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In this episode, Professors Chesney and Vladeck have a full plate. The arrest of a contractor named Reality Winner (for having stolen classified information relating to Russian efforts to hack a voting-machine system and providing that information to the Intercept) provides the basis for a wide-ranging conversation about the Espionage Act, the First Amendment, and associated policy and legal issues. Naturally this also leads to previews of Jim Comey’s upcoming Congressional testimony, discussion of Jared Kuschner’s attempt to establish a communications channel with Moscow using Russian government channels, and notes on the latest developments with Mike Flynn. That in turn leads to a detailed assessment of the prospects for the Supreme Court to take review of the Fourth Circuit’s Travel Ban ruling and to stay the various injunctions associated with the Travel Ban (the government having recently filed applications relating to all of this). But they save the best for last: the Supreme Court has granted cert. in Carpenter v. United States, which presents the question whether the collection of a sizeable amount of historical Cell Site Location Information (CSLI) from service providers is a search within the meaning of the Fourth Amendment, and if so whether a warrant is required. Put in plainer terms: The Supreme Court will consider whether the Third Party Doctrine (from Smith v. Maryland) should apply to a circumstance in which new technologies enable information gathering of a kind and scale that might warrant (see what I did there?) a different outcome than Smith. Finally, Steve and Bobby wrap the show by talking about some of their favorite foreign cities.
