Tag: Fourth Amendment

In Its Bubble of Secrecy, the National Security Bureaucracy Redefined Privacy for Its Own Purposes

Rep. Jim Sensenbrenner (R-WI) is nothing if not a security hawk, and this weekend he decried the NSA’s collection of all Americans’ phone calling records in a Guardian post entitled, “This Abuse of the Patriot Act Must End.” On Thursday last week, he sent a letter to Attorney General Eric Holder demanding answers by Wednesday.

It also became apparent over the weekend that the National Security Agency’s program to collect records of every phone call made in the United States is not for the purpose of data mining. (A Wall Street Journal editorial entitled “Thank You for Data Mining” was not only wrong on the merits, but also misplaced.) Rather, the program seizes data about all of our telephone communications and stores that data so it can aid investigations of any American who comes under suspicion in the future.

Details of this program will continue to emerge–and perhaps new shocks. The self-disclosed leaker–currently holed up in a Hong Kong hotel room waiting to learn his fate–is fascinating to watch as he explains his thinking.

The court order requiring Verizon to turn over records of every call “on an ongoing daily basis” is a general warrant.

The Framers adopted the Fourth Amendment to the Constitution in order to bar general warrants. The Fourth Amendment requires warrants 1) to be based upon probable cause and 2) to particularly describe the place to be searched and the persons or things to be seized. The leaked warrant has neither of these qualities.

A warrant like this would never be adopted in an open court system. With arguments and decisions available to the public and appeals going to public courts, common sense and simple shame would foreclose suspicionless data-gathering about every American for the benefit of future potential investigations. 

Alas, many people don’t believe all that deeply in the Constitution and the rule of law when facile promises of national security are on offer. It is thus worthwhile to discuss whether this is unconstitutional law enforcement and security practice would work. President Obama said last week, “I welcome this debate and I think it’s healthy for our democracy.”

A Brief Civil Liberties Quiz

See if you can spot the civil-liberties victory:

  1. The Supreme Court says the government can put your DNA in a national database, even if you were wrongly arrested.
  2. The State of Mississippi imposes mandatory collection of the DNA of babies born to teenage moms, neither of which is suspected of a crime.
  3. The Department of Justice is tracking and threatening to prosecute reporters, for the crime of reporting.
  4. The National Security Agency is collecting everyone’s phone records, even if they suspect you of nothing.
  5. The U.S. Senate kills a bill that could lead to a registry of law-abiding gun owners.

Answer: #5. 

Those crazy senators are looking less crazy all the time. 

Maryland v. King and the Surveillance State

Ilya, Jim, and Roger have already ably covered many of the legal issues in yesterday’s major Fourth Amendment case, Maryland v. King, in which the Court narrowly approved DNA testing of arrestees. I’ve got an article in the Daily Beast this morning using Scalia’s dissent as my jumping-off point. Excerpt:

If there’s ever a time when Antonin Scalia really rises to the occasion, it’s when he serves as the Supreme Court’s liberal conscience….

[A]long with the good [from DNA testing] comes a new potential, warned against by civil libertarians, for the authorities to use DNA access to track citizens through life. Who was at the closed-door meeting of political dissidents? Swab the discarded drinking cups for traces of saliva, match it to a universal database, and there you’ve got your list of attendees. Want to escape a bad start and begin life over in a different community? Good luck with that once your origins are an open book to officialdom.

In his dissent, Scalia warns of such a “genetic panopticon.” (The reference is to Jeremy Bentham’s idea of a prison laid out so that inmates could be watched at every moment.) And it’s closer than you may think. Already fingerprint requirements have multiplied, as the dissent points out, “from convicted criminals, to arrestees, to civil servants, to immigrants, to everyone with a driver’s license” in some states. DNA sample requirements are now following a similar path, starting reasonably enough with convicts before expanding, under laws passed by more than half the states as well as Maryland, to arrestees. (“Nearly one-third of Americans will be arrested for some offense by age 23.”)  Soon will come wider circles. How long before you’ll be asked to give a DNA swab before you can board a plane, work as a lawn contractor, join the football team at your high school, or drive?

With the confidence that once characterized liberals of the Earl Warren–William Brennan school, Scalia says we can’t make catching more bad guys the be-all and end-all of criminal process:

“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail. … I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

Incidentally, some of Scalia’s most scathing passages blast the majority for dwelling on objectives that Maryland might have accomplished by DNA testing, such as establishing a John Doe arrestee’s true identity, when in fact the state knew perfectly well who Alonzo King was when it collared him. Scalia nailed this rationale as merely pretextual, and just in case you doubted that, in a Washington Post interview just yesterday about the case, Maryland Attorney General Douglas Gansler frankly acknowledged that “the real reason for the law is solving crime.” Nothing there about a need to establish arrestees’ identities. The state’s own website explaining the law tells a similar story in its final sentence when it describes the 2009 change in the law.

Minnesota Supreme Court Punts on Key Privacy/Property Rights Case

The city of Red Wing, Minnesota, has a rental property inspection program—one that’s unfortunately not unusual—whereby landlords and tenants must routinely open their doors to government agents. These searches take place even if both the landlord and tenant believe it not to be necessary. The owner of the property even has to pay a fee for the unwanted search to receive a rental license! The city only sometimes makes initial requests for consent as a mere courtesy, because it proceeds with an administrative warrant in the event of a refusal—without a showing of probable cause to believe there’s a housing code violation or other problem. The inspection ordinance doesn’t even attempt to prevent the disclosure of information revealed during the search; the whole neighborhood may find out the contents of your medicine cabinet or choice of DVDs.

A group of landlords and tenants challenged the inspection program, arguing that several alternatives are available to meet what legitimate interests local governments have. Last September, Cato joined the Reason Foundation, Libertarian Law Council, Minnesota Free Market Institute at the Center of the American Experiment, and Electronic Frontier Foundation and filed an amicus brief urging the Minnesota Supreme Court to confirm that no Minnesotan should be subjected to an intrusive invasion of privacy when there has been no showing of some cognizable public health or safety issue within the home subject to inspection.

Last Friday, the Minnesota Supreme Court handed down its decision in McCaughtry v. Red Wing. Unfortunately, the Court decided to dodge the question of whether the government is required to obtain a warrant to inspect a residence without individualized probable cause under the U.S. or Minnesota Constitution.

The court’s reasoning is maddening: Red Wing’s ordinance allows judges to imagine individualized standards even when the city doesn’t present any individualized evidence when applying for a warrant. Moreover, the Court determined that the challenge was facial and thus the law would need to be unconstitutional in all of its potential applications in order to be struck down. Because some warrants could be constitutional, the Court ruled against the homeowners, and had absolutely nothing to say about the propriety of warrants issued without individualized probable cause. It did this even though the city has never sought such a warrant and has never said it has any interest in asking for one. The court was clear that its holding had absolutely nothing to say about whether a warrant issued without individualized probable cause would be unconstitutional.

So after nearly seven years of litigation, the plaintiffs are left where they started: these warrants may be unconstitutional, but the courts won’t say so. As a result, Minnesota residents remain subject to unconstitutional, over-broad, and intrusive searches of their homes, belongings, and lives.

There was a small silver lining in all this, a concurrence by Justice Paul Anderson, who said that he agreed with the court’s (unanimous) opinion but that the Minnesota Constitution does require individualized probable cause to obtain a warrant to enter someone’s residence.  Although no other justices joined his opinion, this is the first statement by a state supreme court judge ever that narrows administrative warrants in the context of home inspections since the U.S. Supreme Court’s unhelpful and unclear Camara decision in 1967 started the trend toward such programs. (Telllingly, this concurrence was Justice Anderson’s last official act; he retired on Friday.) And that will be something to use on this issue going forward, whether in state courts or in federal courts, to eventually ask the U.S. Supreme Court to reconsider Camara.

One More Note on the DNA-Swab Case: Judicial Alignment

Roger Pilon and Jim Harper have already commented on the substance of Maryland v. King, but I wanted to highlight an aspect of the ruling that has raised some eyebrows, the lineup of justices.  Justice Kennedy wrote the majority opinion, joined by Chief Justice Roberts and Justices Thomas, Alito, and Breyer.  Meanwhile, Justices Ginsburg, Sotomayor, and Kagan joined Justice Scalia’s hard-hitting dissent.  Breyer with the “conservatives,” Scalia leading the “liberals”; what’s going on here?

Not that much, actually, in terms of jurisprudential surprises.  As Orin Kerr points out, Justice Scalia has been on the defendants’ side in every non-unanimous Fourth Amendment case – King (DNA-swabbing of arrestees), Bailey (detention incident to search), Jardines (dog-sniffing a home), and McNeely (warrantless blood draw of DUI suspect) – while Justice Breyer has been on the prosecutors’ side in each of those cases.  

And the current term isn’t an anomaly.  In 2009, for example, Scalia joined the majority in overturning the Court’s precedent that had allowed police to search a car upon arresting its driver in the case of Arizona v. Gant (which Scalia mentions in a law-nerd-witty footnote 6 of his King dissent). The same thing happened in another case that year, Melendez-Diaz v. Massachusetts, this time involving the Sixth Amendment’s Confrontation Clause. Indeed, in both of those 2009 cases, Justices Scalia and Thomas joined Justices Stevens, Souter, and Ginsburg (then also the most “liberal” justices).

What happens in such cases is that the most originalist justices, those who like clear bright-line rules rather than mushy standards or balancing tests, join with justices who bend over backward to grant relief to criminal defendants, against those with law-and-order (Alito) or technocratic (Breyer) or establishmentarian (Roberts, Kennedy) tendencies.  Granted, Justice Thomas has been less consistent in that sense this term, but that’s the dynamic to consider when looking at seemingly weird splits in criminal procedure cases.

How Identification Is Overused and Misunderstood

Justice Anthony Kennedy seems to be carving out his place as the Supreme Court justice who doesn’t “get” identity. Maryland v. King was the case issued today that shows that.

His opener was the 2004 decision in Hiibel v. Sixth Judicial District Court of Nevada, which ratified laws requiring people to disclose their names to police officers on request.

In that case, Deputy Lee Dove of the Humboldt County (NV) Sheriff’s Department had received a report that a man had slugged a woman. He didn’t know the names of the alleged perpetrator or the victim, but Dove found Larry Hiibel standing next to his truck at the side of the road talking to his seventeen-year-old daughter seated inside. Dove didn’t check to see if they were having a dispute, or if anyone had hit anyone. He just started demanding Hiibel’s ID.

“Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder,” Justice Kennedy wrote, approving Hiibel’s arrest for refusing to show his papers:

On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in [certain cases, such as] where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.

Even if he had gotten Larry Hiibel’s ID, that wouldn’t have told Dove any of these things. Dove would have had to stop his battery investigation to investigate Hiibel’s background, which he didn’t do until after he had arrested Hiibel–and after his partner had thrown Hiibel’s distraught daughter to the ground. (There’s your battery.)

In Maryland v. King, Justice Kennedy did it again. He wrote the decision approving DNA identification of arrestees. Like demanding Hiibel’s ID, which had no relation to investigating battery, Maryland’s practice of collecting DNA has no relation to investigating or proving the crime for which King was arrested, and it does nothing to administer his confinement. This Justice Scalia made clear in a scathing dissent.

The Court alludes at several points to the fact that King was an arrestee, and arrestees may be validly searched incident to their arrest. But the Court does not really rest on this principle, and for good reason: The objects of a search incident to arrest must be either (1) weapons or evidence that might easily be destroyed, or (2) evidence relevant to the crime of arrest. Neither is the object of the search at issue here. (citations omitted)

Justice Kennedy appears to think there are certain behaviors around detention and arrest that law enforcement is allowed without regard to the detention or arrest. Here, he has sanctioned the gathering of DNA from arrested people, supposedly presumed innocent until proven guilty, to investigate the possibility of their connection to other, unknown crimes. His logic would allow searching the cell phone of a person arrested for public drunkenness to see if they have participated in an extortion plot.

There is plenty of time to run DNA identification data past cold case files after conviction, and all parties agree that’s what would have happened in King’s case. Given that, the Supreme Court has upheld DNA-based investigation of innocent people for their connections to cold cases because they happen to have been arrested. That’s the strange result of Maryland v. King.

Civil Liberties After Boston—My Take

It’s to be expected that privacy will suffer a bear market after a terrorist attack or attempt. I’ve seen worse, of course, but was concerned this week to read a piece by Richard Epstein on the Hoover Institution web site that I think sounds needless anti-privacy notes. Professor Epstein is not only an important public intellectual, but a Cato adjunct scholar of which we’re proud, and a friendly professional colleague (to whose defense I’ll leap when he’s wronged).

The issue is what policies governments might adopt toward the end of terrorism prevention. Professor Epstein finds the statement of Massachusetts state senator Robert Hedlund (R-Weymouth) to be a bridge too far. Hedlund says:

It’s not surprising that you have law enforcement agencies rushing out to use [the Boston bombing and subsequent manhunt] as pretext to secure additional powers but I think we have to maintain perspective and realize that civil liberties and the protections we’re granted under the Constitution and our rights to privacy, to a degree, are nonnegotiable…

You don’t want to let a couple of young punks beat us and allow our civil liberties to be completely eroded. I don’t fall into the trap that, because of the hysteria, we need to kiss our civil liberties away.

Professor Epstein calls that “dead wrong,” saying, “the last thing needed in these difficult circumstances is a squeamishness about aggressive government action.” Given the importance of preventing terrorism, claims of right against increased surveillance and racial or other profiling should be “stoutly resisted,” he says.

I agree with Professor Epstein that flat claims about a “right to privacy” shouldn’t limit surveillance. “Concern” with racial or ethnic profiling is not a sound basis for desisting from the practice. But I don’t take Hedlund’s statement to be a product of squeamishness, and I think it is in the main correct.

Where I think Professor Epstein goes wrong insofar as he wants law enforcement to have its way is in setting aside “technical difficulties” and “means-ends” questions as peripheral. For me, the Fourth Amendment’s bar on unreasonable searches and seizures demands coordination between means and ends in light of the technological situation (both in terms of doing harm and discovering it). It is not a given that government action is reasonable, and no amount of priority given to a threat makes an incoherent response reasonable and constitutional.