CJ: Good evening. The Junior Justice to my left will keep the time.
JZ: I delegate that task to the timekeeper of the court.
CJ: How much time does the Junior Justice think that each of the litigants should have to speak to the court?
JZ: My previous briefing order that the Chief Justice may or may not remember, stipulated that the --
CJ: Are you suggesting that the Chief Justice is losing it? [laughter]
JZ: Certainly not. Let the record reflect, the Chief Justice's paranoia is completely unwarranted.
CJ: I still don't know the time.
JZ: I believe the briefing order stipulated twelve and a half minutes per litigant, which includes five minutes of rebuttal time for whoever the designated appellants are, respectively.
TK: Seventeen and a half.
JZ: Seventeen and a half, I'm told by the timekeeper.
CJ: In the United States Court of Appeals for the Berkman Circuit, Civil Action No. 00-000. Berkman University, Plaintiff-Appellant; and Defendant-Appellee vs. Instant Term Papers, Inc. Defendant-Appellee; and Maria Morgan, Plaintiff-Appellant. Who should we treat as the moving party here? Which side goes first? Ms. Lea Brannon. Excuse me, first, Mr. Tim Ehrlich. Mr. Ehrlich?
TE: With this court's permission, I'd like to reserve five minutes from the seventeen and a half for rebuttal, please.
CJ: So instruct the timekeeper.
JZ: You are so instructed.
TE: May it please the court, my name is Tim Ehrlich, and I, along with my co-counsel, Lea Brannon, represent Berkman University in this dispute. I will be arguing on behalf of the university, in its case with Miss Maria Morgan, with respect to her Fourth Amendment claim; while my esteemed co-counsel will be arguing against Instant Term Papers First Amendment claim. To this end, I will be making two points. First, at Berkman University, a sweep of its students' hard drives is not a &search& for Fourth Amendment purposes; and 2) even if this court must eventually conclude that it was a search, I would argue that the search was, in fact, a reasonable one, under the special needs line of cases handed down by the Supreme Court.

In short, I will argue that as a result of Berkman University's detection of plagiarized materials on Miss Morgan's computer, that no legitimate expectation of privacy of hers was violated; that no constitutionally protected rights were infringed upon; and that Miss Morgan should not be entitled to any relief from this court.

A brief review of the relevant facts in this Fourth Amendment issue is helpful at this point. This past September, Miss Maria Morgan, a freshman at Berkman University, logged on with her computer to the Web page of Instant Term Papers, an Internet company that sells pre-written term papers through Berkman University's computer network. She eventually decided to download one of the papers from that site, and proceeded to submit it the very next day in fulfillment of a course requirement. Soon after this occurred, a routine inspection of students' hard drives, in accordance with Berkman University's openly stated plagiarism policy, detected the presence of this paper on Miss Morgan's computer.

As is their official practice in these situations, school officials then sent a copy of the downloaded paper, which had been retrieved from Miss Morgan's computer, to her professors, without any mention of her name, to see if any of her professors had received such a paper from any one of their students. Apparently, Miss Morgan's American Culture professor matched the paper given to her, by the school, with Miss Morgan's, and promptly reported it to school officials.

Subsequent to this information, disciplinary proceedings were instituted against Miss Morgan by BU. During these proceedings, Miss Morgan admitted that her paper was not her own work, but was downloaded off of the Internet. Consequently, she received a one year suspension from Berkman University. Miss Morgan brought suit against Berkman University in the Federal District Court of Berkman, challenging the constitutionality of the school's plagiarism policy.

__: Counsel, we've read your characterization of the record below. I wondered if you could focus for a moment on this idea that this search of hard drives is not a search. In what sense is it not a search?
TE: Your Honor, I believe that it's not a search under Fourth Amendment principles, under the cases of US v. Jacobsen and U.S. v. Place, and in conjunction with other cases which have dealt with Fourth Amendment issues, in general. Specifically, in order to constitute a search for Fourth Amendment purposes, Miss Morgan must show two things: 1) that she not only had an actual or subjective expectation of privacy in the contents of her hard drive, that she had to demonstrate that; but, 2) that society is prepared, at this point, to recognize that expectation as reasonable.
__: And why wouldn't we be prepared to recognize the contents of a hard drive as being reasonably secure from search?
TE: Your Honor, under the decisions of the United States Supreme court in U.S. v. Place and U.S. v. Jacobsen, the court has determined -- the court determined in those cases, that an inspection of the contents, or at least the identification of contents of someone's luggage in that case, did not constitute a search. They determined that society was not prepared to recognize that as reasonable, an expectation that something, an inspection, which only proves two things: 1) that there is -- it only proves the presence of absence of a contraband, or something that is being sought for in that luggage; and 2) that there's no collateral damage. That there's no embarrassing moments of people rummaging through luggage and so forth. That in those instances, society is not prepared to consider that a search for Fourth Amendment purposes.

And what I would argue, is that that is exactly what is happening in this case, with the search conducted by Berkman University.

__: But this is because you don't notice it, so you're not offended by it? That's what makes it not a search? Or is that what makes it reasonable?
TE: That's what makes it reasonable, your Honor.
__: So it's not a search because what? I mean, you're pointing to a dog sniff case at an airport. I'm not seeing the relationship between that and the --
TE: It's not a search for Fourth Amendment purposes, your Honor. We can use whatever term we'd like. I use the word "inspection" or "sweep" and it can be used -- it can be called a search, but not a search for Fourth Amendment purposes. Because the Supreme Court has clearly come down, in United States v. Place, they state: "We are aware of no other investigative procedure that is so limited, both in the manner in which the information is obtained, and in the content of information revealed by the procedure." Under those circumstances, the dog sniff, the court considered that kind of inspection sui generis. It couldn't even imagine --
__: If it's sui generis, how is it a basis for the hard disk search?
TE: Well, what I mean by that is, the court is recognizing that a search, or an inspection, which does nothing else but disclose merely the presence or absence of this particular item, and which reveals no other private fact about that person, could be considered not a search in the way that we think about it.
__: So do we need to know more about the worm, to know whether it, in fact, satisfies this test? What if the worm were revealing more than the presence of what you're calling contraband here?
TE: But we know that. We know that it does not reveal anything other than merely the presence or absence of a paper, which is downloaded from a registered term paper site.
__: So, I'm just trying to get the idea. The idea is, if you can figure out a method to make a perfect search, that only comes back positive when it hits --
TE: That's exactly right, your Honor.
__: Then it's not a search?
TE: That's exactly right. In this case, that's exactly what the university has.
JZ: And for which no human eyes see the misses?
TE: Absolutely, your Honor. What's so critical about this search, is that it is code based. There are no human witnesses to what is contained in this hard drive. As Mr. Chief Justice called it, a perfect search.
__: So Mr. Ehrlich, I noticed when you were stating the facts, you made a point of saying that this paper came to a hard drive through the BU network?
TE: Yes, your Honor.
__: There would be nothing stopping you from putting a sniffer on the network, and sniffing everything that goes through it, right?
TE: Well, I mean, you're right, your Honor. Yes, there's no limit to what the university could designate this search for, but the university --
__: But it wouldn't be a search?
TE: Huh?
__: It wouldn't be a search?
TE: For Fourth Amendment purposes it would not.
__: For purposes of the law, it wouldn't be a search?
TE: Exactly. For purposes of the law, it would not be a search. Like I said before, to Justice Lessig, you may call it --
__: ...(inaudible)
TE: You may call it a --
__: Honor the Chief Justice.
TE: I corrected myself, just in time. You can call it a search, but that doesn't mean that you have to give it protection under the Fourth Amendment, which is what Miss Morgan is asking for.
__: But Place hangs upon this being contraband. Why is this contraband? Are there any uses for this document that would not be illegal?
TE: Yes, your Honor. But I would like to address that by turning it around and saying that, the court in that situation, in Place, it was contraband; but that's not what the court is really concerned about there.
__: I'm sorry, counsel, the Fourth Amendment exception, that Place relies on, certainly does depend upon the object being searched for being contraband. That was the common law understanding of the Fourth Amendment. That's what grounds it in Place.
TE: I completely agree with you, your Honor. But I think that what the court -- my reading of United States v. Place, is that the court is engaging in a delicate balancing exercise. In this case, yes, the drugs in the suitcase were contraband. But what I think we should put, and what I'm asking this court to put more weight on, is the fact that the court is worried about collateral damage. In a lot of these Fourth Amendment cases, in determining whether or not something is a search, the court is concerned about the collateral damage to the person who has the privacy interest.
__: Is that the reasonableness inquiry? Or the search inquiry?
TE: It's part of the search inquiry. Whether something is a search --
__: Why do we have such a confused line of jurisprudence? That we have this, what you say, "search for Fourth Amendment purposes?" Why can't we just speak English? Is it a search? And you want to say, "Fine, it's a search." But then it's reasonable, because there's no collateral damage. Isn't that your idea?
__: It's the word, you know, you've got a law search for the Fourth Amendment, we'll call that a search.
__: Right.
__: What's the word that, you know, is not a search?
TE: Well, your Honor, unfortunately --
__: What do you call it when you just look around? You've got a perfect right to do that.
TE: Unfortunately, your Honor, the reason why we're here today --
[simultaneous conversation]
TE: The reason why we're here today, is because there is no proper word for what this does. This is a result of new media and new technologies. The court has never seen anything like this before. This is, in theory, an answer to all the muddled, as Justice Lessig calls "the muddled Fourth Amendment doctrine." This is the answer to those types of situations, because it is a perfect search, in essence.
JZ: I think the Clerk of Court is here to work the machine, where is the text savvy Clerk of Court? Ah, there he is. And perhaps this might not be deducted from the good counselor's time. If the clerk could call up just the screen that was entered into evidence, that shows the results of the search, or the observation, from the university administrator's point of view.
__: ...(inaudible)
JZ: So in that sense, it just says it looked at one thousand, nine hundred, seventy-two computers. It found one computer with an inappropriate download. It identified it by ID, and then allowed you to view the paper. And I presume, your argument, counselor, is that the only time the ID is even tied to a student -- so that in any human's mind, there's some particular student with a cloud -- is when that paper has, in turn, been connected with a paper that's been turned in to a course?
TE: Absolutely, your Honor.
__: Counsel, what if the assignment from the professor was to go out and find the best paper on a given subject that you can find on the Net, and hand it in, making it look as much as you can like it's your own work?
TE: I fail to see the purpose behind that, your Honor.
__: Because then that --
TE: ...(inaudible) your question, but the purpose of why a teacher would seek to have a student intentionally try to deceive the professor, in creating as close as possible to someone else's work. I can't understand what -- I mean, I understand your hypothetical --
__: It's because it's a law class, in which the students are being taught. That the name of the game is to get away with it, right? And so the idea is, don't get caught. And I'm trying to teach you. So go out on the Net, find one -- if I catch you, you know you're going to flunk. But the idea that we're going to throw the kid out of school --
TE: I completely understand, your Honor. What I would say is that in that particular situation, under those particular facts --
__: This worm wouldn't work?
TE: Well, no, no. The worm would detect it, but the whole purpose --
__: But the premise of your search case is that the worm is perfect.
TE: Well, exactly. The worm would detect plagiarism, which his what these students did. That's what it would detect. It's a reasonable balance to say that in very rare circumstances, where a law professor would ask their students to try and fake him out, and try and, you know, get as close as possible to a paper from the Net, without it actually being that --
__: Well, counselor --
TE: That the purposes of the search are not really being applied. The purpose is, in this case, is to stop students, ordinary students, from plagiarizing.
__: Well, counselor, in that case, and the case that you get a hit -- in fact, you get a whole bunch of hits on your search, because some professor has decided to ask the students to turn in plagiarized papers, obviously the professor would be notified that several hits were made. The professor would say, "God bless them, they're doing good work." And then it would end there, wouldn't it?
TE: Absolutely, your Honor. By the facts in the record, the way that this procedure works, is that once a student is -- or once the paper that is from the hard drive is sent to the school officials, they then forward it to the professors, without any name on it, and they ask the professors to compare what papers they have received. Now that professor, ideally, is the same one that just asked them to go to the Internet and to try and download these papers.
__: So the idea is, if it turns out to be a plagiarized paper, it wasn't a search? But if it turns out it was not a plagiarized paper, then what was it?
TE: I'm sorry --
__: Wasn't Maria's paper looked at?
TE: What do you mean, in terms of "looked at?" At what stage was it looked at?
__: It was a space that she had an expectation that --
TE: No person, no. No person entered that space where she had an expectation of privacy. A code, a strand of code --
__: A code. And then it produced the paper. And then it was processed, and then they looked at it.
TE: No, no. Her ID number was on the paper, that was then sent to her professors, which we can reasonably assume --
__: He was human.
TE: Huh?
__: He was human.
TE: Who was human?
__: The professor. So somebody's looking at what they found on her hard drive.
TE: With no name attached to it. So what the professor sees, is that a paper was taken from a student's hard drive, and is then asked to compare that to the papers he has received, or she has received, for that class. And if any match up with the papers received, then that student is reported back to the officials. The professor matches it up, but only if the student has plagiarized.
__: So the thing that keeps it from being a search, is they didn't put the name on the paper when they showed it to the professor. And we trust the professor not to get together with the person who took the name off?
TE: Exactly. Thank you, your Honor.
__: Miss Brannon.
LB: Good evening, your Honors. My name is Lea Brannon. I'm also representing Berkman University. I'll be arguing that the statute under which the university filed suit, the Educational Honesty Act, is constitutional under the First Amendment, because it is a content-neutral restriction, on the manner in which term papers may be published on the Internet; and also because it is narrowly tailored to serve the substantial government interest of protecting the educational system against the plague of plagiarism.

Internet assisted plagiarism is on the rise. In 1997, one million students visited term paper mills on the Internet. These term paper mills offer to custom write papers for students, some of them sell pre-packaged papers. Some of them give away pre-packaged papers for free, like the paper in this case. A search on the Internet search engine, Hot Bot, returned two hundred and eighty thousand hits for the key words "term paper." The term paper sites that it uncovered include sites like the Evil House of Cheat, cheater.com, researchpaper.com, and instanttermpaper.com.

The Educational Honesty Act is the state of Berkman's first attempt to fight back at the rise of Internet assisted plagiarism. The Educational Honesty Act is a content-neutral manner restriction. The appellees, Instant Term Paper (ITP), do not disagree that the EHA, the Educational Honesty Act, is content-neutral and is a manner of restriction. There's a three prong test to see whether such a law is constitutional under the First Amendment. It must be narrowly tailored to serve a significant government interest, and leave open ample -- and leave open alternative channels of communication. ITP itself concedes that there is a significant government interest in this case, and that there are, in ITPÆs words, "ample alternative channels of communication" --

__: Counselor?
LB: Yes, your Honor.
__: Let's just see, are you saying that this was commercial speech? Or that it was a time, place and manner restriction, and, therefore, subject to just content-neutral rules?
LB: I would argue that it is commercial speech --
__: What makes it commercial speech?
LB: The key here, your Honor, is that it survives even the more stringent test for time, place and manner. There is less First Amendment protection for commercial speech.
__: But what makes it commercial speech?
LB: What makes it commercial speech is the fact that under Central Hudson, commercial speech is speech related to the economic interest of a speaker, and that test has been refined in numerous cases; some cases using a test to see --
__: How is this related to the economic interest of the speaker? In this case, the term paper mill?
LB: The term papers on ITP's site are of two types: they're the term papers for free, and the term papers sold for a fee. There's also advertising on ITP's site.
__: But if I go into a bookstore and I buy a book, is that commercial speech, because I had to pay the bookseller for it, and the author makes money?
LB: No, your Honor, it's not commercial speech. The reasons for this being commercial speech, however, are not integral to this case. Under the most stringent test possible for a content-neutral manner restriction, this act survives. Which is why I think it's important to address that issue first. That's the toughest test possible. And I think the EHA easily survives that test.
__: Counselor, is the school's interest in this, in some way related to the idea of copyright?
LB: No, the key issue I would argue for the school's interest is related to fraud. The school is worried about plagiarism, which is common-law fraud. And that's what the school is trying to deal with here.
__: So you wouldn't call it a problem in copying? It's a problem in misrepresentation?
LB: It is a misrepresentation problem rather than a copyright problem. The key thing that we're arguing about with ITP, on the content-neutral front, is whether or not this statute is narrowly tailored. ITP suggested in its brief, less restrictive alternatives, possibly.
__: Do you think that you could make that form of misrepresentation a crime?
LB: Yes. Actually, plagiarism has been made a crime. For example, in the state of New York, some of the cases cited in the brief, including New York vs. Saksniit, New York vs. Magee, all discuss cases in which students and term paper mills, although not Internet term paper mills, were found to have violated a New York statute on plagiarism.
__: Counselor, let's take an example that your opponent's offer, as an example of why this is overly broad; and that's their Lexis example. The statute says that we can presume that the paper mill is supplying this for purposes of plagiarism, if any of five conditions, any of five conditions is met. And one of them is, for example, custom research, formatting, or writing.
LB: Or specifying word length, which is something that Lexis-Nexis does.
__: That's one.
LB: Exactly.
__: So I'm saying any of these five --
LB: Lexis-Nexis would fall under it. You're right, your Honor.
__: So you're saying it's constitutional for you to presume that Lexis-Nexis is committing a crime by providing research material to students?
LB: At the same time that Lexis-Nexis comes under the EHA, it immediately leaves. It goes out under the safe harbors. What the Educational Honesty Act does is create broad liability, and then extremely broad safe harbors. The safe harbors include anyone who institutes a four day delay before distributing a paper. They also include anyone who cooperates with a government search engine.
__: Wait, wait. Lexus only has a right to engage in First Amendment protected speech that participates in the government search engine requirements?
LB: The government search engine requirements are that the site does not block the government search. So what happens --
__: So Lexis has to waive their First Amendment rights to have private databases not searched by the government, in order for them to have a right to engage in First Amendment speech?
LB: What Lexis-Nexis does not have do -- it does not have to waive its Fourth Amendment rights, but it does need to, if it wants to fall into one of the automatic safe harbors --
__: But I want to know why you can regulate them? All they're doing is providing database research material to students. And you're saying you --
__: Facilitating fraud is what they're doing.
LB: I mean, the key here is to fall within the automatic safe harbor. So, for example, Lexis-Nexis cooperates with hundreds of thousands of academic institutions across the country; so, if it cooperated with the government, like it does with Harvard Law School --
__: But it doesn't want to cooperate with the government.
LB: If, hypothetically, Lexis-Nexis didn't want to cooperate, and didn't want to help stop plagiarism, although it seems consistent with Lexis-Nexis' mission, to stop plagiarism; if they chose not to, then they wouldn't fall within the automatic safe harbor, and they would be forced to argue that they actually lacked intent in the given case.
__: So you can shift the burden of proof to the criminal defendant here, merely because they're engaging in what we all would concede is not an illegal action. You're only providing a database so people can do research on it? I mean, it seems to be pretty clear, then, the statute would be over-broad if that's your construction of how the statute's going to apply.
LB: I think the key here is the construction of the statute. And because this is a constitutional question of the constitutionality of the courtàof the Educational Honesty Act, the court has a duty to interpret the statute to avoid any constitutional problems.
__: So how can we do that here?
LB: Here you could do it, you could avoid constitutional problems, by requiring that -- by recognizing, basically, that this is a rebuttable presumption; and also recognizing that the over-breadth from this case, looking at this case from a practical point of view, the over-breadth in this case is not substantial. In past cases, where the government -- or where the court has struck down cases as being over-broad, have involved extremely excessive regulations by the government. This statute is not extremely excessive, because it is highly unlikely that Lexis-Nexis, or any other legitimate research institution publishing term papers on the Internet, would want to thwart government efforts to stop plagiarism.

Realistically speaking, most sites on the Internet do cooperate with the government to stop plagiarism. The only people who have any incentive to block the government from creating a special database for teachers to search, would be the term paper mills. The only reason to block the government from creating -- or to block the government's access --

__: But it seems just a very dangerous precedent, for us to say the only way that you can engage in First Amendment speech, without bearing the burden of proving your innocence, is if you cooperate with the government and facilitate their search of your databases. Where's the precedent for that attempt to force them into opening their databases up to government search? When have we ever held that we have the power to do that?
LB: In the First Amendment context, in numerous cases, the court has ruled that some burdens on First Amendment rights are required in order to serve other societal interests. So, for example, in Ward vs. Rock Against Racism, the concert noise levels were disturbing the neighborhood. And in order to control the sound levels, instead of setting sound levels, the government actually took over the sound board and had a government agent control the sound.
__: I understand that, but my question is narrower. It is: When have we ever said that in order to engage -- in order to enjoy the rights of First Amendment, you have to give up Fourth Amendment rights not to have your database searched?
LB: I would argue that what you're giving up in Ward vs. Rock Against Racism, is a similar type of right. You're giving up your control over the manner in which you speak. The same way here, you're giving up your control over the manner in which you speak. So, for example, you don't have to give up your Fourth Amendment rights. You could wait four days before distributing the paper. You could mark your paper with technology, developing technology, that shows your source. There are numerous safe harbors under the Act. This is only one of the safe harbors. It is a very broad one, because it seems very likely that Lexis-Nexis and other legitimate research institutions would simply not block the government database. But there are other safe harbors under the Act. So it's not an either/or sort of situation.
__: So you're basically claiming that this statute is like a specific intent statute? Where the only people you're going to get under this statute, are people who intend to put stuff out for the purpose of facilitating fraud?
LB: Exactly, because the government site here, that's requesting cooperation, AcademicHonesty.edu, essentially is protected from all but teachers with legitimate passwords. So the only people who can cite -- once this government search engine goes out, captures all of the papers and all of the suspected plagiarism sites, all the term people mills, the only people who have access to all of that research would be teachers with passwords, who have a paragraph of a paper that they suspect to have been plagiarized; that they then enter into the AcademicHonesty.edu search feature. And if they turn up a hit, then they would be able to see the paper. But that's not a major restriction on speech.
__: Would there be a problem, counselor, if you took the database, the hard drives on all student database, on all student computers, and run it through this AcademicHonesty site on a regular basis? Would that be consistent with the First Amendment or Fourth Amendment protection?
LB: I'm not sure I understand the question.
__: Well, just like you have a worm that goes out and looks for legal databases; can you just run all of the files that are on people's hard disks through this integrity database on a regular basis?
LB: I'm not sure how technologically that would work. Again, if the only thing that's turning up are the positives, and there's no potential for a false positive on this, then I would argue that that's not a problem. Essentially, the Educational Honesty Act is narrowly tailored. It is content-neutral. It is a restriction on the manner of speech. And if there is any over-breadth in this case, it's not substantial. So, thank you.
__: Thank you, counselor. First up is Patricia DeWitt.
PD: May it please the court, my name is Patricia DeWitt. I represent Ms. Maria Morgan in her claim that Berkman University violated her Fourth Amendment rights. She requests that this court reverse the lower court's dismissal of her case.
__: Is she seeking damages out of this? Under something like Section 1983? Or is she hoping to have her --
PD: Frankly, it was never very clear what context this claim is coming up in; but since she's the plaintiff, I'm assuming that it's a civil claim against the university for damages.
__: But she's also hoping to have an exclusion of the evidence introduced against her, or that prompted her confession at the --
PD: Well, frankly, it's sort of unclear whether in this circumstance, schools, universities, that an exclusionary remedy is actually available to her. And that's, frankly, not something that I've studied.
__: In which case, she seems to have confessed anyway, so.
PD: Well, yeah. Berkman University has a policy of sweeping effectively all student hard drives approximately every two weeks through their connection with the school's server. This sweep is to search for evidence that students have visited sites which the school has identified as being prone to plagiarism, or has downloaded files from those sites.
__: Counsel, would it make any difference if the hard drives were the school's property? That all you had was like a work station and the hard drives were on the big servers in the basement?
PD: Well, I think that would certainly depend on the circumstances. In U.S. v. Katz, it was decided that privacy goes with the person, and not necessarily with the property right.
__: Which would suggest it doesn't make any difference where it is?
PD: Except that if, perhaps, a student used a terminal in sort of an open area lab, and there wasn't necessarily an expectation of privacy in that room, then perhaps it would be a different case.
__: But that would be a matter, then, of -- if it's on the big machine in the basement, but I have an expectation of privacy, with respect to my sector of it; then you'd be saying that when the university comes and sweeps that, that would be invading my privacy?
PD: If you did, indeed, have an expectation --
JZ: But counselor, how could there be any expectation of privacy, when amongst the mass of paperwork that the student gets, there's a big thing that says, "We reserve the right to search your computer when you hook it up to the network."
PD: Well, partially, because it does come --
CJ: Thank you, Mr. Junior Justice. Exactly my point.
JZ: I think you thought it was mine. [laughter]
PD: Partially because that does come within a huge mass of paper, and there's really no reason to believe that the student would have read it.
__: Wait. So you're saying the students' own ignorance in reading the instructions, that came from the information technology services department, labeled I see from the record, important information regarding your rights; and it says, "We reserve the right to search it." I mean, how sorry would you feel for Katz, if at the top of the telephone booth in big letters it said, "We reserve the right to listen in on calls for the placement of inter-state bets."
PD: I don't know that I would feel too badly for him. But, frankly, just, for instance, because the police decide and, you know, announced, "We're going to start breaking into everybody's houses, so be aware"; that doesn't mean that people's Fourth Amendment rights haven't been violated.
__: Well, that sounds somewhat unreasonable, doesn't it?
PD: Well, I believe that it's unreasonable in this situation, too. That if she does, indeed, have a Fourth Amendment right, and would normally have a reasonable expectation of privacy; but for the facts --
__: In this case, she's welcome to attend another university, say, if she doesn't like it, right? I mean, it's not as easy to move out of my house if the police suddenly announce a program of house break-ins.
PD: It's sort of unclear from the record, what other universities are available in the area. But, certainly, it's a public university, and a private university would be much more expensive.
__: But isn't the point that the expectation of privacy is something that is dynamic? It's defined. When a student comes into an environment, we can define the expectations for their privacy. They're not natural rights that are somehow in here, and override everything that goes on in the university.
PD: Well, in the sense that an expectation of privacy would be something that society is prepared to recognize as legitimate; yes, it's something that we, in general, define. But that isn't something for the university to define.
__: Why not? Why can't BU say, "Hey, this is a system in which you have sophisticated levels of privacy. And one of the levels of privacy that we have here, is the hard disk level. And at that level, we sniff it on a regular basis for plagiarism. Understand exactly how this thing works? Don't have any false expectations about privacy."
PD: Well, it does just seem, frankly, slightly unfair to me, that an adult student, who lives off campus, in a completely independent life, who just happens to be required by the fact that they're attending this university, to periodically log onto the server, then give up any right of privacy that they have in their hard drive. I find that very difficult to accept.
__: Counselor, is it true or false, that the only student whose privacy is disturbed in a cognizable way, which is to say, human eyes other than the student actually beholds something that's on the hard drive, is the student who's downloaded something from one of these sites? I mean, if you're an innocent student, your life is no different.
PD: Well, there's a difference between an innocent student, and one who has plagiarized.
__: And a guilty one, like yours.
PD: Yeah. Yes, your Honor. Just because a student visits a term paper mill site, or even downloads a file from that site, or even downloads numerous files from that site, doesn't make them a plagiarist.
__: As the students who read the cliff notes merely for research assistance?
PD: So be it, yes. If they don't actually plagiarize, then no harm has been done. And, in fact, it's just legitimate research. And, in fact, a student might visit what the university seems to believe is a term paper mill site, simply out of, you know, pure curiosity. So a search that returns any sort of so-called positive --
__: But counselor, I'm misunderstanding something in the facts. So let's say that a student does download a paper from one of these sites and just uses it for research, just reads it, and the university does a search and discovers that a paper has been downloaded; doesn't the procedure require that only if that paper has been turned in as a paper, will the student be identified as a student who has improperly used the paper?
PD: To the public, yes. But the fact remains that the university has the paper from her hard drive, and has her ID; and that search has already been done. And there really is nothing to stop the university --
__: But the university -- you know, it's an automatic routine, let's say; and then they send this paper out to professors, and they inquire of the professors whether this paper has been improperly used. And the professor says, "No, it hasn't been improperly used." The student never learns that there's been any investigation of the improper use, does she?
PD: The student won't learn, but that does not mean that her privacy hasn't been violated.
__: How has her privacy been violated?
PD: Her privacy has been violated because somebody at the school -- and we keep speaking of human eyes -- the person who ran the search has her ID number, and there's nothing to stop that person from finding her name from that ID number. And can identify her, individually, with information --
__: What if it was structured such that she couldn't be identified from the ID number?
PD: Then it's unclear to me how it would help, because how else would they find her professor?
__: Well, the person who has the ID number, doesn't have a trace back to who the student is. The only thing that person can do is then determine whether the paper has been improperly used. And if the paper has been improperly used, then you can find out who the student is. But if it hasn't been properly used, then you can't find out who the student is. If that were the case, would her privacy rights be violated?
PD: I think so, because if somebody opens a container, not knowing who it belongs to, say your lunch bag; they open your lunch bag and they look through it, and they don't see any marijuana. And then they close it back up again exactly the way it was, and set it back down on your desk; just because you don't know about it, and just because of that, it doesn't mean that your privacy wasn't violated.
__: I feel that way --
[simultaneous conversation]
__: I feel that way every time I go through an airport.
PD: But the level of the violation may be slightly different --
__: Why isn't that the same thing?
PD: It's a Place case?
__: Yeah, they go through an airport, they go through everything. They look at everything. They search it.
PD: Well, partially because there may be a border exception to the Fourth Amendment in that case?
__: No, it's when I'm going on the shuttle to New York.
PD: I see. That would be a special needs case. Generally, what they're doing when you go through the metal detectors and they open up your laptop computer and search it, is for -- not for drugs, but is for dangerous items, such as guns or explosives. Now because --
__: You don't equate that with plagiarism?
PD: I think it's a far more serious and far more dangerous problem than plagiarism, honestly. I don't think that there is a compelling need, beyond the needs of normal law enforcement needs, which is the situation at the airport.
__: Could they search our disk drives for evidence of bomb making plans?
PD: Well, I think, again, there are, frankly, so many more bomb making instructions out there on the Internet than there are actually bomb-makers, that that would be very problematic.
__: But what if they set this up for downloading bomb making instructions, from bomb making mills, right? And so they searched for those who have downloaded this --
__: And for orders placed with bomb-makers.com?
__: Would that be a violation of the privacy right?
PD: I believe so, because you have a perfect right to download that information. And the government, frankly, doesn't have a right to know that you've downloaded it, absent some sort of suspicion that you're a bomb-maker.
__: Counsel, can I come back to the facts a little bit again?
PD: Yes.
__: The paper is -- you've come up with a hit that a paper has been downloaded. Now you're going to check with the professor. Now how is the check with the professor made? I would assume that the check with the professor is made by checking the professors hard drive, because I assume the student submits the paper digitally, and it's now on the professor's hard drive. And so BU goes zap into the professor's hard drive, they check it out, and we've got a match. And if that's the case, why couldn't the whole thing have been dealt with technologically in the first place? Why couldn't there just be a screen that says, "Whenever one of these papers gets submitted, it gets rejected."
PD: It was unclear to me that those were the facts of the case. But if they are, if no human eyes actually saw it, then it might be equated with sort of a drug sniffing dog case. But that isn't the case. And even if it were, there still is a far, you know, better way to do it, that doesn't implyàimplicate the Fourth Amendment at all; which is what you had suggested earlier. That the university could simply put a sniffer on their server, looking for papers that come through their server. Because that -- in that area of the computer network, the student doesn't have an expectation of privacy.
__: And counselor, I take your early argument to be, that the fact that intermediaries actually executing the search, to the extent that some human intervention is required, the fact that they don't know the identity of the person whose hard drive has turned up something; that, to you, is irrelevant in determining whether it was either a search or a reasonable search, under the doctrine. That if the police break-in to somebody's room, they might not know who it is, but they rummage around and they leave. It's just a question of finding who the right plaintiff is, rather than whether or not there's a search looking into the cops' minds as to, did they know who it was?
PD: Effectively, yes. I wouldn't be comfortable saying that it's irrelevant; but it's certainly not dispositive. And in that case, it would be sort of a weighing factor in the reasonableness area.
__: Counselor, I felt a little twinge there when the university came and searched on my hard drive, to find out whether the student had submitted a paper to me. I take it this means that I have to trust the university not to look at anything else on my hard drive?
PD: That would be the case, yes. And that's the situation that these students are in. They have to trust that the university is --
__: Could the university prevent the students from using encryption, say?
PD: Well, since we're dealing with files that are downloaded from a Web-site -- I don't know if the university doesn't prevent encryption, but I don't think it would do any good, since the other terminal, general Web-sites don't generally send their files in an encrypted format. Unless I'm wrong about that.
__: But let's say they run this program. They determine that some file has been downloaded. They then download the very same file. And they take the file that they have downloaded, and they give it to the professor. And the professor now says, "Yes, I received a paper like this." Now they haven't taken anything from her hard drive, except the identification that comes from this particular search.
PD: You mean they download the paper from the term paper mill?
__: Themselves.
PD: They still get a piece of information. Regardless of whether the student has committed plagiarism or not, they get the piece of information that the student visited the Web-site and downloaded something. Now, depending on what sort of sites they decide are plagiarism prone -- and currently they use AcademicHonesty.edu -- but it's a very simple procedure to add a site to AcademicHonesty.edu, such that sites such as Lexis or The New York Times might eventually be added to it.
__: Are you considering it an invasion of Maria's right, when they simply determine that she's downloaded something from a given site?
PD: Yes. If they take it from her hard drive, they have -- if they take the information from her hard drive, they have no right to know that. If they had instead, for instance, surveilled the information coming to her, then maybe there's some sort of argument that it's a plain view system.
__: But what solace is it to her, whether it comes from that route or from her hard drive, where she got the stuff?
PD: Frankly, it's just a legal line there.
__: You agree with Katz, don't you? I mean, you're not questioning the whole thing in Katz, that wouldn't make the protection turn upon the ownership of the property, or that it's coming over the telephone lines into the particular phone booth, right? So why in this case do you think it should not make a difference whether it's on the hard drive or coming over the wires?
PD: Simply because it's sort of generally accepted, if not generally known, that Internet communications, because of the nature of the Internet, are simply not secure.
__: The nature of the Internet?
PD: Mr. Zittrain might want to help me with this, since I'm not completely familiar with the technology.
__: Yes, help me with this, Mr. Zittrain. What about the nature of the Internet here?
__: Well, the nature of the Internet, as you know, is immutable. There's certainly no way that it could change to conform to the rules of this court.
PD: But, essentially, my understanding is that the way the Internet works, generally, is that information packets are sort of tossed along, from computer to computer, in the general direction of the computer they're supposed to reach.
__: And what if the telephone network became like that? Would Katz now be reversed?
PD: If the telephone number were easily intercepted, in the same way that cell phones are; then, yes, there wouldn't be a reasonable expectation of privacy.
__: Really, just because of the architecture of the telephone network?
PD: If you're on a cell phone, you don't have a reasonable expectation of privacy.
__: Well, I haven't decided that case yet. I'll decide that when I get to it. What about Katz?
PD: It has been decided, sir.
__: I didn't decide it. Do I have to overturn Katz? If you tell me all of a sudden the architecture of the telephone network becomes packet switched, which it is?
PD: I believe that that would, to a certain extent, turn on what people believe about the phone lines.
__: And what do you believe here?
PD: Generally, people reasonably believe -- because that's sort of what's out there in our society -- that when you're on a phone call, you know, if the FBI isn't listening in, that it's private. And that people generally don't expect the FBI to --
__: So counselor, what you're saying is, you reject the Chief Justice's dynamic definition of expectation of privacy, to be that which others tell you, you should expect? Some kind of circularity. That the more that the government searches, the less an expectation you have; and, therefore, the more the government can search. And instead you say --
PD: Well, frankly, I'd like to reject that. And I think that to a large extent that is not true. That the government can't simply abridge your rights by saying, "Hey, we're going to abridge your rights now." But, frankly, the expectation of privacy that people have, really depends on the society we're living in. And whatever society believes, is the standard for reasonableness.
__: And that's dynamic.
PD: That is dynamic, but it's not something the government controls, and it's not something Berkman University controls. Thank you.
__: Mr. Dave Marroso.
DM: May it please the court. My name is David Marroso, and I represent Instant Term Papers. ITP asks this court to affirm the District Court's dismissal of Berkman University's claim against it. The lower court held that the Educational Honesty Act violates the First Amendment of the constitution of the United States. Law students, lawyers, and, indeed, appeals judges, utilize computer networks for research. Lexis-Nexis is one of many of those companies providing electronic research services.
__: Counselor, it's obvious why you might want to argue on behalf of Lexis-Nexis, as if that were your client here. But, in fact, aren't you Instant Term Papers, and aren't you a term paper mill?
DM: Yes, your Honor. My argument --
__: You are a term paper mill?
DM: We are Instant Term -- they are Instant Term Papers, yes, your Honor. However, in the First Amendment --
__: We are lawyers representing them.
DM: In the First Amendment context, when an over-breadth claim is made, it has been held that any claimant can assert the First Amendment rights of another party.
__: So you're not asserting a right to plagiarize?
DM: No, we are asserting the right to distribute scholarly material over the Internet.
__: So, in fact, counselor, if we could find a way to remove any substantial over-breadth from this law, say to take Lexis-Nexis and its siblings out of the reach of the law, while leaving Instant Term Paper squarely in the middle of its target; we would then have a constitutional law.
DM: No, there are two problems with that assertion, your Honor. First of all, the legislature, itself, by creating this law, has already inculcated Lexis-Nexis within it.
__: But surely we could perform a partial facial invalidation? Like renting the Playtime Theaters and just fix the law? Trying to respect, as much as possible, the legislature's intent to pass a law. And we'll do what we can to see that it's constitutional.
DM: If that is possible -- which under the broad prescriptions of the EHA, I don't believe it is -- even in the applied context to ITP, this law is also over-broad. Closer to home, and to this case -- and I'll point to what you just mentioned -- had Maria Morgan downloaded the pop culture paper, used it only as research, cited every source, wrote her own paper, and then submitted it, ITP would still be liable and subject to stiff criminal penalties under the Educational Honesty Act.
__: Counselor, why do you allow people to search on the length of the paper?
DM: The length of the paper, when students or researchers are interested in finding information, they often are under time constraints, don't want to search a hundred page article. For instance, Lexis-Nexis does the same thing in its information command, under its file menu. There's numerous reasons why you would list paper length, subject, format; any of the four methods ITP allows it to search.
__: Counselor, you're familiar with approaches under the copyright law, that basically try and protect copyrighted material by criminalizing various forms of copying devices?
DM: I am not all that familiar with copyright law; however, I believe that it would -- I'm not sure, actually, but I believe that ITP is not asserting any copyright infringement, and I'm not sure --
__: No, no, I understand that. I was just wondering how -- would you say that, in some sense, if a government can come along and protect copyrighted material by, for instance, saying if it's encrypted in a certain way, people who make picks for the locks that encrypt it, will be punished; wouldn't it, in some sense, follow that they could come along and protect against plagiarism, by going after people like you, who are in the business of facilitating it?
DM: I'm not sure that I follow the question; however, I do a see distinction, in that --
__: You're in the business of facilitating plagiarism.
DM: That is incorrect, your Honor.
__: Suppose we found that as a fact?
DM: If you found as a fact that ITP was in the business of --
__: Of facilitating plagiarism. That your major income comes from students who buy papers from you, for purposes of handing them in as their own work at universities. Suppose we found that as a fact?
DM: That is only one part of a multi-faceted inquiry. You would still have to also find that ITP had the intent to facilitate the plagiarism, in addition to finding that, in fact, --
__: Wouldn't the government have an interest, just in the fact of that being who you are, in suppressing you?
DM: Yes, as ITP stipulates, the government does have a legitimate interest. That is not the problem with this law. How the state advances that interest, is the crux of this case. Indeed, Ms. Brannon acknowledged that this statute is Berkman's first attempt at passing such a law. And in short, your Honor, like a brand new suit, the Educational Honesty Act needs some tailoring.
__: Well, we'll fix it up. We'll narrow it right down, just so long as we get you. We want to get the people who are facilitating plagiarism on our campuses.
DM: By that definition, your Honor, you said people who are facilitating, there is no mens rea requirement in that definition. And under case law, and under common law, an intent is required. You're asserting that ITP is aiding and abetting a fraud.
__: So you think mens rea requirement in Section B, of Part B of Section 4, if the statute were changed, such that the state had to, in fact, show that you intended to facilitate, you would say there's no First Amendment problem here?
DM: I don't know if I would go as far as to say that there's no problem. That would help to show that --
__: Well, what's left then?
DM: What is left?
__: In the problem?
DM: The problem would be from a First Amendment -- oh, if there was intent, and the state could show that ITP did intend, then there would be no problem, because there is no First Amendment protection.
__: The intent is a matter of fact, right? You either intend or you don't, at least, right? So it's a matter of proof, that's evidence?
DM: Yes, your Honor. However, the Educational Honesty Act does not require intent whatsoever. It only requires knowledge. A lesser mental state. And even presumes --
__: If there were a series of presumptions?
DM: With a series of presumptions --
__: Right, from which you could infer intent?
DM: If there were a series of presumptions, from which you could infer intent, --
__: If smoke is coming out of the end of the revolver, and you are holding it, and mere inches from it is somebody with a whole in their heart; would it be okay for the statute to presume that the defendant had intended to kill in that instance?
__: Exactly.
DM: No. The answer to the question is no. The smoke from the end of the gun is a fact that relates to the actus reus of the crime, of firing of the gun. It has no --
__: It's completely irrelevant to the motive, you're saying?
DM: It is completely irrelevant to the motive, yes, the fact that there was smoke coming out of the gun. It only applies to the fact that there was a firing.
__: Now your company is a corporation? It's a business.
DM: Yes, your Honor.
__: So the concept of intent is somewhat abstracted, right?
DM: Yes, your honor.
__: The way we would measure the intent of this company, was to see, somehow, where their revenue stream comes from?
__: We could ask for minutes from board meetings, I suppose; where they decide how to market the page, and to what audience they're trying to cater?
DM: That would be relevant to the fact of intent, of mens rea; however, the state, who must affirmatively establish that ITP intended to do this in order to take its speech completely out of First Amendment.
__: If we take as a fact that you are in the business of facilitating plagiarism, and you are a corporation which sells a commodity product, namely student essays; there's no reason to think that the intent with one is any different from the other. You have a whole marketing plan. The fact that we find that you're in this business is the finding of intent. You're not accidentally in this business. You didn't just stumble into it and happen to start making money this way.
DM: Your Honor, I think you're a little focused on the fact that we are -- ITP distributes term papers over the Internet, and that there is only one possible use for such term papers; that use being plagiarism. That is certainly not the case. I don't think any party has argued that. As a matter of fact, I think Justice -- or Judge Lessig mentioned that --
__: And you're saying that the state isn't allowed to come up with --
__: I'm glad I mentioned it here. This is good. [laughter]
__: Didn't mean to interrupt Judge Lessig's preening.
__: He wanted to hear what line of his you liked?
DM: Oh, I particularly liked his line that "research papers could be used for legitimate research." It was in the Fourth Amendment context, but it nonetheless applies here.
__: But doesn't it help for a company in this business, and skating close to certain lines, admittedly, to have the statute lay out the kinds of things that put it into one area or another? I mean, you'll be back here claiming vagueness, if they pass version two of the law. And then say that, you know, "Well, we'll just have to see what you intended." Then you'll come back and say, "I can't believe you're going to leave it to a jury to see what we intended."
DM: Was the reference to that, to the five services offered?
__: Yes.
DM: Those five services, ITP has no problem in terms of vagueness. However, if any of those five services is found, it is only a presumption of a knowledge. And as we have been jousting about here, it must be intent in order for there to be no First Amendment privilege.
__: Explain to me what the intent of a corporation is?
DM: The intent of a corporation, because it is such a nebulous and difficult entity, is found from the facts and circumstances of this case. And as I stated, the state must affirmatively establish that intent. There have been no facts whatsoever, either at the lower court or this level or this court, that show that our client has the intent to facilitate plagiarism; other than in the findings of law, not to this particular case at issue. I don't think that Ms. Brannon or --
__: This is like "Casablanca," where the guy says, "Oh, there's gambling here," right? I mean, we're actually to pretend that you're not what you are? And we somehow are asked to pretend that on the basis that some concept of corporate intent is missing? We have corporate knowledge of what we're doing, and we're out trying to make money the best we can; but we don't intend?
DM: Your Honor, actually that line from "Casablanca" is one of my favorites. And one court actually said this, when the disclaimers that ITP puts up, in a similar case, said, "The disclaimers were tongue-in-cheek and done with a wink." I think that is what you were getting at. However, --
__: Tongue-in-cheek and done with a wink.
DM: And in that case where the court said that, let me reiterate some of the students' desires that were placated, or given into by the term paper mill. "Please use many recent references." "Do not make the language too flowery." "I will supply cover sheets and the bibliography." "Do the paper in outline form." And finally, my favorite, "The paper must be written in Spanish, but accents may be written in pencil." This clearly showed that the term paper mills in those cases intended to facilitate plagiarism.