There are lots of Fourth Amendment issues in the movie. But the key scene, at the warehouse, could be an exam question.
Recall the facts.
Axel Foley (Eddie Murphy's character) is a Detroit cop on vacation who is trying to investigate his friend's murder. He is trying to get the police in Beverly Hills to investigate, but they refuse. The Beverly Hills police chief instead orders Foley out of town, instructing Beverly Hills officer Billy Rosewood (played by Judge Reinhold) to drive Foley to the outskirts of town.
On the drive, however, Foley persuades Rosewood to ignore his orders and to bring Foley and his old friend Jenny Summers to a warehouse where Foley expects to find drugs being trafficked by Victor Maitland, the art dealer turned drug trafficker. Summers has the key to the warehouse because she happens to work for Maitland at his art gallery, although of course she had no idea of his illegal drug activities.
Rosewood parks the car outside the warehouse. Rosewood wants to go inside the warehouse, too, but Foley tells Rosewood to stay in the car. If Rosewood enters, Foley says, it will be an illegal search because they don't have probable cause. I'll come get you if I find evidence, Foley tells him. Foley wants Summers to give him the key so he can search by himself, but Summers refuses and insists on going with him.
Foley and Summers enter the warehouse with Summers' key, and they find a several wood crates that have the gallery's name on them. According to Foley, they are crates from overseas that bypassed customs. Foley uses a crowbar to open the crates, and they find cocaine inside. "Go get Rosewood," Foley tells Summers.
But wait! Maitland and his evil crew are on to them. They capture Foley and Summers in the warehouse. They take Summers away, and Maitland orders his men to kill Foley.
Meanwhile, Rosewood is watching from outside. He has seen Maitland and his crew arrive at the warehouse. He then sees Maitland leave minutes later, and he has Summers, who seems to be forced into Maitland's car before they drive off. Rosewood is sufficiently worried about Foley that he breaks into the warehouse himself. After entering, Rosewood saves Foley.
Assume Maitland somehow survives the later shooting at his estate, and that the government seeks to put on the following evidence at trial against Maitland:
(a) Foley's testimony about what happened in the warehouse,
(b) Rosewood's testimony about what he saw in the warehouse;
(c) Summers' testimony about what she saw in the warehouse; and
(d) the cocaine discovered in the warehouse.
Among the issues you might want to consider:
First, was Foley a state actor for 4th Amendment purposes when he entered the warehouse? He was an officer outside his jurisdiction who had been told by both the Detroit and Beverly Hills police departments not to investigate. He did so anyway for personal reasons, to bust the man who killed his friend. Was Foley a private actor or a state actor? Fourth Amendment state action generally requires the knowledge or acquiescence of the government. But who is the government here: The police chiefs? Rosewood? Foley himself?
Second, was Summers a state actor for Fourth Amendment purposes? Note that she is not just going along; she insisted on participating together with Foley and is working together with Foley.
Third, did Summers have common authority to consent to enter the warehouse? If so, does her common authority extend to opening the crates that Foley used a crowbar to open, in which the cocaine was found? If there was not common authority, was there apparent authority?
Fourth, did Rosewood have exigent circumstances to enter the warehouse? Seeing Summers get taken away sure seems bad, but was that the result of a police-created exigency caused by their possibly unlawful entry? Or is this more of a Brigham City v. Stuart situation to save Foley's life?
Fifth, assuming the entry into the warehouse was unlawful and the cocaine has to be suppressed, does the scope of the exclusionary rule also go so far as to forbid testimony about what Maitland and his men said and did to Foley and Summers upon stopping them inside the warehouse? Or does the criminal conduct by Maitland and his men break the causal chain and permit the testimony?
Extra Credit: Are any of your answers different if you apply Fourth Amendment law as it existed in 1984, when Beverly Hills Cop was released?
The post <i>Beverly Hills Cop</i> is a Fourth Amendment Movie appeared first on Reason.com.
]]>My own view is that we need to wait, as we have no idea yet what the Judicial Conference has in mind.
In particular, we don't know who wrote the press release or whether it accurately describes whatever the Judicial Conference has in mind. It's entirely possible that the "policy" is merely a recommendation that circuits and districts are free to ignore, as suggested by an unnamed judge who wrote in to David French and Sarah Isgur on the latest episode of Advisory Opinions. It's also possible that whatever was approved by the Judicial Conference is so soft a suggestion that it doesn't even rise to a policy, which might explain why the text of any policy isn't known. We just don't know yet.
Perhaps there's a story here, and if so we can react when we have more details. But I think it may be prudent to wait.
The post The Case for Caution on Reacting to the Judicial Conference Press Release on Forum-Shopping appeared first on Reason.com.
]]>In the last year or two, however, a few state courts have tried to limit computer searches through novel interpretations of the particularity requirement. I think this is wrong, and I thought I would explain why.
Consider a recent example from the Michigan Court of Appeals, People v. Carson. In Carson, the government obtained a search warrant to search a cell phone seized incident to arrest as required by Riley v. California. The government had arrested Carson for working with his girlfriend to steal $70,000 in cash from his neighbor's safe. The government then obtained a warrant to search the phone for "records or documents pertaining to the investigation of Larceny in a Building and Safe Breaking." The officers searched the phone and found text messages between Carson and his girlfriend in which they discuss the crime. The text messages were then used at trial to help prove the crime.
The Michigan Court of Appeals ruled in Carson that the warrant had a blatant Fourth Amendment defect—an error so egregious, in fact, that Carson's conviction must be overturned even though his lawyer never even challenged the warrant at trial. According to the court, Carson's conviction must be overturned because his lawyer was ineffective by failing to challenge the warrant, as if the lawyer had made that motion, the warrant would have been deemed unconstitutional and the evidence suppressed as the good faith exception would not apply to such an obvious mistake.
What, then, was the obvious mistake? According to the court, the warrant allowed a search through the entire phone for the evidence sought. This was plainly wrong, the court reasoned, because the warrant should have been limited to the specific apps and file types that the agents had specific reason to believe would have the evidence sought:
[I]t would have been wholly appropriate to issue a warrant authorizing the police to engage in a search of the phone's contents limited in scope to correspondence between these two regarding the crimes; this would include SMS messages, internet-based messaging applications such as Messenger or SnapChat, direct messages sent through social media platforms such as Instagram or Twitter, emails, and other similar applications. The warrant that was actually issued placed no limitations on the scope of the search and authorized the police to search everything, specifically mentioning photographs and videos. Authorization for a search of defendant's photographs and videos, despite there being no evidence suggesting that these files would yield anything relevant, is particularly troubling in light of the tendency of people in our modern world to store compromising photographs and videos of themselves with romantic partners on their mobile devices. Moreover, people usually can directly access file storage systems such as Dropbox and Google Drive directly from their phones, creating a whole new realm of personal information that the police was given free license to peruse. The pandemic also saw the emergence of applications such as "BetterHelp" and "Talkspace" through which people can have text message-based sessions with their psychotherapists, and applications such as "MyChart" allow mobile storage of detailed medical records as well as private conversations between patients and doctors. Simply put, this warrant authorized precisely the form "wide-ranging exploratory searches the framers intended to prohibit." Hughes, 506 Mich at 539 (quotation marks and citation omitted). Indeed, there are likely many people who would view an unfettered search of the contents of their mobile device as more deeply violative of their privacy than the sort of general search of a home that the framers originally intended to avoid.
According to the court, any decent lawyer would haver realized that this was an egregious mistake, so much that the good-faith exception would not apply and the lawyer was ineffective for not litigating the issue.
But the error belongs to the Michigan Court of Appeals, it seems to me, not to the defense counsel. This is the same mistake that the initial Fifth Circuit panel made in United States v. Morton before the en banc court upheld the search under the good faith exception and declined to address the issue on the merits. As I blogged in 2021, in response to Morton,
The place where the phone is located—or maybe the phone itself—is the place to be searched. And you have probable cause to believe the evidence is in the phone. That's all the government needs, I think. It doesn't make sense to limit the government's search within the place to be searched to particular forms of evidence any more than it makes sense to limit the search of tax records in a house to "documents stored on 8.5 X 11 paper" or "items in boxes designed to store records." As the Supreme Court stressed in Ross v. United States, "[w]hen a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers . . . must give way to the interest in the prompt and efficient completion of the task at hand." Everything in the place to be searched can be searched.
I certainly get the Carson court's concern. It's the right concern. It's just the wrong way to address it. The animating idea is to limit what can be seized in plain view by only allowing the government to look in a few particular places in the digital device where evidence is most likely to be stored. If the government is only allowed to search in a few places, the thinking runs, they won't see overly much. And as a result, only so much can come into plain view.
That's why the Carson court is concerned with people having compromising pictures on their phone and apps with communications with therapists. The court is worried about a cost/benefit balance of allowing a search through that stuff: If a search through it is allowed, then the government can use that, disclose it, post it on the Internet, and do lots of other terrible stuff outside the law enforcement mission. That would be bad. And as I have argued before, there's a straightforward answer to that concern: The Fourth Amendment should impose a use restriction on non-responsive data in the digital setting.
But not letting the government look through particular kinds of files makes no sense. You don't know in advance where digital evidence of a crime is going to be. Some apps or file types may be more likely to yield evidence than other apps or file types, but you can't rule them out. Take Carson's concerns with looking through photographs. Based on news stories and cases, it seems to be common for those who steal things to take pictures of what they steal, storing pictures of the loot on their phone. In a case about stolen goods, why should the government be forbidden to search through the photos on a phone to look for that evidence?
It is true, of course, that Riley requires a warrant. But once the government has probable cause and gets a warrant, they should be allowed to search through the entire phone for the evidence based on the warrant just like they can search through an entire house. If the government gets a warrant to search a home for a knife used in a murder, the warrant won't limit the search to the knife drawer in the kitchen just because a judge thinks that this is where knives usually go. The knife might be in the knife drawer, sure. But it could be in a cupboard, or in the bedroom closet, or underneath a floorboard. The warrant should let the government search there, too. The answer is use restrictions, not arbitrary limits on where the government can look.
The Carson court also raises a concern with accessing cloud-stored contents from the phone, but that seems obviously different: A search of the cloud from a phone is a search of the cloud, not a search of the phone. As always, stay tuned.
The post Yes, Warrants Allow a Search Through the Whole Phone appeared first on Reason.com.
]]>In light of that exchange, I thought I might point out that today, in United States v. Texas, Judge David Ezra preliminarily enjoined S.B. 4.
From the opinion:
Several factors warrant an injunction. First, the Supremacy Clause and Supreme Court precedent affirm that states may not exercise immigration enforcement power except as authorized by the federal government. Second, SB 4 conflicts with key provisions of federal immigration law, to the detriment of the United States' foreign relations and treaty obligations. Third, surges in immigration do not constitute an "invasion" within the meaning of the Constitution, nor is Texas engaging in war by enforcing SB 4. Finally, to allow Texas to permanently supersede federal directives on the basis of an invasion would amount to nullification of federal law and authority—a notion that is antithetical to the Constitution and has been unequivocally rejected by federal courts since the Civil War.
In response to the new decision, Governor Abbott issued a statement declaring that "Texas will immediately appeal this decision, and we will not back down in our fight to protect our state—and our nation—from President Biden's border crisis."
Stay tuned, as always.
The post District Court Enjoins S.B. 4, the Texas Immigration Enforcement Law appeared first on Reason.com.
]]>I realize this approach is impressionistic. I'm going to discuss the prevailing sentiment as I encountered at one law school, Harvard Law School, at one period, in the mid-1990s. There were surely others who had different experiences, especially at different places. And I look forward to hearing about those experiences! But I thought it still might be interesting to relay the experience I had.
First, some context. When I was in law school, from 1994-97, the public law focus of the Harvard Law faculty was still largely about looking back at the Warren Court. I don't mean that that there was exclusive focus on the period from 1953 to 1969. Rather, I just mean that the main cases and major doctrinal turns in many areas of law were from or were rooted in that period, The Warren Court was still very much a presence.
Looking back on it, part of that dynamic reflected the faculty's experience. A typical middle-aged law professor in 1995 would have been in law school during the Warren Court. That Court probably had an outsized influence on their worldview. But it was also just a matter of doctrine. A lot changed in the 1960s, and making sense of law in the 1990s often meant having a view of what the Supreme Court did in that busy 1960s period.
The common attitude I remember was one of great enthusiasm for creative Supreme Court lawmaking. "It is a Constitution we are expounding," the argument ran, citing Chief Justice Marshall in McCulloch: it is "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." The Supreme Court was at its best in devising creative new rules to meet the needs of our modern society. Precedents on the books reflected the old world, not the new. So it was exciting, and entirely commendable, when the Court would replace old rules with better ones that reflected more modern values.
The central hero of this narrative, at least in most tellings, was Justice William Brennan. Justice Brennan was presented as a brilliant mastermind of the Warren Court for his uncanny ability to get five votes for new directions. With Brennan on the Court, especially in the 1960s, everything was on the table. You could get lots of needed change and, and you could get it quickly. This was an unalloyed good, the thinking ran. Brennan's ability to get the law changed ensured that the law could change for the better.
What if you happened to favor stare decisis, or you if thought that the role of the Supreme Court should not generally be to try to make the law better? The prevailing view was that these objections were wooden and narrow-minded. Any person of expected sophistication would realize that law is policy making; law is so flexible that it can mean anything. So if you thought the Supreme Court should just "follow precedents," rather than overturn them and start fresh in new and exciting directions, you were missing the indeterminacy and delightfully open texture of law. Such naive viewpoints, with their false sense of certainty, would be welcome at a Federalist Society chapter meeting. But such views weren't generally advocated in the classroom.
The notion that the Federalist Society would be associated with legal determinacy may seem odd today. But I recall it as significant strain of thinking at the time. Today, the Federalist Society is though to be largely about originalism. But remember the Federalist Society's statement of its own principles: "It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be." Back in the 1990s, that idea in italics had real meaning: Saying that judges should follow the law and not engage in creative exercises of new rulemaking was a dissenting view from the academy as a whole. It was an embrace of a view widely rejected as naive and small-minded.
My sense is that times have changed. But I thought it might be interesting to recall that old set of views, from three decades ago, to help think through those changes.
The post Remembering the Proper Role of the Supreme Court, As Taught at Harvard in the 1990s appeared first on Reason.com.
]]>Almost everything you do on the Internet is governed by Terms of Service. The language in Terms of Service typically gives Internet providers broad rights to address potential account misuse. But do these Terms alter Fourth Amendment rights, either diminishing or even eliminating constitutional rights in Internet accounts? In the last five years, many courts have ruled that they do. These courts treat Terms of Service like a rights contract: by agreeing to use an Internet account subject to broad Terms of Service, you give up your Fourth Amendment rights.
This Article argues that the courts are wrong. Terms of Service have little or no effect on Fourth Amendment rights. Fourth Amendment rights are rights against the government, not private parties. Terms of Service can define relationships between private parties, but private contracts cannot define Fourth Amendment rights. This is true across the range of Fourth Amendment doctrines, including the "reasonable expectation of privacy" test, consent, abandonment, third-party consent, and the private search doctrine. Courts that have linked Terms of Service and Fourth Amendment rights are mistaken, and their reasoning should be rejected.
The post Just Published: "Terms of Service and Fourth Amendment Rights" appeared first on Reason.com.
]]>Reading the Fifth Circuit's decision in Netchoice v. Paxton brings me back to the old days of the Volokh Conspiracy. A little bit of context: Back when we were at volokh.com, we introduced open comment threads. For a few years, I spent over an hour a day, every day, moderating Volokh Conspiracy comment threads. I stopped after we moved to The Washington Post in 2014, where comment moderation was up to them. I'm very glad I don't do comment moderation anymore. But my comment moderation experience at volokh.com left a lasting impression.
I think three of those impressions might be relevant to thinking about Netchoice.
First: It is a strange rule of human nature that most people who are moderated in an online forum feel, with great certainty, that they are being censored for their beliefs. Few people think they just went too far, or that they broke the rules. Moderation is usually seen as the fruit of bias. So liberal commenters were positive I deleted their comments or even banned them because this is a conservative blog and we were afraid that liberal truths would pierce through the darkness and show the false claims of conservatives. And conservative commenters were completely confident that I deleted their comments or even banned them because we are liberals trying to prevent conservative truths from exposing liberal lies. It just happened all the time. Moderation led to claims of censorship like day following night.
Second: Content moderation always reflects a message of the moderator. My goal in moderating Volokh Conspiracy comments was just to keep discussions civil. My thinking was that if you can keep comments civil, you will not only encourage better comments but also entice better commenters. And I think experience proved that correct. For a few years there, moderated Volokh comment threads were pretty insightful places to go to look for perspectives on our posts. But moderation always implies some some sort of message. It implies some value or judgment that the site has (or maybe just the primary moderator has) that they want to advance. For example, when I was moderating out uncivil comments and commenters at volokh.com, I didn't care if an opinion was liberal or conservative. But my moderation still expressed a value: A belief in a marketplace of ideas, where we wanted the ideas to be expressed in a way that might persuade. That was the value we (or I) had. It's a process value, but still a value. Moderating was always an effort to further that underlying value we had.
Third, perfect comment moderation is impossible, but you can't let the perfect be the enemy of the good. I wrote above that many moderated commenters believed that they were being censored for their beliefs. A corollary is that many commenters had examples of comments from the other side that had remained up, apparently unmoderated, that to them proved the bias. If you deleted a comment as uncivil, it was common to hear howls of outrage that months ago jukeboxgrad had a substantially similar comment somewhere that is still up, so that under the principles of due process and the Magna Carta it would be despicable to moderate this comment now. The problem was scale. We might have 20 posts a day in those days, as there were a lot of short posts. An average post might get (say) 100 comments, with some getting many more. That was around 2,000 comments to wade through every day. You'd need full time moderators to try to moderate them all, with some sort of legal-like process for adjudicating individual comment moderation decisions. Moderated commenters often seemed to want that—and in some cases, to demand it. But it was just impossible given our day jobs. Moderation was needed to make comment threads worth reading, but the sheer scale of comments made imperfect moderating the best you could do.
The post Thoughts on Internet Content Moderation from Spending Thousands of Hours Moderating Volokh Conspiracy Threads (Repost from 2022) appeared first on Reason.com.
]]>I want to start with a big-picture idea that Steve raises, which I have seen widely repeated, that the case against Trump is illegitimate because Trump's actions were (as Steve puts it) "a victimless crime." On this thinking, the banks that lent money to Trump weren't harmed by Trump's lies. Maybe lies are just how rough-and-tumble New Yorkers do business. As Steve claims, "is apparently standard practice in the New York State real estate market where borrowers often overstate the value of their assets." And if the banks that gave him loans had their loans repaid, what is the harm?
In thinking about this question, I think it helps to say a bit about the New York law at issue. Here's my understanding (and I hope readers will correct me if I'm wrong). Under New York law, you need to register businesses with the state. The registration is effectively a license to do business. And one of the state Attorney General's 16 statutory duties is to bring an action in equity against businesses that "engage in repeated fraudulent or illegal acts or otherwise demonstrate persistent fraud or illegality in the carrying on, conducting or transaction of business." The action in equity asks for injunctive relief, "enjoining the continuance of such business activity or of any fraudulent or illegal acts, directing restitution and damages and, in an appropriate case, cancelling any [business] certificate filed[.]"
Should it matter that the particular lies that were the premise for the Attorney General's action involved lies in obtaining loans that were successfully repaid? The basic idea, I take it, is akin to when a state suspends a driver's license for drunk driving. The state has granted the person a driver's license, premised on the idea that the person will drive reasonably safely. But when a person has been shown to drive dangerously, the state will come in and revoke the license. Critically, that's true even if the person who drove drunk made it home safely on that particular trip.
We can imagine a person who drove drunk but didn't crash might think it unfair to revoke their license. It's a victimless crime, they might say; no one was hurt that night. But I gather we are accustomed to the idea that it's the established risk of harm, not actual harm, that is the plausible reason to withdraw the license. A person might have somehow made it home safely last night, but perhaps it's not a bad idea to take away the keys for a bit so they don't engage in that same risky conduct again tomorrow night.
The case against Trump and his business entities, I take it, was sort of a business equivalent of that. Trump and his business associates were engaged in so much lying, and so much fraud, the Judge concludes. And their credibility on the stand was, as the Judge puts it, severely compromised. They were able to repay the loans, true, but they wouldn't have gotten the loans without the lies. And they reaped massive profits from lying, Judge Engoron concludes, as they were able to make deals they wouldn't have been able to make, and at rates they wouldn't have been able to get, had they been truthful. Acting as chancellor in equity, Judge Engeron requires Trump and the businesses to give up their ill-gotten gains, says Trump can't run a New York business for three years, and imposes other equitable remedies.
Steve repeatedly claims that this law has never been used "that way." I'm not sure what "that way" means. But based on a quick Westlaw search, I do see opinions about other equitable enforcement actions that Attorney General Letitia James brought under this law against other businesses. In just the last few months, for example, opionions include People by James v. Richmond Capital Group LLC, 80 Misc.3d 1213(A) (N.Y. 2023) (enforcement action against loan sharks, ordering a long list of equitable remedies including canceling contracts); People by James v. Mashinsky, 79 Misc.3d 1237(A) (N.Y. 2023) (refusing to dismiss action brought by James against CEO of crypto company based on alleged scheme to defraud investors by inducing them, through false and misleading statements, to deposit their digital assets with his now-bankrupt company); James v. Scores, 79 Misc.3d 1118 (N.Y. 2023) (enjoining towing company from engaging in predatory towing practices).
As I said up at the top, I don't have a particular view of whether AG James should have brought this case in the first place. I also don't like the state intervening and preventing someone from doing business in the state, especially when everyone is on notice that he's not truthful. So if the opinion is wrong, and gets reversed, I certainly don't mind that. But with the state having brought the case, it's also not obvious to me what particular part of Judge Engoron's 92-page ruling is legally wrong. Anyway, I'm not an expert in this New York law, and if readers or others have specific portions they take issue with, I'd be very interested to hear it. Just cite the page or pages with the error and explain the problem, and I'm very interested to hear about those particular objections.
The post Thoughts on Judge Engoron's Opinion, A Response to Calabresi appeared first on Reason.com.
]]>Even if Sarah is missing some former clerks in her numbers, that's a noticeable drop. What explains the trend? Over in the comments to Brian's post, Professor Dan Epps has a suggestion that I think explains a lot: The increasing separateness of the law clerk and law professor track.
I realize this is a niche topic, but here's a little background to explain that increasing separateness for those who may be interested. It used to be, decades ago, that getting a top clerkship and getting a top professorship were the same track. If you were a law student and you wanted to be a law professor, you got the highest grades you could and tried to use your grades to get a clerkship with the most prestigious judge you could. The clerkship acted as a sort of graduate degree in law. If you hit the jackpot and clerked on the Supreme Court, that was reasonably likely to lead to a professorship at a very good law school. The top schools tried to hire former clerks, with some law school Deans visiting the Supreme Court to meet with clerks and pitch becoming a professor at their schools. This was the era of 1940 to 1990, noted at the top of the post, when about one third of clerks later became professors.
These days, by contrast, the paths are a lot more separate. First, there's more of a multi-year process of planning for a Supreme Court clerkship. Most Supreme Court clerks now have multiple prior clerkships before starting at the Supreme Court—according to David Lat, 29 of the current 36 clerks had two or more clerkships before their current positions. And those are often spaced out, too. Just skimming the list at David's site, it looks like a typical clerk graduated about 3-4 years before starting at the Supreme Court. By the time you're done with the Supreme Court, you're 4-5 years out of law school and you may still only have a year or so of actual legal practice. Meanwhile, biglaw firms await with what are now apparently $500,000 clerkship bonuses if you join them.
If you want to become a law professor, on the other hand, the pathways today tend to be different. Law schools are now evaluating potential entry-level professors much more on their scholarship than on their grades or clerkships. As a practical matter, you need to have spent a few years researching and writing scholarship to get ready to go on the market for a tenure-track job. Getting a Ph.D. has become a very common way to develop a scholarly methodology and start to write some articles. At most top schools I am aware of, a clear majority of recent entry-level hires have one. And even if you don't have a Ph.D., you will probably need to spend two years at a law school as a Fellow or Visiting Assistant Professor (VAP), learning the quirky ways of academia and working on an article or two to get ready for the entry-level market. As Sarah Lawsky has found, about 90% of new entry-level hires have either a fellowship or a doctorate. Many have both.
The takeaway of all this, I think, is that the single path of decades ago has largely divided into two separate paths. Once you're in law school, the way to maximize your odds of getting a Supreme Court clerkship is different from the way to maximize your odds of getting a professorship, especially at a top school. I think this largely explains why we see fewer people today succeeding on both tracks, first clerking at the Supreme Court and then later becoming an academic. It's not the only explanation. But I think it's the main one.
As I said earlier, this is a niche topic. Some readers (if anyone is still reading) may be wondering, "Who cares?" And totally fair if you don't. This may just be navel-gazing that has no significance outside the faculty lounge. But I wonder if it may also be a small signal of a broader change of the role and background of law professors, and in turn, of law schools. As Richard Posner noted in the 2007 essay I blogged about last month, there has been a switch over the decades from the model of the law professor as top lawyer steeped in lawyering to the model of the law professor as academic who writes and teaches in the field of law. I wonder if the declining number of former Supreme Court clerks entering academia might be one small indicator of that switch continuing.
UPDATE: If there are recent clerks or recently-appointed profs (or both) who want to weigh in on this, I'd be happy to post reactions as to their sense of this and whether they agree. Happy to remove names if requested, too. Just send me an email, orin at berkeley dot edu.
The post Thoughts on the Declining Numbers of SCOTUS Clerks Becoming Law Professors appeared first on Reason.com.
]]>Over at X, in response to a tweet from me on the essay, Adam Unikowsky asked a good question:
Do you think the relationship between lawyering and legal academia has changed since Posner wrote that 16 years ago? If so, in what direction?
I don't have any special expertise on this question, but I have two tentative thoughts on it.
First, in some ways, the trend towards the academic model has only accelerated. Sarah Lawsky keeps numbers on the entry-level classes, and her annual report includes a chart on the percentage of new hires with doctorate degrees:
The green line is the key here. Note the jump from around 25% from 2011 to 2016 to the 40-50% range starting around 2017. And as Lynn LoPucki noted in his 2016 essay, Dawn of the Discipline-Based Faculty, the trend is even more pronounced at the "elite" schools. At my own institution, UC Berkeley Law, having a Ph.D. is effectively now the norm for entry-level hires. It's certainly not required. But a majority of entry-level hires have one.
Doctorates, or their absence, isn't a perfect proxy for the dynamic Posner describes. But it's in the ballpark. And the trend toward even more Ph.Ds suggests that, on the whole, the trend Posner noted has accelerated.
That's one part of the picture. But there's another set of developments that cuts the opposite way.
In the last fifteen years, many law schools have made significant improvements in expanding programs that are beyond the scholarship-line tenure-track professors, as well as breaking down barriers that used to divide the different parts of the faculty. Many schools have expanded clinics, hiring new faculty to teach clinics who are outstanding practitioners as well as academics. They have expanded legal writing programs, bringing in excellent lawyers as professors of legal writing. Some schools have added "professors from practice", leading senior practitioners who join the faculty to teach classes and participate in the life of the law school but are not on the tenure track.
This is a big generalization, and I hope I'm not too far off in this description. Describing a diverse area like legal academia reminds me of the parable of the blind men and the elephant. You never know if what you experience is just one part of the elephant. (If you think I'm off, please let me know in the comment threads.) But my sense is that these changes have had a significant impact on the kinds of faculty that a law student might encounter. When I was in law school, three decades ago, it was common to go through three years pretty much only encountering the regular podium scholarship faculty. But my sense is that's rare today, if not entirely unheard of. Today's law students are going to be taught by legal writing professors, clinical professors, professors from practice, and of course adjunct professors. All of them are likely to be excellent lawyers steeped in lawyering.
In short, I think there have been two changes since Posner's critique that cut in somewhat opposite directions. On one hand, the trend Posner saw has accelerated, with more Ph.Ds. than before. On the other hand, schools have made very helpful and important strides towards recognizing the critical role of faculty beyond the podium tenure track.
The post How Has Legal Academia Changed Since Posner on Meltzer? appeared first on Reason.com.
]]>First, some context. The Supreme Court has held that a dog sniff in a public area is not a search. It reached that ruling in cases that happened to involve a sniff of luggage and a sniff around a car. When confronted with a dog sniff on a home front porch, however, the Court ruled that the entry of the dog on to the porch was a search because it went beyond the implied license of the area around the home, the so-called curtilage. The "search" was the entry of the dog within the private area of the curtilage with intent to do a sniff, not the sniff itself.
So what about a dog sniff of a person in a public area? The curtilage concept has only been applied to homes, not people. Does that mean dogs can sniff a person? It's clear that a dog sniff is a search if the dog actually touches the person. But what if the dog just comes close to the person, without touching them? Is that a search?
That was the issue in today's ruling in People v. Butler. After observing what they think is a hand-to-hand drug transaction, officers see the suspect get in his car. They pull him over for a traffic violation. He steps out of his car, and officers notice a big bulge in his pants that he claims is $1,000 in cash. Officers get the narcotics-detection dog, a Belgian Malinois named Apache, to smell around the car. Apache alerts.
They then let the dog sniff around the suspect, Butler. The dog alerted again, "put its nose in the defendant's groin/buttock region, and sat, alerting the officer that it had located narcotics." There was no evidence that Apache had actually touched Butler. But he had put his nose near Butler's groin.
That's a search, the New York Court of Appeals ruled:
Applying the Supreme Court's Fourth Amendment jurisprudence to the instant case, we hold that the use of a canine to sniff defendant's body for the presence of narcotics qualified as a search. This is true even if we accept County Court's apparent conclusion that when Apache put its nose in defendant's "groin/buttock region," the dog did not make actual contact with defendant and sniffed only the air closely surrounding his person. The lack of direct physical contact is not dispositive in this context because of the "heightened" interest society recognizes in the privacy and security of the human body, which can encompass space immediately surrounding the body and was clearly implicated by what occurred here (cf. Jardines, 569 US at 7 [majority op] and 13 [Kagan, J., concurring]).
It cannot be disputed that society treats many matters related to the body as private, or that individuals have a significant interest in the security and integrity of their persons . . . The Fourth Amendment protects those important interests from unreasonable intrusion by the government. . . .
Thus, the Supreme Court has long held that the Fourth Amendment is implicated when the government attempts to gather evidence of criminal activity from an individual's person. It has recognized that a search occurs whether the particular method employed by the government entails a "compelled surgical intrusion into an individual's body" (Winston v Lee, 470 US 753, 759 [1985]; see Schmerber, 384 US at 767); "gentle" or "light" contact with the body (see Maryland v King, 569 US 435, 446 [2013]); "brief" contact with "outer clothing" (Terry v Ohio, 392 US 1, 24-25 [1968]); mandated collection by the individual searched of matter emitted from their body for testing by the government (Skinner, 489 US at 617); or the "visual and aural monitoring" of private bodily functions (id.). In addition, multiple federal circuit courts have held that the use of magnetometers to detect concealed metal is a search, notwithstanding that the use of such technology does not involve physical contact and is "far less intrusive than the use of large dogs to sniff [people's] bodies" (Horton, 690 F2d at 478 [collecting authorities]; see United States v Albarado, 495 F2d 799, 803 [2d Cir 1974] ["Even the unintrusive magnetometer walk-through is a search in that it searches for and discloses metal items within areas most intimate to the person where there is a normal expectation of privacy"]).
This precedent confirms that the presence or absence of direct physical contact with the body is not determinative of whether or not government conduct implicates "[t]he right of the people to be secure in their persons" and qualifies as a search; the question turns instead on whether the conduct compromises personal dignity and violates reasonable social expectations concerning the security of one's body and the privacy of matters related thereto (see US Const, 4th Amend; Skinner, 489 US at 613-614 [the Fourth Amendment "guarantees the privacy, dignity, and security of persons"]; King, 569 US at 446 ["The fact that an intrusion is negligible [or severe] is of central relevance to determining reasonableness, [but] it is still a search as the law defines that term" (emphasis added)]).
Compared to a sniff of an inanimate object like a closed suitcase or automobile, the sniffing of the human body involves an obviously greater intrusion on personal privacy, security, and dignity. Most people "deliberately attempt not to expose the odors emanating from their bodies to public smell" and experience anxiety and embarrassment at the thought of emitting odors, demonstrating the sensitivity of the matter (see Horton, 690 F2d at 478). Moreover, it is of little consolation in this context that the only information a canine may be capable of conveying to police is the presence of illegal drugs. The "embarrassment and inconvenience" of this type of search does not arise solely from fear that the canine will reveal the presence of contraband (compare Place, 462 US at 707), but from the objectively undignified and disconcerting experience of having an unfamiliar animal place its snout and jaws in close proximity to—if not direct contact with—vulnerable parts of our bodies. . . .
In this regard, it also cannot be ignored that some people are afraid of dogs, particularly police canines, which are usually quite large and can be cross-trained to apprehend fleeing suspects (see Ann L. Shiavone, K-9 Catch-22: The Impossible Dilemma of Using Police Dogs on Apprehension, 80 U Pitt L Rev 613, 622, 652 & nn 287-288 [Spring 2019]; Police Executive Research Forum, Guidance on Policy and Practices for Patrol Canines, 14 [2020], available at https://www.policeforum.org/assets/Canines.pdf). Although deaths caused by canines are rare, fear and distrust of their use by law enforcement is not without justification, particularly considering the shameful history in this country of police using canines to intimidate and control people of color and marginalized communities (see e.g., Shontel Stewart, Man's Best Friend? How Dogs Have Been Used to Oppress African Americans, 25 Mich J Race & L 183 [May 2020]).
In permitting Apache to approach and sniff defendant for evidence of criminal activity, the officers also exceeded the scope of any invitation or license implicitly granted by defendant with respect to his so-called personal space (cf. Jardines, 569 US at 8-9). Preliminarily, although the Supreme Court in Jardines borrowed from implied-license principles as part of its property-law analysis upon concluding that a porch is part of the home for Fourth Amendment purposes, consideration of the implied social licenses that govern human interaction is also helpful to assess whether a canine sniff of a person violates an expectation of privacy considered reasonable by society (see id. at 13-14 [Kagan, J., concurring] ["The law of property naturally enough influences our shared societal expectations of what places should be free from governmental incursions" (internal quotation marks and brackets omitted)]; French v Merrill, 15 F4th 116, 131 [1st Cir 2021] [Jardines "clearly established that an implicit social license sets the boundaries of what acts officers may engage in"], rehg en banc denied 24 F4th 93 [1st Cir 2022], cert denied 143 S Ct 301 [2022]). For our part, we will assume that when a person decides to venture out into the public square, they implicitly permit others—including not just friends and coworkers but certain strangers and even police—to approach and interact in ways that may put them in a position to notice odors emanating from the body (say, in a crowded queue or rush-hour subway car). However, it is not part of the social convention for strangers to enter each other's personal space for the specific purpose of sniffing each other; such conduct is likely to be considered alarming and intrusive. Even with pets, it is generally considered rude to allow one's dog to approach and intensively sniff a stranger without consent. And introducing a trained police dog to explore otherwise undetectable odors in the hopes of discovering incriminating evidence is "something else" entirely; it goes far beyond any implied social license or reasonable expectation (Jardines, 569 US at 9). Authorization to engage in canine forensic investigation assuredly does not inhere in the very act of venturing out in public (see Carpenter, 138 S Ct at 2217 ["A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, what one seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected" (internal quotation marks and brackets omitted)]).
Finally, a refusal by this Court to recognize what occurred here as a search would sanction law enforcement to roam the streets of this State's cities and neighborhoods with police dogs arbitrarily sniffing people for evidence of crimes, a picture straight out of dystopian fiction. Recognizing this form of investigative technique as a search is therefore consistent with "a central aim of the Framers[, which] was 'to place obstacles in the way of a too permeating police surveillance'" (Carpenter, 138 S Ct at 2214, quoting United States v Di Re, 332 US 581, 595 [1948]).
A few thoughts. I'll start with some doctrinal points, and then turn to more practical ones.
First, the Supreme Court has adopted a particular rationale for why a dog sniff is not a search, sometimes called the binary search doctrine. The well-trained dog will only alert for the presence or absence of illegal drugs, the argument goes, and there is no privacy right invaded by only learning that drugs are present or absent. That rationale, and how to apply it here, is pretty much absent from the New York Court of Appeals' opinion.
The New York court also seems to suggest that there is a curtilage around a person. That's new! The curtilage concept originated in common law crimes about burglary, where the area immediately around the home was used as a the home. As far as I know, it has only been applied to homes. Extending it to the area around people is pretty novel. It would have been helpful for the court to more directly acknowledge that this is what it was doing, and to justify that extension, rather than suggest it was just following other cases.
More broadly, this case is an interesting example of a court that likely wants to reach a result but has to first work its way out of a doctrinal box. The U.S. Supreme Court's cases on dog sniffs force you into a particular box. To reach a result that it's a search, you have to break out of the box somehow. I'm not surprised the New York court broke out of the box on the facts of this case, as a lot of people don't like that box. It's a classic "what if" game played by Criminal Procedure professors in law schools around the country: When you take the binary search doctrine rationale out for a walk, it goes some places that a lot of people find uncomfortable. And here, the discomfort is obvious. The scary-looking dog put his nose right up to the suspect's groin. Yikes. A lot of people will look at that and say, that goes too far. So it's not surprising that the court made a break-out to say that this was a search. But the break-out requires bending your way around some cases.
On to a more practical issue: How near to a person can a dog go without a search happening? We know roughly how big the curtilage area is for a house. There are cases on that. But what is the protected area around a person? What if the dog was a foot away, or two feet away, or three feet away? How about a narcotics detection dog brought to Penn Station that is sniffing around. Is that now always a search? Or a search in some undefined set of cases? You can bet a lot of people in New York law enforcement are wondering about that.
One last important point. After you say the dog sniff is a search, what kind of cause is needed to justify the sniff? The New York court punts on that crucial question, remanding back to the trial court. The intermediate appellate court had held that a dog sniff was okay with reasonable suspicion, not probable cause or a warrant, but the high court rules that it was premature to consider that because of some state procedural rules. So the answer could be anything.
As a matter of traditional Fourth Amendment caselaw, you would think the answer is that a search of a person requires a warrant. Reasonable suspicion allows a search for weapons, but not for drugs, under Terry v. Ohio. And there is no automobile exception for people to avoid the warrant requirement. But then maybe that's a box that the New York courts won't want to be in, either. Maybe courts, having come up with a way out of the binary search box to say use of the dog is a sniff, will next come up with a way out of the warrant box to say it is a lesser search allowed based on lesser cause. Stay tuned.
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]]>There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law.
Josh reads that as indicating that Arizona does not clearly conflict with the Texas law. On his reading of the sentence, this is a question left open by Arizona, with Texas fairly raising an interstitial question ripe for litigation that could go either way.
But I don't think that's what the sentence says or means.
The power to detain a person to investigate a crime based on mere "reasonable suspicion" is just a power to very temporarily detain them. It's a Terry stop authority, giving officers, say, 20 or 30 extra minutes to check out what is going on. That power does not allow the government to detain someone for much more than that time, or to bring them to a new place. Under Dunaway v. New York, that kind of stop is an arrest as a matter of Fourth Amendment law, and that requires probable cause.
As I read that one sentence, all it did was leave open whether a state is allowed to add on that extra 20-30 minutes or so to investigate an immigration offense.
I'm not an expert in the new Texas law, but it does not seem to be a Terry stop law. It appears to authorize arrests, which is a different ball of wax in the law of criminal procedure. As I recall, arrests were dealt with in another part of the Arizona decision, Section IV(C), which ruled that the Arizona law allowing arrests for committing removable offenses was preempted.
If we're looking for the one sentence from Arizona to read on that issue, this one seems particularly relevant:
By authorizing state officers to decide whether an alien should be detained for being removable, § 6 violates the principle that the removal process is entrusted to the discretion of the Federal Government.
Of course, I wouldn't just read that one sentence. But Section IV(C) seems like an important section to focus on, not the one sentence about Terry stops.
The post You Might Want to Read More Sentences of <i>Arizona v. United States</i> appeared first on Reason.com.
]]>Of course, readers will disagree on whether this is a good thing or a bad thing. To some, it will show how unwavering the majority was in their commitment to the right path. To others, it will show how zealous they were in their blind commitment to such a mistaken ruling. But however you come out on that, I think the timing should probably alter some of the assumptions sometimes made in discussions about Dobbs and the Dobbs leak.
Here's my thinking. The article presents the story from the perspective of those who tried to prevent the Dobbs majority. Since-retired Justice Breyer seems like a likely source, given the discussion of what was in his head at various times. And that creates a dramatic narrative of (Breyer's) uncertainty that matches what I think most people had expected was happening internally. On that expected narrative, the leak happened while the Justices were negotiating over the opinion, before five had signed on.
But apparently that wasn't the case. There was a majority around mid-February, without anyone requesting a single word of changes. The leak happened months later, on May 8.
Here's the most remarkable passage:
On Feb. 10 last year, Justice Samuel A. Alito Jr.['s] . . . clerk circulated a 98-page draft opinion in Dobbs v. Jackson Women's Health Organization. After a justice shares an opinion inside the court, other members scrutinize it. Those in the majority can request revisions, sometimes as the price of their votes, sweating sentences or even words.
But this time, despite the document's length, Justice Neil M. Gorsuch wrote back just 10 minutes later to say that he would sign on to the opinion and had no changes, according to two people who reviewed the messages. The next morning, Justice Clarence Thomas added his name, then Justice Amy Coney Barrett, and days later, Justice Brett M. Kavanaugh. None requested a single alteration.
Given that timing, the theory that the leak was designed to "lock in" the majority, or that it had that effect, seems implausible to me. The five in the majority had all joined almost immediately, months earlier, with not a single suggestion of changing a single word in the 98-page draft.
True, it's possible that a Justice might join an opinion one day and then "unjoin" it later before it is published. But that's rare. And this was understood as likely the most important case of the Justices' careers, with an opinion they had rushed to sign on to. And months had already passed. By the time of the leak, Alito's opinion would have been seen as basically done.
My experience as a clerk is from 20 years ago, with mostly different Justices. But in that bygone era, at least, a Justice hoping to prevent a five-vote majority would go to the likely 5th vote Justice and ask them to hold off until concurrences and dissents are circulated. The idea was that, as long as the circulating draft didn't have a majority yet, there was a chance that it wouldn't get one. A different opinion, circulated later, might persuade them. That potential 5th vote would signal openness to coming out differently by waiting for other opinions first.
What's striking about the inside story here, it seems to me, is that this didn't happen. No one waited. The Alito draft got to five at a pace faster than a 9-0 ERISA opinion.
I assume this partially explains why, after the leak, the majority did not change the draft very much. I've seen a lot of speculation that they did that because of public pressure. They couldn't change it because they would look bad, the argument runs. They would be seen as weak, so they had to join even thought they probably didn't want to. But in light of what we know now, the more likely explanation is that the leaked Dobbs draft already had five votes "as is," and it had those votes for months.
As I said up top, different people will see this as good or bad. But it seems like the most important lesson from the Times story.
The post <i>Dobbs</i> Was Never In Doubt appeared first on Reason.com.
]]>Here's a possibility: The Utah Supreme Court's ruling today in State v. Valdez. In this post, I want to talk about Valdez and consider if it would be a good prospect for Supreme Court review.
The Facts
Valdez was charged with kidnapping and assault of his ex-girlfriend. The government had a warrant to search his phone, as a lot of the evidence was thought to be of their communications. And his ex-girlfriend's phone, which would also have the communications, had gone missing. But Valdez's phone was locked, with a nine-dot pattern passcode needed to access it, and the police could not break in. The government asked Valdez for his password, telling him that if he declined they might damage the phone to try another way to bypass the encryption. But he refused to provide the passcode, and he told them to just destroy the phone. The government was never able to get into the phone.
At trial, the government wanted to put on testimony that Valdez refused to unlock the phone as evidence of his guilt. The defense objected, arguing that Valdez had asserted his Fifth Amendment privilege. The trial court overruled the objection, allowing the testimony. During the closing argument, the prosecution emphasized that the text messages between the defendant and his ex-girlfriend stored on his phone would answer whether this was a real kidnapping (as the prosecution claimed) or consensual (as the defense asserted). And in that context, the prosecution argued, the refusal to unlock the phone was incriminating. The jury convicted the defendant.
The Valdez Ruling
The parties in the case both assume, as the court of appeals ruled below, that the government cannot comment on a defendant's assertion of his Fifth Amendment privilege under Griffin v. California, 380 U.S. 609 (1965). Griffin ruled that the government can't comment on the defendant's refusal to testify at trial, and it's not obvious it extends to a pre-trial assertion. But the Utah Supreme Court accepts that framing, assuming for the purposes of argument that the key question is whether Valdez had a Fifth Amendment privilege not to provide his passcode. And the court concludes that the answer is yes. As it summarizes:
We first address the State's argument that providing a passcode is not a testimonial communication. We disagree. Providing a passcode is testimonial because it is a communication that discloses information from the person's mind. We then move to the State's other arguments. We conclude that the foregone conclusion exception does not apply here. That exception arises in cases involving compelled acts of producing evidence to determine whether the act has any testimonial value because the act implicitly conveys information. Such an analysis is not necessary in a case involving a verbal statement that explicitly provides information.
The Utah Supreme Court thus agrees with the court of appeals that the conviction cannot stand, as it was based on a Fifth Amendment violation and it was not harmless error.
Why This Might Be Cert-Worthy
Will the U.S. Supreme Court review Valdez, assuming the state seeks review? Maybe.
Here's the case in favor.
First, there's a state Supreme Court split on how the Fifth Amendment privilege applies to orders to compel a password in order to execute a warrant for a phone. Unless I'm missing something, Valdez joins the Pennsylvania Supreme Court's ruling in Commonwealth v. Davis in upholding the privilege in that setting. On the other hand, the New Jersey Supreme Court disagreed with that view in State v. Andrews, ruling that the foregone conclusion doctrine applies and the defendant can be forced to disclose the password if the government can show he knows it. So at the very least, there is a 2-1 split on compelled disclosure of passwords.
Second, Valdez would come to the Supreme Court in a better procedural posture than other cases. Most compelled unlocking cases involve interlocutory appeals. The government gets an order requiring the defendant to say the password or unlock the phone, and the government seeks enforcement of the order. Whether the order can be enforced then goes up on appeal while the rest of the case is still pending. That can create procedural barriers, most significantly if the state wins in the state supreme court; the U.S. Supreme Court probably lacks jurisdiction to review the ruling under the final judgement rule. Here, by contrast, there's a final judgment.
Some Potential Complications
But there are some complications.
First, Valdez is a compelled disclosure case, not a compelled unlocking case. There are state supreme court splits on both compelled disclosure and compelled unlocking. But the issues are potentially very different, as the Valdez court explored in depth. In a case that involves an interlocutory appeal, the two issues are often either presented together or at least are easy to address together. The government has an order, and it just wants "in" to the phone so it can execute the warrant. Typically, prosecutors are happy if the defendant either unlocks the phone or gives the government the password to unlock it. Either is fine.
It's different with Valdez. The record in Valdez is that he was asked to provide the passcode, not to enter it. And the issue is whether the government could have testimony on that. If the Supreme Court were to take Valdez, it might have to only answer the compelled disclosure issue, and then save the compelled unlocking issue for another day.
That's certainly possible. But it might be odd to only address half of the puzzle. Compelled unlocking and compelled disclosure raise different legal issues, but they go together in practice. Would the Supreme Court want to take on one half of the puzzle without being able to take on the other half? I don't know.
A second question is whether the somewhat uncertain assumptions framing Valdez might deter the Justices. As Footnote 6 of Valdez points out, the parties are assuming that Griffin applies to commenting on pre-trial evidence. And there are also interesting Salinas v. Texas issues lurking: Assuming that the refusal to unlock the phone counts as an assertion of the privilege, what follows from that is an issue not explored by Salinas. But maybe the U.S. Supreme Court would just put that set of issues aside, taking Valdez for the specific issue on which the parties have agreed the case rests.
As always, stay tuned.
The post Is Compelled Decryption Heading to the Supreme Court? appeared first on Reason.com.
]]>All of which makes this Google announcement from yesterday of great interest. Google will no longer keep location history even for the users who opted in to have it turned on. Instead, the location history will only be kept on the user's phone.
The Timeline feature in Maps helps you remember places you've been and is powered by a setting called Location History. If you're among the subset of users who have chosen to turn Location History on (it's off by default), soon your Timeline will be saved right on your device — giving you even more control over your data. Just like before, you can delete all or part of your information at any time or disable the setting entirely.
If you're getting a new phone or are worried about losing your existing one, you can always choose to back up your data to the cloud so it doesn't get lost. We'll automatically encrypt your backed-up data so no one can read it, including Google.
Additionally, when you first turn on Location History, the auto-delete control will be set to three months by default, which means that any data older than that will be automatically deleted. Previously this option was set to 18 months. If you want to save memories to your Timeline for a longer period, don't worry — you can always choose to extend the period or turn off auto-delete controls altogether.
These changes will gradually roll out through the next year on Android and iOS, and you'll receive a notification when this update comes to your account.
Unless I'm missing something, this will entirely defeat geofence warrants— which, I would speculate, was probably the point of Google's policy change. If Google doesn't keep the records, Google will have no records to turn over. If the government comes to Google with a court order for geofence data, Google will just say, sorry, we don't keep that stuff anymore.
My very tentative sense, from a public policy standpoint, is that this seems like a bit of a bummer. Geofencing was being used to solve some really serious crimes—like murders, rape, and armed robberies—when there were no known suspects or leads and the case had gone cold. Having governments be able, with sufficient cause, to go to a court, get a court order, and then obtain potentially responsive location records that could provide a lead to investigate was, on the whole, a good thing.
Of course, that public interest has to be balanced with the public interest in privacy. But my sense is that geofence warrants have been implemented (and could be implemented in the future) in ways that provide far greater privacy protection than normally exist with warrants. Every technique raises risks of abuse. But if you had to look at all the pluses and minuses of different techniques, a court order regime to access geofence records had more pluses and fewer minuses than those records not existing.
It will be interesting to see if we learn why Google made this change. Google is a private company. It has to answer to its shareholders, not to the public interest. And it's totally plausible that this was just a sensible business decision. If Google can provide location history for those who want it without keeping the records, Google presumably benefits by not having to deal with the privacy headaches of responding to geofence warrants.
If this is what drove Google' decision, it's an example of a less-appreciated way that the market regulates privacy. If you're providing a data service, responding to court orders for user data is not part of your business model. It's a costly hassle. And it can only lead to bad press. So you might look for ways to avoid keeping records, as records never kept are records that cannot be turned over.
As always, stay tuned.
The post Did Google Just Defeat Every Geofence Warrant? appeared first on Reason.com.
]]>I posted my oral argument impressions on X, and I thought I would summarize my thoughts here, too.
It was a somewhat unusual argument, in that the judges spent a lot of time expressing their views and arguing amongst each other. In general, though, I thought it went well for the government. I would guess they prevail 2-1.
Judge Richardson seemed to be a vote on the government's side, and on the broadest ground. He suggested that there was no Fourth Amendment protection in the specific records known as "Google Location History" because you need to opt in to have Google collect them. Only about 1/3 of Google customers opt in to that. And to Judge Richardson, that was outcome determinative: If Google only keeps these particular records if you opt in, then you have volunteered to have those records and the third party doctrine applies.
I happen to think that's right, as I argue briefly in a forthcoming book (more on the book project later). I realize some are skeptical that Google really doesn't keep these records about everyone, but I understand Google's claim to be not that they can't figure out where phones are, but that they have a specific service called Google Location History that is at issue here. Those are the records that the government turned over, and those are the records that (Google claims) they only collect from the 1/3 or so of their users who opt in.
Judge Wilkinson was clearly on the government side, although quite possibly on a different basis. Judge Wilkinson was very concerned about limiting law enforcement use of this useful tool. He suggested he might want to rule for the government without deciding anything except the good faith exception. That way, the law could develop slowly without grand rulings from appellate courts trying to settle too much.
Judge Wynn was clearly on the defense side. He thought this was extremely disturbing surveillance. He analogized this authority to what you might expect in Nazi Germany. He also argued that that opting in is a fiction. There is no real option, in his view.
Looking ahead, an interesting question is whether Judges Richardson and Wilkinson will agree on a rationale to make a majority opinion. It's not clear they'll be able to find a common ground. We could end up with a narrow majority opinion on good faith with both Richardson and Wilkinson writing concurrences—with Judge Richardson writing on opting in and Judge Wilkinson hitting his usual themes of the need to go slowly in this area.
Speaking for myself, I hope the court doesn't decide the case on the good-faith exception without deciding at least some of the merits issues. We've been waiting for years for a geofence case to get to a federal court of appeals. There's almost no law from any court on what is a search in geofence cases, and the law on the particularity of warrants has so far only consisted of really weak and unilluminating decisions from trial courts. For the big case to finally reach a federal court of appeals, and to not get a ruling on any of the merits issues, would be the good faith exception at its worst. It would make sure no one ever knows what the law is.
That would be particularly problematic here, I think, because right now geofence investigations are conducted in the alternative universe of Google Policy. Google has the records, and it won't turn them over without a warrant. The company has come up with a complex procedure for how it will comply with the warrants. That procedure doesn't reflect law; it just reflects Google policy. And Google is very hard to sue about this stuff, as law enforcement would have to stop its investigation for a few years to litigate procedural issues just to try that. As a practical matter, right now Google sets the rules.
But it's hardly clear that Google's corporate policy is the right framework. First of all, if it's really the case that only 1/3 of Google users opt in to turning Location History on, then I am skeptical that there is probable cause to support a warrant in these cases. And if the same opt-in requirement that generates that skepticism means that such records are not protected by the Fourth Amendment, as Judge Richardson (I think correctly) suggested, then there is no legal basis on which Google can demand a warrant anyway.
So it may be that the whole warrant regime that Google has created is the wrong framework. It may be that warrants not only can't be demanded, but can't be obtained. Geofencing would instead take place under the statutory regime of 18 U.S.C 2703(d). And that would raise all the issues I wrote about in this article about how to do particularity for non-content records under the Stored Communications Act.
Anyway, it seems to me that a working system would feature courts ruling about the constitutional issues potentially raised by geofence warrants and then Congress legislating in response to those constitutional rulings— with Google's input, certainly, but not with Google calling the shots. On the other hand, if we're just muddling through under the good faith exception, it may be that the strange world of Google Policy continues on for a long time.
The post The First Geofence Warrant Case Reaches the Federal Court of Appeals appeared first on Reason.com.
]]>I confess I don't understand why the LSAT has a "games" section (aka "analytical reasoning"). This section tests an ability to understand relationships among a handful of variables and to see the different ways that different combinations of those variables can fit different criteria. The skill set seems to be keeping a lot of variables in mind and working with how a change in the boundaries of a problem changes how the different pieces can relate to each other. That is an important skill set in many professions, to be sure; it's something that I did all the time when I was in engineering graduate school. But I wonder, how important is that skill to either the study or the practice of law? What kinds of legal tasks rely heavily on that skill?
The Law School Admission Council's report on the history of different LSAT questions explains that the purpose of these questions is "to understand the structure of a relationship," and claims that they "represent the kind of detailed analyses necessary in solving legal problems."(p.8) But I don't see why. (The report cites a 1993 study, but I couldn't find it online.) It's not clear to me that this particular kind of reasoning is directly relevant to either the study or practice of law.
Some Volokh Conspiracy posts change the world immediately, while others simmer for a while. This one took sixteen years, apparently, as the people who administer the LSAT just announced the following, via Reuters:
The Law School Admission Test will ditch the so-called "logic games" section of the exam in 2024, according to the organization that creates the test, marking a major change to the exam's content.
The change means that perplexing questions such as who gets which meal at a dinner party if Mary has a fish allergy, Devin doesn't eat gluten and Jamal prefers organic will no longer be part of the test.
The Law School Admission Council (LSAC), which develops and administers the test, sent an email on Wednesday to U.S. law schools, which was reviewed by Reuters, notifying them of the change.
Seriously, glad to see this. I don't think the games section should have ever been part of the test, and it ended up a silly barrier to entry to many that only distorted the admissions process. Good riddance.
The post LSAT to Drop the "Logic Games" Section appeared first on Reason.com.
]]>Seymour involves an arson at a particular address. Having no leads about who set the arson, investigators figured that whoever did the crime probably googled the address of the arson in the weeks beforehand. (The idea being, I assume, that between getting directions and getting Google images pictures of what it and the surrounding area looks like, it's a natural way to do recon of the place as part of the plan to commit the arson.). Investigators obtained a warrant covering the 15 days leading up to the arson, and Google responded that 8 IP addresses had googled that address. Five of the eight addresses were local, and investigators ruled out two of them. They then obtained another warrant to get records of the other three. One of the three was the defendant, Seymour.
Among the questions raised: Did Seymour have Fourth Amendment rights in Google's records of his search terms? Someone at his computer, presumably him, had googled the address; Google had the search term that was sent to it. Did informing the government that the term had been searched from his IP address violate his Fourth Amendment rights?
The Colorado Supreme Court answered that question in a very novel way. First, it held that although it was likely not a Fourth Amendment "search" to collect that information — the user is sending the data to Google, after all, so Google receiving and storing it is covered by the third-party doctrine — it is a search under the broader Colorado Constitution. I don't have any particular view of the Colorado Constitution, so that part of the opinion is isn't all that important.
But then the court did something I have not seen before: It ruled that copying the data held by Google "seized" it under the Fourth Amendment even though accessing it was not a search. The court did this in two steps. First, it ruled that a Google user has a possessory interest in search terms held by Google sufficient to receive Fourth Amendment seizure protection:
Under both the Fourth Amendment and the Colorado Constitution, a seizure occurs when the government meaningfully interferes with an individual's possessory interests in property. Hoffman v. People, 780 P.2d 471, 473 (Colo. 1989); accord Jacobsen, 466 U.S. at 113. And several courts have recognized, albeit in different contexts, that individuals can have possessory interests in intangible or digital property. E.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003 (1984) (holding that, at least for the purposes of the Takings Clause, individuals have property rights in intangible property, such as trade secrets); Integrated Direct Mktg., LLC v. May, 495 S.W.3d 73, 76 (Ark. 2016) (holding that electronic data can be converted if a person impedes on the property rights of the owner). Indeed, Google's licensing agreement makes clear that it does not own its users' content. Instead, users own their Google content, which, according to testimony from a Google policy specialist, includes their search histories.
It next ruled that copying the data was a "seizure" of it:
"One of the main rights attaching to property is the right to exclude others, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude." Rakas, 439 U.S. at 143 n.12 (citation omitted). So, while law enforcement can copy digital data without affecting the owner's access to that data, it is the act of copying that meaningfully interferes with the owner's possessory interest because it infringes on one's rights to exclude and to control the dissemination and use of that digital data. See Randolph S. Sergent, A Fourth Amendment Model for Computer Networks and Data Privacy, 81 Va. L. Rev. 1181, 1186 (1995); Orin S. Kerr, Fourth Amendment Seizures of Computer Data, 119 Yale L.J. 700, 710–14 (2010) (discussing that a seizure of digital property occurs when the government copies the data because it is the copying of the digital property rather than control of the physical hardware that preserves it for future evidentiary use and therefore meaningfully interferes with the possessory interest of exclusive control)
I don't have a problem with the second part of that, as you might guess: I have long argued, including in the cited article, that copying Fourth Amendment protected data is a seizure of it.
But the first part of that holding strikes me as incredibly novel and far-reaching, as it gets to a super-important question about when copying is a seizure. I have always treated the seizure power as coextensive with the search power. Under that approach, copying data is a seizure only if accessing it is a search. As I put it in Fourth Amendment Seizures of Computer Data, it's copying of "Fourth Amendment protected data" that is the seizure—not just any copying.
Unless you take that view, it seems to me, you end up silently overturning—or least practically nullifying— Fourth Amendment caselaw on what is a search in the first place. The problem is that the process of revealing information almost always requires first copying it. If you say that it's a seizure to copy information, even when revealing it is not a search, then you end up requiring a warrant for act of obtaining the data even though the obtaining doesn't require a warrant. Just the incidental need to copy the unprotected data to obtain the information ends up requiring a warrant. And I don't think that makes sense.
Indeed, if you take that view, you end up having to devise a brand-new set of principles as to when copying data is a seizure. If you're no longer tied to what data is protected under the search rules, what else is there to trigger enough of a Fourth Amendment interest?
The Colorado Supreme Court doesn't offer much in the way of an answer. First, it notes that some courts have said you can possess data:
And several courts have recognized, albeit in different contexts, that individuals can have possessory interests in intangible or digital property.
Sure, in the abstract, that's right. You can have a possessory right in data. But why would that mean Google search terms are possessed, when you have given up possession by sending the query to Google? The cases the court cites don't shed any light on that:
E.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003 (1984) (holding that, at least for the purposes of the Takings Clause, individuals have property rights in intangible property, such as trade secrets); Integrated Direct Mktg., LLC v. May, 495 S.W.3d 73, 76 (Ark. 2016) (holding that electronic data can be converted if a person impedes on the property rights of the owner).
What does that have to do with why you would have a possessory right in records you have handed over to Google? The last part of the analysis adds:
Indeed, Google's licensing agreement makes clear that it does not own its users' content. Instead, users own their Google content, which, according to testimony from a Google policy specialist, includes their search histories.
I suppose this is an improvement, in that at least it's about Google records specifically, rather than as data in an abstract sense. But why does the licensing agreement, or terms of service, matter? As I argue here, terms of service don't effect Fourth Amendment rights. Why would a licensing agreement magically create a property right in data, such that copying the data is a Fourth Amendment seizure that requires a warrant?
If the Colorado Supreme Court's approach is right, then I would think there is a super-easy way for an Internet company to impose a universal warrant requirement on any effort to get any data from the company. Just slip this line into the terms of service:
By using this service, you gain a property right in all data held by the company.
By adding this line, would any effort from the government to get any record— even just subscriber identity, or a list of someone else's IP addresses—be a seizure of the data you own because the data would need to be copied in the course of turning it over? If not, I'm not sure why not. But that can't be right, it seems to me.
There's a lot more in the Seymour opinion that's of interest, but that seizure holding strikes me as really far-reaching. I realize that many of our readers are Fourth Amendment maximalists, and will cheer on any ruling that adds new kinds of protection. But it seems to me that the court's seizure analysis leaves a lot to be desired.
The post Can Copying Data Be a Fourth Amendment Seizure If Accessing It Is Not a Search? appeared first on Reason.com.
]]>Last week's decision by the Tenth Circuit in United States v. Streett considers whether the inevitable discovery exception applies when the government obtains a defective warrant—in this case, a warrant based on an affidavit that lacked probable cause. The government argued that inevitable discovery applies because they would have done better the second time if the magistrate judge had pointed out their error. If the magistrate judge had spotted the error in the warrant affidavit, the government argued, investigators would have corrected the mistake and submitted a proper affidavit. In that case, agents would have obtained a constitutional warrant and the search would have been constitutional. Given that investigators would have responded to the magistrate judge's pointing out the defect by submitting a proper application, the inevitable discovery exception should apply.
The Tenth Circuit agreed with the government's argument, rejecting the defendant's three arguments that the inevitable discovery exception did not apply in these circumstances:
Mr. Streett makes three primary arguments against the application of the inevitable discovery doctrine to cases of a defective warrant. He first contends that this ruling will defeat the probable cause requirement. This is unpersuasive because in deciding the applicability of the inevitable discovery doctrine, courts must still consider "the strength of the showing of probable cause at the time the search occurred." United States v. Souza, 223 F.3d 1197, 1204 (10th Cir. 2000) (quoting United States v. Cabassa, 62 F.3d 470, 473–74 (2d Cir. 1995)). Without a showing by the Government that the officer had probable cause at the time the warrant application was submitted, the Government could not show that an alternative properly obtained warrant inevitably would have been issued.
Mr. Streett next claims that this ruling will diminish officers' incentive to craft a proper warrant affidavit in the first place. We see nothing in our ruling that would give an officer incentive deliberately to file an inadequate initial affidavit in support of a search warrant. Stabile, 633 F.3d at 246. Officers will still be best served by including all material facts in initial warrant applications.
Finally, Mr. Streett argues that applying the inevitable discovery doctrine in defective warrant cases will require too much hypothetical reasoning, since courts will have to consider whether a proper warrant would have been issued after an improper warrant was denied. But hypothetical reasoning is required whenever the inevitable discovery doctrine is at issue. For example, in United States v. Christy, we determined that the officer there likely would have obtained a warrant in a hypothetical world since he had strong probable cause and was cross-designated to obtain state and federal search warrants—even though he had taken "no steps to obtain a warrant" when the search occurred. 739 F.3d at 543. This case involves no more hypothetical reasoning than Cristy.
In the Street case, the Tenth Circuit concludes, the government would have obtained a proper warrant if the magistrate judge had denied the initial warrant application. The government would have figured out the reason the affidavit was defective, and it could have easily corrected the defect:
In a hypothetical world where the warrant application was denied on [the ground that probable cause was lacking], though, Hartsock would have only had to add a single sentence to the Warrant Affidavit to render it proper. Rather than say "who lives in Bernalillo County," the affidavit would have established probable cause if it had simply added something to the effect of "who, according to the T-Mobile records, resides at 4260 Plume Rd. NW, Albuquerque, NM." That would have been an easy fix and Hartsock already had all the information to add that specificity. Since the Warrant Affidavit resulted in the issuance of the Search Warrant even though it ultimately failed to establish probable cause, it is likely that an even more detailed amended affidavit would have secured a warrant as well. Thus, we conclude that the third factor favors the Government because a proper warrant likely would have been obtained had the original application been denied.
I think this analysis is wrong, although for a reason the defendant apparently did not flag. It seems to me that Streett's reasoning conflicts with the Supreme Court's ruling in United States v. Leon (1984), on another exception to the exclusionary rule—the so-called "good faith exception." Here was the question in Leon, as stated in its opening paragraph:
This case presents the question whether the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. To resolve this question, we must consider once again the tension between the sometimes competing goals of, on the one hand, deterring official misconduct and removing inducements to unreasonable invasions of privacy and, on the other, establishing procedures under which criminal defendants are acquitted or convicted on the basis of all the evidence which exposes the truth.
Leon reasoned that if the government submits a defective warrant application, it's ordinarily the magistrate's error if the magistrate signs it and issues the warrant. After all, the government is just submitting the application; it's the court's order if the court signs on. On the other hand, if the error is egregious, then it's the government's fault for that and for relying on the obviously-defective warrant materials to search.
Under Leon's framework, the exclusionary rule applies if the government gets a warrant with major defects but not with only minor defects. The former is the government's fault, the latter isn't. And there's a specific rule for the scope of the exclusionary rule when affidavits lack probable cause: a defect in probable cause in the warrant application does not lead to suppression unless the affidavit is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable."
As I see it, the Tenth Circuit's analysis in Street conflicts with the reasoning of Leon. The holding in Streett matters only if Leon doesn't apply. That is, it matters only when the probable cause defect is egregious. And in those cases, Streett rests on a very different picture of officer culpability than Leon.
According to Leon, if the error is big, the government needs to be deterred and is at fault for executing a warrant. But Streett replaces that with a new picture. Instead of Leon's blaming the government for submitting and relying on an obviously defective warrant, Streett imagines the magistrate judge spotting the error, patiently explaining it to the government, and then the government correcting the error so that no constitutional violation occurred. Under that view, the culpable action by the police is effectively erased. Instead of officers being reckless about violating the Fourth Amendment, now they are careful stewards of the Fourth Amendment—if only the magistrate judge had tipped them off to their earlier inadvertent mistake.
To be clear, I am not saying that the ultimate outcome in Streett should be different. If the error was so easy to correct in Streett, then presumably the good faith exception of Leon should apply. The government argued that point in Streett, but the Tenth Circuit didn't reach the good-faith exception issue because they ruled for the government on inevitable discovery grounds. But I think Streett should have been decided as a good-faith exception case, not an inevitable discovery case. It may not matter to the outcome in Streett. But it will matter in the next case where Leon does not apply and Streett gives the government a way around the Supreme Court's framework in Leon.
By the way, I realize that some readers have strong views for or against the exclusionary rule. To some, the exclusionary rule is stupid. To others, the exceptions are stupid. That's a longstanding debate on which many will disagree. But I see this post as outside that. I'm just making a small-minded point about legal doctrine, for the handful of law nerds who are interested: Whatever you think of the exclusionary rule or its exceptions in general, I don't think a lower court should take the inevitable discovery exception that far in light of Leon.
The post Does the Inevitable Discovery Exception Include Imagined Revised Attempts to Get Warrants? appeared first on Reason.com.
]]>One question this raises is, how might Smith try to prove Trump knew?
The indictment focuses mostly on what Trump was told, and the overall implausibility of him thinking he had won. But I wonder if Smith might have more direct evidence than the indictment lets on.
In particular, there have been reports of Trump telling other people that he lost. Here are some of the more prominent examples from the public record:
Granted, the indictment does include a tiny bit of this. Perhaps the most notable is Paragraph 83's Trump quote that "it's too late for us. We're going to give that to the next guy." But there's much less in the indictment than in the public record.
And for all we know, what is in the public record is only part of the story. For example, of the five examples above, two are hearsay. They are Cassidy Hutchinson's reports of what Meadows and Ratcliffe told her Trump had said. But Smith probably knows more than we do. There have been reports that Mark Meadows cooperated and testified before the grand jury investigating Trump's post-election conduct. There have also been reports that John Ratcliffe cooperated and testified before that grand jury.
We can't be sure, but it seems likely that Jack Smith has testimony directly from Meadows and Ratcliffe of what Trump told them. And if they were talking to Trump every day about this stuff, they presumably know a lot. And there may be other witnesses who talked to Trump at the time, and who are ready to testify about it at trial. We don't know.
Given this, it seems at least possible to me that Smith has more evidence of Trump's state of mind than he's letting on. He may be able to put a witness like Mark Meadows on the stand and have direct testimony of what Trump said to Meadows. It's true that Smith didn't signal this in the indictment. But then he didn't have to, and I would think there are some plausible reasons (preventing witness intimidation, etc.) for why he might not want to include it.
This all is just speculation, of course. It's possible Smith doesn't have this evidence. Perhaps Meadows and Ratcliffe testified before the grand jury that Trump never suggested he believed he lost. Maybe they testified that Hutchinson remembered incorrectly or was otherwise not telling the truth. Perhaps Smith tried to get evidence that Trump knew he lost, but Smith didn't come up with much he could use. Entirely possible.
The upshot of all this, it seems to me, is that it's too early to know what evidence Smith has about what Trump knew. Maybe it will be hard for Smith to prove Trump's mental state. Or maybe Smith has very good evidence of Trump's mental state. At this early stage, we don't know what Jack Smith knows.
UPDATE: I have fiddled a bit with the post for a few minutes after posting it.
The post How Can Jack Smith Prove That Trump Knew He Lost the Election? appeared first on Reason.com.
]]>Here's how the practice works. When agents think a person might have some connection to a crime, federal agents order Internet providers to run off a government copy of the entire account and to hold it for the government away from the account holder. The point is to make sure suspects can't delete their files and thwart a possible investigation down the road. A federal statute, 18 U.S.C. § 2703(f), requires Internet providers to comply. In recent years, the statute has been relied on with extraordinary frequency; in 2019, about 1 in every 820 adults had their account copied for possible government use. This all goes on in total secrecy. Under order of federal law, Internet providers create and hold government copies, for the government, and in most cases no one tells the user. The government still needs a warrant to ultimately access the copy, but preservation allows the government to gain access to a stored copy that they would not have otherwise—a copy that may have records that the user might have otherwise deleted.
My article, which I have turned into a model motion to suppress for defense attorneys to file, argues that there are Fourth Amendment limits on this process. A private actor who does the government's bidding under penalty of law is a state actor, and running off a copy and holding it for the government, so the user cannot control it, is a Fourth Amendment seizure. I argue that this seizure has to be justified as reasonable under the Fourth Amendment, which will usually require probable cause or at least reasonable suspicion. But a common practice, in which every possible suspect's account can get copied and held for the government, "just in case," without particularized suspicion, is generally unconstitutional. (There are then interesting questions of what the remedy is. A plausible remedy is that the government has to use the account copy that existed when they ultimately served the warrant to get the copy, not when they made the preservation request. But that's beyond today's post.)
A few motions have been filed based on my model motion, and the first opinion on the issue to just recently appeared on Westlaw. The motion to suppress in this case wasn't the exact model motion I drafted, but it had the basic gist of it in a condensed form.
Here's the opinion, from Magistrate Judge Daniel J. Albregts of the U.S District Court for the District of Nevada: United States v. King, 2023 WL 4844888 (D. Nev. July 17, 2023).
Unfortunately, the Report and Recommendation contends that the motion should be denied on the ground that preservation is not a government seizure at all. Under that reasoning, any federal, state, or local government employee could cause every account of every person in the United States to be copied and held for the government with no suspicion at all, and that simply wouldn't trigger the Fourth Amendment.
The rest of this post will explain Magistrate Judge Albregts' reasoning and why I am unpersuaded. I'll do the arguments in reverse order, as I think it makes a little more sense that way. I'll start with whether there was state action, and then turn to whether a seizure occurred.
(1) The State Action Question
First, Judge Albregts argues that a provider who complies with a § 2703(f) request to preserve files for the government's potential use, as required by federal law, is not a state actor so the Fourth Amendment is never triggered in the first place:
The Court recommends denying King's motion to suppress the internet accounts. It finds that King did not meet his burden of showing that Omegle or TextNow should be deemed agents of the government by complying with the government's preservation request under 18 U.S.C. § 2703(f). Although the Government directed Omegle and TextNow to preserve the accounts, its involvement was limited only to requesting the preservation under 18 U.S.C. § 2703(f). And although Omegle and TextNow were responding to a request from the Government, they were also complying with their statutory obligations.
King has also failed to carry his burden of demonstrating that the Court should deem Omegle and TextNow agents of the government because the cases on which he relies are distinguishable and nonbinding on this Court. In Commonwealth v. Gumkowski, the Massachusetts Supreme Court found that Sprint acted as a government agent when it turned a defendant's cell site location information over to the government without a warrant. Commonwealth v. Gumkowski, 487 Mass. 314, 320-21 (Mass. 2021). However, here, the government did not ask Omegle or TextNow to turn over information, but instead requested that the electronic service providers preserve the information already in their possession under the Stored Communications Act pending the government obtaining a warrant. In United States v. Hardin, the Sixth Circuit Court of Appeals found that an apartment manager acted as an agent of the government when he entered a defendant's apartment at the government's request under the guise of repairing a leak to determine if the defendant was in the apartment. See United States v. Hardin, 539 F.3d 404, 417-20 (6th Cir. 2008). But Omegle and TextNow's actions of preserving information already in their possession as required under statute is meaningfully distinguishable from the private apartment manager entering a person's home to determine specific information at the government's behest.
With all respect to Magistrate Judge Albregts, I don't think that can be right. Magistrate Judge Albregts is missing something super important: Federal law mandates that providers comply. It's a statutory "requirement," with the directive being what the provider "shall" do. Here's the text of 18 U.S.C. § 2703(f), with emphasis added:
(f) Requirement To Preserve Evidence.—
(1) In general.— A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.
(2) Period of retention.— Records referred to in paragraph (1) shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the governmental entity.
Granted, the statute calls the government's demand a "request." But when the law mandates that you comply with a "request," that's not really a request. It's an order. And when it's making you do the government's bidding, it's an order that makes you a state actor when you comply with it.
To see this, consider a hypothetical. Imagine the statute were about making arrests rather than making copies of Internet files. Let's slightly rewrite the statute accordingly into the following:
(f) Requirement to Make Arrests
(1) In general. —Any person, upon the request of a governmental entity, shall take all necessary steps to arrest a suspect who the government entity requests to be arrested.
(2) Period of detention. A suspected arrested shall be detained for 48 hours, or until the government takes custody of the suspect arrested.
Imagine a police officer wants Bob arrested. He comes up to Albert and says, "I request that you arrest Bob." The officer also shows Albert the legal requirement of federal law that he "shall" make an arrest when a police officer "requested" it. Being made aware of the legal obligation to arrest, Albert arrests Bob on the police officer's behalf.
In that scenario, I think we would see pretty clearly that Albert is a state actor. It would be pretty weak to say there was no state action because the government merely made a "request," as the federal statute said that a requested person "shall" do what the request was. It's an order, not a request. And it would be pretty weak to say that Albert was not a state actor because he merely "complied with his statutory obligations." The statutory obligation was to become a state actor; the law requires him to become the government's agent.
That's exactly the case with § 2703(f). Internet providers don't fulfill preservation requests because they feel like it. It's not their idea. They get nothing from it. They fulfill the requests because federal law makes them do it, and the providers don't want to violate federal law that requires them to comply. When governments make preservation "requests" to providers, those providers are acting on the government's behalf, doing the government's bidding because they have to. Seems pretty clear to me that the providers are state actors for Fourth Amendment purposes.
(2) The Seizure Question
Magistrate Judge Albregts also recommends concluding that, even if the providers were state actors, their running off a copy of the account that the defendant could not control does not "seize" anything. As I read this, the government can order anyone's account to be copied without limit, or even order government servers to be installed that automatically make government copies of everyone's data. As long as the government doesn't look at its copy yet, the act of just having the government copy made doesn't trigger the Fourth Amendment at all.
Here'e the argument:
A "seizure" of property occurs when there is some meaningful interference with an individual's possessory interests in their property. United States v. Jefferson, 566 F.3d 928, 933 (9th Cir. 2009). In analyzing what constitutes a possessory interest in the context of law enforcement's search of a defendant's rental car, the Ninth Circuit determined that "a 'possessory or ownership interest' need not be defined narrowly…a defendant who lacks an ownership interest may still have standing to challenge a search, upon a showing of 'joint control' or 'common authority' over the property searched." United States v. Thomas, 447 F.3d 1191, 1198 (9th Cir. 2006) (internal citations and quotations omitted).
Here, the Court does not find that by preserving King's accounts from deletion Omegle and TextNow "seized" King's property. King argues that preservation of his accounts "dispossessed him of exclusive control over the accounts and their contents." But the Government has the better argument on this point. As a preliminary matter, while the Ninth Circuit was discussing a defendant's ability to challenge a search of a rental car in Thomas, the Court finds the Ninth Circuit's discussion of possession instructive here. Considering the Ninth Circuit's decision that possession need not be defined narrowly, the Court finds King's insistence that possession requires the exclusion of all others to be unpersuasive. As the Government points out, King never had exclusive control of his accounts because, "[a]t all times, the data was jointly possessed by both the internet service providers and King." The Government also argues that a preservation request does not alter the account holder's ability to use their account and view, alter, or delete information. Instead, the preservation request creates a "snapshot" of the account as it existed at the time the service provider received the preservation request. The Court thus does not find that Omegle and TextNow "seized" King's data.
Again, I don't see how that can be right. It's true that Internet providers have possession of user data. It's data stored on their servers. But why would this mean that making a copy on the government's behalf is not a seizure? I don't see why joint possession makes a seizure any less of a seizure.
Consider this hypothetical. Let's say you have drugs wrapped in aluminum foil in your freezer in an apartment that you share with your roommate. The government goes to your roommate and says, "Go into your apartment and look inside the freezer, where you will find a package of drugs in aluminum foil. Bring the package to us now, or else we'll arrest you for obstruction of justice." Not wanting to be arrested, your roommate gets the package from the freezer and gives it to the government.
In that scenario, the package was obviously "seized" for Fourth Amendment purposes. The fact that your roommate had common authority over the contents of the freezer before the government told your roommate to get it is simply irrelevant. You had control of the package, and the government took away your control. The government isn't free to take away all your stuff without limit just because you happen to have a roommate with common authority over the freezer. By the same reasoning, the government isn't free to order copies made of all your Internet files without limit just because the Internet works by having accounts with third-party providers.
Magistrate Judge Albregts also agrees with the government's argument that making a government copy is not a seizure because it "does not alter the account holder's ability to use their account and view, alter, or delete information." But how can that be? Step back and think about it: The entire point of the statute, and of the preservation request, is to alter the account holder's ability to delete their information. Specifically, the point of the statute is to deprive account holders of their ability to delete incriminating files. True, because the process occurs in total secrecy, the account holder can't know that the government has altered their ability to delete their information. Because no one tells the account holder, the account holder will wrongly think they can delete their files. But the point of the statute is to take that control away. They used to have control over their files, and government action took that control away by seizing a copy that the user cannot control. That is a Fourth Amendment "seizure."
If I am reading the docket sheet correctly, objections to the Magistrate Judge's R&R are due before District Judge Jennifer Dorsey at the end of August. As always, stay tuned.
The post Nevada Magistrate Judge Recommends Rejecting Internet Preservation Challenge—And Why It's Wrong appeared first on Reason.com.
]]>So how does withdrawal of consent work now? There are two key questions.
First, if a computer owner grants consent to search, an image is made, and then consent is withdrawn, does the withdrawal of consent extend to the image? That is, does the owner's control include control of the copy on the government's machine? Or does the government necessarily control the image?
Second, if an owner retains rights in the image, is there a different result if the owner signed a consent form stating that, once the government made the copy, the owner relinquished rights in the copy? That is, can rights retained in the image that might generally exist with a general consent be relinquished if there is specific and explicit disavowal of rights as to the image?
There have been a few district court rulings that touched very briefly on the first of these questions. Long-time readers may remember I blogged about two of those cases; you can read my 2009 post from our volokh.com days here and my 2015 post from the Washington Post era here.
All of this is a wind-up to say that, last week, the Maryland Supreme Court ruled on both questions in considerable detail in an important new case, State v. McDonnell. McDonnell is the first case to address both of the issues, and it did so in detail. Given the detail of McDonnell's reasoning, and how sparse the caselaw has been, I think McDonnell is worth a close look.
The basic facts are simple. McDonnell signed and initialed a consent form that said the following:
I have been informed of my right to refuse to consent to such a search. I hereby authorize the undersigned Special Agent, another Special Agent or other person designated by USACIDC, to conduct at any time a complete search of: . . . all digital media including cell[ ]phones, thum[b ]drive[s], hard disk drives, laptops & any other media relevant to this investigation.
I understand that any contraband or evidence found on these devices may be used against me in a court of law.
I relinquish any constitutional right to privacy in these electronic devices and any information stored on them. I authorize USACIDC to make and keep a copy of any information stored on these devices.
I understand that any copy made by USACIDC will become the property of USACIDC and that I will have no privacy or possessory interest in the copy.
I give this written permission voluntarily. I have not been threatened, placed under duress, or promised anything in exchange for my consent. I have read this form or it has been read to me and I understand it. . . .
I understand that I may withdraw my consent at any time.
Based on McDonnell's consent, investigators seized McDonnell's devices and imaged his computer a few days later. And a few days after that, McDonnell's lawyers sent a message to the government withdrawing consent. Relying on the language in the consent form, agents then searched the image anyway. McDonnell later moved to suppress the evidence found on the image, arguing that it was the fruit of an unlawful search and seizure because he had previously withdrawn his consent.
In the new case, the Maryland Supreme Court unanimously agreed with McDonnell. First, McDonnell's withdrawal of consent blocked the government's ability to rely on consent to search the image as well as the original. And second, the potentially contrary language in the consent form did not alter that holding.
Here's the court's reasoning as to the first holding, that a person generally retains rights to withdraw consent as to images, at least until the images are searched:
After careful examination of relevant authority, we hold that Mr. McDonnell had a reasonable expectation of privacy in the digital data stored on his laptop, and, as such, in the data stored on USACIDC's copy of his laptop's hard drive. Mr. McDonnell's reasonable expectation of privacy was not eliminated by the making of a copy of his hard drive because the data was not searched or exposed prior to his revocation of consent. Central to this holding is our conclusion that Mr. McDonnell's privacy interest is in the data on his hard drive, not just the particular computer or apparatus on which the data is stored (his original or USACIDC's copy). To accept the State's stance—i.e., that Mr. McDonnell irrevocably lost all privacy interest in the data on his hard drive when he allowed USACIDC to copy it—would be to permit a limitless search through vast quantities and a varied array of personal data that the Supreme Court of the United States has characterized as consisting of more information than would be found in an exhaustive search of a person's home. See Riley, 573 U.S. at 396, 134 S.Ct. 2473. Absent a warrant supported by probable cause or an exception to the warrant requirement, the Fourth Amendment does not permit such an unfettered governmental intrusion of a person's "private sphere[.]" Carpenter, 138 S. Ct. at 2213, 2221 (citation omitted).
Like the Supreme Court of Illinois, we focus on the data as the significant factor here, not the fact that USACIDC lawfully made a replica of Mr. McDonnell's hard drive. See McCavitt, 185 N.E.3d at 1206. We agree that Mr. McDonnell has a privacy interest in the data itself. "The evidentiary value of data resides in the data itself, not in the medium on which it is stored." Id. This conclusion flows logically from our explanation in Richardson that the defendant's abandonment of his cell phone made its seizure lawful, but did not permit the government, without a particularized warrant, to search the data stored on it. See Richardson, 481 Md. at 435-36, 282 A.3d at 105. So, too, here: Mr. McDonnell's consent made the creation and retention of the copy of his hard drive lawful, but after withdrawal of his consent, USACIDC needed additional authority to search the data on the copy. For the duration of Mr. McDonnell's consent, USACIDC had the authority to examine the data; once the consent was withdrawn, the authority to examine went with it. Likewise, Riley, 573 U.S. at 386, 134 S.Ct. 2473, dictates that law enforcement's justification for a search of the data stored on an electronic device must be assessed independently from the justification for seizure of the device. Therefore, copying the same data to a different device that law enforcement officers have legal authority to possess makes no difference in the Fourth Amendment analysis.FN12
[FN12: The logistics of digital storage also support this conclusion because data saved on a computer is automatically copied multiple times in the course of using a computer. See Kerr, Searches and Seizures, supra, 119 Harv. L. Rev. at 562. In addition, digital information is often deliberately or automatically copied to remote servers to be stored "in the cloud." Riley, 573 U.S. at 397 ("Cell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference." (Citation omitted)). Yet, the owners of such data, regardless of where it is copied and stored, have a reasonable expectation of privacy in the information.]
Because making a copy of a hard drive is usually the first step in performing a forensic analysis, if making a copy itself divested a person of a reasonable expectation of privacy in the data, people would lose all expectation of privacy in the entirety of the data on any device the moment the government made a copy of the device's hard drive. That would permit precisely the kind of unlimited rummaging through a person's private domain that the Fourth Amendment was designed to prohibit. See Riley, 573 U.S. at 386, 134 S.Ct. 2473. The legitimate subjective and objective reasonable expectation of privacy that people have in their electronically stored data should not be so easily defeated. Focusing on the data in question rather than on the possession of an apparatus containing a copy of the data "recognizes that the key to fourth-amendment reasonableness is the access to data, regardless of whether the data is copied, transferred, or otherwise manipulated." McCavitt, 185 N.E.3d at 1206 (citing Kerr, Searches and Seizures, supra, 119 Harv. L. Rev. at 564).
Obviously, in this case, if any data had been revealed prior to the revocation of Mr. McDonnell's consent, that data would have lost any reasonable expectation of privacy that was previously attached to it. That is because, as to that data, Mr. McDonnell's privacy interest would have been eliminated. And lawfully so, because USACIDC had the authority, while Mr. McDonnell's consent was in effect, to search and examine his data. In such a scenario, the cat could not be put back into the bag.
As to data that was not exposed before the withdrawal of consent, however, Mr. McDonnell retained an expectation of privacy. By way of analogy, if Mr. McDonnell had stood on a street corner and offered passersby the opportunity to read his diary, but no one took him up on it, his reasonable expectation of privacy would not be lost. The threat of an invasion of privacy is not an invasion at all. See Karo, 468 U.S. at 712, 104 S.Ct. 3296. In this way, the creation of the copy was akin to the placement of the tracking device in Karo, id., because with the making of the copy, USACIDC created only the "potential for an invasion of privacy" rather than an actual invasion of the subjective and objective expectation of privacy in Mr. McDonnell's data. It would be objectively reasonable to believe that data could be exposed to law enforcement through an owner's consent to copy a laptop's hard drive and could lose its private nature if examined—but, absent an enforceable waiver to the contrary, if law enforcement had not already become privy to the data, upon withdrawal of consent to access the data, the data remains private, i.e., the owner retains a reasonable expectation of privacy in the data by withdrawal of consent.
I agree with all of this (as I blogged back in 2015), and I greatly appreciate the Court's reliance on my work. So far, so good, at least from my perspective.
But that brings us to what I think is the harder issue: What about the language in the consent form? The government has every incentive to include in consent forms that they have exclusive control over copies they make. It's easy for government lawyers to draft that language, and it's unlikely to discourage a computer owner from consenting. So does that language control? Or are there general principles of consent law that direct the answer, about which a consent form cannot alter the general principle?
The Maryland Supreme Court concluded that this particular consent form was not clear enough on the issue to direct a different result. And in a footnote, Footnote 14, it left open whether clearer and more obvious language could resolve differently or whether the language was irrelevant. From the opinion:
The terms of the consent form guide our assessment of the reasonableness of the search. Per the terms of the consent form, Mr. McDonnell authorized a Special Agent or other person designated by USACIDC to conduct a complete search of all "digital media including cell[ ]phones, thum[b ]drive[s], hard disk drives, laptops & any other media relevant to this investigation." (Capitalization omitted). According to the language of the form, among other things, Mr. McDonnell relinquished his constitutional right to privacy in his electronic devices and all of the information stored on them, and "authorize[d] USACIDC to make and keep a copy of any information stored on [his] devices." The form stated that Mr. McDonnell understood that any copy made by USACIDC would be the property of USACIDC and that he would have no privacy or possessory interest in the copy. Critically, a sentence at the bottom of the form stated without qualification: "I understand that I may withdraw my consent at any time."
Using the reasonableness approach discussed by the Supreme Court of the United States in Riley and Carpenter, and used by this Court in Varriale for that matter, we conclude that it was not reasonable for USACIDC to examine the data on the copy of Mr. McDonnell's hard drive after he withdrew his consent and that the examination was a search. It would have been objectively reasonable for Mr. McDonnell, or anyone else, to believe that the final sentence of the form advising of the ability to withdraw consent at any time applied to all of the language in the form, i.e., that the withdrawal of consent applied to all of the matters agreed or consented to earlier in the form. See Riley, 573 U.S. at 386, 134 S.Ct. 2473 (determining that it would be unreasonable to apply the search incident to arrest exception to permit a warrantless search of a cell phone because the rationale for the exception's application to physical objects did not extend to the digital contents of a cell phone); Carpenter, 138 S. Ct. at 2217-20 (determining that it would be unreasonable to apply the third-party doctrine to permit a warrantless search of 127 days' worth of cell site location records because society does not expect law enforcement to secretly track an individual's every movement without a warrant); Varriale, 444 Md. at 418-19, 119 A.3d at 835 (determining that it was reasonable for the State to retain and compare a defendant's DNA sample to samples from cold cases under the totality of the circumstances of the consent to the taking of the sample). In this case, it would not be reasonable, under the totality of the circumstances, to interpret the consent form to mean that the withdrawal of consent applied only to certain language on the form and not to the entire document.
The State focuses on language on the form stating "I understand that any copy made by USACIDC will become the property of USACIDC and that I will have no privacy or possessory interest in the copy." The State refers to this language as a disclaimer and argues that the language could not be rendered ineffective by Mr. McDonnell's withdrawal of consent. We disagree. No language in the form states or even suggests that the acknowledgement of having no privacy or possessory interest in any copy made by USACIDC is irrevocable and not subject to withdrawal of consent at any time as provided by the language at the bottom of the consent form. The language setting forth the alleged disclaimer is contained in the fifth paragraph of the seven-paragraph form and is in no way distinguished from the other language of the form. It is included in the same paragraph in which Mr. McDonnell relinquished his right to privacy in his laptop itself, and, as the State agrees, the withdrawal of consent precluded further examination of the laptop. The paragraph is stylistically identical to every other paragraph in the document. In no way does the purported disclaimer stand out. Neither its express terms nor its appearance would suggest to a reasonable person that the last sentence of the fifth paragraph of a seven-paragraph document should be treated differently than the other language of the form with respect to the withdrawal of consent, as the State contends.
The language in the consent form did not convey that Mr. McDonnell relinquished for all time a privacy and possessory interest in the data on his laptop. Instead, the language sought to establish that Mr. McDonnell had no privacy or possessory interest in the copy of his data made by USACIDC based on the copy being property of USACIDC. But that cannot be. The copying of the data, without the data being examined, did not vitiate Mr. McDonnell's privacy interest in the data itself. As explained, a person has an independent privacy interest in the data on a laptop or hard drive, no matter where the data may be stored. See McCavitt, 185 N.E.3d at 1206. Due to the personal content and far-reaching consequences of allowing access to such data, the data on a laptop, like the digital information on a cell phone, warrants its own discrete privacy interest. See Riley, 573 U.S. at 386, 134 S.Ct. 2473; Richardson, 481 Md. at 434, 452, 282 A.3d at 104, 115. Under the terms of the consent form, Mr. McDonnell never agreed to permanently relinquish a privacy interest in his data, and, as discussed above, the consent form, on its face, provided an unqualified right to withdraw consent at any time. This necessarily included the right to withdraw consent to a search of the data.FN14
[FN14: On brief and at oral argument, counsel for Mr. McDonnell asserted that even if the disclaimer had been written to accomplish what the State claimed it did, Mr. McDonnell retained a constitutional right to withdraw consent. This contention has significant rational force, as a person has a constitutional right to not consent in the first instance, and, as Mr. McDonnell points out, at least one court in another jurisdiction has so held. See United States v. McWeeney, 454 F.3d 1030, 1035 (9th Cir. 2006) (concluding defendants "had a constitutional right to modify or withdraw their general consent at any[ ]time"). Nothing in this opinion should be construed to mean that clauses in consent forms purporting to irrevocably waive the right to consent are enforceable. However, because the language in the consent form did not purport to irrevocably waive Mr. McDonnell's privacy or possessory interest in his data, we need not address the issue to resolve this case. See Robinson v. State, 404 Md. 208, 217, 946 A.2d 456, 461 (2008) ("[I]t is this Court's established policy to decide a constitutional issue only when necessary." (Citations omitted)).]
The State argues that Mr. "McDonnell's reading would treat the disclaimer as meaningless[,]" but the State's treatment of the consent form's language regarding the copy would render a different portion of the document meaningless: Mr. McDonnell's right to withdraw consent "at any time." Mr. McDonnell's agreement that USACIDC could search his hard drive at any time was limited by his right to withdraw consent at any time. Based on the language of the consent form, it would not be reasonable to believe that, by consenting to the government's searching the laptop and making of a copy of its hard drive, a person could not withdraw consent before the search occurred and prevent the government from examining anything that had not yet been searched.
When Mr. McDonnell revoked his consent to the search of the laptop, he retained a reasonable expectation of privacy in any data that had not been exposed. Because USACIDC did not search or examine any of his data prior to the withdrawal of consent, Mr. McDonnell continued to retain a privacy interest in the entirety of his data on his laptop's hard drive and the copy thereof. Lacking Mr. McDonnell's consent, USACIDC needed another justification for the examination of the data on the copy of the hard drive, such as a warrant. But because USACIDC did not obtain a warrant or have any other justification for the search, the search of the data on the copy of the hard drive was unlawful and the evidence obtained as a result of the search should have been suppressed.
Government action in consent searches is restrained in two ways: by limits placed on the scope of consent, see Varriale, 444 Md. at 412, 119 A.3d at 831, and withdrawal of the consent, see Williams, 898 F.3d at 330. Here, Mr. McDonnell provided his consent for USACIDC to seize, search, and copy his hard drive, limited by the scope of the investigation. Anything uncovered in the course of that consent would have been lawfully in USACIDC's possession. But once he withdrew his consent, a right he always had and which the consent form that he signed confirmed, USACIDC's authority to search ended. USACIDC could keep the copy, as Mr. McDonnell had consented to its creation; he could not un-ring that bell.
However, because USACIDC had not examined the data on the copy of the hard drive in any way while Mr. McDonnell's consent was in effect, it could not claim the right to search his data under the authority of his consent after his consent was withdrawn. This case involves the undifferentiated copying of the entirety of a hard drive before the examination of any data on it, which distinguishes it from those in which recipients consensually share with government actors emails or text messages, or law enforcement gains access through other means to items with readily visible content. See United States v. Barber, 184 F. Supp. 3d 1013, 1016 (D. Kan. 2016); State v. Carle, 266 Or.App. 102, 337 P.3d 904, 910 (2014). [FN16: For similar reasons, the State's argument that different iterations of data can have different reasonable expectations of privacy does not hold up when no data was examined or revealed before or during the copying of the laptop's hard drive, unlike the viewing of a physical copy of a digital photo. Because different facts could support the loss of a reasonable expectation of privacy in data on a hard drive, there may, of course, be other circumstances under which a forensic copy of a hard drive may not maintain the same Fourth Amendment protections as an original.] In this case, the copying process exposed none of the data on the laptop's hard drive and the process did not differentiate between data that might have implicated child pornography and data that did not. Prior to his withdrawal of consent, USACIDC had not yet intruded upon Mr. McDonnell's privacy interest in the data on the copy of the hard drive; that bell was never rung, and upon the withdrawal of his consent, Mr. McDonnell retained a reasonable expectation of privacy in the data.
McDonnell concludes by explaining that, even if this meant that there was one rule for paper copies and another rule for digital copies, that was okay under Riley and Carpenter:
[E]ven if, for argument's sake, we were to apply the reasoning of cases like Ponder and its progeny, and the information in a thousand-page paper document was not entirely examined by the government prior to or in the course of photocopying the pages, such a copy would not begin to approximate a copy of a hard drive, which allows "[t]he sum of an individual's private life [to] be reconstructed[.]" Riley, 573 U.S. at 394, 134 S.Ct. 2473. A copy of a paper document does not give access to the "many distinct types of information" found in a copy of a hard drive, which can reveal much more than any isolated record. Id.
A copy of a hard drive, the search of which "would typically expose to the government far more than the most exhaustive search of a house[,]" has as much in common with a photocopy of paper documents as "a flight to the moon" has in common with "a ride on horseback[.]" Riley, 573 U.S. at 393, 396, 134 S.Ct. 2473 (emphasis in original). [FN19: FN19: As such, we decline to adopt the reasoning of courts in other jurisdictions that a forensic copy of a hard drive is akin to a photocopy of a paper document that, if made while consent was effective, can still be examined after consent is withdrawn. See, e.g., Lutcza, 76 M.J. at 702; Campbell, 76 M.J. at 658; Megahed, 2009 WL 722481, at *3; Thomas, 2014 U.S. Dist. LEXIS 33443, at *20.]
With respect to digital information or data on a hard drive, and perhaps even photocopies for that matter, withdrawal of consent after copying but before analysis is like interruption of a consented-to search of a home by withdrawal of consent—police would have to promptly leave the home and seek a warrant, or other authorization, in order to further search. The copying of Mr. McDonnell's hard drive was a precursor to a search, or perhaps a step in preparation, but it was not the search. An inexact comparison could be made to police securing a house, with the owner's consent, as precursor to a consent search. If the person were to withdraw consent after the securing but before the search, the search of the house would not occur and the owner would have lost a reasonable expectation of privacy only to the extent of what the officers may have observed before the consent was withdrawn. The advancement of technology that allows the digital equivalent of making a copy of a person's home and all its contents, see Riley, 573 U.S. at 396, 134 S.Ct. 2473, should not permit invasion of a privacy interest that otherwise would be prohibited, see Kyllo, 533 U.S. at 34, 121 S.Ct. 2038.
Fascinating! Let me reprint Footnote 14, which leaves open whether clear language could dictate a different result:
On brief and at oral argument, counsel for Mr. McDonnell asserted that even if the disclaimer had been written to accomplish what the State claimed it did, Mr. McDonnell retained a constitutional right to withdraw consent. This contention has significant rational force, as a person has a constitutional right to not consent in the first instance, and, as Mr. McDonnell points out, at least one court in another jurisdiction has so held. See United States v. McWeeney, 454 F.3d 1030, 1035 (9th Cir. 2006) (concluding defendants "had a constitutional right to modify or withdraw their general consent at any[ ]time"). Nothing in this opinion should be construed to mean that clauses in consent forms purporting to irrevocably waive the right to consent are enforceable. However, because the language in the consent form did not purport to irrevocably waive Mr. McDonnell's privacy or possessory interest in his data, we need not address the issue to resolve this case. See Robinson v. State, 404 Md. 208, 217, 946 A.2d 456, 461 (2008) ("[I]t is this Court's established policy to decide a constitutional issue only when necessary." (Citations omitted)).
That will have to be litigated another day, but it nicely sets up the next case for when the government uses super-clear language as to rights on the image. As always, stay tuned.
The post Withdrawal of Consent to Search Computers Also Blocks Searches of Digital Copies, Court Holds appeared first on Reason.com.
]]>Commentators are having lots of fun with the case, and that's great. And to the extent some readers have strong views of putting video cameras on wild bears as a matter of policy, I am glad this case gives them an opportunity to voice those concerns. But if some are wondering if the suit has legal merit, I don't think it does. Among the problems:
There are other arguments the state could make, such as that the bear-tagging program, if it's a search, is part of a reasonable non-law-enforcement program under the "special needs" exception. Certainly plausible, but it would help to have more facts about the program to say more.
Anyway, I realize that discussing current law draws the ire of some readers, who prefer we discuss what the law of camera-carrying wild bears should become, not merely what the rulings of small-minded courts would suggest it now is. But I figured I would at least offer the latter.
The post On Bears With Video Cameras and Fourth Amendment Law appeared first on Reason.com.
]]>I further state that I viewed video surveillance from the above mentioned camera from outside the subject location from December 8, 2020 at approximately 3:53 PM which depicts the target exiting a vehicle, which is parked in the driveway at the subject location, and holding between the target's legs, what I recognize to be, based on my training and experience as a police officer, a long rifle. Said video then depicts the target zip up the target's jacket so as to conceal said rifle, then the target walks into the subject location.
What does this long rifle look like? Here's a screenshot from the video (a screenshot not included with the warrant application) with the item marked in red:
Held: Motion to suppress the fruits of the search granted, as the man was carrying a bouquet of flowers, not a gun. The officer was reckless in describing it as "a long rifle," based on his "training and experience," and suppression of that false assertion is therefore required under Franks v. Delaware.
Incidentally, this case is another possible example of the phenomenon I described back in December, how video cameras are changing Fourth Amendment law. As I wrote then, video evidence allows courts to scrutinize police conduct much more closely than before: "The available technology changes how the doctrine can be applied, and that, in a practical sense, helps to change what the doctrine is."
That's part of the dynamic here, I think. If the officer had personally observed the suspect enter the house, and he had obtained a warrant based on that, a reviewing judge would have been unable to second-guess the officer's claim that, based on his training and experience, he saw the man with a gun. (And indeed, a different illegal gun was found in the house when the search occurred.) The availability of video evidence changes that. The reviewing judge can watch the video himself, and he doesn't need to rely on the officer's claim of expertise.
The post Based on My Police Training, I Recognize That Bouquet of Flowers as a Rifle appeared first on Reason.com.
]]>In the new ruling, Judge Corley suppresses the fruits of the search because the brute force attack did not succeed until after the extension had expired. Specifically, the government mirrored the decrypted device (generating a copy to be searched) before applying for another search warrant to search the device. Judge Corley concludes that the mirroring was a warrantless search that requires suppression of the evidence found on the warrant.
I think this ruling is wrong. Not only should the evidence not be suppressed; there was no legal violation at all. The government had a valid search warrant, and there is no principle of law that makes a defendant's ability to slow down a search by using encryption a legal basis for suppressing the evidence when the search eventually succeeds. In this post, I will explain why.
I. Background on Ex Ante Restrictions on Computer Warrants
First, some context. I have written over the years about ex ante search restrictions in computer search warrants. These are limits sometimes added to computer warrants that purport to control ex ante the details of how the warrant is executed. With traditional warrants, the warrant authorizes the search, and Fourth Amendment doctrine regulates the reasonableness of the warrant's execution. With ex ante restrictions, though, the warrant itself will include detailed limits on how the warrant will be executed. The limits might be on who can search the device, or when, or where. It might be about what steps are taken when the warrant is executed. It's all up to the discretion of the magistrate judge.
One of the issues that has come up from time to time is why or whether ex ante restrictions matter. In particular, if the government violates an ex ante restriction, what is the remedy?
I have argued that there is no remedy. In my view, as explained in detail here, the Fourth Amendment does not permit magistrate judges to impose ex ante restrictions on warrants. The law of executing warrants has to be based on Fourth Amendment law, not individual-warrant-condition-by-individual-magistrate law. As a result, in my view, the government is entirely free to disregard ex ante restrictions and there is no legal wrong, or legal remedy, if they choose to do so. The government has to follow the law of Fourth Amendment reasonableness, of course. But individual warrant restrictions don't determine reasonableness; Fourth Amendment law does.
If that seems odd to you, you should read the Supreme Court's decision in Richards v. Wisconsin, on whether a warrant can be executed as a no-knock warrant. Richards held that the fact that the issuing magistrate had said the warrant could not be executed as a no-knock warrant was irrelevant to whether it could be. That wasn't a decision for the magistrate judge to make, so the magistrate judge's determination was entitled to zero deference. Reasonableness was determined by the facts that existed when the agents executed the warrant, Richards held, not the magistrate's view of how the warrant should be executed when reviewing the warrant application. In my view, that same standard naturally applies to ex ante limits in computer warrants.
II. The Nicholson Precedent in the Eleventh Circuit
A recent decision of the Eleventh Circuit came at least somewhat close to this position. In United States v. Nicholson (2022), the magistrate judge required that the computer to be seized must be forensically searched within 60 days of the warrant being issued. The government searched the computer after 60 days had passed, however. The Court ruled that this did not violate the Fourth Amendment, as there was no Fourth Amendment limit on when the forensic search occurred after the computer was seized. So far, so good.
Nicholson erred, though, in my view, at the next step. Instead of saying that there was no remedy at all, however, the court (per Brasher, J.) stated that the ex ante warrant violation was "comparable to a violation of Rule 41 of the Rules of Criminal Procedure, which contains a temporal limitation similar to the magistrate judge's addendum." This is, to my mind, rather puzzling. We normally base remedies on the source of the law violated, not whether the violation resembled a violation of some other authority that serves a sort of similar function as the one at issue. But that led the court to look at whether there was an intentional violation of the ex ante restriction, part of the Rule 41 suppression standard. Because the violation of the ex ante restriction was unintentional in that case, there was no suppression of the evidence.
Whatever you think of Nicholson, at the very least it should be clear, from Richards, that ex ante restrictions are not themselves binding and are not themselves Fourth Amendment law. A magistrate judge can add any restriction they want to the warrant, at least in theory. Maybe the restriction is that the forensic process can only be executed if the forensic expert's middle name is Herbert, or if it's Tuesday between 2:00 and 2:07pm, or if the forensic expert is listening to John Coltrane's "A Love Supreme." These are not restrictions on reasonableness, as reasonableness is already provided by Fourth Amendment law; all the ex ante restrictions can do is add non-Fourth-Amendment-limits outside reasonableness.
III. The new decision in United States v. Kopankov
In the new case, the government seized the defendant's iPhone on the defendant's arrest on April 3, 2019. On April 9, 2019, six days later, it obtained a warrant to search the phone. The local forensics lab couldn't break into the phone, though, so the phone was sent to the FBI. In 2020, the FBI started a brute force attack on the phone to try to get in, repeatedly guessing combinations of 6-digit passcodes. The brute force attack succeeded three years later, on May 2, 2023.
What's the problem? The 2019 warrant had an attachment, Attachment C, in which the warrant had a condition that the government had to execute the warrant in a certain number of days. In particular, there was a time limit on how quickly the government had to make a mirror image of the phone to begin the search. When the brute force attack began, the government applied for and obtained an extension of that time, until June 20, 2021. But the brute force attack didn't succeed until almost two years later, in May 2023, at which time a mirror image was made before the government applied for another warrant to search the image.
So what's the legal relevance of the violation of the ex ante restriction? Judge Corley treats the violation of the ex ante restriction as if it nullified the existence of the warrant. Because the government did not get another extension, and the brute force attack did not succeed until after the extension had expired, any search that occurred after the extension expired was warrantless and therefore violated the Fourth Amendment. Judge Corley puts this starkly: "The government got a warrant. But it expired."
As I explained above, that is completely wrong, in my view. See Richards, etc. But with that faulty premise as the foundation, Judge Corley then looks to whether the government engaged in a post-expiration search. The government argues that it made the mirror-image but did not search the phone before it applied for another warrant. But Judge Corley concludes that making an image is actually a search:
The examiner declared he "physically took the device, unlocked the device using the passcode, and plugged it into a GrayKey device (which resembles a small box), using the DEVICE's 'lightening' port." (Dkt. No. 304-5 ¶ 33.) And he did so to download the contents of Defendant's phone onto a USB drive. (Id. ¶ 32.) Put differently, that physical invasion into Defendant's constitutionally protected device downloaded "the privacies" of Defendant's life. Riley, 573 U.S. at 403. That physical invasion constitutes a search. Cf. United States v. Sam, No. CR19-0115-JCC, 2020 WL 2705415, at *2 (W.D. Wash. May 18, 2020) (powering on a phone to take a photo of the phone's lock screen constituted a physical search).
Because it was a search, it was a warrantless search, and the evidence found on the phone is a fruit of that unlawful mirror image should be suppressed:
The examiner effectively stood on Defendant's doorstep and tried fitting different keys into his front door lock for years after the warrant expired. Then, when the door finally opened, the government entered the threshold and seized the information therein and reviewed some (but admittedly not all) of it. Now the government asks to excuse this unlawful entry because the government "had been hoping for the phone to be accessed for years." (Dkt. No. 304 at 8.) Maybe so. But they only got a warrant after the illegal search yielded the information they hoped for. Put differently, if the government's conduct were excused here, [the list of ex ante restrictions], which was expressly part of the warrant, would become a nullity because its carefully calculated time limits would be meaninglesss.
Further, the good faith exception applies because deterrence is needed to make sure the government stays focused on getting lots of extensions for phone warrants over the years to allow brute force attacks to go on:
The government claims this situation is unlikely to reoccur. But the evidence is to the contrary. The government's declarations describe "entire racks of phones" undergoing "brute force attacks for years." (Dkt. No. 304-4 ¶ 11.) So this not only can, but will happen again unless the government ensures it has a valid—and generally required warrant to peer inside those phones. Riley v. California, 573 U.S. 373, 386 (2014). Exclusion here will ensure greater care is taken with such devices.
IV. My View
I think Judge Corley's decision is wrong, and that it's wrong in a way that points out the absurdity of ex ante search restrictions. Think about it. The government had a search warrant based on probable cause. The Fourth Amendment permitted the government to search the phone. If the government had been able to break into the phone quickly, that would have been legally fine. The government was trying to execute the warrant, but the only way to get in was a brute force attack that could —and did— take years. Under prevailing caselaw, there is no Fourth Amendment limit I'm aware of on how long the government has to execute the warrant by trying to break into the seized phone.
But under the new decision, the evidence found on the phone is suppressed because the brute force attack happened to take longer than the date the magistrate judge listed as a new date when the government obtained the extension. This seems pretty bananas to me. The magistrate judge doesn't know anything about computer forensics or how long the brute force attack is going to take. Why should the magistrate judge get to say if the government is allowed to continue its efforts to execute the warrant? The Fourth Amendment requires the government to have a warrant, of course. And the government had a warrant here, that it was earnestly doing its best to execute. Requiring the government to exercise "greater care" to make sure it is keeping up with a series of requests to continue to make the brute force attack on a bunch of seized phones — requests not required by the Fourth Amendment, which is the law that should count in the first place — seems exceedingly odd to me.
I realize that some will say, well, the magistrate judge sets the rules. They are the Law Lords and, from on high, they decide what is authorized under the warrant. But again, that's the exact opposite of what the unanimous U.S. Supreme Court held in Richards v. Wisconsin. There, the magistrate's decision that the warrant could not be executed as a no-knock warrant was not only not binding; it was 100% irrelevant. To me, it seems exactly the same with ex ante restrictions on warrants. How the government executes warrants is up to appellate courts and the Fourth Amendment law of reasonableness, as adjudicated ex post. It is not up the whims of individual magistrate judges as imposed ex ante.
The post The Timing of Computer Search Warrants When It Takes the Government Several Years To Guess The Password appeared first on Reason.com.
]]>The post Justice Stevens Papers Through 2005 To Be Made Available Starting Tomorrow appeared first on Reason.com.
]]>Here are the panelists, with a link to their relevant articles:
The moderator was Professor Richard Re, author of The Positive Law Floor in the Harvard Law Review Forum.
The first two panelists were Daniel Epps and Danielle D'Onfro, co-authors of The Fourth Amendment and General Law, recently published in the Yale Law Journal.
I spoke next, making arguments that reflected my recent article Katz as Originalism in the Duke Law Journal.
Last up was James Y. Stern, co-author (with our own Will Baude) of The Positive Law Model of the Fourth Amendment in the Harvard Law Review.
I thought it was a really interesting discussion, with lots of respectful disagreement. The panel also wins the 2023 Award for the Panel with the Highest Percentage of Former Kennedy Clerks, but from what I understand that is mostly just a reflection of who is writing on this topic.
The post What Would An Originalist Fourth Amendment Require? appeared first on Reason.com.
]]>Just a short excerpt:
[In the most relevant precedent, the Supreme] Court then walked through several prior cases and explained: "This requirement of naming the affected members has never been dispensed with in light of statistical probabilities, but only where all the members of the organization are affected by the challenged activity."
Well, there you go. I don't think that even the Fifth Circuit could say with a straight face that all members of the plaintiff organizations face a concrete risk of harm based on hypothetical patients entering emergency rooms, especially given that only a small number of members submitted declarations regarding alleged harms in the past. The Fifth Circuit instead reasoned that some unspecified percentage of doctors are statistically likely to encounter patients in the emergency room who suffered complications of mifepristone, which is exactly the reasoning rejected in Summers. The rule of law requires that legal principles be applied neutrally. Article III does not apply differently depending on whether the plaintiffs support progressive causes or conservative causes.
Moreover, conceptually, the Fifth Circuit's approach would dramatically expand the law of standing. Any federal rule that could in some way be said to reduce "safety" could be challenged by a sufficiently motivated plaintiff organization. Suppose the National Highway Traffic Safety Administration relaxes some airbag requirement. Under the Fifth Circuit's theory, the American Association of Pro-Car Safety Doctors could sue, on the theory that an unspecified additional number of people will be injured in car accidents and go to the E.R., and some unspecified number of doctor-members will have to treat their injuries, stressing them out.
Read the whole thing.
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]]>The paper begins with this hypothetical:
Imagine a classroom discussion of Lawrence v. Texas, the U.S. Supreme Court's landmark decision holding sodomy laws unconstitutional. One student argues that the Court's ruling was correct because a state may not base its criminal laws on bare moral disapproval. Another student picks up on Justice Scalia's dissenting opinion and responds that, if that principle were sound, polygamy and bestiality would also be immune from punishment.A third student chimes in to observe that those comparisons are offensive, even harmful, and urges or intimates that the second should apologize. What should happen next?
One natural thought is that it depends on whether the offense that the third student took (or supposed others would take) is justified. That is evidently what Justice Scalia himself thought: faced with an openly gay student's similar request for an apology, Scalia rebuked the questioner for failing to grasp the reductio argument that he had actually made. Insofar as Scalia had "compared" same-sex intercourse and bestiality, after all, he claimed only that bans on these practices are alike by the lights of the principle that the Court invoked to invalidate sodomy laws. As Scalia correctly observed, that claim really has nothing to do with whether same-sex intercourse is morally tantamount to bestiality at all.
Yet I suspect many will share my instinct that this point of logic is not all that matters, from a moral point of view, in the kind of encounter that I have described. For if many people confronted with Scalia's analogical argument will foreseeably take its expression as implying a moral equivalence between same-sex intercourse and bestiality—or, more simply, as an anti-gay insult—that fact alone seems to bear on whether, or at least how, one should voice the argument. And insofar as Scalia or the second student in our imagined dialogue predictably caused gay audience members to think they were being insulted (even, in a sense, mistakenly), and did so without good reason, taking offense at that behavior—under that revised description—could well be warranted after all. In a sense, the listener's interpretation, which starts off foreseeable but mistaken, seems to bounce off of the speaker and return to the listener vindicated in the end.
This line of thought might suggest that the second student did act wrongly and should indeed apologize. But that is not a comfortable result either. Treating the student's mere invocation of the analogical argument as an insult will tend to ratify the misunderstanding of what they actually said, to discourage the expression of other ideas that could also be misunderstood, and to raise the overall "symbolic temperature" within the community. Indeed, a general practice of validating reactions such as the third student's here could well result in gay students facing more, rather than fewer, comments that they rightly take as offensive—at least in a belief- or evidence-relative sense of rightness—and thus leave them only worse off. So, again, what should the characters in this story do? I am tempted to say that, if you think the answer is obvious, one of us is missing something important.
Read the whole thing here.
The post Law School Free Speech, Wokeness, and "The Etiquette of Equality" appeared first on Reason.com.
]]>The post is thorough and quite a read, going through what Unikowsky presents as error after error after error after error. Here's just a taste:
The court then claims that "Plaintiff medical associations have associational standing via their members' third-party standing to sue on behalf of their patients." (p. 9). This section reveals that the court does not understand what "third-party standing" means.
"Third-party standing" is something that plaintiffs sometimes have to show in addition to—not instead of—Article III standing. Plaintiffs always, 100% of the time, have to show what the Supreme Court has called the "irreducible constitutional minimum" of standing under Article III—(1) a concrete and particularized injury, that is (2) caused by the defendant's action, and (3) redressable by the requested relief. In some cases, a plaintiff that has standing asserts that some action harming them is illegal because it violates someone else's rights—in which case they bear the additional burden of showing they are entitled to assert the rights of that third party, i.e., third party standing.
Lawsuits by abortion providers challenging abortion restrictions are a classic illustration of the third-party standing doctrine in action. In most cases, especially pre-Dobbs, abortion restrictions target abortion providers rather than women seeking abortions: if a provider performs an abortion in violation of state law, the provider is punished. Abortion providers who sue states seeking to enjoin abortion restrictions have obvious Article III standing. They face a concrete and particularized injury (the state if going to shut them down and incarcerate their doctors if they perform illegal abortions); it's caused by the state, which enforces the law; and an order enjoining the state from enforcing the law would redress the injury.
In challenging those laws pre-Dobbs, the providers would claim that the laws are unconstitutional because they violate their patients' constitutional right to an abortion. Thus, although the providers were the direct targets of the law, the providers' legal theory was that the laws were unconstitutional because they violated the constitutional rights of third parties—i.e., their patients. In this context, courts would consider whether the providers were permitted to assert the legal interests of their patients under a doctrine known as "third-party standing," or whether instead the plaintiffs had to be women seeking abortions. So, for plaintiffs who already had Article III standing, courts would consider whether the plaintiffs also had third-party standing.
The district judge doesn't understand this. He says: "The injuries suffered by patients of the Plaintiff medical associations' members are sufficient to confer associational standing" (p. 10). In other words, he thinks that if hypothetical patients have Article III standing, this means that the doctor-members of the plaintiff organizations can also assert "third-party standing" without a showing that the doctor-members themselves were injured. Standing does not work this way, this is completely wrong.
Even if standing did work this way, the court's application of the doctrine would still be wrong…..
You can read and sign up for Unikowsky's Substack free here.
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]]>OpenAI has touted ChatGPT as a reliable source of assertions of fact, not just as a source of entertaining nonsense. . . . The AI companies' current and future business models rests entirely on their programs' credibility for producing reasonable accurate summaries of the facts. When OpenAI helps promote ChatGPT's ability to get high scores on bar exams or the SAT, it's similarly trying to get the public to view ChatGPT's output as reliable. Likewise when its software is incorporated into search engines, or into other applications, presumably precisely because it's seen as pretty reliable. It can't then turn around and, in a libel lawsuit, raise a defense that it's all just Jabberwocky.
Naturally, everyone understands that AI programs aren't perfect. But everyone understands that newspapers aren't perfect, either—yet that can't be enough to give newspapers immunity from defamation liability; likewise for AI programs. And that's especially so when the output is framed in quite definite language, complete with purported quotes from respected publications.
Here's my question: Is the reasonable observer test about business models, or is it about what people familiar with the service would think? Because if the test is about what normal observers would think, it seems to me that no one who tries ChatGPT could think its output is factually accurate.
That's what makes ChatGPT distinctive and interesting, I think. It combines good writing and ease of language that sounds real, on one hand, with obvious factual inaccuracies, on the other. It's all style, no substance. The false claims of fact are an essential characteristic of the ChatGPT user experience, it seems to me. If you spend five minutes querying it, there's no way you can miss this.
For example, back in January, I asked ChatGPT to write a bio for me. This should be easy to do accurately, as there are lots of online bios of me if you just google my name. ChatGPT's version was well written, but it had lots and lots of details wrong.
For example, I won't have it be writing my bio any time soon. pic.twitter.com/2b8H01jzxG
— Orin Kerr (@OrinKerr) January 13, 2023
To correct the errors in the ChatGPT output, I joined Berkeley in 2019, not 2018; I didn't go to Yale Law School; I didn't clerk for Judge O'Scannlain; I wasn't an appellate lawyer at DOJ; there is no 2019 edition of my Computer Crime Law casebook, and it certainly wouldn't be the 2nd edition, as we're now on the 5th edition already; I'm not a fellow at the American College of Trial Lawyers; and I've never to my knowledge been an advisor to the U.S. Sentencing Commission. (Some would say I'm also not an invaluable asset to the law school community, but let's stick to the provable facts here, people.)
My sense is that these kinds of factual errors are ubiquitous when using ChatGPT. It has style, but not substance. ChatGPT is like the student who didn't do the reading but has amazing verbal skills; it creates the superficial impression of competence without knowledge. Maybe that isn't what OpenAI would want it to be. But I would think that's the conclusion a typical user gets pretty quickly from querying ChatGPT.
The post Are AI Program Outputs Reasonably Perceived as Factual? A Response to Eugene appeared first on Reason.com.
]]>Tradeoffs are inevitable, however, as all of these options tend to be time-consuming. The more you focus on one thing, the less you focus on another. So I don't see the public intellectual role as an "arc," or some kind of inherent pattern, as much as a continuing choice for how professors want their career to run. In my own case, for what it's worth, I have tended to do less media over time. I concluded that, unless a news story happened to be directly about my area or academic expertise, media appearances weren't likely to make a difference and were largely a waste of my time. But different people will answer that differently, and the answers can vary over time.
The post A Different View of the "Public Intellectual Arc" appeared first on Reason.com.
]]>Here's how I phrased the question in the LaFave Criminal Procedure treatise, for which I have written the electronic surveillance chapter, Chapter 4:
[A]n acquisition occurs under the Wiretap Act only if the collection of the communication is 'in flight' in real-time, during prospective surveillance of an ongoing communication. Exactly what this means can be tricky in cases involving electronic communications, as electronic communications can be stored or transmitted for extremely short periods of time. The basic question is this: If a tool makes copies of a communication shortly after it arrives at its destination, is that acquisition contemporaneous with transmission or is it only after the transmission has been completed? Put another way, can surveillance circumvent the Wiretap Act by acquiring communications immediately after they have arrived at their destination? If an e-mail account is accessed once an hour, is that an intercept? What about one a minute, once a second, or once a milli-second?
2 Wayne LaFave et al, Crim. Proc. § 4.6(b).
I asked the same question in my computer crime law casebook:
[T]he Wiretap Act regulates prospective surveillance and not retrospective surveillance.
At the same time, the line between prospective surveillance and retrospective surveillance can become fuzzy. Imagine a government agent has access to a suspect's e-mail account, and he can click a button and receive an update with all new incoming or outgoing messages. Is the access prospective or retrospective if the government agent clicks the button every hour? Every minute? Every second?
Orin Kerr, Computer Crime Law 667 (5th ed. 2022).
It turns out this hypothetical has turned into a real case, currently pending in the New Jersey Supreme Court, with oral argument scheduled for March 13. The question: Can the government avoid the Wiretap Act by getting access to an account every 15 minutes? New Jersey state prosecutors obtained Communications Data Warrants (CDWs) that required Facebook to hand over the contents of the suspects' accounts every 15 minutes for 30 days. Facebook objected, saying that the orders violate the Wiretap Act.
The lower court opinion held that Facebook was required to comply with the CDWs because compliance was not an "intercept" under the Wiretap Act:
[T]he CDWs did not grant access to the contents of prospective communications on Anthony's and Maurice's Facebook accounts while they were either "en route," or "within the same second," that they were placed on Facebook's servers. Rather, police would not have access until, at earliest, fifteen minutes after any electronic communication's transmission. Though the CDWs compelled Facebook to disclose the entire stored contents of each target's Facebook account for thirty prospective days, that did not make the disclosures contemporaneous with transmission. Luis, 833 F.3d at 627. Rather, once the communications would come to "rest" on Facebook's servers, they would be in "electronic storage," and thereby subject not to the wiretap acts, but to the SCA and the provisions of the NJWESCA that mirror that statute. Ibid.
The court then ruled that Fourth Amendment concerns limited this procedure to 10 days:
In formulating an acceptable constitutional solution to the disclosure of that information, we choose to apply a practical approach to the release of prospective electronically stored communications under a CDW. To remain within the parameters of state warrant procedure, the CDWs can be issued, assuming probable cause is once again established, and served on Facebook requiring that any information identified in the warrant and stored by Facebook during the period up to the day it is served with the warrant must be turned over. In addition, incorporating our state warrant procedures under Rule 3:5-5, going forward, if the State serves a CDW on Facebook for the disclosure of prospective electronic communications, no disclosures may be compelled beyond ten days from the issuance of the warrant. And, Facebook can comply with that requirement by producing the stored information on the day of or after the electronic communications have been stored.
Any further attempt to secure information from prospective time periods must be based upon new CDWs issued on new showings of probable cause. We believe that this practical approach, which modifies the trial courts' dispositions, is consistent with the federal and state constitutions and our warrant procedures, comports with the applicable statutes, and fairly balances the interests of the parties before us.
The New Jersey Supreme Court then accepted review.
I think the lower court Wiretap Act's analysis is wrong, and that the Wiretap Act applies to repeated access every 15 minutes. This is one issue I felt strongly enough about that I included it in the LaFave treatise when I joined it, around 2008 or so. Here's how I recommend answering this issue in the LaFave treatise, with emphasis added:
The caselaw on the question suggests that copying within a short time of receipt counts as contemporaneous and is therefore regulated by the Wiretap Act. [FN28] This answer is consistent with the Fourth Amendment principles that should guide the answer. The Wiretap Act's heightened protections beyond the ordinary Fourth Amendment warrant were inspired by Berger v. New York. Berger indicated that the Fourth Amendment triggers heightened scrutiny when surveillance is undertaken as "a series or a continuous surveillance" rather than as "one limited intrusion."Under Berger, a statute that regulates "a series or a continuous surveillance" must include special privacy protections or risk facial invalidity under the Fourth Amendment. Given the Wiretap Act's close connection to Berger,31 the meaning of "intercept" should mirror the distinction drawn by the Supreme Court in Berger. Acquisition is an intercept when it is part of "a series or a continuous surveillance," such as ongoing prospective surveillance or its functional equivalent. Exact lines will be difficult to draw, but the essential question should be whether the means of monitoring is the functional equivalent of continuous surveillance or whether it is more like a one-time or otherwise limited access to communications.[FN32]
One narrow exception to the requirement of acquisition contemporaneous with transmission involves access to wire communications under the version of the statute in effect from 1986 to 2001. During this period, Congress attempted to protect the privacy of voicemail through the definition of "wire communication" rather than the more sensible protections of 18 U.S.C.A. § 2703. By adding communications in storage to the definition of wire communication, Congress appeared to have wanted to regulate access to stored wire communications under the Wiretap Act.The passage of Section 209 of the USA Patriot Act removed this language from the definition of wire communication, however, such that the concept of "intercept" is now consistent and applies only to access contemporaneous with acquisition.
[FN28: United States v. Szymuszkiewicz, 622 F.3d 701 (7th Cir. 2010) (Easterbrook, J.) (copying within a second counts as "contemporaneous" and therefore regulated by the Wiretap Act); Lazette v. Kulmatycki, 949 F.Supp.2d 748 (N.D.Ohio 2013) (Carr, J.); Luis v. Zang, 833 F.3d 619 (6th Cir. 2016) (claim in pleading that WebWatcher surveillance tool "immediately and instantaneously" copied communications deemed sufficient to satisfy intercept standard). In Boudreau v. Lussier, 901 F.3d 65 (1st Cir. 2018), the First Circuit rejected a "functional approach" to contemporaneity, in which the test would have been if the surveillance occurred using "technology linked to the fleeting moment in which the victim sent the electronic communication." However, Boudreau ultimately leaves unresolved how the First Circuit's understanding of contemporaneity would apply to a software program that took repeated screenshots on the technical ground that, at the summary judgment stage, the plaintiff did not provide expert evidence that was required to explain on how the program worked. The New Jersey Supreme Court also has an important case pending on the meaning of intercept involving review of the Superior Court's decision in Facebook, Inc. v. State, 471 N.J. Super. 430, 273 A.3d 958 (App. Div. 2022).]
[FN32: The Ninth Circuit's decision in Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir.2002) could be read as drawing the line between a communication that is collected "during transmission" versus one that is collected "while it is in electronic storage." Konop, 302 F.3d at 878. To the extent Konop is so read, this line is not exactly correct. The scope of the Wiretap Act should be defined by whether the surveillance is undertaken as "a series or a continuous surveillance" rather than as "one limited intrusion," Berger, 388 U.S. at 57, not whether the communication was moving or at rest at the moment of acquisition. The confusion may result from the Ninth Circuit's conclusion that a communication cannot be both stored (and therefore subject to the Stored Communications Act, 18 U.S.C.A. §§ 2701 to 2722) and yet also subject to interception under the Wiretap Act. However, the two statutes can in some circumstances regulate access and copying of the same communication. The Wiretap Act regulates prospective continuous surveillance of an account that may result in a particular communication being copied, while the Stored Communications Act regulates a single intrusion to access and copy that communication. The peaceful co-existence of the two statutes is aided by 18 U.S.C.A. § 2702(b)(2) of the Stored Communications Act, which explicitly permits a provider to disclose the contents of communications "as otherwise authorized" in Sections 2511(2)(a) or 2517 of the Wiretap Act.]
2 Wayne LaFave et al, Crim. Proc. § 4.6(b).
To really really date myself, this is the same position I took in an amicus brief in the First Circuit's Councilman case in 2004, although the First Circuit didn't reach the issue. Almost twenty years later, the issue is finally teed up in a case that squarely raises the issue. As always, stay tuned.
Full disclose: I once did a short legal project for Facebook, and I have represented a client in a case against Facebook, too.
UPDATE: For past Volokh Conspiracy blog posts on the same legal issue, see my posts from 2004 and 2005 on the First Circuit's Councilman decision collected here, and my 2010 posts on the 7th Circuit's Szymuszkiewicz decision here and here.
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]]>But it's not just a theory; it's also a brief! Last year I posted a draft motion to suppress for criminal defense lawyers to file in preservation cases, and I recently updated the motion and have posted the updated versions here: .pdf draft motion to suppress (or, to download the word version to edit and file it, here: .docx draft motion to suppress). If you're a criminal defense attorney, know a criminal defense attorney, or live in the same state as a criminal defense attorney, please feel free to share the brief with the criminal defense lawyers you know.
As it happens, getting defense lawyers to file the brief has been a challenge. As I noted on Twitter a while back:
I wish the level of interest defense counsel had in filing my model motion to suppress for 2703(f) preservation were as high as the level of concern prosecutors have that defense counsel might file the model motion.
— Orin Kerr (@OrinKerr) January 21, 2023
Part of the problem is that the preservation process is largely hidden. Prosecutors don't normally disclose that preservation occurred. And when it's disclosed, the disclosure is usually subtle: It is referenced in the warrant materials in order to help the providers comply with the warrant, but the form itself is not provided. So prosecutors know the issue exists, but they don't disclose or highlight the fact of preservation; while defense lawyers don't know the issue exists, and they don't know that there's an important form they should be asking for but haven't received. And so preservation goes on and on without being challenged in court, even though there are (I think) very good arguments it is illegal and the arguments can be made easily by just filing the model brief.
As always, stay tuned.
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]]>I'll start with the statutory problem that prompts the Dubin case; then turn to the case itself; and conclude with my own views.
A. The Mess of Statutory Drafting That is 18 U.S.C. § 1028A.
First, some context. Section 1028A was enacted in 2004 at a time when there was a lot of concern about computer crimes and credit card fraud. Aided by "cyberspace," criminals were using the identity information of innocent consumers to get new credit cards in their names that were then used by the criminals fraudulently in ways that caused endless headaches for consumers who were then stuck with the fraudulent purchases on their credit record. This using of an innocent person's identifying information to get a bogus line of credit, sticking them with the consequences, was being known as "identity theft." And it was a big concern.
So what did Congress do? A natural thing would have been to enact a law adding a sentencing enhancement for fraud that caused those personal harms to innocent victims. That is, treat the harm—bad credit scores, the incurring of debts to others, etc.—as a result element that, if caused, triggers greater criminal liability.
But that is not what Congress did. Instead, Congress wrote this statute, titled "Aggravated Identity Theft":
Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.
Here's the key: Instead of focusing on the causing of the harm, Congress tried to describe the extra-bad act that was generally associated with the extra-bad harm. And what was that extra-bad act? Congress figured, well, someone who was already committing some kind of fraud-based predicate felony (bad) was using identity information without the person's permission (extra-bad). So in addition to the liability they had for the already-existing fraud-based felony, a criminal who uses the identifying information as part of that felony gets an extra two years in jail for using the identifying information.
At this point, you can probably see some problems with how the statute is drafted. There are two big problems, I think, and they are related. First, Congress did a lousy job describing the fraud-based felonies that can act as a predicate offense. Instead of saying the predicate offense had to be a fraud crime, Congress looked to various parts of Title 18 and included large swaths of the code that seemed to have some kind of connection to fraud. When you look at the predicate felonies in subsection (c), there are 11 different areas of Title 18 that are included as predicates. Some of those sections are about fraud. But some aren't. Some were just codified near sections about fraud.
The second problem, and the one more directly relevant to the Dubin case, is that Congress did a terrible job describing the extra-bad act. The extra-bad thing the drafters were thinking about was using identity information in a way that caused the person to whom the information related to suffer harms such as bad credit scores or being stuck with the bill. But Congress instead wrote the extra-bad act in a very abstract way. In the statute, the extra-bad act is described as "knowingly transfer[ing], possess[ing], or us[ing], without lawful authority, a means of identification of another person" . . . "during and in relation to" one of the predicate offenses.
Yikes. So during and in relation to one of these possibly-but-not-necessarily fraud-related predicate offenses, a person has to do something about a "means of identification of another person" without that person's permission? I mean, that could mean almost anything.
And the stakes are high. A lot of crimes are technically felonies under Title 18 but are pretty low-level felonies, the kind of thing likely to lead to probation or at most a short prison term. But if § 1028A applies, it tacks on a two-year prison sentence. So you could have a probation offense that becomes a two-years-in-jail offense if § 1028A is triggered, with the § 1028A punishment dwarfing the predicate felony punishment.
All of this prompts a natural question about how to construe the statute. Do you construe § 1028A broadly, to mean as far as the statutory language might in theory go, even if it ends up causing odd results? Or do you construe the statute narrowly in light of the problem Congress was trying to solve? That is the problem at the heart of the Dubin case.
B. The Dubin Case
The case before the Court, Dubin v. United States, is pretty simple. David Dubin helped submit a false bill to Medicaid concerning a psychological exam for a particular patient. The exam was given, but the bill gave a false date for it in a way that qualified it for payment. That false bill included the patient's name and Medicaid ID number on it. The government charged Dubin with fraud for the improper bill, a charge no one disputes here. The disputed part is that the government added an additional count of aggravated identity theft because the bill included the patient's name and Medicaid ID number, which are "means of identification" of the patient.
From the discussion above, you can pretty much predict what the briefs argue.
Wait, Dubin says, how can I get another two years in jail just because the bill included the patient's name and Medicaid ID number? This has nothing to do with identity theft, which after all is the title of the crime. The patient isn't a victim here. The fact that the patient's name and ID number was used is incidental to the fraud scheme. You have to construe the statute more narrowly to focus on actual acts of identity theft.
But no you don't, says the government. Just look at the text of the statute. Dubin "used" a means of identification of the patient "in relation to" committing health care fraud, a predicate felony. The text governs, and the text is satisfied. So Dubin is guilty.
There's also a narrower debate in the briefs about how the "without lawful authority" element applies to the facts. Dubin says that wasn't satisfied because the patient authorized using his identifying information to submit bills to Medicaid. So use of the identifying information was authorized. The government replies that the notion of authority has to be interpreted more narrowly. The patient authorized submitting bills to Medicaid, but that was exceeded by submitting a fraudulent bill.
Amicus briefs in support of Dubin were filed by NACDL, the National Association of Federal Defenders, and Professor Joel Johnson.
C. My Thoughts on the Case
I think Dubin has the better argument on the whole, whether the Court wants to rule more narrowly or more broadly.
On the broad issue, I'm a fan of construing vague criminal statutes narrowly, so it's easy for me to be on Dubin's side there. But I think Dubin also has a good textual argument, under the interpretive principle that "Congress does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes." Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001).
Under the government's reading, § 1028A is an elephant. It essentially overrides Congress's carefully considered judgments about punishment for dozens of statutes. Congress has written out detailed provisions for the statutory punishments and enhancements of offenses in Title 18. Given the large number of crimes that are predicate offenses for § 1028A, and that the extra two years of punishment for violating 1028A is such a heavy hammer, the government's interpretation would mean that the careful judgments throughout Title 18 would be subsumed by § 1028A. I think the Court should be cautious about construing the statute to have that kind of massive multi-section effect, especially given the weird results it would cause.
Dubin's reply brief addresses this argument, but let me give an example that shows how broadly the government's 1028A elephant steps. The federal computer hacking statute, known as the Computer Fraud and Abuse Act (CFAA), is found at 18 U.S.C. § 1030. Although most CFAA crimes have nothing to do with fraud, any felony violation of § 1030 is a predicate offense for § 1028A. This is because one of the eleven categories includes "any provision contained in this chapter (relating to fraud and false statements), other than this section or section 1028(a)(7)." 18 U.S.C. § 1028A(c)(4). That chapter refers to Title 18's Chapter 47, spanning § 1001 to § 1040. That's a lot of crimes! And it means that any felony violation of the CFAA is a felony predicate for aggravated identity theft, whether it has to do with fraud or not, just because the CFAA was placed within Chapter 47.
The government's interpretation of § 1028A would lead to bizarre results for CFAA sentencing. Congress has been really specific in drafting the punishments for CFAA violations. It has carefully described what is a felony and a misdemeanor, and what the statutory maximum punishment should be for various felonies, see 18 U.S.C. § 1030(c). It has thought carefully about whether there should be mandatory minimums for CFAA violations; it added 6-month mandatories for some CFAAA in the 90s, and then removed them in 2001 after the minimums proved a failure. And it has tasked the Sentencing Commission with rethinking Guidelines offenses for Section 1030 offenses. See Homeland Security Act of 2002, Pub. L. 107-296 § 225(b), (c).
If the government's interpretation of § 1028A is correct, however, what really matters for CFAA punishment is whether the hacking involved someone else's password. If you hack into someone's account by exploiting a security flaw, that's just a standard CFAA offense and you'll probably get probation unless a lot of dollar loss occurred. But if you hacked into someone's account by using their password without permission, now you're in deep trouble: That password is a "means of identification" under § 1028A, so now your hacking is Aggravated Identity Theft and you'll go to prison for two years because a password was used. (This isn't a hypothetical; see United States v. Barrington, 648 F.3d 1178 (11th Cir. 2011), in which this reasoning was used, and at least on plain error review, upheld.)
Under the government's view, all the careful statutory work Congress has put into CFAA sentences would be largely beside the point. And it would lead to a bizarre result, in which using a person's password would become the most important question in determining punishments for hacking. It's all very odd, and very far removed from anything resembling identity theft. Replicate that process for all the other predicate felony offenses covered under § 1028A(c), and it seems unlikely that the vague language of § 1028A should effectively supplant all those other statutory punishment sections.
It's possible that the Court would instead resolve Dubin on narrower grounds, such as the "without lawful authority" element. I think Dubin has the better argument there, too. As I see it, this is similar to the issue the Court grappled with recently in Van Buren v. United States, 593 U.S. ___ (2021), on what "exceeds authorized access" and "without authorization" mean under the federal computer hacking statute. Like Van Buren, Dubin had authorization to use the relevant information, but then used it to do something he wasn't supposed to do. The parties (represented by the same lawyers as in Van Buren, as it turns out) are arguing over similar ground as in Van Buren, it seems to me. The question: Does authorization include having information you're allowed to use but then putting it to other uses? I think the answer following Van Buren should be "yes," which, as I have detailed here (see pages 181-84), matches the traditional treatment of lack of authorization elements in other criminal statutes.
As always, stay tuned.
[UPDATE: I have fiddled a bit with this after posting to correct typos, etc.]
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]]>Almost everything you do on the Internet is governed by Terms of Service. The language in Terms of Service typically gives Internet providers broad rights to address potential account misuse. But do these terms alter Fourth Amendment rights, either diminishing or even eliminating constitutional rights in Internet accounts? In the last five years, many courts have ruled that they do. These courts treat Terms of Service like a rights contract: By agreeing to use an Internet account subject to broad Terms of Service, you give up your Fourth Amendment rights.
This Article argues that the courts are wrong. Terms of Service have little or no effect on Fourth Amendment rights. Fourth Amendment rights are rights against the government, not private parties. Terms of Service can define relationships between private parties, but private contracts cannot define Fourth Amendment rights. This is true across the range of Fourth Amendment doctrines, including the "reasonable expectation of privacy" test, consent, abandonment, third-party consent, and the private search doctrine. Courts that have linked Terms of Service and Fourth Amendment rights are mistaken, and their reasoning should be rejected.
And here's the first two pages of the Introduction:
When you use the Internet, you are using computer networks that belong to others. You are visiting computers around the country, and sometimes around the world, that are typically owned by large companies. Those companies have lawyers. And those lawyers want to make sure you can't sue them for how you use their services. So they do what lawyers do best: They put it in writing. As a condition of use, the services require users to agree to contractual language giving the company broad rights over your use of their machines. Those contractual terms, usually called Terms of Service, appear to users like an endless CVS-receipt of legalese that they click through on the way to setting up an account.
This essay considers the effect of Terms of Service on Fourth Amendment rights. In particular, it asks whether language in Terms of Service can limit or even eliminate user Fourth Amendment rights. If Terms of Service say you have no rights, or only limited or conditional rights, do those terms control? In Carpenter v. United States and Riley v. California, the Supreme Court has suggested that the Fourth Amendment applies broadly to computers and the Internet. The Fourth Amendment requires a warrant if the government wants to obtain the contents of your messages, or even certain non-content records. But Terms of Service threaten that conclusion. If such Terms can narrow or eliminate Fourth Amendment rights online, then those rights may be an illusion. What the Supreme Court has given, Terms of Service might take away.
This is a genuine and pressing problem. In the last five years, the effect of Terms of Service on Fourth Amendment rights has been frequently litigated in lower courts. Judges have divided sharply. A few opinions say the Terms make little difference. But a majority of courts have treated Terms of Service like a rights contract: By agreeing to use the service, they reason, you agree to whatever narrowing or elimination of rights that the contract implies. Using the service becomes a waiver of Fourth Amendment rights that gives up a reasonable expectation of privacy or consents to any future search. The caselaw is recent, and existing legal scholarship has not yet addressed, or even recognized, the problem. But the decisions suggest a troubling reality: Our Fourth Amendment rights online hinge on the effect of Terms of Service.
This Article argues that Terms of Service have little or no impact on Fourth Amendment rights. With limited exceptions, Terms of Service cannot reduce or eliminate Fourth Amendment protections. The courts that have held to the contrary are wrong, and their reasoning should be rejected. The explanation rests on the under-appreciated role of private contracts in Fourth Amendment law. The Fourth Amendment provides rights against the government, and agreements between private parties and the government can relinquish Fourth Amendment rights. But Terms of Service play a different role. They define legal relationships between private parties, between private network provider and private network user. Agreements among private parties do not relinquish rights. As private agreements, Terms of Service might help clarify relationships relevant to some Fourth Amendment doctrines. But it is the relationships, not the language found in Terms of Service, that matter.
This wasn't an Article that I was planning to write, but it seemed important to take on this topic as more and more cases have adopted the view that Terms of Service control Fourth Amendment rights. Anyway, it's new draft, and comments are very welcome at orin [at] berkeley.edu. No need to send on corrections to typos or stuff like that, but any reactions to the substance would be appreciated.
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]]>First, the challenge. Teaching the law of when searches and seizures are unreasonable (and therefore unconstitutional) is very difficult because of the scale of the problem. Understanding reasonableness requires mastering a massive number of cases, a massive number of doctrines, and an incredibly wide range of facts —all of which are connected to each other. There are well over 100 important Supreme Court cases to cover, in additional to tons of important lower-court cases to consider; a large number of exceptions to the warrant requirement to learn; how the exceptions to the warrant requirement apply often depends on the context (for search incident to arrest, for example, there's one rule for people, another for places, and a third rule for cars); some doctrines themselves divide into many sub-doctrines (exigent circumstances can be about evidence destruction, or hot pursuit, or emergency aid); and some doctrines apply across different contexts and others don't (consent applies broadly, while community caretaking is only for cars). Some are bright line rules; others are vague standards. Some are rooted in history, others are pretty new. To top it off, many of the doctrines are controversial and need to be treated with careful context, such as stop and frisk, excessive force, and the knock-and-announce rule.
How on earth do you cover all of that? Where do you even start? How can you present materials that build a complete picture of the relevant law, presenting principles in an order that builds step by step through the fact patterns and principles and generational development and doctrine? It's hard.
Here's the approach I took for the new 16th edition.
The first topic is the law relevant to obtaining and executing search warrants. It starts with the law of probable cause, with the main cases being Illinois v. Gates (probable cause to search) and Maryland v. Pringle (probable cause to arrest), as they are in the current casebook. Then the materials present the rules for obtaining warrants and the rules for executing warrants, including the knock-and-announce rule (covered with United States v. Banks as the main case). Because the law of executing warrants is intrinsically linked to the plain view exception, and yet plain view also applies in the warrantless section and is good to know at the outset, this section also includes a plain view exception subsection, using the main case of Arizona v. Hicks. The purpose of this first section is to cover classic search warrant doctrine, making the warrant-related doctrines a sort of reference point for the rest of the chapter's discussion of warrantless reasonableness doctrines.
With the law of warrants under our belts, the chapter then turns to the primary rules of reasonableness that apply in the four basic categories of Fourth Amendment searches and seizures: searches and seizures of (1) homes, (2) containers, (3) cars, and (4) persons. As Fourth Amendment nerds know, the law of reasonableness often applies differently in these four settings. So to get grounded, especially in the warrantless context, you need to jump into the law of reasonableness in these four distinct settings — learning the main exceptions to the warrant requirement that arise in those settings. (As an aside, this also happens to almost perfectly track the language of the Fourth Amendment— which provides rights against unreasonable searches and seizures of "persons, houses, papers, and effects"—although, perhaps surprisingly, the Court has not rooted this distinct treatment by reference to the constitutional text.)
The current version of the casebook has that basic approach, but I reordered it and added a section on containers, the fourth category. I decided to start with the law of house searches because its the classic fact pattern that inspired the enactment of the Fourth Amendment; it's the reference point from earlier materials on warrants and probable cause; and many of the exceptions to the warrant requirement were introduced in that setting.
Within the law of house searches, there are three subsections. We start with the basic warrant requirement with Payton v. New York—and, in the notes, related cases. The second subsection covers the law of exigent circumstances, using Warden v. Hayden and Kentucky v. King as main cases. The third subsection addresses the search incident to arrest doctrine, featuring Chimel v. California. The purpose of this section is to cover the main rules for searching houses; to see how the warrant requirement often applies; and to also introduce the main exceptions to the warrant requirement that might apply in the house setting, exigent circumstances and search incident to arrest.
Next up is a very short section on the reasonableness rules for containers. If a container is outside a house, such as an item of mail, or a suitcase, or a purse, does the warrant requirement still apply? And can it be detained temporarily, and if so, when? I thought it useful to cover these issues in a short but distinct section after house searches, with United States v. Chadwick as a main case, is it starts the discussion of how far warrants should go and also sets up the need contrast with car searches and seizures in the next section.
As mentioned, the next section is on car seizures and searches. Here the Supreme Court has given the police a lot of power to search and seize, in considerable contrast to houses and containers. The section explores those doctrines and considers how they contrast with home/container cases, on what justification, and what the boundaries are between the car doctrines and the house/container cases. It starts with the law of stopping cars, covering Whren v. United States and the law of traffic stops (with notes on what is permitted during a stop and how long they can go). Next up is the automobile exception, with the main cases being California v. Carney (exploring the line between houses and cars) and California v. Acavedo (exploring the line between cars and containers). Then we cover searches of a car incident to arrest, with Arizona v. Gant the main case.
The materials then cover seizures and searches of persons. First up is the law of arrest, with the main cases being United States Watson (with notes on Gerstein and County of Riverside) on the cause and judicial review requirements, and Atwater v. City of Lago Vista (with notes on Moore) on what crimes can lead to arrest. The materials then cover search incident to arrest for persons, with Robinson as the main case and Riley as the lead note in contrast. The materials then cover search and seizure after arrest, with notes on subsequent DNA tests, strip searches, and the like.
With that basic set of rules done, and with the law of arrests and person searches fresh, the materials then turn to stop and frisk. The stop and frisk materials are divided into five parts: first, an introduction featuring Terry v. Ohio and a summary of the basic doctrine; next, caselaw on reasonable suspicion to stop (with Illinois v. Wardlow and Kansas v. Glover as the main cases); third, a short subsection on what can happen during a Terry stop and how long they can go; fourth, a short subsection on cause to frisk; and fifth, a section on how far frisks can extend (with Minnesota v. Dickerson as the main case). Throughout there is discussion of how the rules work together and empirical studies of their workings, a number of which focus on racial disparities in stop and frisk practices. The contrast with the law of arrest is designed to keep an implicit question in mind; is allowing lesser stops and lesser searches based on lesser cause consistent or inconsistent with previous doctrines, such as the law of arrests and the law of automobile stops? How much power do the police have, and which doctrines are giving it to them?
With stop and frisk now under our belt, the materials turn to the law of excessive force. Excessive force is divided into two parts. The first part is the doctrinal framework for when force is excessive, with Graham v. Connor as the main case and notes on the major Supreme Court decisions and summaries of lower-court rules and standards on this question. The second part is the law of qualified immunity, with City of Tahlequah v. Bond as the main case and notes on how qualified immunity works, views about its reform, and the like.
Almost done, I promise! There are just two topics to go. The next one up is administrative searches and the special needs exception. There are a lot of cases in this area, but they're all thematically related, so this section takes the view that you can study one and get notes summarizing the rules for how the others apply. The one fact pattern studied in more detail here is drunk driving checkpoints, with the main case being Michigan Department of State Police v. Sitz. Notes cover other situations, like border search rules; probation searches; national security searches; safety inspections; government workplaces, etc.
Last up is the law of consent searches, which is divided into two sections. It starts with the consent standard under Schneckloth, with notes on topics like the pscyhology of consent, empirical studies, the scope of consent under Jimeno, and the like. The last subsection is on third-party consent, with the main case being Fernandez v. California (which has useful discussions of Matlock and Randolph) and notes explaining the scope of third-party consent in common situations as well as the apparent authority doctrine. The last note then brings the chapter full circle to the beginning, asking students to consider what makes a search and seizure reasonable. Is there really a warrant requirement, with a few "limited" exceptions? Is it all about reasonableness balancing, with warrants only being reserved for a few situations? Or is it a quirky historical mix of the two?
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]]>Inside the building, they found that 82 people other than the Justices had access to the draft; interviewed 97 people, obtained statements under oath from them that they had not leaked the draft; and conducted a forensic examination of the Court's network to look for outside intrusions or insider disclosures. But as far as I can tell, the Marshal and her team didn't conduct the kind of investigation outside the building that the FBI could have done. No surprise; that's not what the Marshal would be expected to do. But that means that (as far as I can tell from the report) they didn't obtain legal process and collect phone or Internet records, get warrants, or anything like that. The investigators did search the few court-issued laptops and phones that some employees had, and they asked employees to volunteer their own phone and text non-content call records during a relevant period. But the "limited" records that were volunteered didn't reveal anything.
On the whole, this was a more thorough investigation than I expected, given the limited investigatory tools of the Marshal. But it doesn't look like the kind of full criminal investigation that an outside law enforcement agency could have conducted. And it's not quite done yet: According to the report, the Marshal and her team are still pursuing some leads, so the investigation isn't entirely over.
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]]>Here's the problem. The Fourth Amendment prohibits unreasonable searches and seizures, and there is a dizzying amount of caselaw on what is a search. There are probably 50 or 60 major Supreme Court rulings on the question, and gobs of lower court cases. Further, the test itself is murky. The most often used test is the Katz "reasonable expectation of privacy" test, but the cases on that are confusing. The Supreme Court sometimes treats that test as a normative inquiry, sometimes as a descriptive inquiry, and when it's descriptive it divides over what it's describing. Then you add the trespass test, which is maybe (or maybe not) just a physical intrusion test — no one really knows, it depends on the judge — that does an uncertain amount of work in addition to the privacy test. To top it off, the results need to give students clarity about where officers can go and what they can do in a wide range of situations. How on earth do you cover that, especially if you only have 60 pages or so in which to do it?
I thought a lot about that question this fall, and here's the approach I adopted.
First, some context. In an introductory section, before the search materials begin, students will have already learned that the problems that inspired the Fourth Amendment involved physical intrusion into physical spaces — most often, searching houses in the literal sense of breaking in to them and physically rifling through their contents. The key question is, what beyond that foundational scenario is also covered as a search?
As I assembled the materials, I addressed that in four sections: Introduction to Katz; privacy in physical spaces; problems of new technology; and the trespass/intrusion test.
The first section, about 10 pages long, introduces the reader to Katz v. United States, which was the Warren Court's main case on what (if anything) beyond physical intrusion is covered as a search. Katz, and Harlan's concurrence, introduce the reasonable expectation of privacy test. Then the notes after Katz introduce some of the key conceptual questions around that: Just what is the Katz test asking? How does it relate to the text? What is the role of the subjective test? The notes also inform the reader of some of the common and repeated applications of the test: When is it is a search to get information about the inside of a car? What about a package? The point of this first section is to just get a basic bearing on what the Katz test is.
The second section, which is about 15 pages, considers how Katz applies in physical space. The point of this section is to make sure students understand how Katz applies in the non-technological scenarios of an officer just walking around and seeing physical things. Where can officers go in ordinary physical space before their conduct becomes a search? It starts with a case on the open fields doctrine, United States v. Dunn, to explain the curtilage/open-fields distinction. Notes then cover how the Katz test applies in common physical spaces like entering businesses (that may be open or closed to the public), entering common areas of apartment buildings, and entering government offices. We then get California v. Greenwood, the trash case, and notes how the Katz test applies to searches of abandoned property, searches of jail cells, and searches of property belonging to people experiencing homelessness.
The third section takes on Katz and changing technology. A lot of the harder Katz issues are about technology, as technology changes the relationship between place and information and how easy it is to collect information. So this is the longest section, about 25 pages. The materials start with cases on technology-enhanced surveillance of physical spaces and then turn to network surveillance. The materials on technology-enhanced surveillance of physical spaces bookend California v. Ciraolo (aerial surveillance of a home, not a search), and Kyllo v. United States (thermal imaging of a home, a search). The related notes consider variations on this theme, such as dog sniffs, physical tracking devices, and abandoned DNA. The network surveillance cases then bookend Smith v. Maryland (numbers dialed, not a search) and Carpenter v. United States (cell-site location information, a search). The related notes consider variations such as accessing emails and IP addresses, short-term location tracking, and lower court interpretations of Carpenter. The "bookend" approach includes two major cases that seem to present similar kinds of issues but come out differently; the contrast invites the reader to consider why the Court decided them differently, and thus what matters in the doctrine. I think it works well for this particular material.
The final section, about 10 pages long, covers the trespass/intrusion test of United States v. Jones in 2012 and Florida v. Jardines in 2014. In addition to covering those two cases as "main" cases, notes focus on what the test is (Is it a trespass test as in torts? Is it a physical intrusion test, a return to pre-Katz caselaw?); how lower courts have applied it in ways that might go beyond Katz (to scenarios like chalking a tire and inserting keys in locks); and where it might go next (covering Justice Gorsuch's opinion on the "traditional approach" in Carpenter).
There are an endless number of ways to teach the search materials. As I said at the beginning, I think it's a tremendously challenging topic to cover. So I don't claim to have found the one and only way to present these materials. But my hope is that this format will click the most for students and professors alike. My hope is that this is as conceptually clear as it can be, in that it breaks down the issues for students in what I hope are helpful ways (covering physical cases vs. technology cases, Katz vs. trespass/intrusion, etc.). And the approach very roughly tracks the chronological order in which the cases were decided, so students can appreciate the development of the law and understand how later cases are built on (or break from) earlier ones.
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]]>First, some context. The Kamisar LaFave & Israel casebook basically invented the field of constitutional criminal procedure as a subject, starting with its first edition in 1965. I've been on the casebook for well over a decade, but until now I had responsibilities for only a small part. This time around, I am taking over most of the 4th Amendment materials as part of a broader generational shift in the book. This is a little bit oversimplified, but the basic idea of that generational shift is that Eve Brensike Primus has taken over the interrogation law and right to counsel materials from Yale Kamisar, who passed away earlier this year; I have taken over the Fourth Amendment materials from Wayne LaFave, who has retired; and Nancy King has taken over the adjudicatory criminal procedure materials from Jerry Israel, who has also retired.
Revising a classic casebook is a daunting prospect. Each of us "second generation" authors is well aware we are following the footsteps of true giants in the Criminal Procedure field. But it also seems to me the nature of things that, as one generation of editors moves on to the next, each new generation will recast the materials to fit the new set of authors — and a new generation of readers. Along those lines, I ended up quite considerably rewriting the Fourth Amendment materials of the book. Much of the basic structure is similar, and many of the main cases are the same (albeit re-edited). And while some of the changes are author preferences — do you spend a lot of time on the facts of cases? How long do you spend on dissents? etc. — some of them strike me as more generational shifts in how to think of law school casebooks, and the field of criminal procedure, more broadly, that might be of interest to a broader readership.
Below are some of the significant changes in focus I tried to introduce to the Fourth Amendment materials. My understanding is that my colleagues have made similar changes to their materials, too. But as I am writing this in my own capacity, I'll focus on the approach I took in the search and seizure area:
Clear statements of black-letter law. In an earlier generation of casebooks, it was common to present the cases as cases and to leave the assembly of the doctrine more to the students. That is now outdated. Students today can get the black-letter rules anywhere, from wikipedia to Youtube to commercial outlines to outline banks online. Given that the rules are not some sort of carefully-guarded secret anymore, it seems odd to not integrate the black letter law rules into the casebook itself. I think it's easy, and helpful, to state the rules up front and to then focus the materials on the hard part of how they apply and whether they are persuasively justified. In redoing the materials, I tried to be clear about what the rules are, at least to the extent the rules are clear, and to say what rules are unclear and why.
Increased attention to history. In an earlier generation of criminal procedure casebooks, the law was largely about the Warren Court's major rulings. That is still partly true: The canonical cases are often 1960s-vintage (in Fourth Amendment law, think Mapp, Katz, Terry, etc.). But the Warren Court ended over a half-century ago, and today the 1960s are more a key part of the story than the entirety of the story. In particular, today's Supreme Court and lower courts interpreting the Fourth Amendment often care a lot about the common law and the origins of the Fourth Amendment. It seems to me that a casebook today needs to cover that: You can't understand where we are without knowing the pre-Warren Court history. So my reworked materials start with a section on the history and the development of the Fourth Amendment, starting with Entick v. Carrington (1765).
Increased attention to race and racial justice. In recent years, especially after the killing of George Floyd, questions of race and racial discrimination in law enforcement have become central issues addressed in law school courses in criminal procedure. In rewriting the materials, I aimed to make those questions more prominent. That took different forms throughout the materials, among them: (a) adding commentaries about the role of race in criminal procedure; (b) adding more coverage of topics that were less prominent before, such as the law of excessive force, (c) reporting on empirical studies about racial disparities in search and seizure, and (d) directly addressing areas in which race and doctrine intersected, such as whether the seizure test should incorporate the race of suspects.
Increased attention to social science and empirical studies. In the last decade or two, there have been a lot of very useful social science and empirical studies that give insights into how the law of criminal procedure works. Some of the studies are on the scale of the criminal justice system: How many arrests occur each year? How many warrants are out for persons' arrest, and for what? Other studies are on how often different doctrinal paths are taken: How often do people consent? How often does an automobile search lead to discovery of evidence? Other students are on racial disparities: How often are people of different races subject to Terry stops? How often are people of different races frisked? Others are on psychology of police-citizen interactions: Why do people consent to search? When do people feel free to leave? What influences judicial findings of probable cause? Students who read Supreme Court cases will want to know how some context of how they work, and I think it's really useful in various places to summarize the empirical studies so students can contextualize the rules.
Increased awareness of state practices. In an earlier generation, it was assumed that the U.S. Supreme Court had federalized the field of criminal procedure. The Warren Court had made the law uniform, so there was one body of law to learn. Today, though, state practices have become more important again, in part because the U.S. Supreme Court has limited the reach of some federal doctrines. A student who goes on to practice criminal law might practice in federal court, or in a state that sticks with the federal standard. But they might practice in a state that has a lot of state limitations that exceed the federal threshold. You can't go through all the state practices, of course, and the federal standard is still the floor and governs in many places. But it can be useful to point out some areas where state practices differ, and more generally for students to be aware that state practices in a particular state might have state-specific doctrines that go beyond the federal floor.
Those are the main kinds of changes. Of course, adding these materials meant that other materials had to be taken away. We're trying to keep the book the same length, and maybe shorten it if we can. Among the items that I tried to shave down a bit (or even cut out) to make room for new materials included: (a) Trimming or eliminating materials that were "hot topics" in an earlier era, but are less prominent today, such as legal issues involving the War on Terror, (b) Trimming dissents from older cases, some of which were included at great length in earlier editions because those Justices were still on the Court and might have future majorities (as time passes, that becomes less significant; dissents are needed to frame debates, but they can often be shorter because those Justices are no longer on the Court); and (c) Trimming cases that were recent at the time of earlier editions and may have seemed like important new directions at the time, but that over time have come to seem significantly narrower because they did not actually lead to new paths.
The new 16th Edition of the casebook will be available for the Fall 2023 semester. I hope professors find the changes helpful, and that students enjoy the experience of reading it.
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]]>A number of the relevant cases involve the length of traffic stops. Traffic stops are the most common police-citizen interaction, and a stop for speeding or a broken taillight can often turn into something more. Given that, what happens during a traffic stop is super important. One of the important doctrinal tool to limit traffic stops (maybe the most important) is the time element. In Rodriguez v. United States, in 2015, the Court held that the permitted time of a traffic stop is determined by the time that an officer actually did or should have completed the mission of the stop — the mission being the safety-related rationales that permit traffic stops in the first place, like writing a ticket, making sure the car is registered, the driver has a valid license, etc.
Rodriguez came at an interesting moment. It introduced a time-based test at a time when police body-worn cameras were coming into widespread use. And by creating a test that distinguishes things within the mission of the stop from things outside the mission, the Court created a test that in theory could hinge on pretty specific, second-by-second inquiries into time. Before body-worn cameras, though, that would have been essentially impossible. Courts trying to reconstruct what happened during traffic stops would be stuck with the old tools of relying on memory from a long past event.
Body-worn cameras have changed that. In the context of traffic stops, they allow a second-by-second reconstruction of everything that happened. They allow a scrutiny of each and every question, and of each and every movement. Of course, cameras can't capture everything; you still might only get a partial picture. But often the cameras capture a lot, especially in the context of a traffic stop's duration. And that lets courts adopt doctrinal rules that rely on the new camera technology in their application.
Take, for example, State v. Riley, 514 P.3d 982 (Idaho 2022). It's a pretty ordinary traffic stop case in the books. A stop for expired tags leads to a suspicion there are drugs in the car, which leads to another officer coming to walk a drug-detection dog around the car. The dog alert leads to a search of the car, and they find drugs. Before body-worn cameras, this would have received no scrutiny at all.
But body-worn cameras let the court do something different. The opinion by Justice Moeller features a second-by-second reconstruction of every relevant question and every relevant pause, which leads the court to scrutinize each question to decide if it was inside or outside the mission of the stop. The court can then subtract out the precise seconds added by the outside-the-mission questions and pauses to determine if the dog sniff occurred within the proper period of a stop. According to the court, the officer spent exactly 8 seconds asking the driver if there were drugs in the car, and later spends another 20 seconds discussing the situation with backup officers who arrived at the scene. The court's opinion includes this chart to explain the timeline:
Ultimately, the court rules that the government wins by 20 seconds. That is, although the outside-the-mission goings-on added 28 seconds, the dog alerted 48 seconds before the first officer finished writing his ticket for the stop. So the dog alerted within the time window that would have existed without the outside-the-mission conduct by 20 seconds.
In this particular case, I don't think the camera changes the ultimate outcome of the case. But it's the methodology, I think, that matters. The court's method for determining if the Fourth Amendment was violated rests on being able to scrutinize timestamps on a video and calculate hypothetical timeframes. I doubt a court would have thought to do that in a world without video. The available technology changes how the doctrine can be applied, and that, in a practical sense, helps to change what the doctrine is.
Anyway, I'm not sure how far these changes will go over time. I assume we're moving in the direction of having more and more body-worn cameras, and maybe more video evidence generally. So we'll see whether or how the new forms of evidence have a small or large effect on doctrine. But it seems like something to watch. It's a subtle difference, but I think it's a real one.
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]]>As I understand things from David Lat's useful coverage, Judge Ho's goal is to change the culture of law schools. By imposing a boycott, and by getting as many other conservative judges as he can to join him, he might discourage conservative applicants from enrolling at Yale Law School. That might pressure Yale Law School to change its culture. And that in turn might cause a shift in the culture at other schools.
This a bad idea, and I hope other judges do not adopt it. Given our blog's traditional readership among conservative judges and clerks, I thought I would take a minute here to say why.
First, some context. I think it's fine if federal judges want to express their personal opinions about law school cultures. Judges can give public talks in their personal capacity, and they can write op-eds in their personal capacity. They can write books, go on podcasts, upload TikTok videos, or whatever. We all have opinions, and judges do, too. If they want to express them, I don't have a problem with that.
I also think it's fine for judges to decide not to hire graduates from a particular law school because they don't expect clerks from that school to work out well. Federal judges pretty much have their choice of clerks. In choosing which applicants to hire, it's natural for judges to favor some schools, and to disfavor others, because the judges think they're likely to have better or worse experiences hiring clerks from there. That's all fine, too.
What Judge Ho is doing seems different, though. He is trying to use his position as a government official, and the accompanying power to direct taxpayer dollars to employ staff, in a way that maximizes his personal agenda outside of his government work.
Some will agree with that agenda, and others won't. But whatever your views on that, I think this 'boycott' crosses an important line. It's the line between judges expressing their personal views in an effort to persuade (which is fine), and judges harnessing their power as government officials to create pressure on private institutions to further their personal agendas (which is not fine, in my view).
Judge Ho has anticipated at least part of this objection. David Lat reports:
To those who'd say he should "stay in his lane" and stop telling law schools (and law school deans) how to go about their business, [Judge Ho would] argue that judges are already expressing preferences of all sorts—e.g., judges who promise oral argument if litigants let younger lawyers do the arguing, judges who take race and sex into account when appointing class-action or multi-district litigation counsel, etc.
That doesn't seem like much of a justification to me. Two wrongs don't make a right. That is, Judge Ho presumably disagrees with those other judges who have tried to use their official powers to advance their personal agendas as it relates to law firm staffing. I disagree with the decisions of those judges, too, for the same reason I disagree with Judge Ho's plan. But the fact that some judges are "already" doing something does not justify doing a lot more of it. Some judges wrongly crossing a line does not remove that line for everyone else.
The post Boycotting Law Schools in Clerk Hiring As a Way to Influence Law School Culture appeared first on Reason.com.
]]>I think three of those impressions might be relevant to thinking about Netchoice.
First: It is a strange rule of human nature that most people who are moderated in an online forum feel, with great certainty, that they are being censored for their beliefs. Few people think they just went too far, or that they broke the rules. Moderation is usually seen as the fruit of bias. So liberal commenters were positive I deleted their comments or even banned them because this is a conservative blog and we were afraid that liberal truths would pierce through the darkness and show the false claims of conservatives. And conservative commenters were completely confident that I deleted their comments or even banned them because we are liberals trying to prevent conservative truths from exposing liberal lies. It just happened all the time. Moderation led to claims of censorship like day following night.
Second: Content moderation always reflects a message of the moderator. My goal in moderating Volokh Conspiracy comments was just to keep discussions civil. My thinking was that if you can keep comments civil, you will not only encourage better comments but also entice better commenters. And I think experience proved that correct. For a few years there, moderated Volokh comment threads were pretty insightful places to go to look for perspectives on our posts. But moderation always implies some some sort of message. It implies some value or judgment that the site has (or maybe just the primary moderator has) that they want to advance. For example, when I was moderating out uncivil comments and commenters at volokh.com, I didn't care if an opinion was liberal or conservative. But my moderation still expressed a value: A belief in a marketplace of ideas, where we wanted the ideas to be expressed in a way that might persuade. That was the value we (or I) had. It's a process value, but still a value. Moderating was always an effort to further that underlying value we had.
Third, perfect comment moderation is impossible, but you can't let the perfect be the enemy of the good. I wrote above that many moderated commenters believed that they were being censored for their beliefs. A corollary is that many commenters had examples of comments from the other side that had remained up, apparently unmoderated, that to them proved the bias. If you deleted a comment as uncivil, it was common to hear howls of outrage that months ago jukeboxgrad had a substantially similar comment somewhere that is still up, so that under the principles of due process and the Magna Carta it would be despicable to moderate this comment now. The problem was scale. We might have 20 posts a day in those days, as there were a lot of short posts. An average post might get (say) 100 comments, with some getting many more. That was around 2,000 comments to wade through every day. You'd need full time moderators to try to moderate them all, with some sort of legal-like process for adjudicating individual comment moderation decisions. Moderated commenters often seemed to want that—and in some cases, to demand it. But it was just impossible given our day jobs. Moderation was needed to make comment threads worth reading, but the sheer scale of comments made imperfect moderating the best you could do.
The post Thoughts on Internet Content Moderation from Spending Thousands of Hours Moderating Volokh Conspiracy Threads appeared first on Reason.com.
]]>First off, there has been a lot of action on rehearing matters in Rosenow. On June 8th, counsel for Rosenow filed this petition for rehearing in the case. The petition leads with the preservation issue, although it also addresses other questions. On June 21st, an advocacy group called "Restore the 4th" filed an amicus brief in support of the petition for rehearing. The government has obtained an extension of its brief in opposition to rehearing, which is now due on the first day of August.
Second, I have revised my model brief by adding a new section to respond to the claim, alluded to in Rosenow, that Internet users have consented to any searches or seizures because they used Internet accounts governed by terms of service that permit providers to comply with legal process. I think this is pretty clearly wrong, and a new section of the model brief explains why (see pages 18-22).
Finally, have received word of at least two motions to suppress for Internet content preservation being filed based on the model brief. I would guess some other motions have been filed that I don't know of, but I have learned of at least two. As I have noted before, developing the arguments and writing the model brief was one step, but actually having lawyers file the motion has been more of a challenge than I initially expected. Anyway, I am glad to learn that at least some motions to suppress have been filed using the brief.
As always, stay tuned.
The post Update on the Ninth Circuit's Rosenow Case—Plus a New Model Brief, and Other Litigation appeared first on Reason.com.
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]]>I. An Overview of the Rosenow Case
Rosenow arose out of an investigation into child exploitation in the Philippines. Two large Internet providers, Yahoo and Facebook, ended up being involved. That led eventually to Rosenow's arrest on his return from the Philippines to the United States and a search through his computers pursuant to a warrant. The search revealed child sexual abuse material (CSAM), also known as child pornography, including some involving sexual acts between Rosenow and prepubescent Filipina girls. On the basis of the images found on his computer, Rosenow was convicted of sexual exploitation and CSAM possession.
On appeal, Rosenow made several different arguments in his merits brief. A majority of the merits arguments were on Fourth Amendment law. The primary Fourth Amendment claim was that Yahoo and Facebook had become state actors, and that their accessing account information was a government search that triggered the Fourth Amendment. But Rosenow also challenged other parts of the investigation, including the validity of the warrant obtained and whether accessing basic subscriber information was a search.
The Ninth Circuit affirmed in a published opinion by Judge Forrest, joined by Judge Callahan, with a partial dissent by Judge Graber. The Court ruled that Facebook and Yahoo were acting as private actors, not state actors; that the warrants were valid, and that accessing basic subscriber information is not a search under the Fourth Amendment. Judge Graber dissented in part as to one aspect of the state action ruling.
So far, this seems like an interesting decision, although on the whole relatively minor in its significance. It's mostly fact-specific issues (such as where the state action line is) or else pretty clearly correct (such as the ruling that accessing basic subscriber is not a search). It also has a lot I very much agree with, such as the specific ruling that the Stored Communications Act doesn't make Internet providers state actors.
But that's not all. There's more. And that "more" turns out to be really big—much bigger in its importance, I think, than everything else in the Rosenow opinion.
II. The Stunning Passage in Rosenow
What is that really big thing? In his merits brief, Rosenow claimed that a set of other practices, including the preservation of his Internet account contents, violated the Fourth Amendment. The argument is less than a page of the brief, see page 64, and the only material specifically about preservation is a single sentence saying that the preservations were seizures.
To my great surprise, Rosenow's merits opinion took on those claims and rejected them on the merits. And because Rosenow is a published opinion, its holding is now binding in the Ninth Circuit. In the 45-page published opinion, here's the totality of the discussion of preservation and the Fourth Amendment:
Were the preservation requests unconstitutional seizures?
Acting pursuant to 18 U.S.C. § 2703(f), which requires an ESP "to preserve records and other evidence in its possession pending the issuance of a court order or other process," the government directed Yahoo on three separate occasions to preserve records related to Rosenow's private communications. Rosenow contends that these requests were an unconstitutional seizure of his property.
A "seizure" of property requires "some meaningful interference [by the government,] with an individual's possessory interests in [his] property." Jacobsen, 466 U.S. at 113. Here, the preservation requests themselves, which applied only retrospectively, did not meaningfully interfere with Rosenow's possessory interests in his digital data because they did not prevent Rosenow from accessing his account. Nor did they provide the government with access to any of Rosenow's digital information without further legal process. It also is worth noting that Rosenow consented to the ESPs honoring preservation requests from law enforcement under the ESPs' terms of use. Thus, we agree with the district court that these requests did not amount to an unreasonable seizure in violation of the Fourth Amendment.
Yikes!
III. Why the Passage Is So Important, and Why It's Really Bad.
Why is this passage so important? There are two main reasons, I think. The first is narrower, and the second broader. Let me start with the narrower reason (although it's still pretty broad!).
First, as regular readers know, I think the Fourth Amendment makes most Internet content preservation unconstitutional. You can see my full argument in this recent article of mine: The Fourth Amendment Limits of Internet Content Preservation. And you can see the argument fully written out as defense counsel might litigate it in this draft motion to suppress I recently wrote. I think this is a hugely important issue, although it remained almost entirely unlitigated, much to my frustration. No federal court of appeals has decided this issue until Rosenow. The Ninth Circuit heard oral argument on this issue and had extensive briefing on it (with amicus oral argument participation, and briefing, from the ACLU) in United States v. Basey in 2019, but the panel did not reach the question in its decision.
For the Ninth Circuit to weigh in in this fashion when it wasn't fully briefed, and to reject these claims on the merits, is a big deal. It means that the government is free to pursue unlimited preservation, even though the major (and to my mind persuasive) arguments for why it shouldn't be able to do that have not been presented to the court that is saying this is permissible.
That's huge. Under Rosenow, any government official can at any time order any Internet provider to run off a copy of anyone or even everyone's entire account contents. The only authority on the question is now Rosenow, which rejects the claim. I think this is all wrong on the merits. But more importantly, it's wrong on a vast scale: As explained in my article, there are hundreds of thousands of Internet preservations occurring every year. This passage in Rosenow gives any government official a blank check to order any preservation of anyone or everyone's account without limit. To decide this important a question in such a brief and unexplained passage is remarkable.
So that's the narrower (but again, pretty broad) problem. Here's the even broader one. The particular way that Rosenow rules for the government is incredibly far-reaching and deeply troubling. Here's the key passage again:
A "seizure" of property requires "some meaningful interference [by the government,] with an individual's possessory interests in [his] property." Jacobsen, 466 U.S. at 113. Here, the preservation requests themselves, which applied only retrospectively, did not meaningfully interfere with Rosenow's possessory interests in his digital data because they did not prevent Rosenow from accessing his account.
This is a remarkably far-reaching ruling, and all in just two sentences. Whether and when copying data is a Fourth Amendment seizure is one of the foundational questions of the future of Fourth Amendment law that has been in the background of the caselaw for years. And it's also been a topic in scholarship for a long time, including stuff I have spent a lot of time on. As longtime readers may remember, in 2005 I initially concluded that copying wasn't a seizure. By 2010, however, I had changed my mind, and I wrote an article explaining why copying ordinarily is a seizure, using preservation requests as an example: Fourth Amendment Seizures of Computer Data, 119 Yale Law Journal 700 (2010).
District courts have divided on the question. And the one federal court of appeals ruling on it, which had held that copying is a seizure, was vacated when the court went en banc (presumably for reasons other than the seizure ruling, as there was a lot more going on in the case). See United States v. Ganias, 755 F.3d 125, 137 (2d Cir. 2014) (holding that the Government's retention of electronic copies of the defendant's personal computer "deprived him of exclusive control over those files," which was "a meaningful interference with [the defendant's] possessory rights in those files and constituted a seizure within the meaning of the Fourth Amendment."), vacated by United States v. Ganias, 824 F.3d 199 (2d Cir. 2016) (en banc). So until Rosenow, there was no circuit court precedent on this foundational question.
By ruling that copying is not a seizure, the Ninth Circuit becomes the first circuit court to have ruled on the question in a decision that is still on the books. And the question is of dramatic importance, as the introduction to my 2010 article flags:
Imagine the police take away a suspect's computer, make a digital copy of its contents, and then give the computer back to the suspect. The police do not open the copy, but they keep it in their custody in case they need to access it later. Does the combined act of copying the files and retaining the copy trigger the Fourth Amendment?
Next imagine that FBI agents believe a particular person is using the Internet to commit a crime. Agents install a surveillance tool at the target's Internet service provider (ISP), and the tool generates copies of all of the target's incoming and outgoing email. The email is copied to a file, but no human being actually looks at the file. Instead, the agents keep the file in case they develop probable cause to look through it for evidence. Again, does the Fourth Amendment allow it?
The answer to both scenarios depends on whether copying computer files without looking at them constitutes a Fourth Amendment "seizure. If copying a computer file amounts to a seizure, then the government cannot make and retain a copy absent special circumstances. On the other hand, if copying is not a seizure, then the government can make and retain the copy without restriction. The Fourth Amendment will limit looking through the copy because that is a Fourth Amendment "search. But what if the government wants to make a copy and hold it? Does that constitute a "seizure"?
Putting the preservation issue aside, a ruling that copying is not a seizure has extraordinary implications. Whether you agree with that holding or disagree with it, I don't think it's a conclusion that is best reached in a precedential opinion in just two sentences.
And that's not all. The Rosenow passage includes this sentence:
It also is worth noting that Rosenow consented to the ESPs honoring preservation requests from law enforcement under the ESPs' terms of use.
What were those terms of use? Earlier in the decision, the court notes a fairly standard term in its privacy policy, here Yahoo's, that Yahoo may disclose information "to investigate, prevent, or take action regarding illegal activities . . . , violations of Yahoo's terms of use, or as otherwise required by law." I assume that's the term they had in mind.
I'm not entirely sure how to read that "note." But read fully, it seems to be suggesting that agreeing to terms of use governing an Internet account can eliminate Fourth Amendment rights. In particular, the provider telling you in the fine print when you register the account that they might end up giving your data to the government in some situations is treated as forever blanket consent to that as a matter of Fourth Amendment law.
As a matter of Fourth Amendment law, I think that would be wrong, for reasons I argued here. But it's also about as far-reaching as you can get. If agreeing to standard terms of service is consent to a possible seizure, then presumably it is also consent to a possible search. That would mean that Fourth Amendment rights online can be reduced to zero through a standard online term no one reads, and that users can't avoid, that were created just to make sure no one can sue the providers for complying with valid legal process. I don't want to be apocalyptic, but this seems really really bad.
IV. A Possible Way Forward
What are the prospects for further review? En banc review is possible. Counsel for Rosenow has received an extension for a petition for rehearing, until June 8. When the petition for rehearing is filed, it's possible that the court could want an en banc panel to take a look at the preservation issue, which could lead to a new opinion. And I would certainly support a full look at the preservation issue by the en banc court.
But there's also a narrower way, should the court not want to go en banc on this or another part of the case. It seems to me that another way forward would be for the panel to just amend the opinion, only changing that passage, to say the issue will not be addressed because it was not fully briefed and was therefore waived.
Here's some context. Under Ninth Circuit practice, an issue is deemed waived unless the appellant "specifically and distinctly argue[d] the issue in his or her opening brief." United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005). The appellant has to specifically and distinctly raise the issue, and it then has to be "supported by argument" in the opening brief, for the Ninth Circuit to rule on it. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir.1988).
As I read the opening brief, whether preservation is an unreasonable seizure was neither specifically and distinctly argued nor supported by argument in the opening brief. Here's the full section from the opening brief:
The government's subpoenas and preservation requests were also illegal searches and seizures under Carpenter.
The recent Supreme Court case Carpenter v. United States, 138 S. Ct. 2206 (2018) also instructs that Rosenow had a legitimate right to privacy in his digital data, and that it violated the Fourth Amendment to interfere with that right without a warrant and probable cause. In Carpenter, the government obtained orders directing wireless carriers to provide cell-tower data regarding several criminal suspects. Id. at 2212. The Supreme Court reversed the resulting conviction, holding that warrantlessly obtaining this information violated the Fourth Amendment. In so doing, it rejected the notion that the third-party doctrine insulated this information from Fourth Amendment scrutiny, noting that thirdparty- doctrine cases did not deal with "confidential communications" and other private information. Id. at 2219. [FN158] The Court held that a warrant should have been required: "this Court has never held that the Government may subpoena third parties for records in which the suspect has a reasonable expectation of privacy" it observed. Id. at 2221 (emphasis provided). "If the choice to proceed by subpoena provided a categorical limitation on Fourth Amendment protection, no type of record would ever be protected by the warrant requirement." Id. at 2222.
Carpenter demonstrates that searches and seizures occurred here. The government seized Yahoo records through ongoing preservation requests, with no notice to Rosenow. And it both seized property and affirmatively prompted additional searches by issuing administrative subpoenas to Facebook. Under Carpenter, this should have required a warrant showing probable cause. Because the government had neither, this evidence should have been suppressed.
[FN158: Even the dissent seemed to concede that private communications—as opposed to mere location data—would not be governed by the third-party doctrine. See id. at 2230 (Kennedy, J., dissenting) ("Miller and Smith [the leading third-party cases] may not apply when the Government obtains the modern-day equivalents of an individual's own 'papers' or 'effects,' even when those papers or effects are held by a third party.") (citing Ex parte Jackson, 96 U. S. 727, 733 (1878) (letters held by mail carrier); United States v. Warshak, 631 F. 3d 266, 283-288 (6th Cir. 2010) (e-mails held by Internet service provider)).]
The claim here seems to be that, somewhere in the subpoenas and preservation requests, there were unreasonable searches and seizures. Most of the passage seems to be arguing that the subpoenas were searches under Carpenter, a claim that in my view the Ninth Circuit properly rejected.
But here's the key. As I read that passage, it doesn't seem to be separately and distinctly claiming that preservation is an unreasonable seizure, or offering a legal argument for why that might be. The test for what is a seizure is not even mentioned. How the test might apply is not mentioned. The test for the reasonableness of a seizure is not mentioned (much less applied) either, except to say that a warrant should have been required. Compare that passage to the model brief I recently posted. It seems to me that the opening brief in Rosenow did not put the court on notice of the legal questions before it on the preservation issue. You'd have to guess what the specific arguments were on the preservation issue, as the opening brief didn't flag them, much less make them.
I don't mean to criticize the hard-working counsel in the case. I believe Rosenow was the first case ever to get an opinion on the Fourth Amendment issues raised by preservation in the trial court decision. To use an exam-grading analogy ('tis the season): The issue was spotted, unlike all the other cases where counsel have just missed it. The opening brief raised a lot of issues, and went right up to the page limit, so it may not have been developed because of other issues in the case. And I agree that the preservation issue was addressed in more detail in the Ninth Circuit reply brief.
But it seems to me that, if the court doesn't want to take this enormously important set of questions on en banc, it might be wise to amend the panel opinion to recognize that there's a lot more going on in the case than the panel realized given that the issue was not fully developed in the opening brief. That would make no difference to the outcome. And it would just replace a single paragraph in the opinion, as the analysis paragraph would just become a waiver paragraph. But it would mean that these critical and novel legal issues could wait for full briefing and decision in another case.
As always, stay tuned.
[UPDATE: I fiddled a bit with the post shortly after posting it.]
The post The Ninth Circuit's Stunner in <i>Rosenow</i>, and Thoughts on the Way Forward appeared first on Reason.com.
]]>First, in the short term, if Dobbs overturns Roe/Casey, you'll presumably have a lot of abortion-related legal issues at the Supreme Court and elsewhere about the scope of legislative and executive powers. For example, how much power does Congress have to impose national rules relating to abortion? What are the powers of federal executive agencies to influence abortion-related practices? What are the powers of states to prohibit out-of-state abortions? Dobbs could settle some questions, but I would guess it would shift the debate rather than end it.
Second, in the long term, changes in Supreme Court personnel work both ways. As far as I can tell, those who think Roe/Casey should be maintained also believe that, if Dobbs overturns Roe/Casey, then the Supreme Court should overturn Dobbs at its first opportunity. That doesn't seem likely in the next few years, as the votes aren't there now. But it's hard to predict the future. And presumably, someday there will be a Court with a majority of Justices appointed by Democrat-party Presidents. When that happens, another cycle might begin.
I understand that whether Dobbs would end the debate or merely shift the debate to the next stage isn't the most important question raised in the case and the leak. But for those interested in that particular issue, I thought I would say why I think the latter is more likely.
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