Wednesday, July 16, 2014
In his opinion today in Jones v. Chappell, federal judge Cormac Carney vacated the death sentence of Ernest Dewayne Jones as violating the Eighth Amendment’s prohibition against cruel and unusual punishment.
Jones was sentenced to death in 1995 and has been on "death row" in California State Prison at San Quentin since then. For Judge Carney, this is precisely the problem. As Carney writes:
Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution. Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.
[emphasis in original].
Thus, it is not the arbitrariness in the imposition of the death sentence that is unconstitutional, but the arbitrariness in the execution of the death sentence that renders it unconstitutional.
Judge Carney's analysis centered on his finding that of the more than 700 persons presently on California's "death row,"
their selection for execution will not depend on whether their crime was one of passion or of premeditation, on whether they killed one person or ten, or on any other proxy for the relative penological value that will be achieved by executing that inmate over any other. Nor will it even depend on the perhaps neutral criterion of executing inmates in the order in which they arrived on Death Row. Rather, it will depend upon a factor largely outside an inmate’s control, and wholly divorced from the penological purposes the State sought to achieve by sentencing him to death in the first instance: how quickly the inmate proceeds through the State’s dysfunctional post-conviction review process.
Judge Carney then discussed Jones' situation as an example.
To be sure, however, Judge Carney did not view Jones' situation as unique. Indeed, the opinion contains an 18 page color-coded appendix listing the status of more than 500 persons sentenced to death in California between 1978 -1997. Here's a bit of it, with the entry for Ernest Jones:
Thus, Judge Carney's careful reasoning applies to every person sentenced to death in California, even those sentenced more recently. California's Attorney General and Governor now have some serious litigation choices to make.
Monday, June 2, 2014
On her second trip to the United States Supreme Court, Carol Anne Bond prevailed again.
Recall that Carol Anne Bond was convicted of a crime in violation of the Chemical Weapons Implementation Act, 18 U.S.C. § 229(a), passed to implement a treaty , the Chemical Weapons Convention. But the fact that she is not a "terrorist," but rather a "vengeful" participant in a "love triangle" has caused much consternation. While the international arms-control agreement prohibits nation-states from producing, stockpiling, or using chemical weapons, Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband. Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.
Recall that in 2011, the Court unanimously held that Bond could raise a Tenth Amendment claim in her prosecution, reversing the Third Circuit. On remand, the Third Circuit rejected Bond's argument to "set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress's ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution."
Today's opinion in Bond v. United States again reverses the Third Circuit. The focus in oral argument was on the Treaty power and whether a treaty can alter constitutional structures, namely federalism. And while today's decision is unanimous, there are multiple concurring opinions.
The opinion for the Court, authored by Chief Justice Roberts, and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, is a relatively brief 21 pages and notes that the Bond's case is "unusual" and thus the "analysis is appropriately limited." For the Court,
the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon. There is no reason to suppose that Congress—in implementing the Convention on Chemical Weapons—thought otherwise.
Essentially, the Court practices constitutional avoidance by construing the statute narrowly; there is no need to confront Holland v. Missouri's holding regarding the constitutional parameters of Congress's treaty power.
Indeed, the Court only mentions Holland in its discussion of the Third Circuit's holding and Bond's arguments; it notes that notwithstanding that "debate" there is a "well-established principle" of constitutional avoidance and includes a citation to Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). Because "Bond argues that section 229 does not cover her conduct" it considers "that argument first," and finds it decides the issue.
In a nutshell, the Court concludes that the federal prosecutors exceeded the power the statute gave them - - - and thus there is no need to decide whether Congress exceeded the power the Constitution's treaty and necessary and proper powers gave it.
Justice Scalia, concurring and joined by Thomas, would conclude that the statute clearly covers Bond's Act and therefore is unconstitutional. Justice Thomas writes a separate concurrence, joined by Scalia and in part by Alito, writes separately to "suggest that the Treaty Power is itself a limited federal power." And in a very brief opinion, Alito argues that the "insofar as the Convention may be read to obligate the United States to enact domestic legislation criminalizing conduct of the sort at issue in this case, which typically is the sort of conduct regulated by the States, the Convention exceeds the scope of the treaty power" and thus the statute "lies outside Congress’ reach unless supported by some other power enumerated in the Constitution."
So, while the opinion is "unanimous," the three Justices considered to be the most conservative and perhaps most hostile to international law, would have limited Congress' power to implement treaties made pursuant to Article II §2 allowing the executive to "make Treaties, provided two thirds of the Senators present concur."
And for ConLawProfs, it demonstrates the relevance of the "Ashwander doctrine" as a part of constitutional law courses.
June 2, 2014 in Cases and Case Materials, Congressional Authority, Criminal Procedure, Executive Authority, Federalism, International, Interpretation, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
The United States Supreme Court denied certiorari in the closely watched case of Risen v. United States (13-1009).
Recall our analysis of the sharply divided Fourth Circuit panel opinion in United States v. Sterling, with James Risen as Intervernor, that declared there was no First Amendment right - - - or common law privilege - - - for a reporter to resist a subpoena to reveal the identity of a source.
Thursday, April 17, 2014
With the announcement of the disbanding of the "Demographics Unit" in the NYC Police Department, some might think that litigation we've previously discussed about Muslim surveillance after 9/11, such the dismissal of a complaint about surveillance in New Jersey and federal litigation in New York, is no longer viable.
An editorial from the Board of the New York Times today points to the larger (and longstanding) issues beyond the particular "Demographics" unit:
This problem dates back to the 1960s and ’70s, when the department’s infamous “Red Squad” conducted what civil rights lawyers described as illegal surveillance of groups like the Black Panthers, who were acquitted on charges of conspiring to blow up department stores and police stations. The case became a class-action suit that included other political groups and was named for a plaintiff, Barbara Handschu.
Under a 1985 settlement, the city agreed to court-supervised investigation guidelines that were then loosened after the Sept. 11, 2001, attacks.
The editorial recommends that the city agree
to reinstate a provision of the original Handschu agreement that calls for an authority that includes high-level Police Department officials and a citizen appointee to review investigations into individuals or groups engaged in political activity. The point is not to obstruct those investigations, but to ensure that they are warranted and consistent with the Constitution.
Tuesday, April 1, 2014
In the oral arguments last week in Wood v. Moss and the Court's 2012 decision in Reichle v. Howards, the Secret Service was center stage. Recall that both cases involve qualified immunity for Secret Service agents against constitutional claims and raise the specter that the individual agents acted inappropriately. And in both cases, there is some valorization of the agents and their difficult task of protecting the President (in Wood) and the Vice-President (in Reichle).
Arguing for the United States Government in Wood v. Moss, the Deputy Solicitor General expressed the fear that not upholding qualified immunity would lead to a "demoralization of the service leaning in the direction of being overly careful and therefore risking the life of the President" and that allowing discovery is "exactly the nightmare scenario that the Secret Service fears" including "
discovery into what the agents were thinking" and "what the Secret Service's policies were."
And in Reichle, Justice Ginsburg concurring in the unanimous opinion, discusses the difficult facts in the case as well as deference to the agents' role:
Officers assigned to protect public officials must make singularly swift, on the spot, decisions whether the safety of the person they are guarding is in jeopardy. In performing that protective function, they rightly take into account words spoken to, or in the proximity of, the person whose safety is their charge. Whatever the views of Secret Service Agents Reichle and Doyle on the administration’s policies in Iraq, they were duty bound to take the content of Howards’ statements into account in determining whether he posed an immediate threat to the Vice President’s physical security. Retaliatory animus cannot be inferred from the assessment they made in that regard.
But one wonders how positive views of the Secret Service suffer given recurrent scandals involving the Secret Service. As the United States Supreme Court was considering Reichle, there was the scandal in Colombia involving more than a dozen agents, but a later Homeland Security report (official synposis here) found that there was not "widespread sexual misconduct." Most recently, at least one agent assigned to protect the President was reportedly "found drunk and passed out in a hotel hallway." This latest scandal was reportedly not good news for the Secret Service's first woman director who has "tried to implement reforms." One former Secret Service agent writes in a WaPo op-ed that the problem is not bad agents but bad leadership."
But whether attributed to bad leadership or what might be called "bad apples," should these revelations about the bad judgments of secret service agents influence the Court's own judgments? Doctrines such as qualified immunity and strict pleading requirements that prevent discovery serve to protect Secret Service agents from their "nightmares" (as the Deputy Solicitor General phrased it), but might they also insulate the Secret Service from responsibility for the nightmares they cause others.
Monday, March 24, 2014
Can a government criminalize the recording of conversations absent consent without violating the First Amendment, or perhaps the Due Process Clause?
Both cases relied upon ACLU v. Alvarez, in which the Seventh Circuit enjoined the statute from being applied to a Chicago police accountability program.
In Clark, the Illinois Supreme Court held that 720 ILCS 5/14-2(a)(1)(A), the eavesdropping statute, violated the First Amendment's overbreadth doctrine "because a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep." The court recognized the ubiquity of smartphones and other recording devices.
Importantly for the court, the statute criminalized a "whole range of conduct involving the audio recording of conversations that cannot be deemed in any way private." It gave these examples:
- a loud argument on the street;
- a political debate in a park;
- the public interactions of police officers with citizens (if done by a member of the general public); and
- any other conversation loud enough to be overheard by others whether in a private or public setting.
Although the opinion in Clark is a brief 9 pages, it's substantial and well-reasoned.
Equally brief and well-reasoned, although somewhat more complex, is the companion opinion in Melongo. The state argued that Melongo's First Amendment claim was not cognizable on appeal, unlike the Due Process claim, and that the constitutional claims were inconsistent with her defense at trial. Nevertheless, the court found that the statutory provision was unconstitutional under the First Amendment for the same rationale as in Clark. Melongo also raised a constitutional claim to the "publishing provision" of the statute, which further criminalizes the "publishing" of any recording made without consent. The court similarly found this provision overbroad.
It will be interesting to see how the Illinois legislature responds.
Friday, March 14, 2014
The high profile trial of Oscar Pistorius may be South Africa's "OJ Simpson moment." Although there are certainly differences - - - Pistorius admits he fired the gunshots that killed his partner, Reeva Steenkamp; his defense is that he thought she was an intruder - - - the televised trials and intense media interest are similar.
Yet the South African judge has had to contend with the question of how much graphic material to allow.
Over at Constitutionally Speaking, Pierre De Vos confronts the issues. The original decision was to "grant permission to media houses to broadcast the Oscar Pistorius murder trial live on radio and television." But then during the trial, there was a "ruling by Judge Masipa to ban live tweeting of the evidence of the pathologist, apparently to protect the sensibilities of the family of the deceased due to the potential graphic nature of the evidence" was "at best ill-advised." Indeed, the judge later reversed his own "decision to prohibit live tweeting of the pathologist’s evidence," but continued to ban the audio or audio-visual broadcasting of the pathologist's "testimony due to the possible graphic nature of the evidence."
Amy Davidson, writing on the New Yorker Blog, provides journalist context to the testimony in question; testimony that made Pistorius himself vomit.
For comparative constitutionalists interested in conflicts of "free press" and "fair trial," the Pistorius trial is yet another case study.
[image of Oscar Pistorius via]
Wednesday, March 5, 2014
In the controversial indictment by federal government of Barrett Brown (pictured below), one of the most startling First Amendment issues was the protection of "speech" consisting of hyper-linking.
Brown described himself in his court papers as "a thirty-two year old American satirist, author and journalist," who "founded Project PM, a collaborative web publication whose contributors conduct research using publically available materials such as information obtained from leakers and hackers" and that "came to focus on the private military and intelligence contracting industry. This transition came amidst a federal crackdown on leaks escaping Washington and an attempt to prosecute whistleblowers." The indictment focused on the posting of a hyperlink to files from a third party, Stratfor, Strategic Forecasting, Inc., a "global intelligence" company.
Brown's motion to dismiss the indictment included First Amendment arguments as well as arguments that his conduct did not satisfy the elements of the crime.
Today the United States Government moved to dismiss its own indictment, counts 1, and 3-12 - - - all the counts reliant on the hyper-linking.
This leaves count 2 of the indictment: possession of stolen credit card account numbers and their CVVs (Card Verification Values), a count that Brown's own Motion to Dismiss similarly did not address.
This also leaves two other indictments against Brown.
Thursday, February 20, 2014
Largely reversing a district judge's opinion that had found various provisions of Pennyslvania's Funeral Director Law unconstitutional on various grounds, the Third Circuit opinion in Heffner v. Murphy upholds the law except for its restriction on the use of trade names as violative of the First Amendment.
One key to the panel's decision is that it surmised that the district judge's conclusions regarding the constitutionality of Pennsylvania's Funeral Director Law (FDL), enacted in 1952, "stem from a view that certain provisions of the FDL are antiquated in light of how funeral homes now operate." But, the Third Circuit stated, that is not a "constitutional flaw."
The challenged statutory provisions included ones that:
(1) permit warrantless inspections of funeral establishments by the Board;
(2) limit the number of establishments in which a funeral director may possess an ownership interest;
(3) restrict the capacity of unlicensed individuals and certain entities to hold ownership interests in a funeral establishment;
(4) restrict the number of funeral establishments in which a funeral director may practice his or her profession;
(5) require every funeral establishment to have a licensed full-time supervisor;
(6) require funeral establishments to have a “preparation room”;
(7) prohibit the service of food in a funeral establishment;
(8) prohibit the use of trade names by funeral homes;
(9) govern the trusting of monies advanced pursuant to pre-need contracts for merchandise; and
(10) prohibit the payment of commissions to agents or employees.
The constitutional provisions invoked - - - and found valid by the district judge - - - included the Fourth Amendment, the "dormant" commerce clause, substantive due process, the contract clause, and the First Amendment, with some provisions argued as violating more than one constitutional requirement.
In affirming the district judge's finding that the trade names prohibition violated the First Amendment, the Third Circuit applied the established four part test from Central Hudson Gas & Electric Corp. v. Public Service Commission regarding commercial speech and found:
The restrictions on commercial speech here are so flawed that they cannot withstand First Amendment scrutiny. Indeed, the District Court correctly identified the pivotal problem concerning the FDL’s proscription at Central Hudson’s third step: by allowing funeral homes to operate under predecessors’ names, the State remains exposed to many of the same threats that it purports to remedy through its ban on the use of trade names. A funeral director operating a home that has been established in the community, and known under his or her predecessor’s name, does not rely on his or her own personal reputation to attract business; rather, the predecessor’s name and reputation is determinative. Nor does a funeral home operating under a former owner’s name provide transparency or insight into changes in staffing that the Board insists is the legitimate interest that the State’s regulation seeks to further.
ConLawProfs looking for a good review or even a possible exam question, might well take a look at the case. It also seems that the Pennsylvania legislature might well take a look at its statutory scheme, which though largely constitutional, does seem outdated.
February 20, 2014 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Dormant Commerce Clause, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fourth Amendment, Interpretation, Opinion Analysis, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Tuesday, February 11, 2014
Labeled "The Day We Fight Back Against Mass Surveillance," February 11, 2014 has been designated as a day to "make calls and drive emails to lawmakers" regarding two pieces of legislation.
The activists support the USA Freedom Act, S 1599 ("Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act). The Electronic Frontier Foundation supports the bill, but considers it a "floor not a ceiling" and discusses its limitations including not covering persons outside the US, encryption, and standing issues. The ACLU legislative counsel "strongly supports" the legislation, noting that while it is not perfect, it is an "important first step," and highlights the fact that one of the sponsors in the House of Representatives is Rep. Jim Sensenbrenner (R-WI), who "was the lead author of the Patriot Act and now is the chair of the House's Subcommittee on Terrorism and Crime."
The activists urge the rejection of The FISA Improvements Act S 1631, most closely associated with the bill's sponsor, Dianne Feinstein.
While focused on legislative action, many of the materials and arguments ground themselves in the First and Fourth Amendments. Organizers state that the day commemorates Aaron Swartz, who also invoked constitutional norms.
February 11, 2014 in Congressional Authority, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, Fourth Amendment, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Monday, February 10, 2014
While primarily known as a criminal law scholar, Professor Andrew Taslitz's work was integral to constitutional law, regularly focused not only on issues of constitutional criminal procedure, the death penalty, and national security, but also on equality of race, class, and gender.
He is editor of a forthcoming volume to be published by the ABA entitled "Media Coverage in Criminal Justice Cases: What Prosecutors and Defenders Should and Should Not Say" that exemplifies his contributions to both the scholarly and practicing communities.
He is also one of the 26 law professors featured in What the Best Law Teachers Do (Harvard University Press, 2013).
There is an announcement and memorial page (including ways to contribute) from American University Washington College of Law, where he began teaching in 2012, after having been at Howard Law School for almost two decades.
Affectionately known far and wide as "Taz," he will be missed.
Thursday, January 30, 2014
NYC's practice of stop and frisk has been controversial in the streets and in the courts. Recall
that in August 2013, Judge Shira Scheindlin found the New York City Police Department's stop and frisk policies unconstitutional as violative of equal protection. Judge Scheindlin's exhaustive opinion in Floyd v. City of New York was accompanied by an extensive order, setting out remedies, including monitoring. By a very brief opinion, Judge Scheindlin's decision was stayed by the Second Circuit - - - and Judge Scheindlin removed. The Second Circuit later reaffirmed its decision, but in more moderate and explanatory tones.
But before the Second Circuit could issue an opinion on the merits, NYC elected a new mayor, who today announced an agreement in Floyd v. City of New York. Mayor Bill deBlasio (pictured below) announced that NYC has asked for a remand of the appeal to the district court, and has agreed to a court-appointed monitor who will serve for three years, overseeing the NYPD’s reform of its stop-and-frisk policy and reporting to the court.
Sunday, January 26, 2014
Recall that in Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper, Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional.
Cohn notes that the judges' differing opinions rest from their differing interpretations of Smith v. Maryland. But Cohn goes further, providing a swift description the Fourth Amendment terrain, especially the Court's 2012 decision in United States v. Jones in which a 5-4 majority found that attachment of a GPS device to track the movements of a vehicle for nearly a month violated a reasonable expectation of privacy.
Cohn concludes that Judge Leon's opinion is better reasoned than Judge Pauley's, noting that while "Leon's detailed analysis demonstrated how Jones leads to the result that the NSA program probably violates the Fourth Amendment, Pauley failed to meaningfully distinguish Jones from the NSA case, merely noting that the Jones Court did not overrule Smith."
But she, like many others, thinks the issue is ultimately headed to the United States Supreme Court.
Unless, of course, President Obama acts quickly to revise the program.
Saturday, January 18, 2014
In the provocatively titled "Is Obama Failing Constitutional Law?" and subtitled "Talking and tinkering may not be enough to make the old law professor’s surveillance program legal" Law Prof Jonathan Hafetz (pictured below) assesses President Obama's January 17 speech over at Politico.
Here's Hafetz on the "mixed bag" of Obama's proposed reforms to the FISA court:
The court currently operates in secret and hears only from the government, contrary to basic principles of due process. Obama said he would ask Congress to create a public advocate to argue for privacy concerns before the FISA court, as his advisory panel urged. But Obama did not clarify whether the advocate’s opportunity to argue would be left within the secret court’s discretion. Obama also rejected the panel’s recommendation to revise the method for selecting the court’s 11 members to create more balance. Presently, Chief Justice John Roberts alone decides the membership.
January 18, 2014 in Criminal Procedure, Current Affairs, Due Process (Substantive), Executive Authority, First Amendment, News, Profiles in Con Law Teaching, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Friday, January 17, 2014
In a highly anticipated event today, President Obama delivered his remarks accompanied by a directive, Presidential Policy Directive/PPD-28, on "Signals Intelligence Activities," regarding NSA Surveillance. Recall that late last year a presidential advisory committee issued a report with specific recommendations, that one program has been subject to differing judicial interepretations - - - in Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper, Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional - - - and that the national discussion on this issue is largely attributable to Edward Snowden.
While the judicial opinions did not specifically feature in Obama's remarks, Snowden did:
Given the fact of an open investigation, I’m not going to dwell on Mr. Snowden’s actions or motivations. I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it in their own hands to publicly disclose classified information, then we will never be able to keep our people safe, or conduct foreign policy. Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.
But the details, as usual, can be a bit more perplexing. For example, consider this qualification to "competitive advantage" :
Certain economic purposes, such as identifying trade or sanctions violations or government influence or direction, shall not constitute competitive advantage.
The Electronic Frontier Foundation released a "scorecard" before Obama's remarks and directive. Afterwards, it tweeted the results of its assessment of Obama's performance:
January 17, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, Foreign Affairs, International, State Secrets, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)
Monday, January 13, 2014
In brief, the answer it proposes is "no."
The report is authored by Peter Bergen, David Sterman, Emily Schneider, and Bailey Cahall. As Cyrus Farivar over at Ars Technica points out, the lead author Peter Bergen is well known as "a journalist and terrorism analyst who famously interviewed Osama bin Laden for CNN in 1997."
The report confirms federal District Judge Richard Leon's statement in his opinion in Klayman v. Obama that "the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature." (emphasis in original). Recall that Judge Leon issued a preliminary injunction against the surveillance, although he then stayed it.
Recall also that another federal district judge dismissed a complaint raising essentially the same issues a week later in American Civil Liberties Union v. Clapper.
With President Obama evaluating the NSA surevillance program including the Recommendations from President's NSA Surveillance Review Group and with the question of whether the NSA's surveillance extends to members of Congress being asked, this newest report deserves to be read closely. If there is a balance to be struck between security and liberty, the efficacy of the security measures are certainly relevant.
Friday, January 3, 2014
In his piece provocatively titled "Yes, Virginia, judges do read those law reviews, after all," Stephen Diamond discusses ConLawProf Nancy Leong's article, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream, 64 Fla. L. Rev. 305 (2012) available on ssrn, as used by concurring judge Andre Davis in United States v. Mubdi, 691 F. 3d 334 (4th Cir. 2012).
Diamond situates Leong's work in the general controversy about legal scholarship as well as more specifically in discussions about Nancy Leong (pictured) and her work. Leong's own worth-reading interventions over at Feminist Law Professors Blog are definitely worth a read. As is Diamond's post.
He writes: "Ironically, some of the very phrases cherry picked by the law school critics to undergird their view that Professor Leong was simply engaged in navel-gazing in “Open Road” were the ones relied on by Judge Davis in his opinion."
Monday, December 30, 2013
As we discussed earlier this month, two federal district judges have reached opposite conclusions regarding the constitutionality of NSA surveillance as revealed by Edward Snowden. In Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper, Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional.
Both of these opinions have brought renewed attention to the 1979 “pen register” case - - - Smith v. Maryland - - - which involved the application of the Fourth Amendment’s protection against “unreasonable searches and seizures” to a then new, and now outmoded, technology that could ascertain the number a phone was dialing. As footnote 1 of Smith explained, “A pen register is a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released. It does not overhear oral communications and does not indicate whether calls are actually completed.” It is "usually installed at a central telephone facility [and] records on a paper tape all numbers dialed from [the] line" to which it is attached.”
In Smith, the Court looked to its “lodestar” 1967 decision in Katz v. United States (involving a telephone booth) and determined that there was no “search” under the Fourth Amendment because the person invoking the constitutional protection did not have a reasonable or legitimate expectation of privacy. For the majority in Smith this lack of an expectation of privacy was based on a consumer’s understanding of telephone technology: telephone subscribers know that the telephone company receives their transmitted telephone number (that is how the call is completed) and can record that number (perhaps for a long distance charge). And even if a consumer does not subjectively understand this, any expectation of privacy that such circumstances did not occur would not be legitimate.
Now Smith v. Maryland has become a “lodestar” decision of its own. Judge Richard Leon's decision in Klayman extensively analyzed the opinion, eventually concluding that “the Smith pen register and the ongoing NSA Bulk Telephony Metadata Program have so many significant distinctions between them that I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.” To the contrary, Judge Pauley, granting the government's motion to dismiss in ACLU v. Clapper essentially used Smith as the opinion's guiding light.
But perhaps the choice is not as stark as whether Smith is steady in the Fourth Amendment skies. Looking at Justice Blackmun’s opinion in Smith, he illuminates the two prongs of Katz:
as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has "exhibited an actual (subjective) expectation of privacy," whether, in the words of the Katz majority, the individual has shown that "he seeks to preserve [something] as private." The second question is whether the individual's subjective expectation of privacy is "one that society is prepared to recognize as 'reasonable,' "—whether, in the words of the Katz majority, the individual's expectation, viewed objectively, is "justifiable" under the circumstances.5
[citations omitted]. Perhaps importantly, the passage ends with a footnote:
Situations can be imagined, of course, in which Katz' two-pronged inquiry would provide an inadequate index of Fourth Amendment protection. For example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation or privacy regarding their homes, papers, and effects. Similarly, if a refugee from a totalitarian country, unaware of this Nation's traditions, erroneously assumed that police were continuously monitoring his telephone conversations, a subjective expectation of privacy regarding the contents of his calls might be lacking as well. In such circumstances, where an individual's subjective expectations had been "conditioned" by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. In determining whether a "legitimate expectation of privacy" existed in such cases, a normative inquiry would be proper.
Law Prof Josh Blackman, over at his blog, has revealed the sources of this footnote - - - apparently necessary to address Justice Stevens’ concerns about a totalitarian regime that would make any expectation of privacy by individuals not reasonable or legitimate. Josh Blackman reproduces the correspondence showing that Stevens asked for the footnote and got it, eliminating his need for a separate concurrence.
Apparently, Justices Stewart, Marshall, and Brennan, who did dissent, had concerns that were not so simply assuaged.
Nevertheless, it’s interesting to deliberate footnote 5 in light of the extent to which Edward Snowden’s revelations about the extent of surveillance have been greeted as confirmatory and predictable rather than as shocking and outrageous. And perhaps footnote 5 might become as important as other constitutional footnotes as we (re)consider what the expectations of privacy in a constitutional democracy should be.
[image: time-lapsed image of Polaris, the North Star, via]
Friday, December 27, 2013
Federal District Judges Dismisses ACLU Complaint Regarding Government Collection of Telephone Metadata
In a Memorandum and Order today, federal judge William J. Pauley for the United States District Court of the Southern District of New York, granted the government's motion to dismiss in American Civil Liberties Union v. Clapper.
The judge rejected both the statutory and constitutional claims by the ACLU that the NSA's bulk telephony metadata collection program as revealed by Edward Snowden is unlawful.
The tone of the opinion is set by Judge Pauley's opening:
The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse ﬁlaments connecting al-Qaeda.
As to the constitutional claims, Judge Pauley specifically disagreed with Judge Leon's recent opinion in Klayman v. Obama regarding the expectation of privacy under the Fourth Amendment. For Judge Pauley, the "pen register" case of Smith v. Maryland, decided in 1979, has not been overruled and is still controlling:
Some ponder the ubiquity of cellular telephones and how subscribers’ relationships with their telephones have evolved since Smith. While people may “have an entirely different relationship with telephones than they did thirty-four years ago,” [citing Klayman], this Court observes that their relationship with their telecommunications providers has not changed and is just as frustrating. Telephones have far more versatility now than when Smith was decided, but this case only concerns their use as telephones. The fact that there are more calls placed does not undermine the Supreme Court’s ﬁnding that a person has no subjective expectation of privacy in telephony metadata. . . . .Because Smith controls, the NSA’s bulk telephony metadata collection program does not violate the Fourth Amendment.
For Judge Pauley, the ownership of the metadata is crucial - - - it belongs to Verizon - - - and when a person conveys information to a third party such as Verizon, a person forfeits any right of privacy. The Fourth Amendment is no more implicated in this case as it would be if law enforcement accessed a DNA or fingerprint database.
The absence of any Fourth Amendment claim means that there is not a First Amendment claim. Any burden on First Amendment rights from surveillance constitutional under the Fourth Amendment is incidental at best.
Judge Pauley's opinion stands in stark contrast to Judge Leon's opinion. In addition to the Fourth Amendment claim, Judge Pauley deflects the responsibility of the judicial branch to resolve the issue. Certainly, the judiciary should decide the law, but "the question of whether that [NSA surveillance] program should be conducted is for the other two coordinate branches of Government to decide." Moreover, Judge Pauley states that the "natural tension between protecting the nation and preserving civil liberty is squarely presented by the Government’s bulk telephony metadata collection program," a balancing rejected by Judge Leon. Given these substantial disagreements, the issue is certainly on its way to the Circuit Courts of Appeal, and possibly to the United States Supreme Court.
December 27, 2013 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, Fourth Amendment, Opinion Analysis, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)
Wednesday, December 18, 2013
The anticipated report from a panel of presidential advisors - - - Richard Clarke, Michael Morell, Peter Swire, and ConLawProfs Geoffrey Stone and Cass Sunstein - - - has just been released from The White House. It contains 46 recommendations, detailed in the Executive Summary and later discussed in the report.
Occuring amidst significant problems, such as the recent federal district judge's opinion casting doubt on the constitutionality of the collection of metadata from Verizon and the Edward Snowden revelations, the report concludes that the "current storage by the government of bulk meta-data creates potential risks to public trust, personal privacy, and civil liberty." But the report recognizes that government might need such metadata, and therefore recommends that it be held by "private providers or by a private third party." The report also recommends a series of changes at NSA, including having the Director be a "Senate-confirmed position" and suggesting that the Director be a civilian (at least next time).
There is some interesting constitutional analysis and rhetoric in the report. For example, under "Principles," the first one is "The United States Government must protect, at once, two different forms of security: national security and personal privacy." How should these interests be balanced? The report, quite interestingly, says this:
It is tempting to suggest that the underlying goal is to achieve the right “balance” between the two forms of security. The suggestion has an important element of truth. Some tradeoffs are inevitable; we shall explore the question of balance in some detail. But in critical respects, the suggestion is inadequate and misleading.
Some safeguards are not subject to balancing at all. In a free society, public officials should never engage in surveillance in order to punish their political enemies; to restrict freedom of speech or religion; to suppress legitimate criticism and dissent; to help their preferred companies or industries; to provide domestic companies with an unfair competitive advantage; or to benefit or burden members of groups defined in terms of religion, ethnicity, race, or gender. These prohibitions are foundational, and they apply both inside and outside our territorial borders.
The purposes of surveillance must be legitimate. If they are not, no amount of “balancing” can justify surveillance. For this reason, it is exceptionally important to create explicit prohibitions and safeguards, designed to reduce the risk that surveillance will ever be undertaken for illegitimate ends.
Certainly, there is much more to glean and analyze from the 300 plus page report, but some of the reasoning already seems noteworthy.