The Volokh Conspiracy

From today's decision by Judge Jon Tigar (N.D. Cal.) in Roe v. City of S.F.:

Plaintiffs are residents and businesses in the Tenderloin neighborhood in San Francisco. Plaintiffs allege that the City treats the Tenderloin as a "containment zone" for narcotics activities. Specifically, Plaintiffs contend that "for years the City has allowed individuals to openly buy and use narcotics in the Tenderloin, and to remain, under the obvious influence of drugs, on the sidewalks and public spaces of the neighborhood." "Addicts living on the Tenderloin's streets foreseeably support their habit by stealing (e.g., shoplifting, car break-ins, burglaries, robberies) and hawking the stolen merchandise on the sidewalks." And "as their disease progresses, their mental and physical health declines, resulting in them acting erratically, ignoring serious medical problems (e.g., open sores at injection sites), rummaging through trash, discarding garbage on the sidewalk around them, going partially clothed, and defecating in public." As a result, Plaintiffs allege "the City-owned public walkways and spaces in the Tenderloin are dangerous, unsanitary and no longer open and accessible to plaintiffs and other members of the public."

Plaintiffs sued, claiming that the failure to enforce the law was unconstitutional, but the court said no (correctly applying the existing precedents, I think):

But as the Supreme Court recently reiterated "a citizen lacks standing to contest the
policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution." This is because "when the Executive Branch elects not to arrest or prosecute, it does not exercise coercive power over an individual's liberty or property, and thus does not infringe upon interests that courts often are called upon to protect."

But it allowed the case to go forward on the theory that the City's policies burdened disabled residents in violation of federal disability rights law:

Plaintiffs here allege that the "sidewalks and public spaces" in their neighborhood are impassable and inaccessible to them due to "[e]ncampments and bulky items, such as duffle bags, shopping carts, and disassembled bicycles." … [T]hese allegations put the City on notice of how the barriers prevent Plaintiffs from full and equal access—encampments and other items obstruct their path such that those with walkers and other mobility issues are unable to utilize the sidewalks. See Hood v. City of Sacramento, No. 2:23-cv-00232-KJM-CKD, 2023 WL 6541870, at *6 (E.D. Cal. Oct. 6, 2023) (finding allegations that plaintiffs were disabled and encampments and debris blocked sidewalk access which prevented access to locations within the City were sufficient to state a Title II claim).

Seems like a strange legal rule to have—courts can't intervene when the government fails to protect ordinary people from people illegally blocking sidewalks, but must intervene when the government fails to protect disabled people from the same behavior—but perhaps this is the rule we do have. (I'm not an expert on disability law, so I can't speak to how sound this decision is as a matter of current federal law.)

The nomination of J.D. Vance as the Republican party's Vice-Presidential candidate in the upcoming election brings up an interesting contrast.  On one hand, today's GOP embraces a heavy dose of populism.  It's pretty standard for Republican politicians to rail against elites who are against the average Joe. On the other hand, if you look at the younger generation of GOP leaders, the politicians who are likely to lead the party in coming years, there sure are a lot of Harvard Law School and Yale Law School graduates.

J.D. Vance is one example. He's a graduate of Yale Law School, Class of 2013.  But think of other possible future GOP Presidential candidates.  There's Senator Joshua Hawley, Yale Law Class of 2006.  And lots of Harvard Law grads are in the mix. We have Florida Governor Ron DeSantis, Harvard Law Class of 2005 (sort of a crossover, as he went to Yale for college).  And Senator Ted Cruz, Harvard Law Class of 1995, where he went after college at Princeton. And there's also Senator Tom Cotton, Harvard Law Class of 2002.  I'm probably forgetting others.

It seems worth asking, how is it that the GOP has embraced both populism and a set of prominent figures, at least among the younger generation, who are Harvard Law and Yale Law graduates?  Or maybe more specifically, why is it that going to an elite law school seems to be a significant advantage within the GOP?

One answer might be that this is not a story specifically about the GOP at all.  There are certainly lots of Democratic leaders who went to these places!  It's kinda barfy, if you think about it. If you look at the last eight Presidential elections, six of the eight Democratic Presidential nominees went to Harvard Law or Yale Law. (If you're wondering: Harvard Law's Michael Dukakis was the unsuccessful nominee in 1988; Yale Law's Bill Clinton was the successful nominee in 1992 and 1996; Harvard Law's Barack Obama was the successful nominee in 2008 and 2012; and Yale Law's Hillary Clinton was the unsuccessful nominee in 2016. As I said, kinda barfy.) So maybe this is bipartisan.  Maybe the advantages that flow to elite law school grads in politics cover both parties equally. Or maybe smart and ambitious youngsters plotting a political career know that and aim for those kinds of schools.

Maybe.

But I suspect there's something else at work, too.  What's striking to me is that Harvard, Yale, and other "top" law schools have only a very small number of conservatives.  It's one thing for schools where Democrats vastly outnumber Republicans to generate a lot of future Democratic leaders. It's another for them to generate so many future Republican leaders.  The odds of a politically ambitious conservative at an elite law school actually becoming a big deal in American politics is unusually high, it seems to me—all the more striking given the GOP's populist turn.

What might explain that?   I don't know.  I'm curious about what explanations you might have.  But let me offer three possibilities, just to get the conversation started:

(1) There's an inside lawyer track that works in GOP politics (Examples: Cruz and Cotton).  In some of the cases, the individuals seem to have taken a role as elite lawyers within the party before running for office— using that legal role as a key conservative credential for later political campaigns.

Ted Cruz did this.  He clerked at the Supreme Court, served in the Bush Administration, and practiced in DC before he was appointed Solicitor General of his home state of Texas by then-Attorney-General Greg Abbott in 2003—just 8 years after Cruz graduated from law school.  He then argued a bunch of Supreme Court cases as state Solicitor General in which, representing Texas, he was on the conservative side.  Ted then used his lawyering before the Supreme Court as his key conservative credential to run for the Senate in 2012.

Josh Hawley's path to the Senate was in the same ballpark. After clerking at the Supreme Court and practicing a bit, Hawley returned to his home state of Missouri to be a law professor at the University of Missouri—while also helping to litigate Supreme Court cases on the conservative side.  From there, he ran for state Attorney General, winning that race just 10 years after he graduated from law school.  And then after just two years as state Attorney General, he won his Senate seat.  In both Cruz's and Hawley's cases, they used their academic credentials and legal experience as a key argument for their candidacies.  Their legal efforts on behalf of conservative causes at the U.S. Supreme Court apparently resonated with a lot of voters.

(2) Elite law school graduates come off as battle-hardened.  Another explanation, more specifically about populism, is that populist conservative voters are fine with voting for conservative graduates of elite law schools because having attended those school affords conservative politicians a sort of veteran status of its own.  The politicians running for GOP office don't speak fondly of their time at these schools. Instead, they present their time at Harvard Law or Yale Law as a difficult test of strength that they passed. They spent three years in the trenches of liberalism and they emerged victorious. They are now battle-hardened and ready to fight the liberals while in political office.  From that perspective, graduating from these schools isn't a problem. Instead,  like a medal on a military uniform, it's a credential.

(3) Adding elite law school credentials to military service creates a powerful combination (Examples: Vance, DeSantis, Cotton).  I'm less confident of this one, so maybe this is totally wrong. But speaking of military uniforms, it's hard not to notice that several of these politicians are also veterans. JD Vance served in the Marines from 2003 to 2007, acting, as I understand it, primarily in the role of a journalist and public affairs specialist.  Tom Cotton served on active duty as an officer in the Army from 2005 to 2009, where among other things he led an air assault infantry platoon in Iraq. Ron DeSantis joined the Navy in 2004 and was a lawyer for the Navy until his discharge in 2010.

These days, the combination of military service and attending top law schools is (unfortunately) pretty rare.  But it's possible that this combination is part of the political appeal here.  Maybe adding elite law school credentials to military service works really well together, especially in a GOP primary. It combines patriotism and bookishness, brawn and brains.  Not sure about this, but maybe the combination is at least part of what's politically powerful.

It is a common practice among criminal investigators to "preserve" Internet accounts without cause.  When an investigator learns that a suspect has a Facebook or email account, the investigator will direct the provider to run off and save a copy of the suspect's entire account and to hold it for the government.  If, weeks or months later, the investigator can eventually develop probable cause, the investigator can come back with a warrant and order the provider to hand over the previously-preserved account files.  And if the investigator never develops probable cause, the provider will usually realize eventually that the government isn't coming back, and it will usually then delete the extra government-ordered account records.  This procedure is called "Internet preservation," and it's done in the name of a provision of the Stored Communications Act, 18 U.S.C. § 2703(f).

As regular readers know, I think the Fourth Amendment imposes limits on Internet preservation.  First, the government ordering the provider to act makes the provider's act on the government's behalf state action, triggering the Fourth Amendment.  Second, copying the account contents is a "seizure" of the account contents.  And third, that warrantless seizure has to be justified as "reasonable" by having initial suspicion (typically probable cause) to justify the initial seizure and then the seizure occurring for only a reasonable period before a warrant is obtained.  So I argued in my article, The Fourth Amendment Limits of Internet Preservation.  And I backed up that article with a model brief for defense attorneys to file.

I'm pleased to say that at least a handful of motions to suppress have been filed based on my model brief. In several of  those cases, the government avoided the merits by eschewing reliance on the preservation copy of the account.  That is, instead of relying on a copy of the account that was only available when the preservation was made, the prosecution relied instead on files that were in the account when the government came to the provider with a warrant.

In at least two cases, however, courts have issued merits rulings. Unfortunately, the two courts that have issued merits rulings held that the Fourth Amendment was not violated.  I want to discuss those rulings, and to explain why I see them as so unpersuasive. This post will discuss the first case, United States v. Dallmann (D. Nev. May 25, 2024).  A second post, which I'll plan to put up in a few days, will cover United States v. Colbert (D. Kan. May 9, 2024).

Dallmann holds that Internet preservation raises no Fourth Amendment issues because Internet providers acting on the government's behalf to preserve accounts for the government are private actors not regulated by the Fourth Amendment at all. In Dallman, the government ordered Google to preserve a copy of the defendant's gmail account.  Later, the government came back with a warrant and ordered Google to hand over the previously-preserved account files.

Here's the court's reasoning for why Google was not a government actor when it preserved the account for the government:

The Ninth Circuit addressed a similar issue in United States v. Rosenow. 50 F.4th 715 (9th Cir. 2022). In that case, the defendant argued that federal regulation of electronic service provider searches and disclosures triggers the Fourth Amendment because the two relevant federal statutes authorized warrantless searches and required private parties to report evidence derived from those searches. The court found this argument unconvincing. The first statute, The Stored Communications Act, "did not authorize the service providers to do anything more than access information already contain on their servers." Id. at 730. The second statute, the Protect Our Children Act, only authorized mandatory searching, not mandatory reporting. Id.

Here, similarly as in Rosenow, the Government made a request for preservation pursuant to 18 U.S.C. § 2703(f). This statute "did not authorize the service providers to do anything more than access information already contain on their servers." Id. at 730. Google complied with a federal statute mandating preservation of records. Importantly, the Court finds that Google did not search the content of its records for evidence of a crime—as government agent would. It merely preserved existing records. The Ninth Circuit emphasized that a private actor does not become a government agent simply by complying with a mandatory reporting statute. Id. (referencing Mueller v. Auker, 700 F.3d 1180, 1191-92 (9th Cir. 2012)). Google would then not be a government agent by merely preserving information already in its possession.

The Court finds that Google was not a government agent, and the Defendant did not meet its burden of showing that the search was governmental action. See United States v. Rosenow, 50 F.4th 715, 728 (9th Cir. 2022). "[E]ven if the Fourth Amendment protects files stored with an [E]SP, the [E]SP can search through all of the stored files on its server and disclose them to the government without violating the Fourth Amendment." Id. (quoting Orin Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1212 (2004)).

Hence, the Fourth Amendment was not implicated by Google's actions. Accordingly, the Court determines that the Government did not unlawfully seize Mr. Dallmann's email accounts through its preservation request.

I appreciate the cite, but I don't think that can be right.  The legal issue addressed in Rosenow was whether the mere existence of the Stored Communications Act and Protect Our Children Act turned everything the Internet provider did into government action. Rosenow ruled that the statute's existence did not have that effect.  That seems clearly correct; a statute imposing some limits on provider action doesn't mean that every provider action is government action.

But the legal issue here is very different: When the government orders a private company to act on its behalf, and the private company acts solely in response to the government and solely on its behalf — literally copying the files and setting them aside just for the government — are they government actors?

It seems obvious to me that they are.  True, the provider is "compl[ying] with a federal statute mandating preservation of records." But that's part of what makes it government action. If a statute requires you to do what the government tells you to do, the fact that Congress is forcing you to comply doesn't make your action less imposed by government.  It just makes it what it sounds like: Government-imposed action, exactly what the Fourth Amendment addresses.

As I argued in my article: Read More