The Judicial Conference Should Continue to Liberally Allow Amicus Briefs, a Critical Advocacy Tool

EFF does a lot of things, including impact litigation, legislative lobbying, and technology development, all to fight for your civil liberties in the digital age. With litigation, we directly represent clients and also file “amicus” briefs in court cases.

An amicus brief, also called a “friend-of-the-court” brief, is when we don’t represent one of the parties on either side of the “v”—instead, we provide the court with a helpful outside perspective on the case, either on behalf of ourselves or other groups, that can help the court make its decision.

Amicus briefs are a core part of EFF’s legal work. Over the years, courts at all levels have extensively engaged with and cited our amicus briefs, showing that they value our thoughtful legal analysis, technical expertise, and public interest mission.

Unfortunately the Judicial Conference—the body that oversees the federal court system—has proposed changes to the rule governing amicus briefs (Federal Rule of Appellate Procedure 29) that would make it harder to file such briefs in the circuit courts.

EFF filed comments with the Judicial Conference sharing our thoughts on the proposed rule changes (a total of 407 comments were filed). Two proposed changes are particularly concerning.

First, amicus briefs would be “disfavored” if they address issues “already mentioned” by the parties. This language is extremely broad and may significantly reduce the amount and types of amicus briefs that are filed in the circuit courts. As we said in our comments:

We often file amicus briefs that expand upon issues only briefly addressed by the parties, either because of lack of space given other issues that party counsel must also address on appeal, or a lack of deep expertise by party counsel on a specific issue that EFF specializes in. We see this often in criminal appeals when we file in support of the defendant. We also file briefs that address issues mentioned by the parties but additionally explain how the relevant technology works or how the outcome of the case will impact certain other constituencies.

We then shared examples of EFF amicus briefs that may have been disfavored if the “already mentioned” standard had been in effect, even though our briefs provided help to the courts. Just two examples are:

• In United States v. Cano, we filed an amicus brief that addressed the core issue of the case—whether the border search exception to the Fourth Amendment’s warrant requirement applies to cell phones. We provided a detailed explanation of the privacy interests in digital devices, and a thorough Fourth Amendment analysis regarding why a warrant should be required to search digital devices at the border. The Ninth Circuit extensively engaged with our brief to vacate the defendant’s conviction.
• In NetChoice, LLC v. Attorney General of Florida, a First Amendment case about social media content moderation (later considered by the Supreme Court), we filed an amicus brief that elaborated on points only briefly made by the parties about the prevalence of specialized social media services reflecting a wide variety of subject matter focuses and political viewpoints. Several of the examples we provided were used by the 11th Circuit in its opinion.

Second, the proposed rules would require an amicus organization (or person) to file a motion with the court and get formal approval before filing an amicus brief. This would replace the current rule, which also allows an amicus brief to be filed if both parties in the case consent (which is commonly what happens).

As we stated in our comments: “Eliminating the consent provision will dramatically increase motion practice for circuit courts, putting administrative burdens on the courts as well as amicus brief filers.” We also argued that this proposed change “is not in the interests of justice.” We wrote:

Having to write and file a separate motion may disincentivize certain parties from filing amicus briefs, especially people or organizations with limited resources … The circuits should … facilitate the participation by diverse organizations at all stages of the appellate process—where appeals often do not just deal with discrete disputes between parties, but instead deal with matters of constitutional and statutory interpretation that will impact the rights of Americans for years to come.

Amicus briefs are a crucial part of EFF’s work in defending your digital rights, and our briefs provide valuable arguments and expertise that help the courts make informed decisions. That’s why we are calling on the Judicial Conference to reject these changes and preserve our ability to file amicus briefs in the federal appellate courts that make a difference.

Your support is essential in ensuring that we can continue to fight for your digital rights—in and out of court.

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