Petitions of the week
on May 29, 2020 at 10:30 am
This week we highlight petitions pending before the Supreme Court that involve, among other things, under what circumstances the foregone-conclusion exception to the Fifth Amendment privilege against self-incrimination might apply to the compelled production of passwords to encrypted electronic devices, and when the Federal Communications Commission under the Telecommunications Act of 1996 may repeal or modify media ownership rules that it determines are no longer “necessary in the public interest as the result of competition.”
The petitions of the week are below the jump:
Federal Communications Commission v. Prometheus Radio Project
Issue: Whether the U.S. Court of Appeals for the 3rd Circuit erred in vacating as arbitrary and capricious the Federal Communications Commission orders under review, which, among other things, relaxed the agency’s cross-ownership restrictions to accommodate changed market conditions.
National Association of Broadcasters v. Prometheus Radio Project
Issue: Whether under Section 202(h) of the Telecommunications Act of 1996 the Federal Communications Commission may repeal or modify media ownership rules that it determines are no longer “necessary in the public interest as the result of competition” without statistical evidence about the prospective effect of its rule changes on minority and female ownership.
Pennsylvania v. Davis
Issues: (1) Whether the foregone-conclusion exception to the Fifth Amendment privilege against self-incrimination established in Fisher v. United States and its progeny applies to the compelled production of passwords to encrypted electronic devices when the government has seized a device pursuant to a valid search warrant and has independent knowledge that the password exists, is known by the suspect and will decrypt the device, such that the compelled information itself lacks testimonial significance and any testimony implied by the compelled act is already known by the government, is not in issue and adds little or nothing to the sum total of the government’s information; and (2) whether, assuming the foregone-conclusion exception applies, the government must demonstrate knowledge relating solely to the password sought or must also demonstrate knowledge of the contents of the encrypted device for which a judge has already authorized a search.
Baker v. Rose
Issue: Whether the U.S. Court of Appeals for the 9th Circuit’s decision – reversing a federal district court’s denial of habeas relief in a decision that sounds of ordinary error correction instead of applying the Antiterrorism and Effective Death Penalty Act of 1996, after the state trial court rejected both the defendant’s and the state’s attempts to introduce evidence of uncharged acts and prior acquittals — violates the AEDPA, given that the Supreme Court reversed the 9th Circuit under materially indistinguishable circumstances in Nevada v. Jackson.
Ford Motor Company of Canada, Ltd. v. Bell
Issue: Whether “control” – concerning when federal law permits someone to be subject to preclusion for having exercised “control” over a lawsuit, even if they were not formally a party to it – is assessed based on the totality of the circumstances, as seven U.S. courts of appeals have held, or using a rigid two-part test, as four U.S. courts of appeals have held.