Tag: privacy

Jardines: The Supreme Court Retreats to the Home

The Supreme Court ruled today in Florida v. Jardines that “use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.”

It’s the right result. The Court was divided 5-4, though, and the case shows some of the same fissures around Fourth Amendment doctrine that U.S. v. Jones did last year.

The majority opinion, written by Justice Scalia, won’t clear up the doctrinal debates, which are sure to continue. Instead, it retreats to the home. The specific protection for “houses” in the Fourth Amendment, he wrote:

renders this case a straightforward one. The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.

Property law gives strangers an implied license to approach a house for the variety of purposes they may have. “But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that.”

Justice Scalia did use the case to answer a question left open by Jones. He emphasized that the “reasonable expectation of privacy” test from Katz v. United States (1967) built upon, and did not supplant, the Fourth Amendment’s foundation in property. He specifically declined to use that test in the holding.

The dissent objected vigorously to the idea that approaching the front door of a home via the walk was a trespass.

“[G]athering evidence—even damning evidence—is a lawful activity that falls within the scope of the license to approach,” Justice Alito wrote. “And when officers walk up to the front door of a house, they are permitted to see, hear, and smell whatever can be detected from a lawful vantage point.”

The dissent also rejected an argument put forward by the concurrence: that the reasonable expectation of privacy test is an alternative ground for the holding.

Yes, Justice Kagan would also have used “reasonable expectations” to decide the case, but her concurrence covers more important ground than that. As she did at oral argument, she fixed on the government’s use of the dog to perceive things that couldn’t otherwise be perceived. That’s what searching is.

“[P]olice officers came to Joelis Jardines’ door with a super-sensitive instrument, which they deployed to detect things inside that they could not perceive unassisted.” And later: “[A] drug-detection dog is a specialized device for discovering objects not in plain view (or plain smell).”

In the Cato Institute’s brief in the case, I emphasized that drug-dog detection was but one form of chromatography, the use of which the court should treat as searching because it “look[s] for or seek[s] out that which is otherwise concealed from view” (quoting Black’s Law Dictionary).

DNA and Doctrine in the Supreme Court

This week, the Supreme Court considered whether collecting DNA from an arrestee was an unreasonable Fourth Amendment search.

Or at least that would have been a good way for the Court to frame the question.

Instead, much of the oral argument in Maryland v. King dealt with the question whether swabbing the cheek of an arrestee to take a DNA sample upsets one’s reasonable expectations of privacy. The “reasonable expectation of privacy” test is doctrine that arose from Justice Harlan’s concurrence in Katz v. United States. The test asks whether a person claiming the Fourth Amendment’s protections had a subjective expectation of privacy and whether it is “one that society is prepared to recognize as ‘reasonable.’”

The government’s case rests on that framing, which is why Deputy Solicitor General Michael Dreeben began his argument by saying that arrestees are “on the gateway into the criminal justice system. They are no longer like free citizens who are wandering around on the streets retaining full impact Fourth Amendment rights. The arrest itself substantially reduces the individual’s expectation of privacy.”

It’s true that an arrestee has his privacy and other liberties invaded various ways. What problem is it if a bit of DNA is collected at the same time? It’s pretty much like finger printing, the argument goes…

The “reasonable expectation” test is almost never faithfully followed by courts. My guess is that the Court will not assess whether King himself actually expected “privacy.” That would encompass everything from believing that none of his mucus membranes would be collected by a government agent, to believing that his genetic material would neither be analyzed nor preserved in a Maryland lab for further analysis somewhere in an uncertain future.

When it applies the objective part of the test, there is a chance, but I’ll be surprised if any justice actually examines the difference in experience between fingerprinting and DNA collection, such as by comparing the slim privacy invasion when one person touches another’s hands to the real invasion that occurs when a person puts something in another person’s mouth. Doing so in its exercise of free-form interest balancing could, but probably wouldn’t, overcome the government’s interest in using “the fingerprinting of the 21st Century” to catch crooks.

Rather than using doctrine and making policy judgments, the Court should assess the government’s actions as the Fourth Amendment commands. The law does not invite the Court to examinine what people may or may not think about “privacy.” It bars the government from committing unreasonable searches and seizures.

If one examines the case guided by the words of the Fourth Amendment, what happened is far more clear. Taking a bodily specimen from Alonzo King was, in natural language, a seizure. Processing that specimen to create an identity profile was a further examination, bringing otherwise concealed information into law enforcement’s view. And comparing King’s identity profile to cold-case profiles was incontrovertibly looking for something. This is all searching using that seized bodily material.

Now, was the search reasonable?

Having been picked up on a variety of assault charges, King’s mouth was swabbed and his DNA taken, processed, and used to investigate whether genetic material matching his was associated with any other cases. It’s the equivalent of taking keys on the person of an arrestee and looking through his house for evidence of other crimes. There was no relationship between King’s alleged wrongdoing and the investigation conducted using his DNA.

Perhaps it is reasonable to conduct a free-form search into the biography of a person who has been arrested–that is, a person about which a law enforcement officer says he has probable cause to arrest–but it is unlikely. The Fourth Amendment’s particularity requirement suggests that it is unreasonable to investigate a person arrested for one crime to see what other, unrelated crimes he may have committed.

Counsel for the State of Maryland rested her argument heavily on the use of information about other crimes in bail decisions. This falls apart under the same logic, unless the Court is going to produce a rule that the Fourth Amendment allows the government carte blanche to search and seize when a bail hearing is pending. And the DNA results came back months after Alonzo King’s arraignment.

More Internet Sales Taxes—and Your Privacy Compromised

Yesterday, Senator Mike Enzi (R-Wyo.) and 19 cosponsors introduced a bill to promote the collection of taxes on Internet sales. I can’t recall seeing a bill so universally condemned in the libertarian, free-market, anti-tax, and pro-innovation communities. The National Taxpayers Union issued a press release, a “myths & facts” one-pager, and wrote it up on their blog for good measure. Here’s the Heartland Institute’s press release. The Competitive Enterprise Institute calls it a raw deal. R Street seems to hate this bill with a burning passion. Our sweethearts at NetChoice went with a Valentine’s theme.

[Update: The Center for Freedom and Prosperity also does not like this bill.]

[Update 2: Americans for Tax Reform does not like Internet sales taxes.]

I think differently from these groups. Oh no, I don’t think it’s a good idea to let state and local tax authorities impose complex taxes on businesses around the country just because they sell online. Doing so would cause Internet sales taxes to soar because tax authorities would be able to impose taxes on people who can’t vote them out of office.

But I think it’s important not to forget the consequences for privacy if Congress were to approve interstate tax collection like this.

Dig down into the bill and you start to see what it takes for states and localities to tax products sent into their states by remote sellers.

For purposes of [collecting taxes], the location to which a remote sale is sourced refers to the location where the item sold is received by the purchaser, based on the location indicated by instructions for delivery that the purchaser furnishes to the seller. When no delivery location is specified, the remote sale is sourced to the customer’s address that is either known to the seller or, if not known, obtained by the seller during the consummation of the transaction, including the address of the customer’s payment instrument if no other address is available.

That means that sellers all over the country would have to turn the addresses of the people they sell to over to state tax authorities. You could design a system to minimize the privacy problems here, but not eliminate them—especially when the time comes for the officials in one state to audit the sales in another.

The First Amendment Is a Sweet Emotion

Hawaii, no longer content to trample on the Fourteenth Amendment alone, is about to bid a sorry aloha (farewell) to the First Amendment. In a brazen giveaway to celebrities who like to like to vacation on its pristine beaches, Hawaii’s Senate is poised to pass the “Steven Tyler Act.”

The bill, named after – indeed, written by – the Aerosmith frontman, could punish anyone who takes a photograph of a celebrity in public. That includes a tourist who takes out her iPhone to snap a pic of an aging rocker, or perhaps the Obama family. Specifically, the bill would prohibit recording someone “in a manner that is offensive to a reasonable person,” while that person is “engaging in a personal or familial activity.” The Steven Tyler Act not only departs from a century’s worth of privacy laws, but does so at a huge cost to the First Amendment’s guarantee of the freedom of speech. As my frequent co-author, law professor Josh Blackman explains,  there are several constitutional defects here:

First, the bill offers no exceptions for newsworthy content. It simply assumes that if a person is “engaging in a personal or familial activity with a reasonable expectation of privacy,” any photograph would be illegal. Newspapers covering matters of public affairs (that may be personal or familial) could be snared by this staute.

Second, the proposed statute is purposely vague. It offers no guidance of what “personal or familiar activity” means.

Third, courts would have the authority not only to stop the initial publication of a photograph, but allows for restraining orders for future, subsequent reproductions of the same photograph. This type of authority is called “prior restraint” – highly suspect in First Amendment jurisprudence – with nary a compelling government interest at stake.

Fourth, the penalties are severe, and include compensatory damages, treble punitive damages, and disgorgement of profits. Such penalties on a vague statute would easily chill speech far beyond the worst kind of paparazzi any celebrity can imagine.

Fifth, this standard applies not only to the person who takes the photograph, but potentially to anyone who uses the photographs in any capacity.  The only existing publication-related laws even approaching such a strict liability standard involve child pornography. As Josh notes based on one of his law review articles, many of these constitutional defects could be fixed by adding a newsworthiness exception to the law and limiting the scope and nature of damages that can be awarded. These tweaks would bring the law more in line with existing privacy law, while still respecting the Constitution. Protecting privacy in public is a laudable goal that in our constitutional jurisprudence dates back at least to the seminal article “The Right to Privacy” by Samuel Warren and Louis Brandeis. Indeed, we’re all affected by the sweet emotion of seeing celebrities harassed by the paparazzi (viz., Princess Diana). The Steven Tyler Act, however, misses a very important thing – that privacy and the First Amendment can coexist.

Hawaii shouldn’t walk this way, instead promoting the right of privacy that our society should strive for while ensuring the freedom of speech. Let’s not be jaded by the costs of freedom. Anything else is just crazy.

Privacy Regulation and Political Economy

Good-hearted people want to cure hunger, ignorance, and other human deficits. Many see the cure in taking from the group of “haves” and giving to the “have-nots.” Along with the injustice of the transfer itself, libertarians like to point out the backward incentives that generous, systematic giving creates. Poverty and ignorance becomes a low-end, but survivable, mode of living. It’s not really a surprise that these problems respond to subsidy by becoming intractable.

That’s simple math to people who understand incentives, so it shouldn’t be hard to recognize incentive structures and their warping in other areas. Take federalism. The Constitution set out a design for government that aligned political incentives well. With a limited federal government and plenary powers left with the states, elected officials closer to the people would provide better government because they would be responsible to smaller numbers of people at the ballot box.

When state officials go wrong, good-hearted, economically-minded people want to cure their deficits. Many see the cure in removing power from the state level to the federal through preemption. State regulation can interfere with national markets, and there is a Commerce Clause that arguably permits national regulation of all things commercial.

But the Commerce Clause was not a grant of plenary authority over commerce anywhere in the United States. It gave Congress power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Think of a border sentry tasked mostly with preventing anyone from erecting gates.

One can “fix” bad state regulation by replacing it with a less-bad, nationally uniform rule. But doing so frees state officials from responsibility. The subsidy makes carelessness a low-end, but survivable mode of governing.

So with California Attorney General Kamala Harris brandishing $2,500 fines per download of apps in California if they don’t meet the terms of the California Online Privacy Protection Act, I don’t think the right answer is for the federal government to whisk in with its own less-bad privacy law that preempts California’s. The attorney general and the authors of California’s law should be allowed to let their behavior have its effects in their state, responding to their state’s voters if it has negative consequences.

The federal government’s only response should be to make clear that there are limits on California’s ability to bring out-of-staters into court. The federal government should preserve the right of people and businesses to exit states that make themselves unfriendly through high taxes, poor services, and inefficient regulation. This will set up the incentive structure under which governance in the United States will thrive, perhaps at the cost of California sinking into the ocean.