Objection to Filed Emergency Petition for a Writ of Mandamus January 11, 2013 Nature of the Situation Rep.

Christina filed an Emergency Petition for Writ of Mandamus on January 10, 2013 to request that the Board seize the two purchased Apple iPads noted within the recent Petition for Review in Dray Krishnan et. al v. John Zang et. al. filed on January 9, 2013. The defendants request that the Board dismiss this petition, should they accept the main petition at all. Objection(s) to the Emergency Petition The board’s authority to seize the materials in question is derived from the Board bylaws, Art. VII §7: The Board shall have the power to issue Writs of Mandamus in cases in which it has jurisdiction. The Board may use such Writs to subpoena any record, file, transcript, report, or persons for examination in a trial. The following objections are submitted to the Board in its request of dismissal. It is submitted that each independently would allow the Board to justify a dismissal and are thus severable and ought to be independently considered even if one is not justified in the opinion of the Board. 1) There is no precedent for individuals to request the Board issue such a writ. The Board has of yet to meet and determine its course of action to pursue the Petition for Review mentioned above; it may at its convenience decide what, if anything, it may find necessary to subpoena. The Board bylaws do not specify procedure for an individual to request a writ of mandamus, only that a court may issue one of its own regard, and this petition presumes actions that the Board has yet to take. 2) The Board does not have authority to seize goods; only items within a clas of “record, file, transcript, report, or persons.” Creating a justification that the iPads are devices for containing records/files, while tempting, opens the floodgates to extremely extensive seizure of personal materials of which 99% of their contents are irrelevant to discussion and summarily opens the Association to extremely dangerous legal precedent as expounded below in point (9)(f). 3) The consideration of such a petition is dilatory and causes unnecessary delay and burden on the plaintiffs in a (potentially) ongoing event. As students, there is only a limited amount of time one is able to commit to organizational disputes; spending hours debating the procedurals of such a seizure, as well as the enactment of the seizure (travel, packing costs, itemization, etc.) is an unnecessary burden on engaged students. 4) Enacting such a writ would provide an extremely dangerous precedent on the Board’s ability to seize materials at the mere suggestion of a violation of “personal gain.” Any materials owned by the organization loaned or utilized by an individual would thus have precedent to be seized with the only justification being an accusation of misconduct. By merely adding an objection related to personal gain, a plantiff would be able to cause

significant delay and frustration without any perceived benefit and overly burden the judiciary process. 5) The petition alleges that seizure is required based on the cost of the items; there is no judicial bright line for such a procedure (i.e. how costly must something be for such a consideration?) and thus is an extraneous point and should be disregarded. 6) The petition alleges that seizure is required based on a “time-sensitive” nature of the items; there is no explanation of what this means nor is there any potential ramification listed in the petition. It is duly noted that there is extremely minimal risk of the iPads being lost as they are labeled with “University Park Undergraduate Association.” There is no risk of any of the defendants in the referenced petition leaving the area as all are students at Penn State and are actively involved in UPUA and usually in the office daily. 7) The petition alleges that seizure is required based the plantiff’s lack of knowledge of the item’s whereabouts; this is illogical and counter to the very intent of the devices. They are mobile computing platforms and are built to moved and used on the go; likewise, the ignorance of the plaintiff to its location is ancillary to any investigation and has absolutely no bearing on any sort of violation of policies in question. 8) If anything, points (4), (5), and (6) seek to unduly emotionally influence the discussion by overstating the relative urgency of the concern to the detriment of any legal proceedings and to the general detriment of reasonable conversation on the issue. 9) The seizure itself is unnecessary for any sort of (yet-to-be-authorized) discovery procedure run by the Board for a number of reasons: a. The existence of the iPads has been repeatedly acknowledged publicly. Any information on their existence is unquestionable, and as such seizure provides no benefit; as such any such inspection is redundant and unnecessary and thus sensitive to above objections of delay and inconvenience. b. The existence of syncing procedures on the iPads is functionally mandatory and universally known. It is not possible to utilize an iPad without activating it with at least some quantum of personal information; as such any such inspection is redundant and unnecessary and thus sensitive to above objections of delay and inconvenience. c. The acknowledgement of such syncing has been acknowledged within the ID meeting noted previously, and is thus redundant as above. d. The acknowledgement of such syncing, should point (c) above not be recognized, is de facto known as above in (b). Anyone familiar with iPads or media tablet technology in general is aware that any use of such a device is essential to its function and thus seizure provides no discovery benefit.

e. Seizure for discovery would be cumbersome based on potential use of iOS security framework, password use, etc. If a password used on the device is similar to another password used by the individual, this may further reinforce point (f) noted below. f. The petition in question assumes the Board’s ability to digest a dangerous amount of personal information. Seizure of the iPad in its current state would allow unrestricted access to a remarkable amount of personal information that the Board is unprepared to deal with both logistically and, more importantly, legally. Access to the email account, banking account, social media profiles, etc. of an individual utilizing an iPad may provide a deluge of sensitive information that is dangerous for the Board to have access to in terms of the University Park Undergraduate Association’s legal standing as a University entity and Registered Student Organization (RSO). Financial information, grade/FERPA, medical/health related records, and personal emails are accessible via a synced iPad. To presume that the Board has the authority to inspect these records, let alone deal with the legal implications of demanding access to them may jeopardize the entire Association as a whole in the eyes of the University as well as potentially local, state and federal law. g. It is irrelevant whether the petitioner or Board would presume not to access the information noted in point (f); the mandatory nature of any such seizure on the grounds of information discovery, let alone simply to hold it, necessarily forces the Board to confront the very real legal implications noted above. Simply issuing an order that “such information will not be looked at” is insufficient defense of our organization from future legal scrutiny and a Pandora’s box of legal problems for the Association. 10) Seizure of the iPads necessarily reduces their functionality and use for the benefit of the organization. Such seizure would be for an unknown time and defeats the entire purpose of facilitating enhanced organizational benefit with technology. Addendum 1It is additionally noted that the preparation of this defense with extremely minimal notice has forced the defendants to actively sacrifice time for educational and extra-curricular pursuits in order to prepare it with approximately three (3) hours notice. The defendants have submitted these objections in good faith with the hope that the Board will speedily dismiss the issue. I personally encourage the Board to dismiss the issue and further recommend that those petitioning the judicial branch do so in the future only for the benefit of the organization and with respect for the time commitments of those involved. Prepared and submitted by Spencer Malloy, Chair of the Assembly, John Zang, Chief of Staff, and Courtney Lennartz, President.

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