. Yeah. And, and, and let me be clear, right. We're talking about the future. So of course there's an element of speculation, right? But what you have to show is you have to show that you will be irreparably harmed. Now, again, there speculation? Sure, because we don't know what's going to happen in the future, uh, but it's not, it's not sufficient to say, you this parade of horror, because think about it, it would would be very very easy, you know, to just say, like, well, you know, this person who hates me might assume control of this company, and you know, right, exactly um and

0:39:39 Thomas: Right. Yeah. You Can Make up some, like, Rube Goldberg Like level. Yeah, if We do this, A marble is going to fall off this desk, which will then hit a lever, which Will, which will then cause the internet to crash or something, right?

0:40:04 Andrew: Uh, right and and interestingly enough the even in that worst case scenario the complaint itself kind of in my view undercuts that's the strength of the argument, because it says, you if ICANN were to delete the .gov domain, I and I don't fully understand this contractual arrangement, but ICANN has authorization, but other top level domains are owned by other private companies right now. So the company VeriSign, V-E-R-I-S-I G-N, they own the .com and .net top level domain right?

0:40:50 Thomas: Yeah, huh.

0:40:51 Andrew: And an outfit called Public Interest Registry owns .org. Both of those companies are headquartered in the United States, in the state of Virginia. So, you as you're going through this, parade of horribles, would say, well, what happens if ICANN deletes .gov tomorrow? Well, then presumably all of these state organizations would switch to .com and .org. would that be irreparable harm? You know what I mean?

0:40:56 Thomas: Yeah.

0:41:19 Andrew: That, in other words, it's kind of undercutting its own argument.

0:41:19 Thomas: I mean It would kind of suck, but I don't know.

0:41:24 Andrew: No, no, yeah, don't, yeah. Don't get me wrong. That would not be.

0:41:25 Thomas: Yeah. But You have to show, you have to share, there's a high standard for for injunctions, okay, yeah.

0:41:31 Andrew: Yeah, right. And so ultimately, the Cruz argument was, you you're putting this in the hands of ICANN. ICANN could be influenced by Russia and China and other countries that don't have a First Amendment. And so they could exercise content based restrictions on free speech. And the other side has has pointed out that I think is also reasonably persuasive is that the mechanisms that states like Russia and China use to censor free speech have nothing to do with the allocation of top level domain names. Right. That the way in which China, for example, shuts down what we would say content on a free speech basis is to, you put up firewalls. Right. And to to block incoming Internet traffic. And I can just by their structure. Right, that's entirely separate from what ICANN does, right?

0:42:23 Thomas: Right.

0:42:34 Andrew: They, they can't access those firewalls. They can't shut them down. They Can't open them. You know, like there's, there's nothing that they do.

0:42:33 Thomas: Right, well, is the argument that they Could, if they picked it, let's say China decides that OpenArgs.com is, it's just, it's dissenters, it's it's rabble rousers, we definitely can't be heard in China.

0:42:53 Andrew: That's true.

0:42:54 Thomas: So they so Hypothetically, if China somehow got control of that company or something, they could say, just, just make it, get the monkey on the switchboard to to put the cable for open args dot com and and and don't direct it to the right thing so that they couldn't get to us.

0:42:54 Andrew: That is, that is true.

0:43:11 Andrew: Yeah. Well, and again, they Can't do that for.com because that.com is registered through VeriSign. So yeah. So it Can't this.

0:43:20 Thomas: Okay. I, I guess I misunderstood the arrangement. I thought it was all, I thought all the directing, like the pointing of numbers to letters was all done by this one company, but okay. So, but you're saying for .gov or .whatever, it would be a different, or it's not .gov. For .com, it wouldbe a different company.

0:43:22 Andrew: Yeah, yeah. Yeah So it is, and maybe I'm being a little unclear, and I'm happy to be corrected on this if I have it wrong. IANA functions can create new top-level domain names, but some of those get distributed out to other corporate entities. So right now, there isn't one. ICANN does not own the registry for all the top level domain names. They own some of the top level domain, uh, but other companies own others, right? So VeriSign and Public Interest Registry. Um, but what they could do is create new ones. They could abolish existing ones. Um. So the, the functionality is there, but the actual redirect of taking open args.com and redirecting it to, you null, you couldn't do that. I thought I figured I'd go with that rather than try and come up with another example.

0:43:57 Thomas: Okay.

0:44:32 Thomas: To some other podcast, it'snotasgood. How about that? Yeah. Like a wine tasting podcast.

0:44:34 Andrew: Right. Yeah. Yeah, you you couldn'T do. Yeah, exactly. You couldn'T Do that. So it really is. It's it's it'S the level of, you distribution and disaggregation, I think, helps contribute to that of security, or it would be really, really difficult for the Chinese to orchestrate that, even if they, you know, exercised undue influence over ICANN by sending letters to the registry board or whatever it is that they're going to do.

0:44:43 Thomas: Okay. Yeah. It sounds like what you're saying is that this is a nothing deal. Like this is

0:45:06 Andrew: It doesn't, it's, you know, again, I don't, this is not my area of law. And I would welcome comments from our listeners who are active and involved in, you know, First Amendment and Internet and like online privacy. And I mean, there are a lot of really good, responsible groups out there. I can't find any of them that are really lining up to take the Ted Cruz position. It really strikes me as kind of crazy fear mongering.

0:45:12 Thomas: Sure.

0:45:37 Thomas: Yeah, just making an issue, a pet issue out of nothing really. And yeah,

0:45:38 Andrew: That's yeah, that that's not that'snot reflected in the reality. Ultimately what happened here was that the judge denied the injunction last this morning at twelve oh one. So the transfer takes place and we're going to see that. And again, you know, it's another prediction we can put on the board. I stand by my prediction from the from the yeah, from the Facebook hate, hate, hate speech policy. You know, I predicted that was not going to lead to a massive of of censorship.

0:45:48 Thomas: Shocker.

0:45:58 Thomas: Assuming our website still exists on Wednesday or whatever.

0:46:12 Andrew: And it hasn't.

0:46:11 Thomas: You know what? And Just, and I don't make as many predictions as you, but just while we're doing in the business of making predictions. I pinned on my Twitter months and months and months ago when everyone was going nuts over how Trump was going to win the election that he was actually going to lose in a landslide. And I just don't, come on country, don't let me down. Do not let me done.

0:46:31 Thomas: So that's a prediction I'm down for. But so we both have our predictions. I

0:46:12 Andrew: Right. Yeah, I met with a friend of mine last week who his prediction is that he thinks Trump is going to win more electoral votes than Mitt Romney did in in 2012. So I thought that was interesting. That's the other side.

0:46:45 Thomas: Oh, wow. That's a good, yeah, it could happen.

0:46:50 Andrew: It certainly looks like it's on a it's on a pace for that to happen, which would be I mean, it would be interesting only as a political watcher. Right. Like one of the things that we know that's been true from from history is that there is really no relationship between margin of victory and the ability or lack of ability of the president to act right like like George W Bush in both of his terms was elected by you know razor thin electoral majorities Uh And

0:47:00 Thomas: Yeah, right, right. Yeah. And he was able to do probably far more than Obama, who's been locked out Of everything he tries to do. So

0:47:21 Andrew: Yeah Right Right And Obama won you know massive lands, I mean Obama Obama in 2008 was a historical landslide and it was a decisive victory in 2012 and in neither either case, did that really, you know, translate much into anything. So, um, so,

0:47:29 Thomas: Right Yeah So Those Are all our Predictions, we'll see how they go

0:47:43 Andrew: So the suit is still alive, right? The declaratory, uh. Relief portions of the suit are still alive. Uh, whether these governments will continue to pursue it, having been denied the injunctive relief. I Uh. Don't know. Uh there's nothing in an ordinary case. There's nothing to to stop you from doing that. Right. Which is which was my analysis from the first segment. You know, that is just saying, hey, look, you didn't show a substantial likelihood of prevailing on the merits. Doesn't mean that, you know, the case doesn't favor you. Fifty-one forty-nine. I don't think it does in this case.

But, But you Know, it's not a sign that you have to pack up and go home as opposed to if they'd won on the injunction, that would be a pretty dire sign for of the other side, right? That's a judge saying, no, No. I think that this is, uh, almost certain to win if it goes to trial. Uh, and then, you know, when a judge tells you that you typically don't take those cases to trial, um, not listening to the hints a judge gives you is kind of the quickest way to go from being a successful lawyer to an unsuccessful.

0:48:03 Thomas: Yeah Right Yeah Excellent

0:48:41 Andrew: Uh. So that, uh. I think, uh I think

0:48:45 Thomas: Very interesting, thanks for taking us through that, I I always like a chance to see how Ted Cruz was wrong about something. So, So, all right.

0:48:54 Andrew: We will have no shortage. Of Potential topics that fit within that category

0:49:00 Clip: He who questions training, only trains himself at asking questions. What?

0:49:08 Thomas: Okay. Our listener questions for this week. Sean Zipperer, is the doctrine of standing how we end up with a FISA court and nobody can challenge it because, well, you were spied on without a warrant, but we are not going to give you standing to actually do anything. Interesting phrasing there, but that's the question.

0:49:24 Andrew: Yeah And and I I like the question, um

0:49:28 Thomas: You may need to explain it a little bit for, I mean, even me reading that it was a little hard to understand, but you

0:49:29 Andrew: Yeah Okay So um actual, the the question sort of, this, I mean this all ties together, it's why I picked the question, because we're talking about, you know, uh, we we tangentially referenced the NSA's domestic surveillance program.

0:49:45 Thomas: Were just too damn good at this podcasting stuff.

0:49:46 Andrew: Yeah, yeah, yeah. And so what FISA is, is the Foreign Intelligence Surveillance Act. And there are a series of private courts that have been convened and constituted by Congress under FISA. And those courts are where the The government goes to get a warrant to conduct electronic surveillance for the purpose of national security. And one of the things that have come about is evaluation that FISA courts have a like 99.99% granting rate on issuing warrants to government officers to conduct wiretapping.

0:50:36 Andrew: Now, let me say, ordinary judges have a very, very high percentage of issuing warrants in just ordinary cases, right? Like when the police take a warrant application to a judge, that they're almost always successful in getting that warrant issued. Shoot. So I don't know. I don'T know that that is a unique harm. But I will say that the FISA courts are there are a number of things that are really troubling about the FISAC. Let me take a step back. How do we get the Fisa court in the first place. And Right. The answer is that there are two different provisions in the Constitution itself. OK Article 1 governs the powers of Congress.

0:51:21 Andrew: And Article One, Section Eight says Congress has the power to do a whole bunch of things. Right. And so they have the power to borrow money. They have the power to regulate commerce. They have the power to establish post offices and post roads and one of them, you know, to provide and maintain for a needy. But one of the powers that Congress has is the power to, quote, constitute tribunals inferior to the Supreme Court.

0:51:47 Thomas: Huh?

0:51:47 Andrew: And then if you look to to Article 3. Article 3 is what are the powers of the judiciary. And Article 3, Section 1 says, the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. And then it says, the judges, both of the Supreme and inferior courts, shall hold their offices during good behavior and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office. And what does that mean? That means that some of the things you've heard about from history, right, like FDR's court packing plan in 1936, I believe, to try and get the Supreme Court.

0:52:25 Thomas: Oh, sure. I've totally heard about that. Yeah. I can't stop hearing about that, but

0:52:31 Andrew: That that plan was, in fact, within the letter of the Constitution, Right. Like the Constitution just says that that the power shall be vested in a Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. So, it was at least arguably constitutional that if Congress passed a law expanding the Supreme Court from 9 to 25, that that, you know, there's no provision in the Constitution. It would not require an amendment to the Constitution to have 25 sitting Supreme Court justices, for example. Um, yeah, right.

0:53:03 Thomas: We can't even fill nine though. That would be, it

0:53:06 Andrew: Yeah. Now you would have to go through, right, the confirmation process. Um, but, but then there's also, uh, the Federal Judiciary Act. So all of the court structures that we've talked about, uh. Are federal court structures that we've talked about, right? That is a district court, one or more district courts in each state, then multiple states funnel up as a right of first appeal to United States Circuit Courts of Appeal for the first, second, third, fourth, and so on circuits. And then from there, you appeal your case to the U.S. Supreme Court. That structure is based on a law. That's based on legislation. And that law could be amended, taken away, replaced with something else, and it would remain constitutional. So something that

0:53:06 Thomas: Would take a hundred years to, yeah.

0:53:54 Andrew: Has been a potential issue that's been talked about on the right is to try and amend the Judiciary Act to take certain cases away from the jurisdiction of Article III courts, which are the United States District Courts and the Courts of Appeal, as well as some others that I'm going to talk about in a minute. And again, I think that would be a terrible, terrible thing to do. But it would be constitutional. Right. It would not require a constitutional amendment to say we're going to take these these kinds of cases. And usually this was before RFRA. I mean, you know, these are you know we wanted to take cases involving gay marriage out of the jurisdiction of the courts.

0:54:41 Thomas: So they were just trying

0:54:42 Andrew: Right precisely

0:54:42 Thomas: To jockey for the best chance of getting whatever whatever conservative, you know, decision that, yeah. Cause I, cause on its face, I don't, I don'T know why you necessarily said that it'd be a terrible idea, you know, just prima or whatever it is. I Uh, guess, I mean, I understand when you're using it as a political tool.

0:54:47 Andrew: Precisely.

0:54:59 Andrew: Well, and I mean, the reason that I think it would be a terrible idea is to have a different kind of structure in place for, you know, certain substantive areas of the law. So let me give you an example of where we have done that and and how it works. And that is we have a series of United States bankruptcy courts. Right. And the bankruptcy courts are not part of this Article three structure. They are what's called Article One courts. So they were established by the Congress, but they do not form part of the judicial power of the United States. They're separate from just an ordinary regular court. And so when you go into bankruptcy court, different rules apply and different rights attached to you.

0:55:51 Andrew: And so, you know, there have been, I mean, kind of without going into the interplay between bankruptcy and regular courts, courts. Supreme Court has said that in any case involving life, liberty, private property rights, that you have an ultimate right to have that adjudicated by an Article III court, by a court that is part of the supreme judicial power of the United States. So when you lose in bankruptcy court, you then get to appeal to the United State's district court for the state in which your bankruptcy court was located. So in other words, the bankruptcy courts kind of sit just below where the federal district court that is usually the first place where you file your claim. Does that make sense? Yeah.

0:56:37 Thomas: Yeah, I think so.

0:56:38 Andrew: And that's not, when I say below, I mean just in terms of how the appeal hierarchy goes, right? So if you, not, happen to know several bankruptcy judges judges, if they're listening to this podcast, that's not below in terms of, you know, competency, intelligence or anything like that.

0:56:42 Thomas: Mm-hmm.

0:56:53 Thomas: No. It's all right, we know what you really think about him, so

0:56:54 Andrew: Yeah. Judge Alquist, I'm really sorry. She's she's she'S brilliant. And but it means that that's it's another rung in the chain. And the reason that you do that is because bankruptcy was decided by Congress to be be this kind of arcane and specialized area. And so we wanted these separate courts to come in and only adjudicate these sorts of issues. And most bankruptcy cases, you are worked out. There's some sort of plan, there's some kind of administration. And it made sense to kind of take that out of the normal ambit. Because it affects people's property rights, you do have a right when you lose in bankruptcy court to appeal. And you now get two levels of appeals, right? You get that appeal from the bankruptcy court, to the district court, and then you get a second appeal from the district to the circuit in the geographical area in which that district court sits.

0:57:47 Andrew: I've actually litigated a case like that, that involved a bankruptcy court that approved a settlement that my argument was, was going to deprive my client of equal standing to, and access to the assets of the bankrupt estate. And we litigated that all the way up to the fourth circuit until amicably settling the case.

0:58:10 Thomas: How does this relate back to? Yeah.

0:58:11 Andrew: Yeah, how does does it relate back to FISA? So, um, FISA is an article three court. Um, it, is presumed to have to be, it's a part. So unlike the bankruptcy court, it's not this separate thing. It is a part of the judicial structure of the United States. Uh, and therefore your rights are supposed to to attach to the FISA court. So there are a couple of things. Number one, the government is supposed to be getting a warrant. Number two, your rights do apply when the government is getting a warranty to conduct surveillance unless it falls into a particular exception that I don't think we have the time to

0:58:15 Thomas: Okay. I

0:58:55 Andrew: Go into now.

0:58:55 Thomas: Was gonna say this is this is sounding pretty dense and like it could be its own episode to be honest, with you,

0:58:56 Andrew: Yeah, yeah, yeah. To me, so so the major issues with the FISA court are that the judges of the Fisa court are appointed directly by the Chief Justice of the Supreme Court. So John Roberts has appointed all but one person on the FISA courts right now. The current constitution of the Fisa courts, there are 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 1. One. So all of them have been appointed by Justice Roberts, not all but one. All of them were appointed by Roberts. And all of those judges in turn were initially appointed to the bench by Republican presidents. Right. So it is safe to say that if you as the Chief Justice of the Supreme Court have a particular view on how large the scope of intelligence can be, You have pretty, pretty unfettered freedom to constitute a FISA court that reflects your political views.

0:59:55 Thomas: How What are their terms like, how is that he was able to appoint all of these judges, and and are they, are you able to fire him? Wow.

1:00:08 Andrew: No, no. I mean, you have to their Article three judges. So that's why I remember I read that provision from Article three of the Constitution. They serve for life unless they are impeached. Um, but the term that they serve on the bench for life, their term on the FISA court is a seven year, uh, term, but, but that term can only be abrogated, uh if they are impeached, uh and how you would go about doing that I don't know because, uh the other controversial aspect of the Fisa court is that it is an ex parte court. Court. The government and the judge are there. The individual against whom the wiretap is being issued is not present. Neither are, you know, I'm going to write to a lawyer. So everything is being and all the proceedings, unlike regular courts, all the procedings are secret.

1:00:16 Thomas: Oh, Okay, oh.

1:00:46 Thomas: They don't get to be there, yeah, sounds legit,

1:00:58 Andrew: Yeah. So there are an awful lot of problems. The answer to the question is no, this doesn't have anything to do standing. It's a separate court constituted under Article 3.

1:01:08 Thomas: It oh Well, you could have just said that, could

1:01:10 Andrew: Yeah, I could have, but I thought it was more fun to sort of go through and think about all of these issues of, you know, what does it really count to be in court? What does it count to, you Know, have your rights? This is a case where, you Now, there are warrants. This is not warrantless wiretapping. But the question is, from a good citizen perspective is, is there really any oversight in the granting of these kinds of warrants? And it's a real issue and a real question.

1:01:10 Thomas: Have been yeah. Yeah.

1:01:35 Thomas: And that that looks like a a rich topic for another time, certainly, like a lot of the lot of questions actually, um, a lot of elements of this question, I mean, but, uh, but all right, thanks for answering that, thanks for your questions everybody, we really appreciate it, and now of course we have to thank our kind patrons over at patreon.com/law, and and they are Daniel-Charles Lebrun, Ryan Mesaros, Dr. H, Zabby, Don E. Stephens, Jay 'JD', Arianne Kobler, Nicklaus Testiclaus, all right, that's, I don't know what that means, but it's good, maybe maybe not, he's gonna be horribly offended when, uh, when we we laugh at his name, he's like, well, fine, uh, Susan Pattavina, Andrew D'Arcy, Heathen Street Preacher, take

1:01:41 Andrew: Yeah. Yep.

1:02:14 Andrew: Suspect that might be a pseudonym.

1:02:29 Andrew: Thank you to Hertzey Hertz to Ian and Ali. That's one person, but we will thank them to collectively. Uh, Erik Johnson, Seismozombie, that's an awesome name, cory hill, Rotanak Nou, Gerard Clarke, John Warner, and Alice, Alice Ashton, thank you very much for supporting the show.

1:02:37 Thomas: Thank You guys, and we we love you so much, we won't even complain about how difficult it was to pronounce all of your names, and of course we've got to thank our all-time greats, topping Topping the list now, or tied for topping the list, is Zabby. Thanks for that pledge. We really appreciate it. And the Inciting Incident Podcast, Jeff S. Thank you, Kaylee Reiser, Michael, Hunter Ash.

1:03:11 Andrew: Thank you to Amanda Lipnack, to Pro Panic, to Patrick Fussell, Desecrator, Jim Grove, Steve Sigmund, Dale, Dave Nichols of the Positively Doubtful podcast, Eli Bosnick, and Dan Irizarry, thank you all so much for being our Hall of Fame patrons. I just quickly, before the episode ends, I want to mention that I was on Zach Law's Zachrilidge podcast.

1:03:35 Andrew: I will post a note to that in the show, post a link to that. In the show notes.

1:03:35 Thomas: Oh, excellent.

1:03:42 Andrew: I was also, I did a fun, um, gosh, almost two hours with uh Skeptic Brett and the Atheists on High podcast, uh, that was a lot of fun, and I will also post a link to that in the show notes, so if you like, uh, hearing me, and I guess you're listening to the podcast so you probably like that a little bit, uh, and would like to hear more, uh, check out Atheists on High, and check out Zacharowicz.

1:04:07 Thomas: Absolutely. All right. Thank you guys so much for listening. I really love this episode. This was fun. So we will see you next week for likely, unless we're preempted by any extraordinary news, for You Be the Supreme Court Part 2. See you then.

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