The Volokh Conspiracy

How much did the Catholic intellectual tradition influence the common law? If that question interests you, here's a new draft essay, The Influence of the Catholic Intellectual Tradition on the Common Law, that I am contributing to a festschrift to honor John Witte, one of the world's leading scholars on law and religion. The abstract:

This essay considers the influence of the Catholic intellectual tradition on the common law. As a preliminary matter, the essay notes that the term "Catholic intellectual tradition" is of recent vintage, though its referent is much older. It identifies three mechanisms of influence: inheriting, conversing, and generating. For inheriting, the essay notes that some common law doctrines, such as the Chancellor's conscience, were inherited from the Catholic intellectual tradition. For conversing, the essay notes the conversation across confessional boundaries in early modern Europe, which was facilitated by the use of Latin and scholastic curricula well after the Reformation. This point, while familiar to early modern intellectual historians because of revisionist work over the last quarter century, may be surprising to legal scholars. Finally, for generating, this essay shows that the common law judges, by their own lights, were participants in the Catholic intellectual tradition. This is demonstrated, for example, by analysis of Chief Justice Vaughan's opinion in Thomas v. Sorrell (1673/4). When this intellectual tradition is viewed without anachronistic narrowness, its influence on the common law is substantial.

If you'd like to see John Witte's recent Gifford Lecture on "A New Calvinist Reformation of Rights," you can watch it here.

They're at it again! (See here, here, here, here, . . . )

In the Nat'l Pork Producers Council v. Ross case, decided last Thursday, the Court has again fallen into what Steve Salop and I called, many years ago, the "Tidewater voting paradox."  Here's the lineup:

GORSUCH, J., announced the judgment of the Court, and delivered the
opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which
THOMAS, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined, an opinion with
respect to Parts IV–B and IV–D, in which THOMAS and BARRETT, JJ.,
joined, and an opinion with respect to Part IV–C, in which THOMAS, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in part, in which KAGAN, J., joined. BARRETT, J., filed an opinion
concurring in part. ROBERTS, C. J., filed an opinion concurring in part
and dissenting in part, in which ALITO, KAVANAUGH, and JACKSON, JJ.,
joined. KAVANAUGH, J., filed an opinion concurring in part and dissenting in part.

Obviously, it's a mess, but it's a good deal more troubling than the ordinary mess.  Here's what's going on.

The case involved a dormant Commerce Clause (DCC) challenge by the Nat'l Pork Producers' Council ("NPPC") to a CA law (Proposition 12) requiring that all pork sold in CA come from pigs that were not "cruelly treated"; cruel treatment is defined in the statute, inter alia, to mean confinement in less than 24 square feet of space. The Ninth Circuit dismissed the NPPC claim for failure to state a valid claim under the DCC, and, by a vote of 5-4, the Supreme Court affirmed the dismissal.

The NPPC advanced a number of theories supporting their claim. While the "core" of the DCC is a prohibition on state laws that are "discriminatory" or "protectionist," designed to give an economic advantage to in-state businesses at the expense of out-of-state businesses, the NPPC conceded that Proposition 12 was not such a law; it treats in-state and out-of-state pork producers in precisely the same manner.

The challengers relied instead on a different thread of DCC caselaw, the so-called Pike balancing test:

In Pike v. Bruce Church, Inc., 397 U. S. 137 (1970), the Court distilled a general principle from its prior cases: "Where [a] statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits."

Three Justices - Gorsuch, Thomas, and Barrett - reject NPPC's argument, because they believe that Pike has been misinterpreted, and that it does not "authorize judges to strike down duly enacted state laws regulating the in-state sale of ordinary consumer goods (like pork) based on nothing more than their own assessment of the relevant law's 'costs' and 'benefits'." That is especially problematical where, as here, costs and benefits in this case are entirely incommensurate, and cannot be "weighed" or "balanced":

Our case illustrates the problem. On the "cost" side of the ledger, petitioners allege they will face increased production expenses because of Proposition 12. On the "benefits" side, petitioners acknowledge that Californians voted for Proposition 12 to vindicate a variety of interests, many non-economic. How is a court supposed to compare or weigh economic costs (to some) against noneconomic benefits (to others)? No neutral legal rule guides the way. The competing goods before us are insusceptible to resolution by reference to any juridical principle.

The task, Justice Gorsuch (quoting Justice Scalia) wrote, "is like being asked to decide whether a particular line is longer than a particular rock is heavy."

The Pike analysis, in this view, is not separate from the prohibition on discriminatory laws - it is actually a tool to detect discrimination.

Pike's "general rule" reflects a commonsense principle: Where there's smoke, there's fire. Ibid. Under our dormant Commerce Clause jurisprudence, one State may not discriminate against another's producers or consumers. A law whose burdens fall incommensurately and inexplicably on out-of-state interests may be doing just that.

Because there is no plausible argument to suggest that Proposition 12 is discriminatory, there is no need to apply the Pike test.

Two additional votes to affirm are provided by Justices Kagan and Sotomayor.  Their theory of the case is different.  In their view, the "courtroom door is open to claims [under Pike] premised on even nondiscriminatory burdens" - i.e., Pike balancing is alive and well - and courts are not "incapable of balancing economic burdens against noneconomic benefit." But the claim here fails because the harms that the NPPC alleges amount to no more than that CA has "favored one business structure" (farmers who "stringently confine pigs and processors who decline to segregate their products) over another (those who raise and trace Proposition 12-compliant pork)," and the DCC does not protect against that category of harm. The DCC "protects the interstate market from prohibitive or burdensome regulations; it does not protect particular firms or "particular structures or methods of operation."

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Joan Biskupic published another article about Justice Stevens's papers. She provides some background insight into Grutter. Justice Stevens talked Justice Souter out of writing a concurrence, and Justice Stevens prevailed upon Justice O'Connor to cite an article his ConLaw professor wrote in the Chicago Bar Journal. We did learn that O'Connor's 25-year clock emerged in her early draft opinion. But so far, at least, the Stevens papers are not nearly as revelatory as I hoped. (Mark Walsh wrote a fun story about Justice Stevens and the student prayer cases.)

However, buried in Biskupic's article was this passage:

After oral arguments and a preliminary vote in cases, the justices circulate notes and draft opinions as they hammer out the legal basis for a decision. Custom dictates that all nine justices, or the "conference," as they are collectively called, receive copies of all correspondence between justices. So on the current bench, for example, when Justice Neil Gorsuch sends a note asking for a change in an opinion being drafted by Roberts, he types at the bottom, "Copies to the Conference," and all others can see the state of play.

When I read that, I thought Woah! Certainly this information was not present in the Stevens papers. Gorsuch only joined the Court in 2017. So this practice is no more than six years old. But, Biskupic specifically wrote "the current bench." This reference would seem to reflect the Court after Justice Jackson's confirmation. So are we to believe that Biskupic is familiar with a memo that Justice Gorsuch wrote this term? And not just in any case. A case in which Chief Justice Roberts is drafting a majority opinion--and a case in which Justice Gorsuch presumably joined. Biskupic adds, Gorsuch included that note so that "all others can see the state of play."

At present, the Chief is the only member with zero majority opinions. And I think it very likely that the Chief has assigned himself the majority opinion in the affirmative action cases that were argued in October. And it is likely that Gorsuch joined that majority opinion. But what about the reference to "the state of play." Are some votes in motion? Does Gorsuch want the other Justices to know that things are in flux? The negative inference is that Gorsuch might otherwise want to keep this information between him and Roberts, but does not do so here.

Is Biskupic signaling that she has seen, or at least is aware of internal deliberations in Students for Fair Admission? The reference to a Gorsuch memo, on the "current bench," regarding a Roberts majority opinion, that Gorsuch joined, is far too specific to be coincidental. Biskupic could have made the same point about memos being circulated after conference by citing any case from the Stevens files--even from Gruter itself. I wonder if Biskupic wrote this story just to bury the chestnut about Gorsuch.

I don't know. Maybe I am paranoid. But I've been right before about "reporting" on leaks regarding Bostock and Dobbs. Let's see if someone publishes the leaked opinion.

Update: I am well aware that Justices have long used the phrase "Copies to the Conference" on memos. I've already seen several memos with this phrase in the Stevens papers, as well as the papers from Blackmun, Marshall, Powell, and others. What triggered my response was Biskupic's certainty that the members currently use this phrase. She could have said something like, "If the Court follows a longstanding tradition, Justice Gorsuch would type at the bottom of his memos, 'Copies to the Conference.'" But there was so much specificity here that I became suspicious.

Maury Shenk opens this episode with an exploration of three efforts to overcome notable gaps in the performance of large language AI models. OpenAI has developed a tool meant to address the models' lack of explainability. It uses, naturally, another large language model to identify what makes individual neurons fire the way they do. Maury is skeptical that this is a path forward, but it's nice to see someone trying. Another effort, Anthropic's creation of an explicit "constitution" of rules for its models, is more familiar and perhaps more likely to succeed. We also look at the use of "open source" principles to overcome the massive cost of developing new models and then training them. That has proved to be a surprisingly successful fast-follower strategy thanks to a few publicly available models and datasets. The question is whether those resources will continue to be available as competition heats up.

The European Union has to hope that open source will succeed, because the entire continent is a desert when it comes to institutions making the big investments that look necessary to compete in the field. Despite (or maybe because) it has no AI companies to speak of, the EU is moving forward with its AI Act, an attempt to do for AI what the EU did for privacy with GDPR. Maury and I doubt the AI Act will have the same impact, at least outside Europe. Partly that's because Europe doesn't have the same jurisdictional hooks in AI as in data protection. It is essentially regulating what AI can be sold inside the EU, and companies are likely to be quite willing to develop their products for the rest of the world and bolt on European use restrictions as an afterthought. In addition, the AI Act, which started life as a coherent if aggressive policy about high risk models, has collapsed into a welter of half-thought-out improvisations in response to the unanticipated success of ChatGPT.

Anne-Gabrielle Haie is more friendly to the EU's data protection policies, and she takes us through a group of legal rulings that will shape liability for data protection violations. She also notes the potentially protectionist impact of a recent EU proposal to say that U.S. companies cannot offer secure cloud computing in Europe unless they partner with a European cloud provider.

Paul Rosenzweig introduces us to one of the U.S. government's most impressive technical achievements in cyberdefense – tracking down, reverse engineering, and then killing Snake, possibly Russia's best hacking tool.

Paul and I chew over China's most recent self-inflicted wound in attracting global investment – the raid on Capvision. I agree that it's going to discourage investors who need information before they part with their cash. But I also offer a lukewarm justification for China's fear that Capvision's business model encourages leaks.

Maury reviews Chinese tech giant Baidu's ChatGPT-like search add-on. I wonder whether we can ever trust any such models for search, given their love affair with plausible falsehoods.

Paul reviews the technology that will be needed to meet what's looking like a national trend to  require social media age verification.

Maury reviews the ruling upholding the lawfulness of the UK's interception of Encrochat users. And Paul describes the latest crimeware for phones, this time centered in Italy.

Finally, in quick hits:

• I note that both the director and the career deputy director are likely to leave NSA in the next several months.
• And Maury and I both enthuse over Google's new "passkey" technology.

Download the 457th Episode (mp3)

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In a decision handed on Friday, United States v. Kopankov, the U.S. District Court for the Northern District of California (Jacqueline Scott Corley, J.) suppressed the fruits of a computer warrant search because it took the government too much time to bypass the device's encryption.  Specifically, the magistrate judge who issued the warrant had imposed an extra limit on the warrant requiring the government to forensically search the seized computer quickly, and to request extensions from the court asking for more time if it needed longer.  But the government could not bypass the encryption on the computer — an Apple iPhone X — other than by trying a "brute force" attack to guess all the possible passwords.  The government did get one extension giving it more time.  But it ended up taking three years for the brute force attack to guess the correct password.  By that time, the extension had itself expired.

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.