[00:00:30] Speaker 02: minutes for rebuttal. [00:00:32] Speaker 02: May it please the Court, the dissemination of confidential firearm owner information to third parties violates the constitutional rights of millions of Californians. [00:00:43] Speaker 02: The right to privacy is at its apex, whereas here the government collects and compiles detailed personal information concerning the exercise of a fundamental constitutional right. [00:00:56] Speaker 02: AB 173's command [00:01:02] Speaker 02: information to third parties without requiring a showing of need or imposing any mitigation standards is unprecedented. [00:01:15] Speaker 02: It is a grave violation of privacy, Second Amendment rights, and fundamental due process. [00:01:49] Speaker 01: is highly sensitive information. [00:01:51] Speaker 02: Yes, Your Honor, so I'll point you to a couple cases [00:03:17] Speaker 03: Yes, Your Honor, I think that the Supreme Court's precedents recognize that interest in... Are you making an analogy between the information that was provided here and wrap sheets? [00:03:30] Speaker 02: Not necessarily, Your Honor. [00:03:52] Speaker 02: information is elsewhere in the public database, which was what the people who were seeking the information pointed out in that case. [00:04:00] Speaker 02: That was the crux of their argument, was this information is public elsewhere, and the Supreme Court first turning to the basic informational right to privacy, which it held Congress was recognizing this very [00:04:39] Speaker 02: circumstances and what state laws. [00:04:41] Speaker 02: So in that particular case, the court did admittedly point out that there were only two states that allowed disclosure, but it expressly disclaimed to base its opinion on that notion. [00:04:52] Speaker 02: Rather, it emphasized... That's okay. [00:04:55] Speaker 02: Does that informational rights of privacy survive DAWs? [00:04:58] Speaker 02: I believe so, yes, Your Honor. [00:05:07] Speaker 02: in McDonald versus Chicago, the Supreme Court recognized that the Second Amendment is a fundamental right incorporated in the concept of due process. [00:05:16] Speaker 02: So Dobbs doesn't overturn kind of Justice Douglas's decades-long pursuit to create this general right to privacy through the emanations and penumbras, most prominently in Griswold first. [00:05:33] Speaker 02: So that would be the first thing I'd note about Dobbs. [00:05:35] Speaker 02: The Court did not overturn the substantive [00:05:56] Speaker 02: the concept that a liberty that is implicit in our society and implicit in the Constitution's text can be applicable to the states and must be recognized. [00:06:06] Speaker 02: Well, here we have a fundamental enumerated right. [00:06:09] Speaker 02: And so I think… You're talking about the Second Amendment, right? [00:06:11] Speaker 02: I'm talking about the Second Amendment, right? [00:06:12] Speaker 02: Can we go to that? [00:06:13] Speaker 02: All right. [00:06:26] Speaker 02: Second is that the information going to the third party could then leak to the public, which would create another injury. [00:06:34] Speaker 02: And the third is that [00:07:10] Speaker 02: think that that is [00:07:42] Speaker 02: It wasn't publicly known, first of all, I would say, Your Honor. [00:08:33] Speaker 02: words I'm distinguishing between physical possession versus a digital possession or access to it. [00:08:41] Speaker 02: But as of today it seems like they have access to your client's information. [00:08:45] Speaker 02: Well I would note that they weren't joined for a period of time and [00:09:17] Speaker 02: is relevant, and I also think related to the informational privacy claim, I think that when we look at chilling, the Supreme Court's extended the doctrine both in relation to positively exercised First Amendment rights. [00:09:31] Speaker 02: And before Dobbs, when abortion was recognized as a fundamental right through the Substantive Due Process Clause, the Supreme Court in situations very analogous to this has recognized that even the mere possibility [00:09:53] Speaker 02: becoming potentially available to the public was enough to impose a burden on the exercise of the Second Amendment right through the chilling. [00:10:01] Speaker 02: And the court has been very clear that it does not tolerate indirect attacks on the exercise of fundamental rights through efforts to chill them. [00:10:13] Speaker 03: So the sensitive information that you're concerned about is what? [00:10:17] Speaker 02: Everything in the database, Your Honor. [00:10:35] Speaker 02: presents a particular privacy risk. [00:11:05] Speaker 02: on the exercise of the fundamental constitutional right. [00:11:09] Speaker 02: And then I think that we get to dissemination on the question [00:12:03] Speaker ?: particularly [00:12:40] Speaker 02: So if I may answer both questions in turn, as to the information that's in the databases, the information, I think, is sensitive because the government collects it. [00:12:51] Speaker 02: It concerns the exercise of a fundamental constitutional right. [00:12:54] Speaker 02: It's different than information just scattered about, right? [00:12:57] Speaker 02: So – and I think the President's well recognized that. [00:13:00] Speaker 02: It also paints a detailed picture. [00:13:09] Speaker 02: at other analogs as this court did in Crawford if we look at other [00:13:40] Speaker 02: But I also am not aware of the government compiling that information in a centralized database and the extent to which it is here. [00:13:47] Speaker 02: We know that this is very detailed. [00:13:50] Speaker 02: And Your Honor, I apologize. [00:13:52] Speaker 02: I was going to go back to – actually, I recall what I was saying. [00:13:55] Speaker 03: I go back to the same information that they compiled for other purposes, so I don't see how the compiling is a violation of any rights. [00:14:05] Speaker 02: Well, so to be clear, you're right. [00:14:28] Speaker 02: In isolation, they may have been public at one time or in a piece, but when the government takes it and puts it together in one record, that creates a heightened privacy interest. [00:15:33] Speaker 02: Amendment for prohibited persons possessing firearms. [00:15:38] Speaker 02: So I think that the textual basis for the government's ability to collect information to conduct a background check or to facilitate background checks is based in a different aspect of the Second Amendment, right? [00:15:51] Speaker 02: So if that's my question, then how is [00:16:36] Speaker 02: it. [00:16:37] Speaker 02: The second amendment exempts that. [00:16:38] Speaker 02: I think AB 173 goes a step further where the question becomes, is there a historical basis where the second [00:17:20] Speaker 02: That burdens the right, in the first instance, the right to purchase firearms, ammunition, or get a license to concealed carry. [00:17:28] Speaker 02: And no, because you get this information, you have to fill out the information no matter what. [00:17:32] Speaker 02: And then this only allows a third party access to that information. [00:17:36] Speaker 02: So to me, it seems like there's no change on what your clients have to do. [00:17:59] Speaker 02: So I think through the chilling doctrine, which we discussed, but that's very, that makes sense. [00:18:04] Speaker 02: But if we're not willing to extend that, I still think that the burden, because you can't have this information in the first place without exercising this, without the exercise of the second amendment. [00:18:14] Speaker 02: So the burden in the first instance is on the process that takes place in order to exercise the right. [00:18:20] Speaker 02: This is now a condition that has been added to that, and in part this [00:20:02] Speaker 00: So the state never collected that no law. [00:20:40] Speaker 00: the sensitivity or lack thereof in this information. [00:20:43] Speaker 00: Again, it's very clear the basic biographical information in this database that may be shared with researchers is not sensitive enough to, right – to implicate the Forte Amendment informational privacy, right, in this case. [00:20:55] Speaker 00: We're talking about name, birthdate, your honor, your opinion. [00:20:59] Speaker 00: And Phillips recently last year noted that this type of information is not the type of information like, for example, in Northern Bledshaw or Doe v. Trinidad [00:21:14] Speaker 00: I don't think we even get to the balancing analysis on the first instance. [00:21:19] Speaker 00: On the second analysis, Your Honor, again, I take Your Honor's questions. [00:21:23] Speaker 00: We don't think that the conduct being regulated here implicates the keeping right to bear arms. [00:21:28] Speaker 00: The right to keep your arms. [00:21:30] Speaker 02: So the government's main argument is that the idea that the information will be released to the public is purely speculative, but that already happened in this, didn't it? [00:21:38] Speaker 02: Didn't all this information get released to the public? [00:21:55] Speaker 00: So if it's happened once, why is it speculative to say that it can't happen again? [00:22:00] Speaker 00: For sure. [00:22:02] Speaker 00: Again, DOJ takes data privacy very seriously and has addressed those failings that led to that exposure incident. [00:22:09] Speaker 00: And again, the institutions that have had this information, had access to that information for decades, there's no allegation that they've ever actually had any data exposure incidents of this sort. [00:22:19] Speaker 00: So there is no evidence. [00:22:21] Speaker 00: There's no allegation. [00:22:21] Speaker 00: So that was really outside what's [00:22:30] Speaker 00: That's right, Your Honor. [00:22:32] Speaker 00: Was there an investigation of why that data was exposed? [00:22:35] Speaker 00: Certainly, Your Honor. [00:22:37] Speaker 00: Okay. [00:22:38] Speaker 00: And I know it's outside this record, but why? [00:22:39] Speaker 00: Do we know why? [00:22:41] Speaker 00: Sure. [00:22:41] Speaker 00: So it actually was in the record. [00:22:43] Speaker 00: It's not part of the complaint for sure, but in the district court, my colleagues introduced it into the record. [00:22:48] Speaker 00: There's a morsel enforcer investigated the exposure, and they found there was a combination of lack of clear communication of policies, lack of sort of explicit policies making clear that [00:23:08] Speaker 00: and it also appears that the [00:23:51] Speaker 00: Yes, well, largely yes to the question about if it's access to data that's sort of housed at DOJ versus a transfer of data. [00:23:59] Speaker 00: It is a transfer of data, so it is sent from DOJ to the actual receiving facility. [00:24:03] Speaker 00: I would just sort of clarify that, you know, the AFS database, it's constantly updated, so it certainly could be the case that someone purchased a firearm after the last [00:24:50] Speaker 02: same chilling analysis that we applied to the First Amendment, right, and to, you know, free dogs and abortion, right? [00:24:58] Speaker 00: Well, the court in San Diego County Gun Owners Committee said that there is no chilling harm outside of, in that case, the First Amendment sort of over-breath doctrine. [00:25:07] Speaker 00: So the discourse precedent says there is no chilling doctrine. [00:25:10] Speaker 00: Why would there be a distinction? [00:25:22] Speaker 00: And that's what it's pretty much all about. [00:26:01] Speaker 00: I think it's essentially that the First Amendment has this recognized a kind of broader need for breathing. [00:26:15] Speaker 00: I was repeating myself. [00:26:17] Speaker 00: That's what the Supreme Court says. [00:26:18] Speaker 00: What about the abortion right? [00:26:58] Speaker 03: Well, what are we talking about in terms of chilling here? [00:27:06] Speaker 03: I thought that chilling here, is there a subjective reaction to [00:27:26] Speaker 00: I'll adopt that answer. [00:27:28] Speaker 00: I have to time ring, but if there are no further questions, we'd be happy to. [00:27:36] Speaker 00: Okay, thank you, Calvin. [00:27:37] Speaker 00: Thank you. [00:27:57] Speaker 02: really, the Clapper is a very different context in the sense that I would say it first related to the government's collection of the information. [00:28:07] Speaker 02: And it related narrowly to the chilling doctrine. [00:28:10] Speaker 02: It didn't relate to any fundamental rights. [00:28:12] Speaker 02: So to go to Judge Bumate's question, I was just asked to my colleague here. [00:28:16] Speaker 02: I think that the incorporation doctrine, substantive due process, [00:28:29] Speaker 02: fundamental rights. [00:28:31] Speaker 02: And to Judge Schroeder's point about how this expands, or the First Amendment recognizes this applies to everybody, so does this. [00:28:39] Speaker 02: It applies to everybody who exercises their Second Amendment rights. [00:28:42] Speaker 02: And I do think to put kind of a cherry on top of the entire analysis, which is that this expectation [00:29:47] Speaker 02: And the reason for that is – it's two-pronged – is that from the United States versus Department of Justice – excuse me, United States Department of Justice versus Reporters Committee for Freedom of the Press at 764, the court held – this is with the FBI rap sheets – the issue here is whether the compilation of otherwise hard-to-obtain information [00:30:21] Speaker 02: county archives and local police stations throughout the country and a computerized summary located in a single clearing house of information. [00:30:29] Speaker 02: So that got to the privacy interest at the first level of the analysis. [00:30:34] Speaker 02: When we get to tailoring, I think that's where the biggest distinction between this statute and any of the other privacy cases, which is that the statute pays lip service to the idea that an individual's identity should not be disclosed, but contra [00:30:54] Speaker 02: There's absolutely no administrative mechanism to ensure that that protection is carried out, and that is to say nothing of the very nuanced and complicated circumstances that arise when we're dealing with aggregated data. [00:31:24] Speaker 02: subject to sharing with these researchers, where the researchers have to show that they need the material identifying the individuals to complete their research projects. [00:31:33] Speaker 02: That's something that's completely absent here. [00:31:35] Speaker 02: They get all of the information from millions of people without any showing of need.