Tag: Fourth Amendment

Riley and Wurie: Beyond “Get a Warrant”

As Ilya noted earlier, the Supreme Court struck a blow for privacy and the Fourth Amendment today. It ruled that a warrant is generally required when law enforcement officers want to search a cell phone they have seized. Justice Roberts’ opinion for a unanimous court provides some crisp language:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life.” (citation omitted) The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.

In this case, we pretty well knew we were going to get a win. So let’s set aside the trumpets and talk about the margin of victory. Did we get improvements in Fourth Amendment doctrine that will bolster privacy protection in cases to come? Only a little.

OK, let’s trumpet the case a bit. This is a unanimous case with a bright-line rule. It’s about the best outcome you could hope for in Riley and Wurie themselves (argued separately, decided together), and it’s a great vindication of the constitutional status of cell phones and our data on them.

Chief Justice Roberts seems to have brought the Court together on this one (save a niggling Alito concurrence) to produce a strong opinion that doesn’t show gaps among the justices. (They may all have felt a need to huddle, avoiding an open fight or the tipping of hands on the NSA spying controversy, for example.)

And on the major privacy controversy of the day, the Court did not tip its hand. It distinguished Smith v. Maryland, the case the government uses to justify gathering records about every U.S. phone. Smith held that using a pen register to gather phone calling information was not a search. “There is no dispute here that the officers engaged in a search of Wurie’s cell phone,” Chief Justice Roberts wrote, punting for the Court in this case based on the consensus among parties.

The errant decision in Smith relied on the “reasonable expectation of privacy” test arising from the 1967 case, Katz v. United States. The very good news from this decision is that the Court once again declined to use the Katz test in resolving a Fourth Amendment issue, as our briefs invited the Court to do (or not to do, as it were). Instead, the Court implicitly found that there were searches in both cases and that those searches were of persons, houses, papers, or effects. Then it examined the reasonableness of searching cell phones.

That’s important because it means that the Court is interpreting the Fourth Amendment more like a law and not as the stack of doctrines that I’ve previously called a “jumble of puzzles.”

June’s Cato Unbound: The Snowden Files, One Year Later

This month at Cato Unbound, we’re discussing Edward Snowden’s NSA revelations.

We mostly know the story, but it bears repeating: One year ago this week, Glenn Greenwald wrote a news story that would change the world forever. In it, we learned that the National Security Agency had been secretly collecting enormous amounts of telephone metadata on what were presumably ordinary American citizens. The agency had done so without a warrant and without suspicion of any indiviudal person. The revelation changed forever how Americans think about national security, privacy, and civil liberties in the digital age.

More revelations soon followed. Among many others, these included NSA surveillance of web activitymobile phone location data, and the content of email and text messages. The NSA also conducted many highly embarrassing acts of surveillance against allied or benign world leaders, including German Chancellor Angela Merkel and the conclave that recently elected Pope FrancisIt had subverted commonly used encryption systems. It had co-opted numerous tech companies in its plans. Its leaders had repeatedly lied to, or at the very least misled, the U.S. Congress

How far should surveillance go? What has been the value of the information gained? What have we given up in the process? What are the risks, should malign actors ever get their hands on the controls of the system?

We are able to ask these questions today because of one individual: Edward Snowden, a systems administrator for the NSA who chose to make public the information to which he had access. We have no choice now but to debate it. That’s simply what democracies do whenever such momentous information becomes public.

Joining us at Cato Unbound this month are four individuals with extensive knowledge in the fields of national security and civil liberties: Cato Senior Fellow Julian Sanchez, Brookings Institution Senior Fellow Benjamin Wittes, Georgetown University Professor Carrie F. Cordero, and independent journalist Marcy Wheeler. Each brings a somewhat different perspective on the matters at hand, and we welcome them all to what is sure to be a vigorous debate.

The Fourth Amendment: Cars, Phones, and Keys?

Here’s a law-school hypothetical for you: Suppose a gang-banger is pulled over for having expired tags on his car. He has no driver’s license, and records show that he has repeatedly driven without a license. The protocol in such situations is to impound the car to prevent him from driving unlicensed again, and the impoundment search reveals that he has guns hidden in the car. He is arrested, patted down, and his possessions seized to secure officer safety during his transportation and booking.

Now suppose that police officers take the gang-banger’s car out of the impound yard and drive it around looking for his confederates and for more evidence against him. Can they use the car for this purpose?

If you’re like most people, you probably think the answer is: “No.” But can you say why?

Theory: The Supreme Court Could Apply the Terms of the Fourth Amendment in Fourth Amendment Cases

The Supreme Court could apply the terms of the Fourth Amendment in Fourth Amendment cases.

I know. Weird idea, right?

But it’s an idea I’ve pushed in briefs to the Court over the last few years: in U.S. v. Jones (2011), Jardines v. Florida (2012), In re Electronic Privacy Information Center (2013), and most recently in Riley v. California (2014). We’ll file in U.S. v. Wurie next week.

The idea is interesting enough that Mason Clutter of the National Association of Criminal Defense Lawyers has paid me the compliment of discussing it in her new law review article, “Dogs, Drones, and Defendants: The Fourth Amendment in the Digital Age.”

Jim Harper, director of information policy studies at the Cato Institute and one of the authors of Cato’s amicus brief in Jardines, regularly makes the argument that “[a] ‘search’ occurs when government agents seek out that which is otherwise concealed from view, the opposite condition from what pertains when something is in ‘plain view.’ People maintain ‘privacy’ by keeping things out of others’ view, exercising control over personal information using physics and law.” The “Harper Theory” of search and seizure encourages judges, lawyers, and law enforcement officers to revert to the “plain meaning[]” of the Fourth Amendment’s use of “search” and “seizure.”

That’s right. The idea of using the words of the Fourth Amendment rather than stacks of confusing doctrine now has a name, and it’s the “Harper theory.” I guess I thought of it, so it’s named after me!

In seriousness, it is a challenge to recognize seizures and searches as such in “high-tech” contexts. Today’s problems with the Fourth Amendment—and the problem of doctrine obfuscating the text—began in 1929, when the Olmstead Court failed to recognize parallels between that era’s high-tech—telephonic communications—and written material sent through the mail.

But it is possible to recognize electronic and digital documents and communications as papers and effects. It is possible to recognize seizures when invasions of property rights occur in whatever form. And it is possible to recognize searches as efforts to discover information that is otherwise concealed from view. All this makes it possible to apply the words of the Fourth Amendment in Fourth Amendment cases.

I’m complimented if that’s called the “Harper theory.” I feel like I got it from Cardozo.

NSA Spying and a National ID Are Peas in a Pod and You Should Eat Your Peas

That’s the upshot of a column by Froma Harrop appearing in the Seattle Times.

“Arguments leveled against Real ID are being recycled to bash the National Security Agency’s surveillance program,” she writes. “They inevitably lead to the assumption that the government is up to no good.”

Well, … yes.

The argument against creating a U.S. national ID is that its cost in dollars and privacy are greater than the tiny margin of security they might provide. Over years, I’ve pointed out that spending billions of dollars to herd law-abiding Americans into a national ID system might mildly inconvenience any terrorists. It’s not worth doing.

That idea—that security measures should be cost-effective—is wisely ‘recycled’ for use with respect to the NSA’s program to gather data about every call made in the United States. Doing so doesn’t provide a margin of security worth the cost in dollars, privacy, and menace to liberty.

When the government wastes our money, privacy, and liberty on programs that don’t provide a sufficient margin of security, that is bad. That is government “up to no good.”

The states asked to implement our national ID law rejected it because, in the disorganized way our federal republic makes decisions, it was decided that REAL ID does not pass muster. (Some states and national ID advocate groups continue to press forward with it, a subject on which I’ll say more soon.)

In a similarly messy process, the organs of democracy are finding that the NSA’s programs—originally constructed and conducted in secrecy—do not pass muster either. We’re rightly pushing this plate of peas away.

…In Which Katz Is Not Cited

The Supreme Court is gradually coming to terms with the effect information technology is having on the Fourth Amendment. In 2001, the Kyllo court curtailed the use of high-tech devices for searching homes. In its early 2012 decision in United States v. Jones, a unanimous Court agreed that government agents can’t attach a GPS device to a vehicle and track it for four weeks without a warrant.

But the Court was divided as to rationale. The majority opinion in Jones found (consistent with Cato’s brief) that attaching the device to the car was at the heart of the Fourth Amendment violation. Four concurring members of the Court felt that the government’s tracking violated a “reasonable expectation of privacy.”

What is the right way to decide these cases? Fourth Amendment law is at a crossroads.

The next round of development in Fourth Amendment law may come in a pair of cases being argued in April. They ask whether government agents are entitled to search the cell phone of someone they’ve arrested merely because the phone has been properly seized. Riley v. California and Wurie v. United States have slightly different fact patterns, which should allow the fullest exposition of the issues.

Cato’s brief in Riley, filed this week, again seeks to guide the Court toward using time-tested principles in Fourth Amendment cases. Rather than vague pronouncements about privacy and people’s expectations around it, we invite the Court to apply the Fourth Amendment as a law.

Ratifying NSA Spying, a Court Calls FISA ‘Courts’ Into Question

Two weeks ago, when D.C. District judge Richard Leon ruled that mass government surveillance of Americans’ telephone calling was likely unconstitutional, there was some well-poisoning about his opinion being “passionate.” The implication, of course, was that he was not being suitably judicial. The same could be said of this week’s ruling by Judge Pauley of the U.S. District Court in New York. When the first sentence intones: “The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is,” and when the first citation is a “See generally” to the 9/11 Commission report, these are not signs that you’re about to get dispassionate application of law to facts.

Judge Pauley’s use of the 9/11 Commission report to argue that NSA data collection could have foiled the 9/11 plot is belied by the report’s clear statement with respect to Khalid Al-Mihdhar: “No one was looking for him.” (page 269) In our paper, “Effective Counterterrorism and the Limited Role of Predictive Data Mining,” Jeff Jonas and I detailed ways many of the 9/11 terrorists could have been found had anyone been looking. The argument that NSA spying would have prevented 9/11 is not a strong one.

But passions pitted against one another is just one of the symmetries between the two rulings. Judge Leon distinguished Smith v. Maryland. He believes that the Supreme Court case allowing the use of phone call information to convict a suspected burglar and obscene phone caller does not ratify the collection of phone calling information about every innocent American. Judge Pauley treated Smith v. Maryland as controlling. If one burglar in Baltimore doesn’t have a Fourth Amendment interest in his phone calling data, 200 million Americans don’t either. We have appeals to sort these things out, and Judge Pauley’s ruling makes it more likely that such an appeal will reach the Supreme Court, which is good.

The interesting thing in Judge Pauley’s ruling is ammunition he offers to critics of the panels of judges created by the Foreign Intelligence Surveillance Act. People often refer to them as the “Foreign Intelligence Surveillance Court” or “FISC.”

While the FISC is composed of Article III judges, it operates unlike any other Article III court. Proceedings in Article III courts are public. And the public enjoys a “general right to inspect and copy public records and documents, including judicial records and documents.” (citation omitted) “The presumption of access is based on the need for federal courts, although independent—indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice.” (citation omitted)

Later, he writes:

The two declassified FISC decisions authorizing bulk metadata collection do not discuss several of the ACLU’s arugments. They were issued on the basis of ex parte applications by the government without the benefit of the excellent briefing submitted to this Court by the Governent, the ACLU, and amici curiae. There is no question that judges operate best in an adversarial system. “The value of a judicial proceeding … is substantially diluted where the process is ex parte, because the Court does not have available the fundamental instrument for judicial judgment: an adversary proceeding in which both parties may participate.” (citation omitted) … As FISA has evolved and Congress has loosened its individual suspicion requirements, the FISC has been tasked with delineating the limits of the Government’s surveillance power, issuing secret decision [sic] without the benefit of adversarial process. Its ex parte procedures are necessary to retain secrecy but are not ideal for interpreting statutes.

This echoes an argument Randy Barnett and I offered in our brief to the Supreme Court about NSA spying. These so-called ‘courts’ that administer NSA spy programs lack many of the hallmarks of a true court, and their use to dispose of rights that protect our privacy is a violation of due process.

There will be much more to come in the judicial path of the NSA spying debate. The legitimacy of FISA panels should be a part of that discussion.

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