[00:00:14] Speaker 02:
I'd like to reserve one minute, please, for rebuttal.

[00:00:17] Speaker 02:
Rosemary Gordon-Panuko, appearing on behalf of Mr. Van Dyke.

[00:00:20] Speaker 02:
I believe how I originally pronounced it as you did.

[00:00:24] Speaker 02:
That's how he pronounced it to me on the phone.

[00:00:26] Speaker 02:
So for what it's worth, that's how he pronounces his name.

[00:00:29] Speaker 02:
Thank you.

[00:00:30] Speaker 02:
So I'd like to reserve one minute for rebuttal.

[00:00:33] Speaker 02:
Well, we have somewhat of a similar case, although this is a 2255, where the claim is ineffective assistance of counsel in a federal trial and in a federal case.

[00:00:42] Speaker 02:
And it centers around the search warrant and counsel's ineffective in the sense that he did not file the correct suppression motion.

[00:00:50] Speaker 02:
He filed a suppression motion, but he didn't file the one that actually had a chance of succeeding in this case.

[00:00:57] Speaker 02:
And what's interesting about this is sort of the timeline and how it was a state search warrant that some of the evidence discovered pursuant to that ultimately wound up as one of the federal charges, in fact, the most serious federal charge, which was a conspiracy.

[00:01:11] Speaker 02:
And then it led to a federal search warrant that was executed not quite a year later, but in any event where more evidence gets discovered.

[00:01:21] Speaker 02:
And then that leads to a second federal charge.

[00:01:23] Speaker 02:
So it's very much tied into the two of them.

[00:01:25] Speaker 02:
There were two suppression hearings, one in the state court, then one in the federal court.

[00:01:29] Speaker 03:
So there were two suppression motions in federal court in 2016, is that correct?

[00:01:35] Speaker 03:
Yes.

[00:01:36] Speaker 03:
And then there was a third motion, a third suppression motion filed in state court in 2019, correct?

[00:01:41] Speaker 03:
That's correct.

[00:01:42] Speaker 03:
And all three failed, correct?

[00:01:44] Speaker 02:
That's correct.

[00:01:45] Speaker 02:
And there was actually a search warrant.

[00:01:47] Speaker 02:
The motion to suppress was also filed in 2015.

[00:01:50] Speaker 02:
That was the initial one, where they had the hearing in October of 2015.

[00:01:55] Speaker 02:
And then he filed the federal court motion.

[00:01:58] Speaker 02:
That hearing was May 16th of 2016, and then it wasn't until 2019.

[00:02:03] Speaker 02:
He files a supplemental, which actually raises the issue that's here.

[00:02:07] Speaker 03:
And was denied.

[00:02:08] Speaker 03:
So the timing's a little interesting because we – you may not agree with this, but I believe we were reviewing counsel's conduct at the time it occurred.

[00:02:19] Speaker 01:
Right.

[00:02:19] Speaker 03:
So we have to look at this in 2016.

[00:02:23] Speaker 03:
And in 2019, he files the motion you argue he should have filed in 2016, and it's

[00:02:28] Speaker 03:
denied.

[00:02:30] Speaker 03:
But don't we have to look at the state of the law in 2016 and then try to determine whether counsel made a reasonable strategic decision to file certain motions and not others?

[00:02:40] Speaker 02:
Absolutely.

[00:02:41] Speaker 02:
The time frame is going to be from, let's see, this case jumped off.

[00:02:44] Speaker 02:
The initial search warrant was September of 2014, so between 2014 when this case really got started and 2016.

[00:02:51] Speaker 02:
This is the time frame where what was available to counsel.

[00:02:55] Speaker 02:
that he could look at to have decided whether to run this case or not.

[00:03:00] Speaker 03:
So your brief seems to rely on the- Wilson?

[00:03:07] Speaker 03:
No, it's Wilson, United States versus Wilson, which was decided- 2021 case.

[00:03:11] Speaker 03:
2021.

[00:03:12] Speaker 03:
So why is that relevant since it was decided five years after the events at issue?

[00:03:16] Speaker 02:
Well, what's interesting about Wilson, and I used Wilson mostly for the prejudice sprung because Wilson involved a, the images were from 2015.

[00:03:26] Speaker 02:
So the initial filings on part of Wilson's counsel were in that same time frame.

[00:03:32] Speaker 02:
And it's more a matter of when you say, well, was that issue viable?

[00:03:36] Speaker 02:
Well, ultimately, Wilson finds that it was a viable issue.

[00:03:40] Speaker 01:
Were you saying that counsel should have anticipated Wilson?

[00:03:44] Speaker 02:
No.

[00:03:44] Speaker 02:
I'm saying that the government's argument that, well, it was unreasonable that it was never going to be a viable issue

[00:03:52] Speaker 02:
is not true that Wilson's kind of proof that it was ultimately a viable issue, because the beginnings of Wilson in 2015 are right around the same time of this case.

[00:04:02] Speaker 02:
So the cases that were out there, and it was raised in Wilson as opposed to this counsel not raising it.

[00:04:08] Speaker 02:
So they're kind of at the same time.

[00:04:10] Speaker 02:
And this could have been, Van Dyke could have been the Wilson decision if counsel had raised it.

[00:04:14] Speaker 04:
Counsel, doesn't the prejudice prong require you to show a reasonable probability of success based on the case law at the time?

[00:04:24] Speaker 02:
That's success in which court.

[00:04:27] Speaker 02:
I don't think that the district court at that time, and certainly the state court, no offense to the Arizona judiciary, but they tend not to take federal arguments very seriously.

[00:04:37] Speaker 02:
And that's just been my experience here.

[00:04:40] Speaker 02:
And so for what it's worth, I think that the, how can I say,

[00:04:51] Speaker 02:
look where it came on appeals.

[00:04:52] Speaker 02:
I mean, Wilson wasn't successful in the district court either.

[00:04:56] Speaker 02:
And so ultimate success, yes.

[00:05:00] Speaker 02:
I think that that's possible.

[00:05:01] Speaker 02:
But you at least have to run the issue to know whether it's going to be successful.

[00:05:05] Speaker 02:
And if you don't ever run the issue, then... Well, wait a minute.

[00:05:08] Speaker 03:
That seems to be inconsistent with Kimmelin versus Morrison, which was addressing the failure to file a suppression motion

[00:05:19] Speaker 03:
And the court said a good Fourth Amendment claim alone will not earn a prisoner habeas relief.

[00:05:27] Speaker 03:
So there may be a good motion out there.

[00:05:29] Speaker 03:
It may have been a possibility, but it doesn't mean, it may even have been a good practice or a more common practice, but it doesn't necessarily mean it was ineffective assistance if counsel could make a reasonable strategic decision here filing three different suppression motions and raising I think at least eight arguments for suppression.

[00:05:50] Speaker 02:
I understand that, but in this particular situation, this is not only is he looking at a tremendous amount of time in federal court, he's basically looking at life in prison at both between state court and in federal.

[00:06:01] Speaker 02:
And I believe Mr. Bloomberg was his trial attorney in both of those cases.

[00:06:05] Speaker 02:
So he's looking globally at everything.

[00:06:09] Speaker 02:
And the issue that's here, the search warrant's kind of troubling in a lot of ways that I think counsel really

[00:06:17] Speaker 02:
needed to examine it more closely and attack every possible point of that in order to truly be effective in this particular case?

[00:06:24] Speaker 03:
There are so many arguments that counsel could have considered the terms of service from AOL.

[00:06:33] Speaker 03:
the argument that the district court ultimately reached that there was no reasonable expectation of privacy in child pornography, the third party doctrine, the private search doctrine.

[00:06:43] Speaker 03:
So given the state of the case law at the time, why was it not reasonable for counsel to consider all of those potential hurdles and decide that other arguments were better placed?

[00:06:58] Speaker 02:
Because those cases didn't foreclose it.

[00:07:00] Speaker 02:
They didn't say that there was no possibility that this could ever play away.

[00:07:06] Speaker 03:
So it's the standard, in your view, that the motion has to be a dead loser, that the frivolous, it has to be frivolous, that the only way it's not ineffective assistance, there can't be any strategic judgment, but it has to be, you know, it has to be certain that the motion would fail or else counsel is ineffective.

[00:07:21] Speaker 02:
I'm not quite willing to go down that road, but I think that in this particular case, given Keith and Warshack,

[00:07:28] Speaker 02:
that there were certainly enough, and those were cases that were out and about at that point.

[00:07:32] Speaker 02:
I believe Warshack was 2010, and I know it's out of the Sixth Circuit.

[00:07:36] Speaker 05:
But didn't Warshack decline to decide whether a reasonable expectation of privacy can be extinguished by subscriber agreements, which is precisely the issue in this case?

[00:07:45] Speaker 05:
That's not how I read it.

[00:07:46] Speaker 02:
I mean, they left it open.

[00:07:50] Speaker 02:
Right, exactly.

[00:07:50] Speaker 02:
They left it open.

[00:07:51] Speaker 02:
There are some that they're not going to say that absolutely they would never

[00:07:56] Speaker 02:
extinguish the expectation of privacy in Warshak.

[00:07:59] Speaker 04:
But you would agree that Warshak did not decide the issue, which is the law that you need to point to at the time of this case in 2016 to be able to establish that there would in fact be prejudice, correct?

[00:08:15] Speaker 02:
They didn't foreclose it.

[00:08:16] Speaker 02:
I mean, they didn't absolutely.

[00:08:20] Speaker 02:
And they didn't decide it.

[00:08:23] Speaker 02:
I mean, I see them as suggesting it, but not deciding it.

[00:08:27] Speaker 02:
I mean, that's kind of the take.

[00:08:28] Speaker 02:
I came away from that.

[00:08:29] Speaker 02:
They didn't foreclose it.

[00:08:31] Speaker 02:
They didn't want to, they didn't want to foreclose.

[00:08:32] Speaker 02:
They didn't need to decide it to get to the result in Warshack.

[00:08:36] Speaker 02:
So what they did is instead they wound up.

[00:08:38] Speaker 03:
But even in Wilson in 2021, our court said that its decision added to the, the

[00:08:46] Speaker 03:
tension that existed in the status of the law.

[00:08:48] Speaker 03:
That's in 2021, recognizing that multiple courts had taken different approaches to these issues.

[00:08:54] Speaker 03:
So it seems that in 2021 there was tension and it was unclear that you can't point to a case from 2016 that says it was ineffective assistance not to make this motion.

[00:09:05] Speaker 03:
Or if you can, please tell me what the case is.

[00:09:07] Speaker 03:
I can't find one.

[00:09:09] Speaker 02:
I didn't find one.

[00:09:10] Speaker 02:
Believe me, I would have loved to have found one.

[00:09:13] Speaker 04:
I know you want to reserve some of your time, but I have a question.

[00:09:16] Speaker 04:
If the suppression argument had a reasonable probability of creating a different outcome, let's just assume that were true, do you think the record is sufficiently developed for us to determine whether counsel performed efficiently?

[00:09:32] Speaker 02:
I think that if you're asking me what I would have done differently, I think the record.

[00:09:38] Speaker 04:
No, I'm asking whether the record.

[00:09:40] Speaker 04:
Normally you would have a situation where there would be a hearing where you would determine

[00:09:44] Speaker 04:
sort of, you know, what the reason, the reasoning was behind the counsel's decision.

[00:09:48] Speaker 02:
I think the record is less than adequate to do that.

[00:09:51] Speaker 02:
Not horrible, but it's just, there's certainly things that, as an appellate attorney, I wish were in the record that would have made this much stronger to actually decide that particular issue.

[00:10:01] Speaker 02:
So what in particular?

[00:10:02] Speaker 03:
I assume that my review of it was at first blush.

[00:10:05] Speaker 03:
Maybe there could be more information about whether the private search doctrine applied, right?

[00:10:13] Speaker 03:
Even assuming the private search doctrine would not have excused the need for a warrant, what about all the other reasons that the motion could have failed?

[00:10:23] Speaker 02:
I mean, you know, private search doctrine doesn't, you know, doesn't apply because there was no private search.

[00:10:30] Speaker 02:
Well, you don't know that.

[00:10:32] Speaker 03:
I mean, there's plenty of case law that expels out exactly what the hashtag is.

[00:10:36] Speaker 02:
It's a, quote, digital fingerprint.

[00:10:37] Speaker 02:
And the same thing with the third-party doctrine.

[00:10:39] Speaker 02:
I don't think that applies either.

[00:10:41] Speaker 02:
I think there was adequate case law out there in that.

[00:10:43] Speaker 02:
I still love that.

[00:10:44] Speaker 03:
But then we're going back to case law.

[00:10:45] Speaker 03:
And we're applying an objective standard, an objective view of counsel's performance, right?

[00:10:50] Speaker 03:
So it doesn't matter what counsel personally knew about the state of the law.

[00:10:53] Speaker 03:
It's objectively, was that reasonable?

[00:10:55] Speaker 03:
I mean, I believe that's what Strickland says.

[00:10:58] Speaker 02:
Yes, but it also, he should have been doing the research, you know, to look at it, is what our argument is.

[00:11:05] Speaker 03:
So, Judge Hawkins, did you have more questions?

[00:11:07] Speaker 03:
All right, you're a bit over time, but I'll give you a minute for rebuttal.

[00:11:11] Speaker 03:
Thank you.

[00:11:18] Speaker 00:
Good morning, Your Honors.

[00:11:19] Speaker 00:
Terry Kriss for the government.

[00:11:20] Speaker 00:
May it please the court?

[00:11:22] Speaker 00:
The district court correctly rejected the ineffective assistance of counsel claim under both prongs of Strickland.

[00:11:28] Speaker 00:
First, there was not deficient performance because the defendant failed to show counsel's conduct fell beneath the minimum standard of competency when it was objectively reasonable to omit a claim here given the multiple weaknesses in raising a fourth amendment challenge as compared to the fact

[00:11:45] Speaker 00:
that counsel ultimately did raise other claims.

[00:11:48] Speaker 00:
And so we have an instance where there's winnowing happening and there's strategic choices about what claims to raise, what not to raise.

[00:11:55] Speaker 00:
And we also have no prejudice in this case, particularly where we have the same judge who presided over the trial and also ruled on the 2255 motion and finds there wouldn't have been a different result.

[00:12:08] Speaker 00:
There's no Fourth Amendment violation.

[00:12:10] Speaker 00:
And I think the most important thing to keep in mind here is the burden.

[00:12:13] Speaker 01:
I suspect on that argument that your opponent would say that the judge by that time was vested in the earlier determination.

[00:12:23] Speaker 01:
But you can go.

[00:12:25] Speaker 00:
That would be a speculative assessment, especially when prejudice is asking whether we have a reasonable probability of a different result.

[00:12:31] Speaker 00:
The judge ruled in the 2255 motion order that there wasn't a Fourth Amendment violation at all, and in any case, counsel wasn't deficient.

[00:12:40] Speaker 00:
And there's not any reason to think the judge would have ruled differently in 2016.

[00:12:45] Speaker 01:
Quick factual question.

[00:12:46] Speaker 01:
At the time, the information was relayed from the National Center on Missing and Exploited Children.

[00:12:54] Speaker 01:
and it got to Tucson Police Department, is that right?

[00:12:59] Speaker 01:
I think it routes through Phoenix first and then ended up in Tucson.

[00:13:02] Speaker 01:
Okay.

[00:13:02] Speaker 01:
At the time the image was reviewed, the one that your opponent is saying, the council should have moved to suppress that.

[00:13:14] Speaker 01:
Did they have a link to the address?

[00:13:17] Speaker 00:
Did they know who it was?

[00:13:21] Speaker 00:
So the cyber tip report coming out of AOL had an IP address and then it had the image.

[00:13:28] Speaker 01:
The question is, did the officers, when they reviewed the image, did they know who it was connected to?

[00:13:38] Speaker 00:
They didn't know the person yet.

[00:13:39] Speaker 00:
They had an IP address and they had to subpoena, I think it was Comcast, to find out the address physically.

[00:13:46] Speaker 00:
So the answer to my question is no.

[00:13:48] Speaker 00:
Correct.

[00:13:49] Speaker 00:
Go ahead.

[00:13:51] Speaker 00:
They did have the IP address, though, and they were able to use that to locate the physical person.

[00:14:00] Speaker 00:
Ultimately, though, I think the most important thing to keep in mind here is the burden, because this is not a

[00:14:06] Speaker 00:
direct appeal Fourth Amendment issue.

[00:14:08] Speaker 00:
This is an ineffective assistance of counsel claim on review of a 2255 motion.

[00:14:14] Speaker 00:
So it's not the government's burden to show a Fourth Amendment violation didn't occur.

[00:14:18] Speaker 00:
Instead, it's the defendant's burden to overcome what Strickland calls a strong presumption of reasonableness to show that this claim was so strong that any attorney who didn't raise it was objectively unreasonable.

[00:14:32] Speaker 00:
And that's not the case here, given the multiple issues that with raising a Fourth Amendment claim, both cumulatively and individually.

[00:14:40] Speaker 00:
So even if there was some merit to maybe one of the arguments, when you consider them all together, there's basis for a reasonable attorney to conclude that this motion would not have prevailed.

[00:14:51] Speaker 04:
Let me push back a little bit on that, because your friend on the other side said to me, and I think this is correct, that Warshack

[00:15:01] Speaker 04:
which is the 10th Circuit case from 2011, did not decide this issue.

[00:15:06] Speaker 04:
And given that the 9th Circuit's lack of any decision on point, wouldn't that suggest that counsel had a reasonable probability of succeeding on a challenge to the detective's warrantless opening of the attachment?

[00:15:18] Speaker 00:
No, quite the opposite, actually.

[00:15:20] Speaker 00:
So Knowles from the Supreme Court

[00:15:22] Speaker 00:
explicitly rejected the legal theory that you're deficient if you had nothing to lose, so why not raise the claim anyway?

[00:15:31] Speaker 00:
And this court's case, Sexton, also makes the point that counsel is not deficient even for omitting potentially frivolous... Yeah, but in Sexton, the court concluded that the claim was frivolous.

[00:15:42] Speaker 00:
But before getting to that point, it makes the broader statement that even claims that have some merit aren't required to be raised.

[00:15:50] Speaker 00:
Constitutional effectiveness does not require

[00:15:52] Speaker 00:
an attorney to raise all potentially non-frivolous arguments.

[00:15:57] Speaker 00:
There's something to be said for winnowing issues and picking the best ones.

[00:16:02] Speaker 00:
So here, an out-of-circuit case that doesn't address the issue would not lead a reasonable attorney to think this claim might prevail.

[00:16:09] Speaker 00:
And all of the Supreme Court precedents or these various Fourth Amendment issues would, if not entirely foreclose the claim, at least leave open whether this motion would succeed.

[00:16:19] Speaker 00:
So, for instance, on the private search doctrine, we have Jacobson, which we argue applies, but at worst, it's debatable whether it applies.

[00:16:27] Speaker 00:
In the private search, in the third-party doctrine context, you have Smith and Miller, which again, would at least debatably foreclose a Fourth Amendment challenge here.

[00:16:38] Speaker 00:
And then on the reasonable expectation of privacy prong, we have the subscriber agreement, and there's no case at the time saying subscriber agreements can't foreclose privacy when that

[00:16:47] Speaker 00:
question comes up, it's usually punted by the courts, and there's at least a non-frivolous argument that the terms of service would foreclose a reasonable expectation of privacy here.

[00:16:59] Speaker 00:
And that's actually ultimately what the district court finds in this case anyway.

[00:17:03] Speaker 00:
So back to the prejudice prong, had this motion been filed in 2016, in all likelihood, the district court would have said no.

[00:17:10] Speaker 04:
So I don't disagree with you there, but I think what you're doing is you're conflating the issues relating to the deficient performance with the prejudice.

[00:17:17] Speaker 04:
You know, my question really is that, you know, given the, I agree with you that given the state of the law in 2016, there wasn't really any case law to suggest that this would have been a successful argument.

[00:17:32] Speaker 04:
And so I think there are real hurdles for your friend on the other side to overcome with respect to prejudice.

[00:17:40] Speaker 04:
But on the deficiency issue, I just don't understand how

[00:17:46] Speaker 04:
When you agree that there is an argument that was not decided and potentially could have been successful given the court's decision in Warshaw, why that wouldn't suggest the council should have known that there was an argument to be made here.

[00:18:02] Speaker 00:
Well, that isn't the legal standard announced in Knowles or Sexton.

[00:18:06] Speaker 00:
The test, essentially, is the claim has to be so strong that to not raise it is objectively unreasonable.

[00:18:12] Speaker 00:
If there's some merit to the claim, counsel doesn't have to raise it.

[00:18:15] Speaker 00:
If it's debatable, counsel doesn't have to raise it.

[00:18:17] Speaker 00:
Counsel only has to raise it in a constitutional sense if there's a very strong chance it would succeed.

[00:18:22] Speaker 00:
If there are doubts about whether it succeeds, then counsel's not deficient for not raising it.

[00:18:28] Speaker 00:
And so here, there are some doubts at the least.

[00:18:32] Speaker 00:
We think it goes stronger.

[00:18:33] Speaker 00:
We think that this claim actually would have failed at the time, getting back to the prejudice.

[00:18:36] Speaker 00:
But even looking at the deficiency prong, there's an arguable basis to think that this claim is weak and there's a reason to prefer other claims.

[00:18:44] Speaker 00:
This attorney did raise multiple other claims.

[00:18:46] Speaker 00:
It's not as if the attorney did no investigation in this case.

[00:18:50] Speaker 01:
He did, counsel did move to suppress at some point, correct?

[00:18:56] Speaker 01:
Not the viewing of the image, but as to other aspects of the investigation that led to Mr. Van Dyke.

[00:19:04] Speaker 00:
That's correct.

[00:19:05] Speaker 00:
And that shows that we have strategic considerations being made.

[00:19:10] Speaker 00:
And Sexton also makes the point.

[00:19:11] Speaker 01:
But he did not move to suppress the sort of key to the door.

[00:19:20] Speaker 01:
Right.

[00:19:20] Speaker 01:
The thing that led them to Mr. Van Dyke's front door and his later admission

[00:19:26] Speaker 01:
he had viewed child pornography.

[00:19:30] Speaker 00:
He didn't raise a specific claim here.

[00:19:32] Speaker 00:
Again, there are multiple reasons why that claim could have failed, and a reasonable attorney would think it's better to prefer other arguments with a better chance of success.

[00:19:40] Speaker 00:
The question isn't just, if this argument had succeeded, would we have gotten suppression, which is actually another point we've made in the brief, that it wouldn't necessarily have led to suppression of everything.

[00:19:50] Speaker 00:
But the question is, how strong is the claim?

[00:19:52] Speaker 00:
How likely is it to even work in the district court?

[00:19:56] Speaker 00:
And so the fact that this attorney's raised other Fourth Amendment claims actually shows how constitutionally effective the attorney was by making a sober-minded judgment about which claims to raise.

[00:20:09] Speaker 00:
And as to a question that was asked about the record, we don't need further evidentiary development in this case precisely because it's the defense who bears the burden here.

[00:20:19] Speaker 00:
And so any gaps in the record would be near to their detriment.

[00:20:22] Speaker 00:
The question for deficiency is essentially about the state of the case law.

[00:20:27] Speaker 00:
And even though we have some questions perhaps about how AOL performs monitoring, those wouldn't go to the terms of service claim.

[00:20:34] Speaker 00:
The terms of service were effective.

[00:20:36] Speaker 00:
If you look at the last page of each of the documents, ER 186 and 192, they give you the effective dates which were before the cyber tip report was generated here.

[00:20:46] Speaker 00:
And so for all these reasons, the district court correctly denied the 2255 motion.

[00:20:52] Speaker 00:
And if the court doesn't have any further questions, thank you.

[00:20:55] Speaker 03:
Thank you.

[00:21:01] Speaker 02:
Age and dampness.

[00:21:04] Speaker 02:
Age and dampness, sorry.

[00:21:07] Speaker 02:
Very quickly, I would like to pick up on the key to the door.

[00:21:10] Speaker 02:
That's a great way to describe why that particular point of opening the image was important to attack and not

[00:21:19] Speaker 02:
and to not just be discarded, because without that image, even the district court admitted without the description of the image, there was no probable cause in the state search warrant.

[00:21:29] Speaker 03:
So your argument on the terms of service, as I understood it, was directed at saying that the document that was provided was not in effect at the time, that these were not the terms of service that applied to Mr. Van Dyke at the time he created the account or at the time he attempted to transmit the image.

[00:21:47] Speaker 03:
Is that correct?

[00:21:49] Speaker 03:
Yes.

[00:21:50] Speaker 03:
And then I saw a secondary argument that just as a matter of policy, we shouldn't conclude that the terms of service could invalidate a person's subjective expectation of privacy.

[00:22:02] Speaker 02:
These terms of service did not in this situation.

[00:22:06] Speaker 02:
Based on the privacy policy.

[00:22:08] Speaker 03:
Do I have the parameters?

[00:22:09] Speaker 03:
That's your argument.

[00:22:10] Speaker 02:
The other thing that I'd like to bring up that

[00:22:14] Speaker 02:
The case law, yes, there was no case law that absolutely said this is a good motion to run, but there was no case law that slammed the door either.

[00:22:21] Speaker 02:
I mean, Warshack left it open that, well, you know, we're not going to say it can never be, but we're also not going to say that the terms of service do slam the door.

[00:22:33] Speaker 02:
You're right.

[00:22:34] Speaker 02:
They essentially didn't absolutely decide it, but they left the door open in both doors open.

[00:22:40] Speaker 02:
So there was no case law at the time.

[00:22:42] Speaker 02:
that slammed the door and said this is absolutely a bad issue.

[00:22:45] Speaker 02:
And with regard to the third party doctrine, I don't think that's going to go.

[00:22:49] Speaker 02:
That's just from the standpoint that these are not communications that were directed to the business.

[00:22:57] Speaker 02:
They were simply sent through the business.

[00:22:58] Speaker 02:
And I think that that would have defeated, I mean, certainly in my mind would have defeated, yeah, the third party, I'm not going to worry about that.

[00:23:04] Speaker 02:
I can take care of that.

[00:23:06] Speaker 02:
The same thing with the private search.

[00:23:07] Speaker 02:
So you're a pretty good amount over time.

[00:23:09] Speaker 02:
Do you want to just wrap up?

[00:23:11] Speaker 02:
Thank you.

[00:23:11] Speaker 02:
I would request that you vacate the district court's decision in this case.

[00:23:15] Speaker 03:
Thank you.