Fourth Amendment

Washington, California Trying to Punish Businesses that Overly Cooperate with Feds on Immigration

Motel 6 sued for passing names along to ICE.


Motel 6
Kris Tripplaar/Sipa USA/Newscom

Can a state government punish a private business for voluntarily cooperating or assisting federal officials in enforcing federal immigration laws?

We may find out in both Washington State and California, as the conflict between the states and the feds over immigration enforcement heats up.

In Washington, state Attorney General Bob Ferguson is suing Motel 6. The budget national hotel chain got some media attention last fall after employees told the Phoenix New Times in Arizona it was quietly sending the names of its customers to Immigration and Customs Enforcement (ICE) officials so they could possibly track down people staying there who were in the country illegally.

In a statement after filing suit, Ferguson says they found that Motel 6 locations in Washington State were also cooperating with ICE and passing along "the personal information of at least 9,151 guests to ICE, even though its privacy policy assured consumers it would protect this information."

Ferguson says Motel 6's cooperation is a violation of the customers' privacy in that they did so without a warrant or subpoena and that their cooperation was based on the perceived national identity of guests (meaning they suspected they were from outside the country based on name and ethnicity). Ferguoson says these acts violate Washington's privacy and discrimination laws and the state's constitution.

The reference to Washington's state constitution is relevant because the state has its own privacy laws. Historically, our private information as citizens does not have the same Fourth Amendment protection from unwarranted searches when it's held by a third party (like a hotel). It's known as the third-party doctrine, is based on Supreme Court precedents from the 1970s, and plays a huge role in the various legal challenges and fights to stop unwarranted surveillance and access to our phone and computer data.

States are certainly permitted to establish stricter boundaries that restrain local and state police from accessing third-party data about private people without warrants. In fact, that's awesome. And that's what Washington State has done. But attempting to force private companies from following those guidelines in their interactions with federal officials takes the law to a different place. ICE is not constrained by Washington State's privacy laws when collecting third-party information. But is Motel 6 when communicating with ICE officials?

We may end up seeing more cases just like this thanks to new laws in California that came into effect with the new year. California has implemented a new law that prohibits private employers from voluntarily consenting to allow federal immigration officials to search "nonpublic areas of a place of labor" if they do not have a warrant. It further forbids employers from voluntarily allowing immigration officials access to employee records if the officials do not have a warrant or subpoena. Fines for violating this law range from $2,000 to $10,000 per incident.

That California implemented such a law is itself rather fascinating—and a sign of what resistance to the Trump administration leads to—because just three years ago the state was insisting that its own law enforcement officers did have a limited right to access registries of hotel guests without having to get warrants. The case of Los Angeles v. Patel went all the way to the Supreme Court, and the court ruled 5-4 that the Los Angeles Police Department could not demand access to a hotel's guest registry without at least allow the hotel an avenue for appeal.

Here's a fun twist: Former California Attorney General Kamala Harris (now a senator) took the side of the City of Los Angeles and the LAPD to engage in unwarranted collection of hotel guest registries for crimefighting purposes. Her office submitted an amicus brief to the Supreme Court encouraging them to find for the city.

But now that the Trump administration may use access to labor records as a mechanism to deport people, suddenly the self-proclaimed sanctuary state is much more interested in privacy rights. Granted, this new California law doesn't protect consumer or hotel guest records, but there's nevertheless a telling mindset that the extent of our privacy rights varies on the political winds and which agendas are being served.

What will happen once the federal courts are asked to weigh in on this? I have no idea. Neither does Orin Kerr at the Volokh Conspiracy. He attempted to analyze whether precedents on federal law preempting state law would apply here and still is not certain. Read what Kerr had to say here.

NEXT: Punishing Low-Income Drivers for Being Poor

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  1. Ummmm this is just as bad, if not worse, than states forcing companies to cooperate with immigration enforcement. Why can’t we just quit with this authoritarian shit.

    1. I just started 7 weeks ago and I’ve gotten 2 check for a total of $2,000…this is the best decision I made in a long time! “Thank you for giving me this extraordinary opportunity to make extra money from home. go to this site for more details…..

      1. You are the courier for Motel 6 taking the registration slips to ICE?

      2. $4k for 7 weeks of work? That’s certainly not bad for the area I live in but the vast majority of the country is not going to be impressed with those numbers.

      3. Only $2000? I make $6000 a week from home working only 2 hrs a day. You are in the wrong business buddy.

    2. How are we supposed to deport all the Mexicans without a little authoritarian shit??? We gotta kick the beaners out somehow!

      (From a native Californian who is part Mexican.)

      PS I’m more or less serious, we do need to boot all those fuckers out. As long as things don’t get tooooo draconian I’m okay with a little messiness.

      1. The only way you’re going to ‘boot all those fuckers out’ is by going full-on draconian tyranny.

        Mandatory ID and mandatory *carrying ID and presenting it on demand* – papiere bitte. No more 4th amendment – street checkpoints and neighborhood sweeps. Biometric cameras. Internal passports and travel visas – no free travel between states and potentially not even between counties within states. Ask for permission. A wall, barbed wire on the wall, and machine guns on top of that wall. Pointed in both directions. And a massive tax increase to cover the cost of all that.

        If you’re not willing to submit to that then you’re just blowing smoke up people’s asses.

        1. That’s bullshit though. I grew up in California. There was less than zero attempt at any kind of enforcement. I could have pointed out 10 illegal immigrants in my class of 30 something kids during any period in school. They were everywhere, and everybody knew it. Go to any farm in my home town and majority would be illegal. It’s easy to find the low hanging fruit so to speak.

          Growing up there in the 90s after the Reagan amnesty I think a huge percentage of the people that came there came thinking it would happen again and they’d be legalized without following the rules. If it became clear we intended to enforce the law, and never grant amnesty again, the issue would largely resolve itself through the same level of enforcement we have now.

          I have not yet seen numbers specifically on last year, BUT if the reports of the drops in the level of people coming in are accurate then we may now already be shrinking the illegal population by perhaps 5-7% A YEAR now, with basically no increase in anything. Several hundred thousand a year are kicked out/self deport, combined with a drop in new arrivals = massive net outflow. That’s where things probably are right now.

          The whole problem the whole time was everybody knew the law wouldn’t be enforced, and everybody expected amnesty. You change those two things by enforcing the law just a little more, and making it clear there will be no forgiveness and you will be thrown out as soon as you are discovered and it’d be fine in 5-10 years.

  2. Oh, they’ll leave the light on for you, amirite?

  3. The market has a solution for this.

    And, yes, if these businesses were cooperating, to the detriment of their customers, with the DEA instead of ICE, attorneys general would be jizzing themselves.

    1. Or if this happened under Obama (which it probably was) or anybody other than Trump, who has made everybody go bat shit insane and propose things just be petty kindergartners flipping off Trump.

    2. If Motel 6 were providing customer into to ATF regarding guys wearing camo gear and orange ball caps who show up in olive drab pickup trucks.

    3. Funny thing is – they basically are *required* to ‘volunteer’ information to the DEA and state-level drug-enforcement agencies under threat of losing their business.

      This is why its optimal for only one organized crime syndicate to control any particular geographical area – once you get multiple layers of government, each one wants you to treat them like they’re the top dog.

  4. Okay, this is the last straw. I was fine with my cleaning services not understanding “Occupied” while I’m jerking it to debased filth on my laptop; I was fine with the cigarette burns in the mattreses and on the ceramic in the bathroom; fine with the heat lamp/bathroom light giving me third degree burns while I try and squeeze out a liquor laden wet-shit…

    But now that these fascists are helping thugs apply the immigration law as written, I’m fucking done.

    1. SUE them, feeeeeeed those lawyersssssssss……

    2. Well snitching on their guests to the Feds is a lot worse than the minor inconveniences (assuming the third degree burns are hyperbole) you mention. So even though I’m pretty sure you are trying to be sarcastic, you are right.

      1. Guests? We pay to stay. And just like with social media conglomerates, those businesses own the meta-information from the transactions, and can do with it what they choose, moral repugnancy notwothstanding.

        In the Hierarchy of Value, does “might step on a needle because of the low cost” outweigh “appeals to authoritarian thugs”? I think Cost trumps Morals every time. Majority of libertarians use Facederp, do you think?

        As for my sarcasm, you should probably know I never lie. Ever.

        1. “Snitching on their customers” isn’t really any better.

          Calling law enforcement on someone is an act of violence and shouldn’t be considered acceptable when actual, direct violence wouldn’t be warranted.

        2. Third degree burns involve the skin actually breaking. Not just really red and painful, and not just blistered skin.

          1. And Occupied is not the same as Do Not Disturb. They already know it’s occupied. You don’t want them busting in after they knock, put the damn chain on. AND the actual door hanger that says “Do Not Disturb”

    3. If it has cigarette burns it probably isn’t a ceramic.

      1. You’re not familiar with Motel 6’s normal clientele.

  5. Is this very different from NSA hoovering up metadata from telecoms?

  6. so its now criminal in California to turn over a criminal interesting but isn’t that harboring which is criminal. Make enough laws that everyone is a criminal its just a matter of who you piss off.

    1. The federal government needs to nip this snitch crap in the bud and go after the garbage that created this mess, the asshole California politicians.

      1. If the feds are looking for a specific person, come with a name and a reason you are looking for them. E.g. “Is anyone staying here with the name Jose Rodriguez? He may be here illegally”. THEN the hotel can check their registers and say either “Yes, room such and such” or “No”. WTF people! Is everyone else supposed to do their jobs for them?

  7. Forget about Communism, Monarchy, Democracy or any other label of a political system. The evil is too many laws, no matter what the rulers label themselves. The Left Coast is a place with too many laws.

    The article doesn’t state what the punishment is for cooperating with US Immigration. We know that Oregon fined a baker $135K for not baking a gay cake. Just imagine the mental anguish that an illegal trespasser goes through by having to comply with US law.

    1. “We know that Oregon fined a baker $135K for not baking a gay cake.”

      Reason actually didn’t have a problem with Johnson pushing such a policy on a national level. Libertarianism doesn’t appeal to cosmotarians. They prefer culture war over less government.

      1. Don’t come into my pieces and lie about my positions.

        1. Also the Reason Foundation submitted an actual amicus brief supporting Masterpiece Cakeshop in the SCOTUS case. I mean … really, dude? WTF?

        2. Sure seems to me there’s been a recent (2-3 months) trend of people trying to pin Reason down to positions which (a) are personal, not institutional, and (b) complete nonsense. I thought at first it was just sarcasm and cynicism, but the rate it’s taken off, I’m no longer sure the meme hasn’t been hijacked by bored trolls.

          1. The meme warriors know that a propaganda war must have two fronts: (1) push lies glorifying your team in order to puff up your tribe; and (2) push lies about the other team in order to dishearten and demoralize them.

        3. Scott, you had those links cocked and loaded!

        4. Also, it’s fewer government, not less government.

          1. I’m good with both!

  8. So lefties are fine with the fed snooping on domestic internet, phone, and microwave communication traffic because Obama did it but a company voluntarily giving stupid information to ICE is a bridge too far?

    Aren’t lefties okay with Google, Twitter, FB and other social media sites giving up personal info easily?

    Didn’t a lefty US Attorney come after Reasonites under the Obama regime?

  9. Perhaps instead of a law forbidding Motel 6 from doing what it thinks is its patriotic duty (I suppose), how about a law that requires Motel 6 to disclose to its customer what exactly it does with the information it collects? That way, the Real Patriots With Nothing To Hide will be free to stay at a Patriotic Hotel, while the ruffians will know to stay away.

    1. You should read the article better. California is passing a law, and Motel 6 is being sued in Washington.

      And yes, a large part of Motel 6’s problem is that they were violating their stated privacy policy by sending private information to a third party (in this case ICE). But they would be in just as much trouble if they’d been sending it to JCPenny or Amazon.

      1. The privacy policy gives them free reign to sell your information to anyone. Just look it up (I can’t post the link here since it’s too long). It’s one of the most open and loosest privacy policies I’ve ever read.

        It also says that they can submit your information to law enforcement without stating any conditions. The case has zero merit based on the plain-text wording of the policy.

    2. Perhaps instead of a law forbidding Motel 6 from doing what it thinks is its patriotic duty (I suppose), how about a law that requires Motel 6 to disclose to its customer what exactly it does with the information it collects? That way, the Real Patriots With Nothing To Hide will be free to stay at a Patriotic Hotel, while the ruffians will know to stay away.

      I’d have zero issues with that.

      As long as we apply it equally to Google, Facebook, et al…

  10. “Government interference with business is bad, except when it’s not”

    These are some rock hard principles

    1. Well, I’m not sure who to support in this case. I don’t like Motel 6 reporting people to ICE for being Mexican. However, what this essentially states is that people cannot report what they believe to be a crime in commission. That’s horrifying. Also, it’s definitely not just “Hispanic surname”, or they would have orders of magnitudes more reports.

      In short, I don’t like the reports, but banning someone from reporting they they think a crime is being committed is flat-out insane.

      We’re libertarians, not anarchists.

      1. “We’re libertarians, not anarchists.”
        That’s a distinction lost on a lot of folks…

  11. Not sure what I think about the new laws. But I would hope that any hotel doing this shit would lose a lot of business. I would expect any place to do everything they can to keep personal information on guests private.

  12. Ugh. Orin Kerr. I’ve given up reading his blog entries. Primarily he seems to like quibbling over dusty precedent and minor ambiguities just for the fun of it, incapable of seeing the big picture. I bet he fascinated classmates arguing over the shifting commas in the Second Amendment.

    But also, he sometimes comes across as a statist at heart, and a deferential one at that. Gives me the creeps.

  13. The question that bothers me is just how actually voluntary the “voluntary cooperation” of private businesses with the Feds really is. Or to put it another way: Are the State governments forcing the businesses to not cooperate with Federal agents? Or are the State governments protecting the businesses from being “volunteered” into cooperating?

  14. I guess if you’re trapped between the feds telling you you gotta do one thing and the state telling you you gotta do just the opposite, it all comes down to which side has the bigger supply of rat cages and the demonstrated will to use ’em. On the one hand, the feds burned women and children alive in Waco just for fun when they felt disrespected – what threats have California or Oregon got to compare to that?

  15. Can a state government punish a private business for voluntarily cooperating or assisting federal officials in enforcing federal immigration laws?

    Sending the names of customers to the feds is NOT the same as cooperating with federal immigration law. Sending the names of customers to the feds is a violation of privacy. Customers have no reasonable expectation that they will be added to a federal database just for spending the night at a hotel.

    1. “Customers have no reasonable expectation that they will be added to a federal database just for spending the night at a hotel.”
      Yeah, right.
      And no one expects the local cops to drive though the parking lot using a camera and computer to run every plate in the place?
      And no one expects a passerby to call 911 if they hear screams of fear from the second floor?
      And NO ONE expects the credit card company to use your purchase history to sell you all over the web?

    2. That’s not really true. Hotels/motels have been required to maintain guest registries for . . . generations. And in a lot of jurisdictions they’re required to open those registries to LEO’s on demand. This isn’t something new – its even seen quite often in older movies.

      1. Actuelly, this is the very reason for which those registries exist.

        Otherwise, everything would go “pay cash, ask no questions”

  16. I’m probably as anti-immigrant as someone can get, and I seriously take issue with the actions of Motel 6. It’s absolutely ridiculous that they report clients to the authorities when there is nothing to go on except a name/ethnicity. Particularly if the article is right in that their privacy agreement says they won’t do that kind of stuff.

    If they’ve got something more to go on–eg: obviously fake IDs–then fine. But Christ, this is about as bad as the article about how hotels need to report people to the cops because “they’re from out of town” and “they paid in cash” because they might be seeing a prostitute.

    1. The linked post says they draw up a list of guests presenting “Mexican ID” and implies that it was corporate policy. It’s pretty damn outrageous if accurate & I agree regardless of one’s position on immigrants.

      1. There are people with Mexican IDs who are legal legally. Really they are. Really. This is as stupid as if Disneyland reported everyone who showed a Japanese ID trying to get into the park. Sheesh.

      2. The “Mexican ID” is most likely a “Matr?cula Consular de Alta Seguridad,” a card which the Mexican consulates have for years been issuing to illegal aliens in the United States who cannot (or fear to) get identification issued by the government of the United States or one of the states. The simplest way around this would be to refuse MCAS cards as ID, and require, at the time of registration, domestically-issued identifcation or a valid visa.

  17. state government punish a private business for voluntarily cooperating or assisting federal officials in enforcing federal immigration laws?

    I’m betting they cannot punish them.

    The Feds cannot force the state to help them get illegals. States, by the same token, cannot force private entities to not assist the Feds with federal law.

    1. That would have been a good bet way back when. Now, not so sure.

    2. How many divisions does Motel 6 have?

    3. Of course they can punish them. It may ultimately be overturned by some level of court, but only if the business owner first has the time, willingness, and wherewithal to pursue the issue through the court system in the uncertain hope of recovering the fine he’s been forced to pay. In the meantime, it is questionable whether California would renew his business license…

  18. Reason isn’t being very reasonable on this one.

  19. “the personal information of at least 9,151 guests to ICE, even though its privacy policy assured consumers it would protect this information.”

    Motel 6 has a privacy policy that covers it’s web site.
    Motel 6 has a privacy policy that covers it’s app.
    I cannot find this elusive privacy policy that applies to actual registered guests.
    The quotes in the article are all from the web site policy. I don’t think the guests register through the web site.
    If a clerk suspects (through bigotry or actual thought) that a guest may be committing a crime, it is not unreasonable for that clerk to call the police. The police would then be the ones determining, based on lawful and valid police procedures, if a crime may have been committed, and opening an investigation. I have read so many conflicting reports about how this information was ‘transmitted’ to ICE it is impossible to guess which parts of which story are accurate. (something about cited named reliable sources ?)
    I also thought the state was the agency requiring all this information be collected on each guest; maybe they could just repeal that law? Imagine the personal freedom, just walk up to the desk, pay for the room, and you are done. No registration data, no data to give up to the cops. Frightening.

  20. Can a state government punish a private business for voluntarily cooperating or assisting federal officials in enforcing federal immigration laws?

    This is . . . I don’t see how the state could think this will pass muster. Its one thing to try to prevent the Feds from *mandating such reporting* and its a completely different thing to say ‘you can’t tell the Feds about this crime you’ve witnessed’.

    If CA were trying to pre-empt a Federal mandate, I’d be all for this. But to tell people they can’t report violations of *some* laws – well that’s idiotic. And, in the long run, harmful to the state anyway. This just reinforces the distinction between ‘illegal’ and ‘wrong’. Once you get people routinely analyzing legislation that way you’ll find that a lot of the laws you’re trying to create and enforce (‘for the greater good’ of course) will be just ignored by people who don’t see those things as wrong, just illegal.

  21. So California businesses can’t “overly cooperate” with the Feds when it comes to immigration law, but overly cooperating with the Feds on electronic surveillance is no big deal?

  22. There is a blanket exemption to the privacy policy for submitting to law enforcement. There are no conditions to this. This completely undermines the lawsuit.

    I can’t post the link due to the comments log, but a Google search will bring up up first thing. Here’s the relevant quote verbatim.
    Compliance with Law
    We may disclose Guest Information to law enforcement agencies, or may be required to disclose it during the discovery process in litigation, pursuant to a court order, or in compliance with any applicable law, regulation, rule or ordinance.

  23. Fergidiot did not even read his own evidence. The record shows that the employees passed along the full registry to the feds. Employees of Motel 6 did NOT engage in any “discrimination” on the basis of pereived race, natioinal origin, or anything else. If they handed ALL the records acrosss, then Motel 6 and employees did NOT discriminate. Or does Fergidiot not understand the meaning of the term “discrimination”?

  24. Sketchy issue. If it is against their privacy policy, then this is definitely not acceptable on breaking contract grounds. But a poster above said their policy says they may report any crime for any reason, which makes it not illegal or immoral on libertarian grounds… Just creepy for being so cozy with the feds.

    I’m all for booting out 100% of illegals (Especially the dreamers!), but I don’t like any business being quite so friendly with the feds. Perhaps if there were obvious signs of fake IDs, or something else suspicious… But even then I’d rather not have hotels feeling inclined to be snitches at all, at least not at an institutional level. Perhaps if a particular employee got a bad vibe, but as policy it’s sketch as fuck.

    That said, the California law is INSANE. If I owned a business there, and thought I had hired an illegal on accident, and wanted ICE to boot their asses that absolutely should be legal. Complying with the law shouldn’t be illegal!

    This almost makes me want to put up a job ad on Craigslist that will attract a lot of Mexican applicants and then forward all the people who seem to be illegal to ICE. Then Washington State would probably sue me, and I could get a sweet lawsuit going that’s backed by Team Red Pacs and shit! It’d be fun times in court having them try to explain how obeying the law is breaking the law…

  25. The government tells people to report suspicious activity, then punishes people when they do.

  26. All these sanctuary city/state laws are illegal
    The government officials responsible should be arrested and prosecuted

    8 U.S. Code ? 1324 – Bringing in and harboring certain aliens

  27. “California has implemented a new law that prohibits private employers from voluntarily consenting to allow federal immigration officials to search “nonpublic areas of a place of labor” if they do not have a warrant. It further forbids employers from voluntarily allowing immigration officials access to employee records if the officials do not have a warrant or subpoena.”

    Even though it concerns searches, I wonder if this law limiting business owners from voluntary cooperation isn’t more an infringement of the First Amendment than the Fourth. Compelling silence and non-cooperation seems to be very akin to compelling speech with which a citizen disagrees.

  28. I don’t care if privacy protection is increased based on liberal or conservative reasoning. More privacy is better. I’d rather have a murderer go free or 100s of illegal immigrants protected than have countless records of what hotels innocent people stayed at and when they stayed at them released to the state or feds without warrants.

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