Short Circuit: A Roundup of Recent Federal Court Decisions

Private searches, threatening tweets, and constitutional abominations.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: The IRS hands out some excessive fines and the Ninth Circuit's dicta-is-law rule.

1. Are historic restrictions on gunpowder stores "relevantly similar" to the District of Columbia's 10-round cap on gun magazines? D.C. Circuit: "The suggestion . . . is silly." OK, what about bans on trap or spring guns? "This analogy is too generalized." Alright, stretching a bit here, but maybe Bowie knives? "[A]t this interlocutory juncture, the District has met its burden." Dissent: Long, long ago the Stuart kings disarmed Protestants.
2. Allegation: FBI agents violated Religious Freedom Restoration Act when they retaliated against Muslim Americans who declined to be informants by baselessly putting them on the No Fly List. District court (2015): You can't seek damages under RFRA. Supreme Court (2020): There's no atextual exclusion of a damages remedy in RFRA. Second Circuit (2024): How about an atextual qualified immunity bar to these claims instead?
3. Second Circuit (en banc): If a guilty plea could lead to denaturalization and deportation, lawyers must advise their clients of that fact or they're giving unconstitutionally ineffective counsel.
4. New York man uploads a file to his Gmail account containing an image with a "hash value" (a digital footprint assigned by Google) matching content that Google previously identified as child porn. Without inspecting the image, Google passes it along to the National Center for Missing and Exploited Children, which in turn passes it along to NY State Police without inspection. The police open it. It's child porn. Did they need a warrant to visually inspect the image when Google had already conducted a "private search" of its hash value? Second Circuit: Yes. "Human visual examination" of the image went beyond what could be learned by Google's hash-matching algorithm. But the good faith exception applies. Conviction affirmed.
5. Do project labor agreements that require workers be associated with a specific union violate the First Amendment? Third Circuit: We're not gonna tell you this time, but the plaintiff contractors definitely have standing to challenge Philadelphia's recent PLA policy. And they can go forward on their equal protection claims too.
6. This week's remake of Trading Places stars defendant election officials who argue the guys suing them—a couple political party entities—have standing while the guys themselves "sheepishly" suggest maybe they don't. That's because the guys would rather be somewhere else: in North Carolina state court. However, once the film begins you'll learn what an "embedded federal question" is (basically a state-law claim that entirely rests on federal law) and why, as the Fourth Circuit says, it means the case was properly removed and ain't going back.
7. Mississippi passes new law allowing the counting of absentee ballots mailed by election day but arriving in the mail up to 5 days later. Is this in accord with Congress designating a singular "day for the election" of federal candidates? Fifth Circuit: Once an "election" is over all ballots must be in the hands of election officials. In the mail doesn't count. Congress could legislate otherwise but it hasn't. Mississippi's law is preempted.
8. Questioned about unions, Tesla CEO Elon Musk opines in a tweet, "[W]hy pay union dues & give up stock options for nothing?" The National Labor Relations Board sees that as a threat to rescind stock options if employees unionize and orders him to delete the tweet. Fifth Circuit (en banc): "Deleting the speech of private citizens on topics of public concern is not a remedy traditionally countenanced by American law." Dissent: "Musk's coercive tweet was not 'constitutionally protected speech.'"
9. In 2022, a district judge finds Hinds County, Miss. officials in contempt of a federal consent decree after monitors report that a portion of its jail is essentially run by gangs. About 30 cells are used as dumpsters. Lights don't work. The majority of cell doors do not lock. Inmates regularly escape through the roof and return with contraband. Disliked inmates are assaulted, not allowed to eat. (Two such inmates are discovered emaciated and covered in feces and sores.) Hinds County: The real "constitutional abomination" here is the consent decree, which is the cause of all these problems. Fifth Circuit: The district court did not err in declining to terminate the consent decree, but it can't give a receiver control over the jail's budget.
10. Federal prosecutors in San Diego try to use civil forfeiture to seize a $1.2 mil bank account in Liechtenstein, a whole other country. Ninth Circuit: You can't combine the legal fiction of suing a thing with the legal fiction of worldwide jurisdiction. Due process requires more, and that trumps an expansive federal forfeiture statute saying otherwise. Dissent: But that argument was waived by the account owner, and we've always done it this way.
11. California will contract with private schools to provide education under the Individuals with Disabilities Education Act only if those schools are "nonsectarian." Orthodox Jewish schools and families sue, saying the blanket exclusion of religious schools violates the Free Exercise Clause. Ninth Circuit: Categorically excluding religious institutions from this public-benefits program seems pretty unconstitutional.
12. Can a local gov't sue a state gov't for violations of the U.S. Constitution? Huntington Beach, Calif.: Perhaps other places can't, but we are a charter city and not a political subdivision. Thus, we do in fact have standing to challenge a state law that requires us to allow new high-density housing. Ninth Circuit (unpublished): No standing.
13. Allegation: At private area in Tulsa airport, TSA agents require woman to lower her pants and remove what turns out to be a feminine hygiene product. She has a panic attack and is no longer keen on traveling by plane. False arrest? Intentional infliction of emotional distress? Tenth Circuit: The good news is that you can bring suits under the Federal Tort Claims Act for the actions of TSA agents. The bad news is you lose. Partial dissent: You can't sue over TSA agents' actions under the FTCA.
14. It's been said that "we are all textualists now." But how should the Tenth Circuit interpret the text of the U.S. Sentencing Commission's Guidelines Manual after it has "exhausted all sources from which interpretive guidance may be derived," is "convinced that the parties' respective interpretations are in equipoise," and fears that "by accepting either side's interpretation, [it] would be hazarding a mere 'guess as to what [the Sentencing Commission] intended'"? Tenth Circuit: Rule of Lenity to the rescue.
15. And in en banc news, the Fifth Circuit will reconsider its decision that it lacked jurisdiction to consider an appeal in which the appellant—challenging his conviction and sentence for illegal reentry after removal—filed a motion seeking summary disposition and a letter brief conceding that his argument was foreclosed by Supreme Court precedent (while preserving the claim for further review). The original panel held, over a dissent, that this was an "impermissible shortcut" that removed any adversity from the proceedings and thus deprived the court of jurisdiction.

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Comments

[John F. Carr]

(Mississippi prison conditions case)

If a landlord can be sentenced to live in his hellhole can the prison administration be sentenced to live in their hellhole?

I know I've heard of landlords being ordered to live in their units. I do not know how much of what I recall is from movies and how much is fact.

[Dr. Ed 2]

The head housing court judge (who then became the ED of the troubled Springfield Housing Authority) stated that he jailed landlords, and assigned receivers to properties.

I think making the landlord live there is Hollywood as I doubt the cops would appreciate the liability of having to protect him.

[John F. Carr]

(Second Circuit, case 3)

Massachusetts law has long required defendants to be warned of immigration consequences before pleading guilty. If you are not warned, plead guilty, and face deportation you can withdraw your guilty plea. General Laws Chapter 278 Section 29D.

[taqmcg]

With regard to #4 -- the hash tag search from Google: It seems to me that the decision really should depend a bit upon the statistics here. If the tag has enough bits, then the chance of a spurious match (from a file that was not the suspected child porn) could easily be so infinitesimal as to be indistinguishable from 0. I.e., it could be much smaller than the chance that two non-twins have identical DNA results (at the points tested in typical DNA tests). I'd really like to see the chance of a random match is here to understand if this is an example of innumeracy in the judges or careful protection of our rights by them. Is this information provided?

[mse326]

That is a great argument that probable cause exists to get a warrant. But this is an issue where the 4th A. only allows a warrantless search of what a private actor already searched and told you about. They didn't search the actual image only the hash tag, so that is all the gov't can look at without a warrant

[Dr. Ed 2]

NO -- the private actor did NOT search. Instead the private actor said that the hash tag corresponded to the hash tag of a known porno image.

The issue I raise is if Google were to open the image, THEY would be viewing child porn, which is illegal. Is there some exception for the private center for exploited children? And do they do some sort of background check on their people?

Remember that Elvis was appointed a DEA agent by Nixon....

[mse326]

Reading the hash would be considered a search, I think, if law enforcement did it. That's why it's important to know what the private actor did. They read the hash so law enforcement doesn't need a warrant to do that. They didn't look at the image though, so law enforcement needs a warrant for that.

You can raise that issue if you want, but given that no private actor looked at the image it doesn't have any actual relevance to the case

[John F. Carr]

Ten or fifteen years ago I read an article about the people who review child porn. The work is outsourced to a company that mainly hires former LEOs.

[Dr. Ed 2]

And current perverts???

[taqmcg]

So if Google knows that there is (virtually certainly) child pornography in an account due the match of the hash codes, they are not required to report that? My assumption was that they were required to take action if they have (again essentially certain) knowledge of child porn on their systems. And it’s certainly better for them to provide the data unseen than to open themselves to any accusation that they are viewing child porn. Now if you’re saying that there is just a procedural issue that they forgot to check a box in the process — since if it’s certain that there’s child porn based upon the hash code then presumably getting the necessary paperwork should just be a formality — that’s ok. But I don’t feel there’s any true injustice here in this case if that got omitted.

Now if the has code were only say 32 bits, then every few billion files would be a hit and with billions of files being checked you’d really need to be careful. There’d be real false positives. Here you want to be careful and the procedural guidelines may address real concerns. But if something like an effectively 128-bit code is being used, then you’re likely never to see a single misidentification in the age of the universe even if you’re doing trillions of new files every second. Having the wrong hash code is tantamount to having an illegal file.

I see that as I was editing this TwelveInchPianist confirms that a hash of ~128 bits was used, so unless Google uses a poor hashing algorithm, a hash collision is very, very, … unlikely.

[TwelveInchPianist]

Although the op also says that the hash can "identify exact or
very similar images of apparent child pornography" so it sounds like they use a fuzzy algorithm.

[mse326]

This isn't about what google can or should do, but the law enforcement that receives it. Google should report it, and then law enforcement should get a warrant to view (read, search) it. It isn't that onerus a thing to do.

[Rossami]

What mse326 said - this case has nothing to do with what Google did but everything to do with what law enforcement failed to do (and trivially easily could have done) after getting the notice from Google.

[Brett Bellmore]

I suppose in principle, if you had a list of the hashes corresponding to the child porn, (Which, unlike having the actual images, wouldn't get you thrown in prison if discovered.) you could manipulate innocent images to generate hash collisions. While remaining innocent, of course; You wouldn't want to generate artificial child porn in the process.

[Archibald Tuttle]

That's creative thinking, bravo to you.

But technically it is supposed to be hard to do. If the hash algorithm is secure, then there should be no way to predict how a change in the file would change the hash code. You would have to try billions or trillions of changes and get lucky.

[Dr. Ed 2]

Why can't you edit the hash tag to make it appear that the image was something else? Heck, compress the porno image and insert it inside another image the way people have put lines of text (send help) in images they have emailed from foreign lands.

[gormadoc]

You can't directly edit the hash, but yes, editing the file will change the hash. The organizations that supply the hashes try to keep on top of it but I imagine most people don't bother modifying files.

[TwelveInchPianist]

According to the op, the image at issue had a hash of —2eb373380383f50820e648d1c304a3db, so 128 bits.

And could y'all please stop calling it a hash tag :-).

[IANNAL]

#pound sign

[gormadoc]

0#2eb373380383f50820e648d1c304a3db

[Rossami]

re: your analysis of "the chance of a spurious match"

What you just described is known in statistics as the Prosecutors Fallacy. It's a bit difficult to explain in something as short as a thread comment but the short version is that you're not testing for a single random match, you're making millions of them. That means one-in-a-million events (like false positives) can be expected to occur regularly.

Note by the way that what you describe is not how DNA testing is properly done. We don't start with a single hair and blindly ask "whose hair is this", we start with a suspect who has been identified based on other evidence and ask "did this hair come from the suspect".

[John F. Carr]

Prosecution: The DNA profile matches the defendant. One in 100 million Americans has this DNA profile.
Defense: Three Americans have this DNA profile. There is a 2/3 chance my client is not the killer.

[Rossami]

I stand corrected. You can explain it in something as short as a thread comment. Thank you.

[Krayt]

Reminds me of the OJ trial, where at one point, they showed a video of a crime tech gathering blood samples from the walkway, and the defense attorney says, look! She touched her thigh, contaminating the sample!

With what? OJ’s DNA, from the thigh of her blue jeans where she stores it?

[Tempe Jeff]

She might have had sex with Mr Simpson earlier.

[Bored Lawyer]

The counter to that is that there is an old saying in the law that evidence need not be a wall, it need only be a brick. IOW, a jury can conclude something based upon multiple pieces of evidence considered together.

The DNA evidence standing alone may not be enough to convict. But in conjunction with other evidence, it might be. It's still powerful -- the DNA evidence means very few people in the country could have done this crime. If other evidence points to the same defendant, then a conviction may be justified.

[Rossami]

That's not a counter - that's the point. When you're doing a blind fishing expedition, hash scans and DNA profiles don't provide the "one-in-a-million" guarantee that people (such as prosecutors) think they do. But when used against targetted populations (that is, much smaller populations) for which you already have supporting evidence, they can be useful.

[Toranth]

Just to describe the math behind hash collision probabilities:

The probability of a collision is generally calculated using the Birthday Attack likelihood - the point at which the probability that any two out of a set of objects match is 50%.
For things like file hashes, where the possibility space is 2^n, then the 50% probability point is 2^(n/2).
In the case of a 128 bit hash, you need 2^64 items before the 50% probability point of a match among any two of 2^64 items. 2^64 is about 10^19. That's about 100 times the age of the universe in seconds, for comparison.

This is referenced in footnote 7 as being explained in a different case, but it seems the government didn't present this math in this case.

TL;DR: False positives among hashes are VERY unlikely, even under the "worst" case.

Note: This assumes Google is using a real, modern, cryptographic hash. I worked with NCMEC years ago, and at the time they tracked lots of hashes, ranging from MD5 to SHA-256. I assume Google is not deliberately using a poor hash in the math here, and that they haven't forced such a hash on NCMEC as well.

[gormadoc]

To put it another way, 128-bit hash collisions are nowhere near as likely as one-in-a-million.

CSA monitors use perceptual hashing. That way they can find very similar images.

[Rossami]

You’re applying the hash-resistance calculation of a brute-force password attack to the legal question of 'is file X illegal content'. A 50% standard of proof is not the correct measure in this case.

Second and more importantly, you’re using the precise-match hashing logic, again applicable to password cracking but not to the hash functions and fingerprints used to identify similar but distinct data. Those functions use techniques like locality-sensitivity hashing and are designed to maximize the probability of collision.

Since Google refuses to release the algorithms they use for their similarity matching (and while I don’t like the result, they have good reasons to do so), we cannot calculate the true likelihood of a collision. We do, however, know that it’s a lot higher than your comment implies. And given that there are at best guess around 2^58 files on the internet (or about 3*10^17), that’s a really large base on which to test for collisions. 100 times the age of the universe in seconds sounds immensely huge but when compared to the volume of data humanity is creating every second, it’s barely big.

[SMP0328]

11. California will contract with private schools to provide education under the Individuals with Disabilities Education Act only if those schools are “nonsectarian.” Orthodox Jewish schools and families sue, saying the blanket exclusion of religious schools violates the Free Exercise Clause. Ninth Circuit: Categorically excluding religious institutions from this public-benefits program seems pretty unconstitutional.

California’s policy sounds like a throwback to 1971-1983, when the Supreme Court unflinchingly applied the Lemon Test. Back then, giving government benefits to a “pervasively sectarian” institution would almost certainly be struck down. That time is long since past. California needs to get with the times regarding the Establishment Clause.

13. Allegation: At private area in Tulsa airport, TSA agents require woman to lower her pants and remove what turns out to be a feminine hygiene product. She has a panic attack and is no longer keen on traveling by plane. False arrest? Intentional infliction of emotional distress? Tenth Circuit: The good news is that you can bring suits under the Federal Tort Claims Act for the actions of TSA agents. The bad news is you lose. Partial dissent: You can’t sue over TSA agents’ actions under the FTCA.

The TSA are nothing more than bullies, humiliating would-be passengers. We are no safer with them than without them.

[Longtobefree]

We are less safe, because they are themselves another level of threat.

[Dr. Ed 2]

I simply refuse to fly.

[David Nieporent]

That's a rather oblique way of admitting you're on the no fly list.

[Dr. Ed 2]

"The good news is that you can bring suits under the Federal Tort Claims Act for the actions of TSA agents. The bad news is you lose. Partial dissent: You can't sue over TSA agents' actions under the FTCA."

And then, some dark night, said TSA agent is found with a butcher knife inserted where the hygiene product should go.

I personally know men, bikers, who would do something like this -- the problem with lawful justice being denied is that some will resort to extralegal justice. And you never know who the woman has as a cousin or older brother.

[ducksalad]

Inmates regularly escape through the roof and return with contraband.

Somebody is missing the point here. Can't tell if it's the inmates or the judge that thought a jail sentence is a deterrent.

[Noscitur a sociis]

I’m certainly missing it. What is the point you’re trying to make?

[Brett Bellmore]

That it can't be much of a deterrent if they voluntarily return, having left?

I mean, that does leave room for it to be a deterrent, if being subject to a manhunt strikes them as even worse than the jail. So I don't think the point is all that solid. But it was clear what the point was.

[Noscitur a sociis]

I guess this is one where the summary is misleading. The opinion doesn’t say they literally escaped from custody altogether: it says they were able to “leave secure areas to obtain contraband.”

[Dr. Ed 2]

The inmates have to live *somewhere* and the jail may be preferable.