Tag: Orin Kerr

Blurry Lines, Discrete Acts, and Government Searches

I’ve written before about the “Mosaic Theory” some courts have recently employed to conclude that certain forms of government surveillance may trigger Fourth Amendment protection in the aggregate, even if the surveillance can be broken down into components that don’t fall under the traditional definition of a Fourth Amendment “search.” This has been applied specifically to high-tech forms of location tracking, where several judges have concluded that a person may have a privacy interest in the totality of their public movements over a long period of time, even though observing a person at any particular public place in a specific instance is not an intrusion on privacy. I’ve explained in that previous post why I find this reasoning compelling. Legal scholar Orin Kerr, however, remains unmoved, and suggests that divergent decisions applying the Mosaic Theory to government acquisition of stored cell phone location records effectively serve as a reductio of that theory:

To my mind, this opinion reveals the absurdity of Maynard’s mosaic theory. The analysis is all “look ma, no hands.” No one knows where the line is, or even what the line is. Sure, you could just count days of surveillance: perhaps 30 days triggers a warrant but 29 days doesn’t. But there is no reason the access to records has to be continuous. The government can skip around days, or get records from a few days here and a few days there. Who can tell how much is enough? No one knows what is revealing, because what is revealing depends on what the records actually say — and no one but the phone companies know what they say. So Judge Orenstein has to wing it, announcing that “he cannot assume” that the information would be revealing because it has breaks in time. But it’s not clear to me why the break in time matters: It’s the same net amount of data collected, so I don’t know why it matters if it was collected all at once or over several discrete periods. And how much of a break matters? If 21 days is too long, is 21 days with a one-day break enough? How about a 3-day break? One week? No one knows, it seems, not even the judge himself. [….]

There are some readers who will say that the cause of justice sometimes requires hard decisions, and that if judges need to make arbitrary calls like that, then that is what we pay them to do in order to enforce the Constitution. But as I see it, the oddity of the inquiries called for by the Maynard mosaic theory shows why it is not part of the Constitution at all. In Fourth Amendment law, the lawfulness of government conduct has always been viewed discretely: Each government act is either a search or it is not a search. Under Maynard, conduct can be a non-search if viewed in isolation but a search if viewed in context — but there is no guide to tell how much context is proper. If you want to say that certain conduct is a search, then just be direct and say it’s a search. That’s fine. But a mosaic theory, in which non-searches become searches if grouped a particular way, has no proper place in Fourth Amendment law.

Orin’s point about the seeming arbitrariness of these determinations—and the difficulties it presents to police officers who need a rule to rely on—is certainly well taken. The problem is, the government is always going to have substantial control over how any particular effort at information gathering is broken into “acts” that the courts are bound to view “discretely.” If technology makes it easy to synthesize distinct pieces of information, and Fourth Amendment scrutiny is concerned exclusively with whether each particular “act” of information acquisition constitutes a search, the government ends up with substantial ability to game the system by structuring its information gathering as a series of acquisitions, each individually below the threshold.

Let’s consider a concrete case involving location monitoring. Under the Supreme Court’s ruling in United States v. Karo, technological location monitoring does count as a Fourth Amendment search requiring a warrant when it reveals information about where the tracking device is located within a private place, such as a home. On this theory, if the police want to be able to pinpoint a target’s location with sufficient precision to be able to tell when he goes from the garage on one side of the house to the bedroom at the other end, they’ll need a full blown search warrant. If they just want to know the general area the target is in—which cellular tower the phone is closest to, for instance—a subpoena or another less demanding form of court order might be sufficient.

There are, however, several methods of determining a phone’s precise location by triangulation, using data from multiple cell towers—and many cell networks use these methods to provide location services. The records from any one cell tower only yield a very general radius within which each phone registered at that tower can be presumed to be located. Combine the records from the three nearest towers, however, along with some measurements of signal strength and timing, and in an urban area where towers are relatively densely packed, you can often pinpoint the phone within a few meters.

Let’s suppose, then, that existing doctrine would require a warrant if police plan to go to the phone company and say: “We want you to triangulate the precise location of this phone for us over the past month, including at times when our suspect was at home.” What a hassle! They’ve got an out, though: They can issue separate requests for the records from each tower, then combine the data and do the triangulation themselves. As long as each request “viewed discretely” doesn’t yield enough information to pinpoint the phone within the home, there’s no search!

I don’t mean to suggest that, in practice, police are likely to use this particular method to circumvent the warrant requirement—though I wouldn’t be shocked either. But I think the example illustrates a problem with Orin’s categorical insistence on making the binary search/no-search determination only with respect to isolated “acts” of government, when the government itself controls how its monitoring is distributed across discrete acts.

Here’s another example, and one where I think there is a very real possibility that investigators are able, in practice, to game the standards governing electronic surveillance. According to the Justice Department’s U.S. Attorneys Manual, a “pen register” (which can be obtained much more easily than a search warrant) can be used to obtain general information about the domains or IP addresses a target is visiting, but not what particular pages somebody is reading. The idea is that there’s a sharp Fourth Amendment distinction between the “content” of a communication—its “meaning or purport”—and the non-content transactional information, such as the phone number or IP address, which tells you something about who is communicating, but not what is communicated. But there’s a loophole:

This policy does not apply to applications for pen register orders that would merely authorize collection of Internet Protocol (IP) addresses, even if such IP addresses can be readily translated into URLs or portions of URLs. Similarly, this policy does not apply to the collection, at a web server, of tracing information indicating the source of requests to view a particular URL using a trap and trace order.

Emphasis added. Roughly translated, this means that the government can obtain records showing that I accessed (say) the IP address of a particular political Web site, but not which specific articles I was reading. However, they may be able to separately go to that site and request the transactional logs for each article, then search through those to determine which articles were sent to me.

It seems very likely that technology will increasingly permit this kind of multi-step searching, perhaps in ways we can’t yet predict. For all that Orin is right to worry about the practical difficulty of determining how to group discrete acts of information gathering, the consequences of dogmatically insisting on evaluating each “act” in isolation seem equally absurd if it implies that the government will have the practical ability to transform a Fourth Amendment “search” into an unregulated (or much less regulated) “non-search” just by breaking it into smaller pieces.

The Non-Defense of DOMA

The Obama Administration’s decision to stop defending DOMA in the courts has provoked some widespread commentary. Jim Burroway hints that Obama’s strategy here is both deep and cynical. Obama’s locked in a losing fight with Republicans over the budget, because Americans really do want to cut federal spending. This remains true even if, notoriously, nearly the only specific program they want to cut is our negligible foreign aid.

The mood is anti-spending, and it’s just possible that a government shutdown scares Obama even more than it scares the Republicans. The remedy? Change the subject. Make Republicans in Congress defend their stance on gay marriage, which is so not the discussion they’d like to be having.

It could be one of the first instances in which gay marriage counts as a wedge issue against Republicans, rather than for them. Opposing same-sex marriage appeals strongly to a smallish base. To the center, the whole subject is distasteful either way, and they don’t mind if Obama drops it. Finally, more and more people just find the conservatives embarrassing here. Obama sees no need to do their dirty work for them, especially when the work really is that dirty.

Meanwhile, Orin Kerr is worried about executive power:

By taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.

If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress’s power. Again, it will be a power grab disguised as academic constitutional interpretation.

Liberals: If you think declining to defend DOMA is the right decision, how will you feel when a Republican administration declines to defend in a school prayer case? Or an abortion case? Or on Obamacare itself?

There are two very, very distinct issues here. One concerns gays and lesbians. The other concerns the proper relationship among the three branches of the federal government. One is about policy; the other is about procedure. Deciding a procedural question based on what it means for a one-time policy outcome is just bad governance. The questions we should be asking are – How much power would this really give the president? Is this a particularly new power? (Arguably it’s not.) And in any case, are we comfortable with the president having it, even if he or she has radically different views about policy?

When we look at it that way, there’s a near-perfect parallel to the perennial debate over the filibuster. Everyone hates it when they’re in the majority. Everyone loves it when they’re in the minority. Politics really is the mind-killer.

Wikileaks, Twitter, and Our Outdated Electronic Surveillance Laws

This weekend, we learned that the U.S. government last month demanded records associated with the Twitter accounts of several supporters of WikiLeaks—including American citizens and an elected member of Iceland’s parliament. As the New York Times observes, the only remarkable thing about the government’s request is that we’re learning about it, thanks to efforts by Twitter’s legal team to have the order unsealed. It seems a virtual certainty that companies like Facebook and Google have received similar demands.

Most news reports are misleadingly describing the order [PDF] as a “subpoena” when in actuality it’s a judicially-authorized order under 18 U.S.C §2703(d), colloquially known (to electronic surveillance geeks) as a “D-order.” Computer security researcher Chris Soghoian has a helpful rundown on the section and what it’s invocation entails, while those who really want to explore the legal labyrinth that is the Stored Communications Act should consult legal scholar Orin Kerr’s excellent 2004 paper on the topic.

As the Times argues in a news analysis today, this is one more reminder that our federal electronic surveillance laws, which date from 1986, are in dire need of an update. Most people assume their online communications enjoy the same Fourth Amendment protection as traditional dead-tree-based correspondence, but the statutory language allows the contents of “electronic communications” to be obtained using those D-orders if they’re older than 180 days or have already been “opened” by the recipient. Unlike traditional search warrants, which require investigators to establish “probable cause,” D-orders are issued on the mere basis of “specific facts” demonstrating that the information sought is “relevant” to a legitimate investigation. Fortunately, an appellate court has recently ruled that part of the law unconstitutional—making it clear that the Fourth Amendment does indeed apply to email… a mere 24 years after the original passage of the law.

The D-order disclosed this weekend does not appear to seek communications content—though some thorny questions might well arise if it had. (Do messages posted to a private or closed Twitter account get the same protection as e-mail?) But the various records and communications “metadata” demanded here can still be incredibly revealing. Unless the user is employing anonymizing technology—which, as Soghoian notes, is fairly likely when we’re talking about such tech-savvy targets—logs of IP addresses used to access a service like Twitter may help reveal the identity of the person posting to an anonymous account, as well as an approximate physical location. The government may also wish to analyze targets’ communication patterns in order to build a “social graph” of WikiLeaks supporters and identify new targets for investigation. (The use of a D-order, as opposed to even less restrictive mechanisms that can be used to obtain basic records, suggests they’re interested in who is talking to whom on the targeted services.) Given the degree of harassment to which known WikiLeaks supporters have been subject, easy access to such records also threatens to chill what the courts have called “expressive association.” But unlike traditional wiretaps, D-order requests for data aren’t even subject to mandatory reporting requirements—which means surveillance geeks may be confident this sort of thing is fairly routine, but the general public lacks any real sense of just how pervasive it is. Whatever your take on WikiLeaks, then, this rare peek behind the curtain is one more reminder that our digital privacy laws are long overdue for an upgrade.

Citizen Shahzad

Two smart guys on opposite sides of the political spectrum have sound points about the treatment of suspected Times Square bomber Faisal Shahzad.  First, Orin Kerr points out that investigators have some flexibility in determining when and whether to read Miranda rights.  In this case, they refrained initially and questioned Shahzad for a while under the public safety exception. And despite the apparent belief of the perpetually terrorized that Miranda warnings are some kind of magical incantation that causes the cone of silence to descend upon blabbermouths, they determined that he would probably continue cooperating even after being Mirandized. But as Kerr points out, they could have proceeded sans Miranda had that seemed necessary—provided they were willing to waive the ability to introduce Shahzad’s confession at trial. Given that there appears to be plenty of other evidence against him, that might well have been a viable option.

Either way, this surely seems like the kind of judgment call best left to the investigators on the scene, not Monday morning quarterbacks in Congress like Rep. Peter King (R-NY) who gave us this priceless reaction:

“Did they Mirandize him? I know he’s an American citizen but still,” King said.

Putting aside that nauseating “but still,” does King really imagine that he possesses some deep insight into the pernicious effect of Miranda warnings that the agents on the ground lacked? Again, Shahzad is apparently still cooperating—maybe they knew what they were doing.

From Steve Benen, meanwhile, we have one of many posts around the blogosphere pointing out the incoherence of a cowardly proposal mooted by Joe Lieberman (I-CT) that would revoke the citizenship of Americans who join foreign terror groups.  The blindingly obvious question: By what process do we determine that a suspected member of a foreign terror group is really a member of a foreign terror group?   As Glenn Greenwald writes, there’s not much point to having a Bill of Rights if the government gets to revoke those rights at its whim. But no, Lieberman wants to assure us that suspects would have a right to challenge the revocation of their citizenship in a court—a civilian court, one hopes. Except giving material support to a foreign terror groups is, in fact, a crime.  If there’s enough evidence to persuade a court of law that someone is a member of such a group—congratulations, there’s enough evidence to convict them in the civilian system as well! It’s heartening that there doesn’t seem to be a great deal of support for this odious proposal, but depressing that a sitting senator would treat the rights of citizenship so lightly for the sake of a vapid, strutting display of “toughness.”

Internet Privacy Law Needs an Upgrade

Imagine for a moment that all your computing devices had to run on code that had been written in 1986. Your smartphone is, alas, entirely out of luck, but your laptop or desktop computer might be able to get online using a dial-up modem. But you’d better be happy with a command-line interface to services like e-mail, Usenet, and Telnet, because the only “Web browsers” anyone’s heard of in 1986 are entomologists. Cloud computing? Location based services? Social networking? No can do, though you can still get into a raging debate about the relative merits of Macs and PCs.

When it comes to federal privacy law, alas, we are running on code written in 1986: The Elecronic Communications Privacy Act, a statute that’s not only ludicrously out of date, but so notoriously convoluted and unclear that even legal experts routinely lament the “mess” of electronic privacy law. Scholar Orin Kerr has called it “famously complex, if not entirely impenetrable.” Part of the problem, to be sure, lies with the courts.  It is scandalous that in 2010, we don’t even have a definitive ruling on whether or when the Fourth Amendment requires the government to get a search warrant to read e-mails stored on a server. But the ECPA statute, meant to fill the gap left by the courts, reads like the rules of James T. Kirk’s fictional card game Fizzbin.

Suppose the police want to read your e-mail. To come into your home and look through your computer, of course, they’d need a full Fourth Amendment search warrant based on probable cause. If they want to intercept the e-mail in transit, they have to go still further and meet the “super-warrant” standards of the Wiretap Act. Once it lands on your Internet Service Provider’s server, a regular search warrant is once again the standard—assuming your ISP is providing access “to the public.” If it’s a more closed network like your work account, your employer is permitted to voluntarily hand it over. But if you read the e-mail, or leave it on the server for more than 180 days, then suddenly your ISP has become a “remote computing service” provider rather than an “electronic communications service provider” vis a vis that e-mail. So instead of a probable cause warrant, police can get a 2703(d) order based on “specific and articulable facts” showing the information is “relevant and material” to an investigation—a much lower standard—provided they notify you. Except they can ask a judge to delay notification if they think that would impede the investigation. Oh, unless your ISP is in the Ninth Circuit, where opened e-mails still get the higher level of protection until they’ve “expired in the normal course,” whatever that means.

That’s for e-mail contents.  But maybe they don’t actually need to read your e-mail; maybe they just want some “metadata”—the equivalent of scanning the envelopes of physical letters—to see if your online activity is suspicious enough to warrant a closer look.  Well, then they can get what’s called a pen/trap order based on a mere certification to a judge of “relevance” to capture that information in realtime, but without having to provide any of those “specific and articulable facts.” Unless it’s information that would reveal your location—maybe because you’re e-mailing from your smartphone—in which case, well, the law doesn’t really say, but the Justice Department thinks a pen/trap order plus one of those 2703(d) orders will do, unless it’s really specific location information, at which point they get a warrant. If they want to get those records after the fact, it’s one of those 2703(d) orders—again, unless a non-public provider like your school or employer wants to volunteer them. Oh, unless it’s a counterterror investigation, and the FBI thinks your records might be “relevant” somehow, in which case they can get them with a National Security letter, without getting a judge involved at all.

Dizzy yet? Well, a movement launched today with the aim of dragging our electronic privacy law, kicking and screaming, into the 21st century: The Digital Due Process Coalition.  They’re pushing for a streamlined law that provides clear and consistent protection for sensitive information—the kind of common sense rules you’d have thought would already be in place.  If the government wants to read the contents of your letters, they should need a search warrant—regardless of the phase of the moon when an e-mail is acquired. If they want to track your location, they should need a warrant. And all that “metadata” can be pretty revealing in the digital age—maybe some stricter oversight is in order before they start vacuuming up all our IP logs.

Reforms like these are way overdue. You wouldn’t trust your most sensitive data to software code that hadn’t gone a few years without a security patch. Why would you trust it to legal code that hasn’t had a major patch in over two decades?

How Will the Court Vote on “Incorporating” the Second Amendment?

Yesterday I described the brief Alan Gura filed on behalf of the petitioners challenging Chicago’s gun ban in the Supreme Court – asking the Court to apply the individual right to keep and bear arms to the states.

Late last night, Orin Kerr at the Volokh Conspiracy sketched out his predictions of whether the individual justices would go for Gura’s main argument: that the indefensible Slaughter-House Cases should be overturned and thus that the Court should “incorporate” the rights at issue via the Privileges or Immunities Clause.  (Cato supports this argument, as we’ll show in the brief we’ll be filing next week.) He concludes that Justice Thomas is the only vote available for this claim. According to Orin, the Chief Justice and Justices Scalia and Alito are too enamored with stare decisis to overturn an 1873 precedent, Justice Kennedy isn’t an originalist and likes substantive due process too much, and the other four are too afraid of Lochner and Institute for Justice-style economic liberty arguments to go there.

As George Will would say: Well. Orin could turn out to be right, but I think his analysis is too simplistic. I was just about to write my response when I saw that Josh Blackman, with whom I have a law review article forthcoming on these issues, already said it best in the comments to Orin’s post:

First, I think you present a binary choice; incorporate through Due Process OR incorporate through privileges or immunities. The question presented asked about both routes of incorporation. Neither path is by necessity mutually exclusive. As Gura’s brief makes clear, the Court could incorporate through the Due Process Clause, and alternatively recognize that the right to keep and bear arms is also among the Privileges or Immunities of Citizenship. The Court need not displace 100 years of substantive due process jurisprudence with this single case. And from a practical perspective, basically the entire Bill of Rights has been incorporated. So, unless some people start clamoring about states quartering troops in theirs homes, this would be a one time deal. Such a holding would do little to upset the apple cart, or as we put it, open Pandora’s Box.

Second, I think you may over-simplify Scalia’s views on originalism and stare decisis. Our article shows that Scalia, while on the Supreme Court, has never voted in favor of a substantive due process incorporation. The last such case was in 1982. Can Scalia really cite the doctrine that he excoriated in Lawrence, Casey, and elsewhere based solely on reliance interests? It is no secret Scalia likes guns, and he wants to incorporate the 2nd Amendment. But he does not want to enlarge substantive due process. Is he stuck between a rock and a substantively hard place? The Privileges or Immunities Clause provides an alternative method for Scalia. He could write a classic originalist opinion tracing the right to bear arms during Reconstruction, and find that it applies to the State.

Finally, fellow Volokh conspirator Randy Barnett (and Cato senior fellow) also disagrees with Orin, offering this perspective:

When choosing between the two pending cases in the Seventh Circuit, why would four Justices grant cert on the McDonald case in which the challenge was focused on the Privileges or Immunities Clause and deny cert on NRA case, which confined its argument to the Due Process Clause? Why would they have rejected the City of Chicago’s proposal which limited the question presented to Due Process?

Faced with this background and the actual question presented, I wonder how would Orin have briefed the case. Would he have offered any of the analysis in his post? Would he have told the Court just to ignore the Privileges or Immunities Clause? Or might he not have assumed as an experienced litigator that the Justices could write a Due Process Clause “incorporation” opinion in their sleep–heck, their clerks could write that opinion in their sleep–and then devoted the bulk of his brief to describing the meaning of the Privileges or Immunities Clause in context?

Ultimately, Orin’s analysis is based in what he thinks will be the Justices’ dislike for the interpretation of the Privileges or Immunities Clause described in the brief. The conservatives will hate the references to “natural rights” while the liberals will hate the references to “property.” Fair enough. But notice that the brief does not offer Alan Gura’s theory of the Privileges or Immunities Clause. All the phrases to which Orin objects are taken from quotes from the historical sources. Was Gura supposed to conceal these sources from the Court or faithfully report them? Orin may think this case is a hoot, but for the parties and the Court it is serious business.

In short, Orin’s legal realism/conventional wisdom may turn out prescient – and all the rest of us are engaged in a quixotic originalist/libertarian crusade – but I’ll put my money elsewhere.