May 31, 2008 8:07AM

Kerr Defends the Third‐​Party Doctrine

Orin Kerr is a law professor at George Washington University and a blogger on the popular Volokh Conspiracy. He is a thoughtful, open-minded legal scholar, but I don’t think it’s unfair to say that he reliably sides with law enforcement on Fourth Amendment issues.

He recently posted a draft article defending the third-party doctrine, which is an interpretation of the Fourth Amendment holding that a person sharing information with a third party cannot make a Fourth Amendment claim to protection of that information. Use an ISP to transmit your email? No Fourth Amendment protection for its contents. Have a bank account? No Fourth Amendment protection for your banking records. Etc.

He treats as similar two issues that I see as separate: revelations gleaned from informants/agents and from business records. I have always thought of the third-party doctrine as being about business records. My remarks here apply to that area only.

I think the third-party doctrine was never right, and that it grows more wrong with each step forward in modern, connected living. Incredibly deep reservoirs of information are constantly collected by third-party service providers today. Cellular telephone networks pinpoint customers’ locations throughout the day through the movement of their phones. Internet service providers maintain copies of huge swaths of the information that crosses their networks, tied to customer identifiers. Search engines maintain logs of searches that can be correlated to specific computers and usually the individuals that use them. Payment systems record each instance of commerce, and the time and place it occurred. The third-party doctrine exempts law enforcement from the Fourth Amendment’s reasonableness and warrant requirements when it looks at these records.

It’s wonderfully contrarian to run against the grain and defend the third-party doctrine, which has plenty of detractors, but sometimes contrarians can be wrong. I think Professor Kerr is, and here I’ll briefly lay out a few of the fundamental differences I have with his paper—all toward the end of perfecting it before it’s published in the Michigan Law Review next year, of course!

The basic gist of the article is that the third-party doctrine is better than most people think, for two reasons. First, it’s technologically neutral. It prevents criminals from making opportunistic use of technology to circumvent the basic balance between security and privacy struck by the Fourth Amendment. Second, it’s easier to administer than alternatives. The arguments against the third-party doctrine are weaker than most people believe, Kerr says.

Rather than wedging the third-party doctrine into the “reasonable expectation of privacy” framework arising out of Katz v. United States, Kerr argues that the third-party doctrine should be thought of as a form of consent. People sharing information with others are consenting to have it searched.

To make the third-party doctrine more palatable, he argues that substitutes for it help control against abusive practices. These include common law privileges, entrapment law, the Massiah doctrine, First Amendment doctrine, statutory privacy protections, and the rights of third parties themselves.

My differences with Kerr are plentiful. Starting at the 30,000 foot level, my sense is that Kerr is treating the Fourth Amendment as a rule about criminal procedure. Oh sure, it’s classed that way in the legal academy, it has most of its application in criminal cases, and I first studied Fourth Amendment law in my constitutional criminal procedure class. But add this to the list of things I didn’t learn in law school: The touchstone of the Fourth Amendment is the security of the people—all of them—against unreasonable searches and seizures of their persons, houses, papers and effects. “The people” refers to all of us, the law-abiding citizens.

(Kerr’s argument that the third-party doctrine is preferable because it’s easy to administer holds no weight if the rule derogates from the security of the people, and I’m confident that courts and police departments could manage other rules. That’s all I’ll have to say on that point so I can focus on Kerr’s point about technological neutrality.)

The interplay of the Fourth Amendment and technology is interesting, but I don’t think technological neutrality is a terribly relevant or useful metric for Fourth Amendment doctrine. Since the Fourth Amendment was adopted, technology has certainly shifted the scope of human enterprise. I imagine that in the late 1700’s most everything of deep import to people’s lives—personal and professional—happened in or near the home, so it was natural that the home was a place of high Fourth Amendment protection, and “home” was a useful proxy for “what should be protected.”

Since then, technological changes of all kinds have given us the freedom to take our lives outward. We move around much more within our communities and from one to another; we stay in different places and move our residences much more often; we communicate and transact using new technologies; and our things—both tangible and digital—come to rest many more places than they used to.

Focusing on technological neutrality would move our attention off the thing that matters—the security of the people—to whatever privacy people got in the late 1700’s from the buildings they constructed around themselves and lived in. Housing was the technology of the time. It was both the locus of activity and the source of security in persons, papers, and effects. (Thanks to the Fourth Amendment, it provided equal security against others as against the government.) It would be odd to let the technology of that time set the standard. Was there something special about the technology of that particular time that affixed the scope of people’s rights? Why weren’t they set in the era of the caveman? Or . . . 1957?

In 1967, of course, the Katz Court recognized that the expanded scope of human action needed coordinate expansion of Fourth Amendment protection, and it said in famous language, “the Fourth Amendment protects people, not places.” Katz preserved the security of the people as the technology moved their lives from “inside houses” to “on the phone” and elsewhere.

(It’s interesting to note how many times Kerr refers to the Fourth Amendment as protecting places: “Fourth Amendment protection for information matches the Fourth Amendment protection for the environment in which it is stored.” He could almost be arguing to undo Katz.)

The welcome vision displayed in Katz counsels that the Fourth Amendment should naturally protect people as they come to use other instrumentalities—automated machinery owned by third parties, in particular—to expand the scope of their lives yet again.

Kerr spends a good deal of time explaining how third parties like phone companies, ISPs, online banks, and such allow people to hide illegal behavior that would otherwise take place in public. But this is true of every technology. Fourth Amendment protection for houses allowed criminals to use houses in concealment of crime rather than planning crime in open fields as they otherwise would have had to do. The thing is, letting the vast majority of honest people be confident in the security of their houses has had more benefits than the costs of letting criminals make use of that protection for crime. This will be true of nearly every technology.

Technological neutrality isn’t really relevant. What’s relevant is preserving the same security for people and their stuff that they should have in a free society. It’s a consistent level of this security that matters—not technological neutrality.

A theme unfortunately not running through Kerr’s paper is how much it’s oriented toward victimless crimes, which require much more surveillance than real crime. At one point, he tellingly refers to crime as “the transaction,” not “the theft” or “the murder” or anything like that—“the transaction.” He’s talking about money laundering, prostitution, gambling, bootlegging, and the like.

Real crimes have complainants who tell the police. There isn’t a problem with discovering these crimes or knowing where to start looking for the criminals. The third-party doctrine is intimately bound up with the War on Drugs. Kerr should surface this and grant forthrightly that the third-party doctrine exists for and because of victimless crime laws.

It’s a fascinating idea—and weird—that sharing information with a third party is a form of consent to it being searched by the government. This area deserves more thinking, but my initial impression is that the word “consent” loses the moorings that make it meaningful if consent to a search is imputed to any sharing of information.

The consent argument, and much of Kerr’s other points are bound up with the “reasonable expectation of privacy” doctrine that evolved from Katz. Rather than go through everything now—as I write, it happens to be Friday a little after 5:00 p.m.—I’ll just mention that I have an article coming out soon in the American University Law Review showing that the “reasonable expectation of privacy” test from Justice Harlan’s concurrence is not even supported by the majority’s holding in that case.

There is much more to know about privacy. Kerr treats lost privacy and official abuse as essentially the same, though they're quite different. (Two chapters in my book on identification policy discuss the free-standing importance of privacy and anonymity.) So many people have thrown themselves onto the “reasonable expectation of privacy” pyre based on that well-intended but mistaken concurrence. It won’t have to happen any more once my article comes out.

I'm going to send Professor Kerr an advance copy. Perhaps the final version of his article will sparkle from the exposure to it!

May 30, 2008 2:30PM

Texas Supreme Court: Return the Children

Yesterday, the Supreme Court of Texas ruled that Child Protective Services (CPS) abused its discretion by seizing 468 children from the Fundamentalist Church of Latter Day Saints ranch in Eldorado. Eugene Volokh has a roundup of the legal analysis.

I wrote about this case a few days ago at NRO, but space limitations kept me from going into more detail about how the women and children were treated while in state custody. For those who have not followed this matter closely, the children were seized by CPS but the mothers were "permitted" to remain with their children on the condition that they comply with all CPS rules and commands. 

CPS invited some mental health workers to the various shelters to help care for the hundreds of children. The mental health workers were disturbed by what they saw of CPS's treatment of the women and children, and their written reports corroborate the bitter complaints of the FLDS mothers. I don't think the news media has given this aspect of the story the attention it deserves — so here are some excerpts from the various reports that have been made public:

  • "Women were constantly lied to about where their children [were] and when they could see their lawyers and about when they would be reunited with their children."
  • "Constant reminders that the adult women were only guests and that they were not in charge of the children and what CPS did to them. [The children] belonged to CPS now and they could talk, interrogate, separate and treat them any way [CPS] wanted. This included physical exams and x-rays without [parental] supervision."
  • "I sat with Audrey while three of her children were removed for six hours of questioning." 
  • "The children arrived healthy and happy and left sick and crying."
  • "The door to the room was almost constantly open. Even when the women closed the door to reduce noise during naptime or to dress themselves or the children, it was almost immediately opened again [by a CPS worker]."

  • "The women were lied to and denied access to their attorneys."
  • "At least 5 mothers reported that at night CPS [workers] circled their beds, held flashlight in their faces & then would sit inches away from them as they tried to sleep. Mothers reported that they were scared CPS would take their children during the night."
  • "The CPS workers were openly rude to the mothers and the children, yelled at them for trying to wave to friends and family members in surrounding shelters, threatened them with arrest if they did not stop waving to others, continually reminded them that the women were guests only and could be made to leave if they did not cooperate, threatened the mothers with never seeing their children again if they did not cooperate, and ignored requests for anything."
  • "The children were amazingly clean, happy, healthy, energetic, inquisitive, well behaved, and self-confident; while the mothers were consistently calm, patient, and loving with their children."
  • "Living conditions in the coliseum were not conducive to good health for anyone, and the presence of hostile CPS workers who spied on them constantly, kept them awake at night by shining lights in their faces and talking and laughing created enormous stress for the mothers and children.  None of them slept well or enough."
  • "Try to imagine all these children from age 1 to 12 years, left in that coliseum [separated from their mothers] with only CPS and [police officers] to care for them. The only others were mothers whom CPS decided were under 18 and kept in their custody along with their children. The floor was literally slick with tears in places. A baby was left in a stroller without food and water for 24 hours and ended up in the hospital. A 4 year old boy was so terrified that he snuck away and hid and was only found after the coliseum had been emptied the next day."
  • "I witnessed a young mother named Rosinith be required by CPS to board the bus back to the ranch, though her young child was in the hospital with 104 degree fever and even though the child's physician had personally requested the mother's presence at the hospital. This event haunts me still, and I cannot imagine such a heartless act."
  • "By the second day, I was ready to run in front of the CNN cameras to shout that there was a travesty happening inside those walls.... Of course I was cautioned not to interfere in a 'crime scene investigation.'"
  • "I have always been proud to be an American and a Texan but this incident is not what America or Texas stands for and something must be done to undo the horrible injustice that has been done."

CPS denies the allegations of mistreatment. But the excerpts above are eyewitness reports from objective/disinterested social workers that CPS invited into the shelters. 

May 30, 2008 1:29PM

Patent Failure

This week I'm filling in for libertarian blogger Megan McArdle at the Atlantic. Yesterday I finished a three part discussion of Patent Failure, an excellent new book on the patent system by James Besson and Michael Meurer.

The use of the phrase "intellectual property" to describe patents and copyrights has become so commonplace that we barely give it a second thought. I think that's unfortunate, because the question of whether patents can sensibly be considered a kind of property is an empirical question, not merely a matter of semantics or tradition.

In my first post, I discuss the key characteristics of a patents system — clear boundaries and positive incentives for innovation, and argue that the patent system tends to fulfill those characteristics with respect to the chemical and pharmaceutical industry. In my second post, I shift my attention to the rest of the patent system, and show evidence from Bessen and Meurer that the patent system seems to be creating dis-incentives for innovation in industries other than chemicals and pharmaceuticals. Finally, in my third post, I suggest that the problem is a lack of clear boundaries, and discuss some of the reform proposals Bessen and Meurer offer to fix the patent system's problems.

The best thing about the book, from my perspective, is that it takes the idea of patents as property seriously and then tries to bring some empirical evidence to bear on whether the patent system behaves the way we expect a property rights system to behave. Because of the analytical clarity of their approach, it gives us a meaningful yardstick with which to judge potential reforms.

May 30, 2008 7:51AM

Alaska Will Not Implement REAL ID

Passed into law Wednesday:

Section 1. AS 44.99 is amended by adding a new section to article 1 to read:

4 Sec. 44.99.040. Limitation on certain state expenditures. A state agency may not expend funds solely for the purpose of implementing or aiding in the implementation of the requirements of the federal Real ID Act of 2005 (P.L. 109-13, Division B).

May 29, 2008 3:39PM

High Wire

I recently received a complimentary copy of Peter Gosselin's new book,  High Wire: The Precarious Financial Lives of American Families.   Mr. Gosselin is the national economics correspondent for the Los Angeles Times.  Here is an excerpt from the book jacket:

 The recent downturn seems to have brought an end to some of the strongest, smoothest growth in American history--a performance that economists found so sweet they dubbed it the "Great Moderation."  Yet even in boom times, the economy was caught in a cross-current. ... [T]he cross-current was neither the product of a misapprehension nor the nation's normal ups and downs.  Instead, it was the result of a quarter-century long conversion of the nation's economy from one of checks and balances to barely tempered free markets.

Interesting.  Query: What baseline (pdf) is Mr. Gosselin using?

May 29, 2008 2:25PM

“Dog Bites Man” Passes for Legal News These Days

"The Supreme Court this week made big news because it hardly changed the law at all," reports The Washington Post. "The court broke no new ground in deciding that workers are protected from retaliation for complaining about discrimination, just as they are protected from discrimination itself."  The story goes on to quote part of this press release that I wrote yesterday:

The Gómez-Pérez and Humphries rulings reinforce what should be readily apparent to objective Court-watchers: The Roberts Court is neither necessarily "pro-business" nor "conservative." Instead, the Court evaluates the legal merits of each case and rules accordingly. Even where the Chief Justice disagreed with his colleagues (and notably with an opinion written by Justice Alito), in the Gómez-Pérez case, the disagreement was a technical one over statutory language and structure -- and not anything that involves judicial philosophy or competing theories of constitutional interpretation. The most interesting thing to note from these cases is the difference in the justices' views of stare decisis, the principle that the Court places heavy weight on its own precedent. Whereas Chief Justice Roberts and Justice Alito (and perhaps others) no doubt disagreed with the precedent upon which the Humphries decision relied, they went along with Justice Breyer's reasoning that such disagreement over statutory interpretation does not justify overturning precedent. Justices Scalia and Thomas, on the other hand, consider that the risk to legal stability from overturning precedent to be less than the harm from perpetuating the earlier error. Whatever the significance of this difference of opinion, it is not an ideological dispute.

Perhaps more importantly, as I (and apparently others) said to this reporter over the phone, Roberts and Alito are likely to be more accommodating of incorrect but established precedent when they pertain to statutory interpretation rather than constitutional rights.  This is because Congress can always itself "overrule" an erroneous body of statutory construction by passing a new law -- but of course the Court has the final word on constitutional issues (barring a constitutional amendment).

More generally, though, the above analysis, relating as it does to technical statutory construction that only reinforces existing law, would not normally be front-page (or, in this case, page A2) news.  The nature of the cases to which the Roberts Court grants review, however -- more technical, business issues instead of red-meat "culture war" stuff -- suggests that we could be in for more "dog bites man" stories in future.

May 29, 2008 11:09AM

The Global Flat Tax Revolution

There’s good news and bad news in the world of tax policy. The good news is that a growing number of nations now have flat tax systems instead of so-called progressive tax schemes that punish people for contributing more to economic growth. The bad news is that the United States is conspicuously absent on the list of flat-tax jurisdictions. Defenders of the internal revenue code often argue that a flat tax is an impractical idea, but this new video (narrated by yours truly) demonstrates that the flat tax is working very well and spreading rapidly as nations compete to offer more attractive tax policy to the world’s investors and entrepreneurs.

One small correction is already necessary. The video states that there are 24 flat tax jurisdictions, but it has recently been shown that Trinidad & Tobago is now a member of the flat tax club. Hopefully, the list will grow rapidly and the video will quickly be outdated.