Note

Confronting Big Data: Applying the Confrontation Clause to Government Data Collection

How did you stumble across this Note, and what does that say about you? What words you queried, how quickly you typed them, the web-sites you recently visited, and your current geographic location are all useful data points that can be aggregated to form an informative picture of who you are and what you have done.

Companies such as Google collect this data because it can be analyzed for patterns that can predict your future acts.  This predictive ability is useful to both a salesman predicting when you might purchase your next pair of shoes, as well as an FBI agent predicting when you may perform your next act of terrorism.  By collecting vast amounts of data, commonly referred to as “big data,” predictions can be exponentially more accurate than ever before.  In addition to predicting what you may do, analyzing big data allows for a more detailed depiction of what you have already done.  It is this backwards-looking feature of big data that this Note will address.

When government investigators request data from companies such as Google, they obtain data on targeted individuals with a guarantee that the data has been collected, stored, and analyzed properly. These guarantees constitute a testimonial statement under the Confrontation Clause.  Similar to lab analysts who submit test results of cocaine samples  or blood alcohol levels,  this Note argues that analysts involved with the collection, storage, and analysis of big data must be available for confrontation under the Sixth Amendment.  At least one federal appeals court has adopted a similar view.

In addressing the constitutionality of modern government surveil-lance, this Note examines a growing problem. Much of the contemporary academic debate regarding the constitutionality of government surveillance focuses on the President’s Article II authority and the Fourth Amendment.  Missing from this literature is a detailed discussion of the Confrontation Clause. This Note fills that void by examining the usefulness of the Confrontation Clause in addressing mass data collection by the government.

The usefulness of the Confrontation Clause becomes apparent when one considers the finite ability of the Fourth Amendment to address government data collection. Every federal appeals court to address the issue has found that the President possesses the inherent authority to collect data for foreign intelligence purposes without a warrant.  The President’s authority to collect data, however, does not provide the government with unfettered authority to use the data in a criminal proceeding against a defendant.  When data is presented at trial against a criminal defendant, the Confrontation Clause is implicated, and the clause’s ability to act as a check on government surveillance comes in-to focus.  This flexible check on government surveillance can be attained through the application of contemporary Supreme Court Confrontation Clause doctrine.

Many scholars, however, are hesitant to extend the Supreme Court’s contemporary Confrontation Clause doctrine.  This Note addresses their concerns, and explains why the common objections to extending current doctrine do not apply to big data transfers.  Moreover, the Supreme Court’s recent decision in Riley v. California  provides additional support for treating big data as unique.

In Part I, this Note will provide an introduction to big data and the legal authority for its collection by government investigators. Part II will explain the Supreme Court’s contemporary Confrontation Clause doc-trine. Part III will present the argument that the Confrontation Clause of the Sixth Amendment applies to big data transfers under two independent theories: one theory dealing with individual pieces or small collections of data, and another theory dealing with a novel application of the Mosaic Theory. Part IV will describe Google’s procedures for answering government requests for data, and will outline the small number of Google employees that would be required for confrontation.

Experimentation and Patent Validity: Restoring the Supreme Court’s Incandescent Lamp Patent Precedent

“If the description [of the invention] be so vague and uncertain that no one can tell, except by independent experiments, how to construct the patented device, the patent is void.”

      -United States Supreme Court, The Incandescent Lamp Patent

“[A] patent is not invalid because of a need for experimentation.”

      -United States Court of Appeals for the Federal Circuit, W.L. Gore & Associates, Inc. v. Garlock, Inc.

In 1982, Congress vested the U.S. Court of Appeals for the Federal Circuit with exclusive jurisdiction over patent appeals. In recent years, the Supreme Court has reversed Federal Circuit decisions for straying from established Court precedent. In KSR International Co. v. Teleflex, Inc., the Court rejected the Federal Circuit’s “rigid approach” to patent obviousness as “inconsistent” with the “expansive and flexible approach” articulated in prior Supreme Court precedent. In eBay, Inc. v. MercExchange, L.L.C., the Court found that the Federal Circuit approached the decision whether to grant an injunction in “the opposite direction” of the Court’s precedent. In MedImmune, Inc. v. Genentech, Inc., the Court reversed the Federal Circuit for too “readily dismiss[ing]” close Supreme Court precedent. Even when affirming, the Court has not been kind to the Federal Circuit’s reasoning. In Bilski v. Kappos, the Court upheld the Federal Circuit’s judgment but rejected the Federal Circuit’s approach. The Supreme Court’s close review of Federal Circuit decision making does not appear to be slowing. The Court heard six patent cases during the 2013–14 Term and reversed the Federal Circuit in five of those cases.

This Note will examine another, previously unrecognized, area where tension exists between the Federal Circuit’s approach and Supreme Court precedent. For an invention to receive patent protection, an applicant must provide an enabling description—that is, a description that enables a person of ordinary skill in the art to make and use the invention. The Federal Circuit analyzes whether a description is enabling by applying an eight-factor test to determine whether a person of ordinary skill could practice the invention without “undue experimentation.” Yet in The Incandescent Lamp Patent, the Supreme Court directed that “[i]f the description [of the invention] be so vague and uncertain that no one can tell, except by independent experiments, how to construct the patented device, the patent is void.” In short: The Federal Circuit’s approach allows experimentation, while the Supreme Court requires that the inventor obviate experimentation entirely.

The difference in approach becomes clear when considering Incandescent Lamp’s context. That case was the culmination of a fifteen-year legal battle between Thomas Edison and George Westinghouse, two titans of nineteenth-century innovation, regarding who would receive patent rights for the light bulb. The Supreme Court decided not that Edison invented the light bulb, but held invalid a patent belonging to two other inventors: William Sawyer and Albon Man. Because a person would have to perform independent experiments to practice Sawyer and Man’s invention, their patent was void. The parties’ arguments regarding enablement reveal that the Supreme Court considered, but did not adopt, a standard similar to the one currently embraced by the Federal Circuit.

While many modern patent treatises consider “undue experimentation” to be black-letter law, the Supreme Court has never endorsed, nor even considered, the standard. In adopting “undue experimentation,” the Federal Circuit did not cite Incandescent Lamp—indeed, the Federal Circuit has never cited the case, though it appears to be controlling precedent. In light of recent scrutiny of the Federal Circuit, Incandescent Lamp provides authority to challenge an issued patent and seek certiorari review.

Further, Incandescent Lamp appears poised for a resurgence. While not cited by any court since 1981, it has been cited in fourteen papers before the Supreme Court since 2001, including four in 2013. While litigants have cited the case in encouraging certiorari review, no party has recognized the tension between the Federal Circuit and Supreme Court standards. This seems particularly remarkable because no court at any level has overruled or even criticized Incandescent Lamp in the 119 years since the Supreme Court decided the case. Further, the Court continues to voice concerns about the policies animating Incandescent Lamp. The case is a standard in patent law textbooks, and one scholar recognized Incandescent Lamp as one of the “Top 10” patent cases of all time.

This Note will proceed in three parts. First, I will give a brief overview of the relevant law and describe the background of Incandescent Lamp. Second, I will evaluate why the Supreme Court decided the case the way that it did, and how the arguments that the parties presented provide context for what the case means. Finally, I will evaluate the case’s effect on enablement doctrine, trace the rise of undue experimentation, and illustrate that the tension between the Federal Circuit’s current approach and Incandescent Lamp cannot be resolved.

Reassessing the Doctrine of Judicial Estoppel: The Implications of the Judicial Integrity Rationale

When a party “assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position.” This doctrine is most often termed “judicial estoppel,” but it may also be called “fact preclusion,” “judicial preclusion,” or “estoppel in pais.” Judicial estoppel is an equitable, court-created, discretionary doctrine that may be invoked by either a party or the court sua sponte. Very simply stated, the doctrine prevents a party from taking a position contradictory to a position which that party adopted previously.

The most difficult questions of judicial estoppel tend to arise when a party asserts an inconsistent claim in two different proceedings, since judicial estoppel “prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding.” For estoppel to be considered in a second proceeding, the first proceeding need not have been a complete case; rather, it may have taken a variety of forms—from a complete court case, to a pleading, to a sworn statement made to an administrative agency. And questions of judicial estoppel arise in a variety of different factual scenarios, from boundary disputes to bankruptcy cases.

Despite enjoying recognition for over one hundred and fifty years in some state courts and over one hundred years in the U.S. Supreme Court, the doctrine of judicial estoppel has never taken one settled form. In the nearly fifteen years since New Hampshire v. Maine—the Court’s seminal modern case on judicial estoppel—was handed down, various federal courts of appeals have changed their approaches to the federal doctrine of judicial estoppel, but no uniform approach has emerged. Different federal courts continue to emphasize different factors and rationales relevant to judicial estoppel when applying their own federal common law approaches to judicial estoppel. At the same time, there continues to be a circuit split over whether the Supreme Court’s decision in Erie Railroad Co. v. Tompkins requires federal courts to apply state law of judicial estoppel in some cases.

Little to no literature exists on the development of federal judicial estoppel—especially in relation to the Erie doctrine—since New Hampshire v. Maine. This Note attempts to fill that gap. Part I of this Note will lay out the background law of judicial estoppel. It will first outline the Supreme Court’s decision in New Hampshire v. Maine and then sketch the ways in which the courts of appeals have emphasized different elements of judicial estoppel when applying their own variations on the doctrine. It also will discuss the various rationales underlying different federal approaches to judicial estoppel.

Part II will begin with an explanation of the split among the courts of appeals over what form of judicial estoppel applies in particular scenarios under the Erie doctrine. The bulk of this Part will outline and defend the proposed rule: that judicial estoppel should be categorized as substantive for the sake of the Erie doctrine, and that a federal court considering the application of judicial estoppel in any case should apply the judicial estoppel doctrine that would be applied by the court that adjudicated the first proceeding. Part III will provide a cursory outline of state approaches to choice-of-law questions that states are faced with when applying judicial estoppel. This Part will also discuss the possible application of Semtek International Inc. v. Lockheed Martin Corp. to the doctrine of judicial estoppel and propose a state approach to choice-of-law questions that arise when states consider judicial estoppel; this proposed state rule mirrors the proposed federal rule under the Erie doctrine.

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