Amicus Brief in Landmark Second Circuit Privacy Case. O’Melveny authored an amicus brief that helped achieve a pro bono victory for privacy advocates and providers of cloud-based services. In a closely watched case, the Second Circuit ruled that a warrant issued under the Stored Communications Act (SCA) cannot compel US companies to produce data stored abroad. In December 2013, the federal government obtained a search warrant for e-mails from a Microsoft Outlook user in connection with a drug investigation. Most of the relevant data was stored on a server in Dublin, Ireland. Microsoft produced all data housed in the United States but refused to turn over data stored overseas, arguing that a US court had no authority to compel a search abroad and that the federal government should instead rely on a longstanding mutual legal-assistance treaty to obtain the data from Ireland. Microsoft moved to vacate the warrant in the Southern District of New York, but the motion was denied. The magistrate judge, and later the district court, agreed with the government’s position that the SCA warrant was actually more similar to a subpoena, which can be used to compel production of documents abroad. Microsoft still refused to comply and was held in contempt. Microsoft appealed to the Second Circuit, and O’Melveny, on behalf of the Brennan Center for Justice at NYU, the Electronic Frontier Foundation, the ACLU, and the Constitution Project, filed an amicus brief supporting Microsoft’s position in favor of privacy interests. On July 14, 2016, the Second Circuit reversed, holding that the SCA warrant should be treated as any other criminal warrant, not as a subpoena/warrant hybrid, and further found that Congress did not intend for extraterritorial application of the SCA. In its ruling, the Second Circuit concurred with arguments advanced by O’Melveny, finding that the challenged “search” would necessarily occur in Ireland—at the moment the data was copied—not upon its examination in the United States.
Amicus Brief in Ninth Circuit Ruling Protecting Undocumented Children. In a ruling that strengthens a 1997 agreement protecting undocumented children, the Ninth Circuit agreed with arguments made in an amicus brief filed by O’Melveny on behalf of a group of social scientists. In Flores v. Lynch, the Ninth Circuit held that the Flores Settlement Agreement, which governs the Department of Homeland Security’s detention of minors, applies to all children rather than just “unaccompanied minors.” The court based its decision on the agreement’s broad definition of a “minor,” as well as on the structure of the agreement, which provided special guidelines for unaccompanied minors, suggesting an agreement that covered all minors. The Ninth Circuit also affirmed the denial of the government’s motion to amend the agreement. Echoing O’Melveny’s brief, which cited research showing that the detention of refugee families does not significantly “drive any change in migration of mothers and children from Central America,” the court rejected the government’s claim that a surge in migration justified a modification. The decision strongly suggests that future attempts by the government to modify the agreement are unlikely to succeed in court.
Fourth Circuit Appeal Challenging Deportation of Legal Permanent Resident. O’Melveny convinced the Fourth Circuit that the Board of Immigration Appeals erred in ruling that a pro bono client’s criminal conviction was an “aggravated felony theft offense” that made him automatically removable from the country under federal immigration law. The government had charged a lawful permanent resident from the Dominican Republic as an aggravated felon based on his conviction for receiving embezzled or stolen property. He represented himself in agency proceedings. The immigration judge ruled, and the Board of Immigration Appeals agreed, that his conviction was a “theft offense,” making him automatically deportable. Still proceeding pro se, he petitioned for review in the Fourth Circuit, which declined his request to stay removal until it had considered his petition. After he was removed to the Dominican Republic, the court asked O’Melveny to represent him on appeal. O’Melveny briefed and argued the case before the Fourth Circuit. In language closely tracking O’Melveny’s arguments, the court found that the government’s position would lead to the “anomalous result” that an immigrant convicted of stealing US$10,000 worth of property would not be an aggravated felon, yet another immigrant convicted of receiving just a fraction of that same property sometimes would be. The court explained: “This result makes scant sense and cannot stand.” All told, the court held that relevant precedent, “combined with a straightforward reading of” the applicable criminal and immigration statutes, dictates the result in favor of O’Melveny’s client. The court afforded him all available relief, remanding the case for further agency proceedings.