Wednesday, June 25, 2014

Unanimous Supreme Court Requires Warrant for Cell Phone Search Incident to Arrest

A unanimous Supreme Court today ruled in Riley v. California that officers must obtain a warrant before searching an arrrestee's cell phone incident to arrest.  The ruling deals a blow to law enforcement, to be sure.  But it only means that law enforcement must obtain a warrant before searching a cell phone, or satisfy some other exception to the Fourth Amendment's warrant requirement (like exigent circumstances), before conducting a search of the phone.  In general, this should not be overly difficult, assuming that an officer can meet the requirements for a warrant: an arresting officer need only drop a seized cell phone into a Faraday bag and obtain a warrant for a later search.  Again: the ruling still preserves other exceptions to the warrant requirement, so that officers can search a phone without a warrant if there are exigent circumstances, for example.

The ruling breaks little new ground on Fourth Amendment analysis.  Instead, it applies a familiar framework to a relatively new technology, cell phones.  (The ruling applies to both smart phones and flip phones.)

The Court applied the familiar balancing test, "assessing, on the one hand, the degree to which [the search] intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests."  Wyoming v. Houghton.  As to government interests, the Court looked to the two recognized interests in a search incident to arrest in Chimel: to remove weapons that threaten officer safety or could be used for escape, and to prevent the destruction of evidence.

The Court said that the government lacked an interest in protecting officer safety or preventing escape, because "a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee's escape."  It said that the government lacked an interest in protecting evidence, because officers can easily protect evidence on a seized cell phone (by turning it off, or putting it in a Faraday bag, to prevent remote wiping, for example).  (The Court said that there was little evidence that destruction of evidence was even a problem.)

On the other side of the balance, the Court recognized the massive storage capacity and vast personal information contained in cell phones, and contained remotely but accessible by cell phones, and said that the search was a significant invasion of privacy, even if diminished in the context of an arrest.

In sum:

On the government interest side, Robinson concluded that the two risks identified in Chimel--harm to officers and destruction of evidence--are present in all custodial arrests.  There are no comparable risks when the search is of digital data.  In addition, Robinson regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself.  Cell phones, however, place vast quantities of personal information literally in the hands of individuals.  As search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson.

Justice Alito wrote a concurrence (for himself alone), arguing that the search-incident-to-arrest rule should be based on the government's interest in "the need to obtain probative evidence," and not the two Chimel interests.  He also called on Congress and state legislatures "to assess and respond to to [technological advances] that have already occurred and those that almost certainly will take place in the future." 

June 25, 2014 in Cases and Case Materials, Fourth Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Monday, June 23, 2014

Court Releases Memo Outlining Legal Authority for Targeted Killing, Drones

The Second Circuit today released a redacted version of the DOJ/OLC memo outlining the government's legal authority for the use of a drone attack to kill Anwar al-Aulaqi (sometimes spelled al-Awlaki).  We've blogged extensively about this issue, including here, on the earlier released white paper outlining the government's authority to conduct the same attack.

The released version does not include the first 11 pages of the memo, presumably including the information that the government passed on to the OLC about al-Awlaki that formed the basis of the analysis.  It's not clear whether that first 11 pages included other material or analysis.  (The released version starts with "II.")  There are other redactions throughout, especially in the portion analyzing the CIA's authority to conduct drone attacks.

The analysis in the memo differs slightly from the analysis in the earlier white paper, but, because of the redactions, it's not clear how much this matters.  Thus, for example, the analysis released today makes a careful distinction between DoD authority and CIA authority to conduct a targeted drone attack.  (The earlier white paper didn't make this clear distinction.)  But it's not entirely clear why or how that distinction is significant, given that much of the CIA analysis is redacted.  The analysis released today is also more fact specific.  (The earlier white paper didn't so clearly limit itself to the facts of one case.) But the memo today redacts the facts, so we don't know them.

Other than those points, the analysis released today doesn't appear to be importantly different than the earlier white paper.

As we've noted, and as others have noted, the analysis leads to the surprising result that the government may be able to kill someone by drone attack more easily than it may detain them (with due process under Hamdi).  Still, we don't know this for sure, because we don't know precisely what processes the government used in killing al-Awlaki: that detail is redacted from the memo.

The memo starts by outlining the statutory prohibition on foreign murder of a U.S. national--the federal provision that outlaws one U.S. national from killing another overseas.  That provision, 18 U.S.C. 1119(b), says that "[a] person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113."  Section 1111 penalizes "murder," defined as "the unlawful killing of a human being with malice aforethought."  The memo thus centers on whether al-Aulaqi's killing was "unlawful."

The memo says that the killing was not unlawful, because the prohibition includes the "recognized justification" of "public authority"--that is, the government's ability to kill under its public authority.  As to the Defense Department's use of drones, the memo says that (1) the president had executive war powers authorized by Congress under the AUMF, (2) the AUMF authorized the president to use all necessary force against al-Qaida and associated forces (the OLC said that the AUMF included associated forces in an earlier memo), (3) al-Aulaqi was a member of al-Qaida or associated forces (AQAP) who posed a "continued and imminent threat" to the U.S., and (4) the DoD was acting pursuant to statutory authorization in targeting and killing al-Aulaqi.  Moreover, the memo says that al-Aulaqi's killing comports with the laws of war.  That's because DoD "would carry out its operation as part of the non-international armed conflict between the United States and al-Qaida, and thus that on those facts the operation would comply with international law so long as DoD would conduct it in accord with the applicable laws of war that govern targeting in such a conflict."  The memo said that this operation in Yemen is part of that conflict, even though Yemen is not within the area of that conflict.  Finally, the memo says that the method of killing complies with the laws of war--that is, that the targeted drone attack complies with the principle of distinction, it would minimize civilian casualties, and it would not violate prohibitions on "treachery" and "perfidy" (because those "do not categorically preclude the use of stealth or surprise, nor forbid military attacks on identified, individual soldiers or officers . . . and we are not aware of any other law-of-war grounds precluding the use of such tactics.").

The memo drew the same, or very similar, conclusions as to the CIA's use of a drone strike, but that section was largely redacted.

(The memo also said that another murder-abroad statute similarly did not prohibit the strike, and that the War Crimes Act did not prohibit it, because al-Aulaqi was still an active, fighting beligerent, and an allowable target under the laws of war.)

As to Fourth- and Fifth Amendment protections, the memo says that a high-level decision-maker ("the highest officers in the intelligence community") can make a determination to use lethal force and authorize a strike.  (That's about all it said: this portion of the memo is also highly redacted.)

The memo makes clear that this is all context specific: the "facts" given to OLC that form the basis of its analysis are "sufficient" for the Office to form its conclusions, but the memo declines to say whether those facts are also necessary.  (And we don't know them, in any event, because they're redacted.)

 

June 23, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Fifth Amendment, Fourth Amendment, Fundamental Rights, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, May 19, 2014

Oregon District Judge Declares Same-Sex Marriage Ban Unconstitutional

Joining a decided trend which we last discussed here and here, today Oregon District Judge Michael McShane declared unconstitutional the state’s same-sex marriage prohibition in Article 15 of the state constitution. Judge McShane’s 26 page  opinion in Geiger v. Kitzhaber concludes that because “Oregon’s marriage laws discriminate on the basis of sexual orientation without a rational relationship to any legitimate government interest, the laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.”

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voting in 2004 ballot measure defining marriage as man/woman only: red is no; green is yes; dark green is yes by 2/3 or more; via

Judge McShane noted that the state defendants “concede that Oregon's marriage laws banning same-gender marriage are unconstitutional and legally indefensible, but state they are legally obligated to enforce the laws until this court declares the laws unconstitutional,” and thus, the case “presents itself to this court as something akin to a friendly tennis match rather than a contested and robust proceeding between adversaries.”  However, McShane did not find (or analyze) any Article III “case or controversies” issues, or address standing (including defendant standing).

Judge McShane notes that last term’s decision in Windsor v. United States  finding DOMA unconstitutional

may be distinguished from the present case in several respects. Yet, recounting such differences will not detract from the underlying principle shared in common by that case and the one now before me. The principle is one inscribed in the Constitution, and it requires that the state's marriage laws not "degrade or demean" the plaintiffs in violation of their rights to equal protection.

Unlike Justice Kennedy’s opinion for the Court in Windsor, however, Judge McShane’s opinion in Geiger is quite specific regarding the level of scrutiny being applied: rational basis.  McShane rejected two arguments for intermediate scrutiny.  First, he rejected the argument based upon a gender classification, concluding that the “targeted group here is neither males nor females, but homosexual males and homosexual females” and thus the state's marriage laws discriminate on the basis of sexual orientation, not gender.  Second, he rejected the applicability of the Ninth Circuit’s opinion in SmithKline Beecham Corp. v. Abbott Labs, reasoning that the panel's decision in SmithKline is not yet a truly final and binding decision given that the mandate has not issued pending en banc review. (Recall that last week, a federal district judge in Idaho found "SmithKline’s examination of Windsor is authoritative and binding").

Judge McShane then engaged in the by now familiar analysis of government interests - - - including protecting traditional marriage and promoting responsible procreation - - - and their relationship to the same-sex marriage prohibition.  Like his fellow judges in recent cases, Judge McShane found rational basis is not satisfied.

And like some of his fellow judges, McShane shared his personal perspective.  McShane's provided his in an extended conclusion:

I am aware that a large number of Oregonians, perhaps even a majority, have religious or moral objections to expanding the definition of civil marriage (and thereby expanding the benefits and rights that accompany marriage) to gay and lesbian families. It was these same objections that led to the passage of Measure 36 in 2004 [the ballot measure defining marriage as only between a man and a woman]. Generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion,
a mental disorder, or a mortal sin. I remember that one of the more popular playground games of my childhood was called "smear the queer" and it was played with great zeal and without a moment's thought to today' s political correctness. On a darker level, that same worldview led to an environment of cruelty, violence, and self-loathing. It was but 1~86 when the United States Supreme Court justified, on the basis of a"millennia of moral teaching," the imprisonment of gay men and lesbian women who engaged in consensual sexual acts. Bowers, 478 U.S. at 197 (Burger, C.J., concurring), overruled by Lawrence, 539 U.S. at 578. Even today I am reminded ofthe legacy that we have bequeathed today's generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says "dad ... that is so gay."

It is not surprising then that many of us raised with such a world view would wish to protect our beliefs and our families by turning to the ballot box to enshrine in law those traditions we have come to value. But just as the Constitution protects the expression of these moral viewpoints, it equally protects the minority from being diminished by them.

It is at times difficult to see past the shrillness of the debate. Accusations of religious bigotry and banners reading "God Hates Fags" make for a messy democracy and, at times, test the First Amendment resolve of both sides. At the core of the Equal Protection Clause, however, there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities.

My decision will not be the final word on this subject, but on this issue of marriage I am struck more by our similarities than our differences. I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community.

Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other ... and rise.

 Judge McShane's opinion ends with a exhortation perhaps more befitting religious rhetoric than legal analysis.

 

May 19, 2014 in Courts and Judging, Current Affairs, Equal Protection, Family, Fourth Amendment, Interpretation, Jurisdiction of Federal Courts, Opinion Analysis, Reproductive Rights, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 13, 2014

Frontline's United States of Secrets

Frontline airs the first of its two-part series United States of Secrets tonight.  The documentary examines NSA secret surveillance programs developed in the wake of the 9/11 attacks.  There's a clip at the link above, and another here, Inside the NSA the Day After 9/11.

 

May 13, 2014 in Fourth Amendment, Fundamental Rights, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, April 7, 2014

Daily Read: Deven Desai on Data Hoarding and Associational Freedom

"The amount of data available to law enforcement creates a type of honey pot—a trap that lures and tempts government to use data without limits."  What should the constitutional limits be?  And what is their source?  In a new article, Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding, available on ssrn (and forthcoming in Notre Dame Law Review) Law Prof Deven Desai  (pictured) argues that constitutional protections for association - - - rooted in the Fourth Amendment as well as the First - - - is a method for disciplining governmental access to both forward and backward-looking surveillance in our current age of "data hoarding."

Deven_desai-tu-websiteDesai argues:

The mechanisms for information gathering have taken different forms at different times in history, but regardless of the precise method or when the acts occur, we can see the goal: suppression of association. Mail has been read, student speech and political actions watched, library records obtained, membership in the Communist Party scrutinized, a list of individuals to detain in case of a national security emergency created, a fifteen year program to gather information about “the Communist Party, the Ku Klux Klan, antiwar groups, civil rights groups, women’s rights groups, and gay rights groups” created, and civil rights leader Martin Luther King threatened depending on various perceived threats and surveillance programs. These practices now include the FBI’s gathering of publicly available information “directly,” through third parties, or if handed over “voluntarily” by third parties.  The NSA’s recent activities map to the same behaviors that threaten and attack associational freedom. The NSA has targeted online activities of alleged Muslim radicalizers—those who offer troubling speeches—to secure information, such as about viewing pornography online, to discredit or embarrass the speakers. That tactic is not about law enforcement. Just as those in power have gone after the Democratic-Republican Societies, war protestors, civil rights activists, and others questioning the government, the tactic is about intimidation and suppression. One might try and argue that all this activity is only for national security and anti-terror investigations and thus permitted under current laws. But NSA activities have not been cabined to national security interests. The NSA is not allowed to spy on domestic targets. It has done so anyway. The NSA’s “Associational Tracking Program” has collected purely domestic communication information including from and to whom a call is made, the length of the call, and when the call is made, on a daily basis for later analysis by the NSA. This data has come directly from telecommunication providers such as Verizon, which complied with a court order. 165 In addition, the NSA has hacked telecommunication lines to gain access to communications and metadata passing through Google and Yahoo data centers.

[footnotes omitted].

Ultimately, Desai contends that "pervasive surveillance turns us into sheep."  But the First Amendment has not been sufficient to protect against surveillance because a "mypoic" view of the First Amendment as requiring expressive speech misses the associational aspects at stake.  Additionally, the associational aspects of the Fourth Amendment are often neglected, but should be considered "core."

Given the continuing revelations about widespread surveillance, Desai's intervention and suggested reorientation of doctrine is certainly worth a serious read.

April 7, 2014 in Association, First Amendment, Fourth Amendment, Interpretation, Privacy, Scholarship, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Sunday, April 6, 2014

NSA Documents Database

Need to find a particular document or search for a particular name in the trove of items made available from the National Security Agency?  Or just want to look around?

The ACLU now has a handy database, available here.

520px-Old_Lady_with_Magnifying_Glass_LACMA_51.38.14As the announcement explains:

This tool will be an up-to-date, complete collection of previously secret NSA documents made public since last June. The database is designed to be easily searchable – by title, category, or content – so that the public, researchers, and journalists can readily home in on the information they are looking for.

We have made all of the documents text-searchable to allow users to investigate particular key words or phrases. Alternatively, the filter function allows users to sort based on the type of surveillance involved, the specific legal authorities implicated, the purpose of the surveillance, or the source of the disclosure. For example, you can have the database return all documents that both pertain to "Section 215" and "Internal NSA/DOJ Legal Analysis."

An important tool for scholars and advocates. 


[image via]

 

April 6, 2014 in Current Affairs, First Amendment, Fourth Amendment, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 1, 2014

Disparate Views of the Secret Service: The Court and the Realities?

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). 

800px-Robert_Warwick_in_Secret_Service

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. 

[image via]

April 1, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Fourth Amendment, News, State Secrets | Permalink | Comments (1) | TrackBack (0)

Wednesday, March 26, 2014

Oral Arguments in Wood v. Moss: The Complaint by the Anti-Bush Protestors

At the heart of this case is a very simple complaint: During a campaign stop by then-President Bush in Portland, Oregon, the Secret Service treated anti-Bush protestors differently from pro-Bush demonstrators, relocating the former while allowing the latter to remain. 

But the complaint raises a host of legal issues that ricocheted through the oral arguments {transcript} in Wood v. Moss at the United States Supreme Court today.

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image from later protest in Portland via

The first issue is whether the complaint satisfied Ashcroft v. Iqbal, with Chief Justice Roberts specifically referring to the opinion during the oral argument of Steven Wilker, representing the Respondents, who were the protestors:

In Iqbal, and just quoting here from page 681, the Court goes on to consider the factual allegations in the complaint to determine if they plausibly suggest an entitlement, and they go on to say, but given more likely explanations, they do not plausibly establish this purpose.

Roberts returned to Iqbal, stating that the Government's alternative explanation in its motion to dismiss the complaint "doesn't have to be so compelling.":

It simply has to be more likely, is the quote from Iqbal on 681, and it has to be an obvious alternative explanation. And that's enough, no matter what you've alleged.

There was certainly some concern expressed that without Iqbal, the district judge might have fewer "weapons" available to curb discovery, but there was also not uniform preoccupation with Iqbal, with Justice Breyer posing a hypothetical about discovery and saying "Forget Iqbal for the moment."

Yet another procedural barrier discussed by the Court is the doctrine of qualified immunity, requiring that the constitutional infringement be "clearly established" at the time it occurs in order to hold government agents accountable. The Government's best case in this regard is Reichle v. Howards, which counsel mentioned repeatedly, decided in 2012, which held that Secret Service agents had qualified immunity and rejected the claim of retaliatory arrest for a man at a Dick Cheney shopping mall appearance.

But there seemed to be an "aha" moment for Justice Scalia - - - who had previously accused the attorney for the government, Ian Gershengorn, Deputy Solicitor General, for not sufficiently raising such arguments - - - during Wilker's argument.  Scalia asked " how can it be  clearly established if we have never held that there is a Bivens cause of action for a First Amendment violation? We've never held that, have we? How can you possibly say that the violation here is clearly established."

MR. WILKER: Well, I think it's different to say whether or not there is a remedy for the violation as to whether the violation was clearly established.

JUSTICE SCALIA: Well, okay.

MR. WILKER: The violation was clearly established. Whether or not there is a remedy for that violation under Bivens - - -

JUSTICE SCALIA: That's a good point.

MR. WILKER:  - - - is a different question.

JUSTICE SCALIA: That's a good point.

Yet Scalia might not be convinced that there would actually be a First Amendment violation, given his repeated references to the Fourth Amendment in which motivation should not be considered. 

At several points, the oral argument did focus on the question of viewpoint discrimination under the First Amendment, such as in the Deputy Solicitor's exchange with the Justice Ginsburg:

JUSTICE GINSBURG: Mr. Gershengorn, suppose it's originally set up by the police, the motorcade is coming down, each side has equal access. Then the Secret Service comes along and said: Clear the anti­Bush demonstrators. Suppose that, that ­­ those were the facts. Would there be a valid Bivens claim?

MR. GERSHENGORN: Your Honor, the question would depend on whether there was a valid security rationale. I think in the context of a motorcade ­­

JUSTICE GINSBURG: The rationale is it's more likely that the people who are against the President would be harmful to him than the people who are for him.

Prätorianer
Roman Praetorian Guard via

Yet whether this case will be decided on the First Amendment issues - - - or more properly, whether the Court will decide that the First Amendment issue can be decided by the lower courts in spite of Iqbal and the qualified immunity doctrine - - - is balanced between two concerns expressed in the oral arguments. 

On the one hand, there is a concern for ability of the Secret Service to make security decisions to protect the President without being subject to second-guessing by possible plaintiffs and the courts themselves. 

On the other hand, there is the concern that there might develop a "Praetorian Guard" - - - as Justice Breyer stated - - - and that the trampling of First Amendment rights on the basis of viewpoint might be accepted.

As one of the cases on this Term's heavy First Amendment docket, its importance may be overshadowed, but it should not be underestimated.

March 26, 2014 in First Amendment, Fourth Amendment, Interpretation, Oral Argument Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, March 10, 2014

Daily Video: Edward Snowden Speaks

"I took an oath to support the Constitution, and I felt the Constitution was violated on a massive scale," Edward Snowden said in his video conference delivered from his asylum in Russia to the South By Southwest (sxsw) Interactive Festival. 

Here's the video:

 

 Some good analysis at LATimes.  [to be updated]

March 10, 2014 in Current Affairs, First Amendment, Fourth Amendment, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, March 7, 2014

FISC Rejects Government Motion to Keep Telephony Records More Than Five Years

Robson

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In an opinion today Foreign Intelligence Surveillance Court Judge Reggie Walton denied the Government's motion to amend a previous order requiring  "telephony metadata produced in response to the Court’s orders be destroyed within five years."  The Government argued that it should be allowed to retain data beyond five years because destruction of the metadata “could be inconsistent with the Government’s preservation obligations in connection with civil litigation pending against it.”

In denying the motion without prejudice, the judge reasoned that FISA’s minimization requirements are not superseded by the common-law duty to preserve evidence.  The Government's presumed "fear that the judges presiding over the six pending civil matters may sanction the government at some point in the future for destroying BR [telephony] metadata that is more than five years old," was, the judge stated, "far-fetched."  The judge's dismissal was without prejudice to a subsequent motion "providing additional facts or legal analysis, or seeking a modified amendment to the existing minimization procedures."

Taking the motion to dismiss at face value, it seems that the Government was actually worried that it might be sanctioned in civil trials if it destroyed evidence after five years and wanted a ruling from the court.

Telephone_Line_Time_is_Precious_Art.IWMPST4037

A more nefarious interpretation would be that the Government used the excuse of civil trials to attempt to extend the time it could keep telephony metadata, but was thwarted by the court.

And an even more nefarious interpretation would be that the Government wanted the "cover" of a court opinion to destroy telephony metadata that might be beneficial to plaintiffs in pending civil matters.

And an even more nefarious interpretation?   There are sure to be more speculations.

[image via]

March 7, 2014 in Cases and Case Materials, Executive Authority, Fourth Amendment, Opinion Analysis, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, March 3, 2014

Court to Determine Scope of Immunity in Police Chase

The Supreme Court will hear oral arguments tomorrow, Tuesday, in Plumhoff v. Rickard, the case testing the scope of qualified immunity for police officers who were sued for damages arising out of a police chase.  Here's a portion of my preview of the oral arguments, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

 Around midnight on July 18, 2004, Officer Joseph Forthman of the West Memphis police force stopped a Honda Accord driven by Donald Rickard after noticing that the car had a broken headlight. Rickard had one passenger, Kelly Allen, who sat in the front passenger seat.

 Officer Forthman asked Rickard for his license and registration; he also asked about a large indentation in the windshield “roughly the size of a head or a basketball.” Allen told Officer Frothman that the indentation resulted from the car hitting a curb. Officer Forthman then asked Rickard if he had been drinking alcohol and twice ordered him out of the vehicle.

Rickard did not comply with Officer Forthman’s instruction. Instead, he sped away on Highway I-40 toward the Arkansas-Tennessee border. Officer Forthman reported over his radio that a “runner” fled a traffic stop; he got back in his vehicle and proceeded to pursue Rickard. Officer Forthman was quickly joined by fellow West Memphis Officer Vance Plumhoff, who became the lead officer in the pursuit. Other West Memphis Officers Jimmy Evans, Lance Ellis, Troy Galtelli, and John Gardner, each in separate vehicles, also joined the pursuit.

The ensuing high-speed chase lasted nearly five minutes. Many of the details were captured by video cameras mounted on three of the police vehicles; many of the statements by officers came over the radio, or were recorded, or both.

During the chase, Rickard swerved in and out of traffic and rammed at least one other vehicle. Officer Plumhoff stated that “he just rammed me,” “he is trying to ram another car,” and “[w]e do have aggravated assault charges on him.”

Rickard led the officers over the Mississippi River from Arkansas into Memphis, Tennessee, where he exited the highway onto Alabama Avenue. As he made a quick turn onto Danny Thomas Boulevard, his car hit a police vehicle and spun around in a parking lot. Rickard then collided head-on with Officer Plumhoff’s vehicle. (It is not clear whether this was intentional).

Some of the officers exited their vehicles and surrounded Rickard’s car. Rickard backed up. Officer Evans hit the butt of his gun against the window of Rickard’s vehicle. As other officers approached, Rickard spun his wheels and moved slightly forward into Officer Gardner’s vehicle.

Officer Plumhoff approached Rickard’s vehicle close to the passenger side and fired three shots at Rickard. Rickard reversed his vehicle in a 180-degree arc onto Jackson Avenue, forcing an officer to step aside to avoid being hit. Rickard began to drive away from the officers. Officer Gardner then fired ten shots into Rickard’s vehicle, first from the passenger side and then from the rear as the vehicle moved further away. Officer Galtelli also fired two shots into the vehicle.

Rickard lost control of the vehicle and crashed into a building. Rickard died from multiple gunshot wounds; Allen died from the combined effect of a single gunshot wound to the head and the crash.

Rickard’s survivors brought a civil rights lawsuit in federal district court against the six officers involved in the chase. They alleged, among other things, that the officers violated the Fourth Amendment. The officers moved for summary judgment or dismissal arguing that they were entitled to qualified immunity. The district court denied qualified immunity, and the United States Court of Appeals for the Sixth Circuit affirmed. This appeal followed.

CASE ANALYSIS

Qualified immunity shields government officials performing discretionary functions from suits for alleged constitutional violations, unless their actions violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800 (1982). The doctrine is designed to give government officials some breathing room to do their jobs by limiting the threat of liability, and to ensure that capable individuals are not deterred from entering government service for fear of liability.

A plaintiff can defeat a claim of qualified immunity by pleading and ultimately proving that (1) the defendant-official violated a statutory or constitutional right and (2) the right was “clearly established” at the time of the challenged conduct. In determining whether a right was “clearly established,” a court must first define the right at the appropriate level of specificity. (That is, the court must define the right at a particularized level, not a general one, because at a general enough level every right is “clearly established.”) Once the court defines the right, the court must ask whether a reasonable official would have known that his or her behavior violates that right.

In arguing over the application of these rules, the parties rely principally on two cases. In the first, more recent one, Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court held that a police officer did not violate the Fourth Amendment when he rammed a fleeing vehicle from behind in order to stop a chase. The officer’s maneuver caused the suspect to lose control of the fleeing vehicle and crash, resulting in serious injuries to the suspect. But the Court held that the officer’s action was objectively reasonably in light of the grave danger that the fleeing driver posed to both the police and bystanders. The Court ruled that the officer did not violate the Fourth Amendment, and that the officer was entitled to qualified immunity from suit.

In the second, earlier case, Tennessee v. Garner, 471 U.S. 1 (1985), the Court held that a state statute that authorized police to use deadly force to stop an apparently unarmed, non-dangerous suspect who was fleeing on foot violated the Fourth Amendment. But the Court went on to say that “it is not constitutionally unreasonable” for an officer to use deadly force to prevent a suspect that poses a threat of serious physical harm, either to the officer or to others, from escaping.

The parties frame their arguments against this background.

The officers argue first that the Sixth Circuit erred in applying the second prong of the qualified immunity test. In particular, they claim that the Sixth Circuit concluded only “that the officers’ conduct was reasonable as a matter of law”—a conclusion that either conflated the two prongs of the test, or ignored the second prong entirely. In either event, they say, the lower court never discussed whether their use of force violated clearly established law at the time of the incident, in July 2004. Indeed, the officers contend that the Sixth Circuit only compared their conduct in 2004 to the facts of Scott v. Harris, a case that came down in 2007. They say that they could not have known about Scott v. Harris when they acted, and that therefore the court misused that case to determine whether the law was clearly established and that their actions were unreasonable at the time.

The officers argue next (on the second prong) that the law in 2004 did not clearly establish that their use of deadly force was objectively unreasonable in violation of the Fourth Amendment. They say that the Supreme Court ruled in December 2004, just five months after the incident here, that there was no clear answer to the question whether it is acceptable “to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.” Brosseau v. Haugen, 543 U.S. 194 (2004). The officers claim that the threat posed by Rickard was even greater than the threat posed by the fleeing felon in Brosseau, so, if anything, their use of deadly force was more justified. They also contend that neither the law in the Sixth Circuit (where the shootings occurred) nor the law in the Eighth Circuit (where the officers worked) clearly established that their actions were unconstitutional at the time. On the contrary, they claim, the law in those circuits in July 2004 gave the officers “every reason to believe their conduct was objectively reasonable.”

Finally, the officers argue (on the first prong) that their use of deadly force was an objectively reasonable response to Rickard’s behavior. They contend that the facts here are similar to the facts in Scott v. Harris. They say that their force was objectively reasonable and warranted by Tennessee v. Garner (stating that “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.”). And they claim that their use of deadly force to terminate a high-speed chase served the public policy goal, recognized by the Supreme Court, in avoiding threats to innocent bystanders.

The federal government, weighing in on the side of the officers, makes substantially similar arguments. In particular, the government puts this fine point on its critique of the Sixth Circuit’s ruling: “The words ‘clearly established’ do not appear in its opinion, and the court did not undertake the basic inquiries required by this Court’s decisions: defining the right at the appropriate level of specificity, canvassing pertinent authority, and ultimately determining whether a reasonable official would have understood clearly that her conduct violated the Constitution at the time it occurred.” Like the officers, the government argues that the Sixth Circuit erred in its analysis. If the Court should reach the question whether the officers are entitled to qualified immunity, the government also says that they are, because the right was not clearly established at the time of the incident. (The government says that “[f]ramed at the appropriate level of specificity, the question here is whether in 2004 it was clearly established that the police may not use deadly force to prevent a misdemeanant and his passenger from resuming a dangerous, high-speed chase on public thoroughfares after the driver had recklessly operated the vehicle both during the chase and in a close-quarters encounter with police.”) The government urges the Court not to rule on the first prong, the constitutional question, because it is unnecessary, “novel,” and “highly factbound.”

Rickard’s survivors, called “Rickard” here, argue first that the Sixth Circuit lacked appellate jurisdiction over the case. In particular, Rickard says that the officers’ appeal to the Sixth Circuit was grounded primarily in their dispute with the district court’s factual conclusions. Rickard claims that this kind of ruling—“a determination that genuine issues of fact create disputes which preclude the defense of qualified immunity”—does not give rise to appellate jurisdiction.

Next, Rickard argues that additional facts, or “factual disputes,” in the case show that the officers were not entitled to qualified immunity. In short, Rickard takes issue with the officers’ characterization of nearly every significant event, from Rickard’s car-rammings to the context of the officers’ final shots at Rickard’s car. Rickard says that the police videos and the officers’ testimonies undermine the officers’ versions of these events, and that he did not pose the kind of serious threat to the officers that they claim. As a result, Rickard says that their use of deadly force violated the Fourth Amendment as it was clearly established at the time.

Third, Rickard argues (on the first prong) that the Sixth Circuit properly held that the officers’ use of force was not objectively reasonable. Rickard claims again that the facts are disputed, and that viewed correctly they show that Rickard did not pose a threat to the officers that warranted their use of deadly force. Rickard also contends that the Court should not create a blanket rule authorizing police officers to shoot a suspect in a vehicular chase in order to prevent the suspect’s escape. Rickard says that such a rule would extend Scott v. Harris, which involved only car-ramming by the police, not shooting. Rickard also says that such a rule would “bootstrap” an otherwise non-dangerous situation (presumably, the original misdemeanor stop) into a violent felony (the high-speed chase) for the purpose of determining a suspect’s threat to the police. Rickard says that this situation was not as dangerous as the officers have claimed, and that their use of deadly force—“15 total shots at a vehicle containing an unarmed man and woman, the majority of them as the car went past and away from the police”—was excessive.

Finally, Rickard argues (on the second prong) that the officers violated clearly established Fourth Amendment law. Rickard claims that Garner established that it was “constitutionally unreasonable to shoot an unarmed, nondangerous fleeing suspect dead in order to prevent his escape.” Rickard says that under Garner the officers’ use of deadly force in this case was unreasonable. Rickard contends that it does not matter that Garner is not precisely on point: contrary to the officers’ position, the Supreme Court has never required a case exactly on point to determine whether the law is clearly established.

On both prongs, Rickard emphasizes that the State of Tennessee indicted Officers Plumhoff, Gardner, and Galtelli for reckless homicide in the death of Allen. Rickard claims that the indictment underscores their excessive use of force.

SIGNIFICANCE

The questions presented give the Court several ways to resolve the case. The first question presented would allow the Court to determine only whether the Sixth Circuit erred in its qualified immunity analysis, to correct that error (or not), and to remand the case (or not) for further proceedings. In particular, this case gives the Court an opportunity to clarify the second prong (when a right is “clearly established” at the time of an officer’s action) in the wake of the Sixth Circuit’s somewhat confusing approach. (As the officers and the government argue, the Sixth Circuit seems to address only the first prong. If it addresses the second prong, its approach seems incomplete.) As the government explains, this approach, “defin[es] the right at the appropriate level of specificity, canvass[es] pertinent authority, and ultimately determin[es] whether a reasonable official would have understood clearly that her conduct violated the Constitution at the time it occurred.” If the Court only answers the first Question Presented, this is as far as the Court needs to go. If so, the Court would likely remand the case for a proper qualified immunity analysis. (The Court could simply affirm the Sixth Circuit on this first issue, but that seems unlikely, given the Sixth Circuit’s somewhat confusing and apparently incomplete analysis.)

If the Court reaches the second question presented, it could determine for itself whether the officers are entitled to qualified immunity. If the Court reaches this question, then it could decide that the officers are immune on the second prong alone (as the officers and the government urge) or on the second or first prong (thus ruling on the merits of the Fourth Amendment—something that the government urges against). The officers probably have the better of this case, given the state of the law in 2004 (on the second prong) and the state of the law now (on the first). But the Court could conclude that the officers are not entitled to qualified immunity, because Rickard can establish both prongs.

The potential wildcard in the case is the facts. If the Court rules on the second question presented, qualified immunity (and not just on the first question presented, whether the Sixth Circuit erred), at least part of its analysis will almost certainly turn on the facts. It is unusual for the Court to review the facts of a case, but here the Court can only judge the reasonableness of the officers’ actions by taking a look at the facts for itself. (For example, the Court’s review of the videotapes in Scott v. Harris was key to its ruling there, creating what Justice Scalia (for the majority) called “a wrinkle” in the case.) We do not know how the justices will interpret the facts, but we do know that the facts are likely to come into play if the Court gets to the second question presented. And we know that this case seems to be factually similar to Scott, although Rickard vigorously contests that. (Scott was a ruling on the Fourth Amendment itself, the first prong of the qualified immunity test, so the facts were central to the Court’s ruling. But the facts are probably important on the second prong, too.)

Finally, if the Court reaches the second question presented, the case may build on Scott. In particular, it may say whether the officer’s reasonable action in Scott (ramming his car into the suspect’s car to stop a chase) extends to firing shots to stop a chase. But while Scott seems highly relevant, remember that because it came after the officers’ actions here, it will likely only play a central role if the Court rules on the first prong of the qualified immunity test, the underlying Fourth Amendment question.

 

March 3, 2014 in Cases and Case Materials, Fourth Amendment, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 25, 2014

Cohabitant Can Consent to Search Over Objection of Absent Occupant

The Supreme Court ruled today that a cohabitant of an apartment can validly consent to a search of the apartment, even over the objections of an absent co-occupant.  The ruling in Fernandez v. California means that police can search an apartment (or home), without a warrant, based on the permission of one occupant, even when another occupant objects, so long as the other occupant isn't around.

The case arose when police knocked on an apartment door after hearing screams come from the apartment.  Roxanne Rojas answered; she appeared to be battered and bleeding.  Police asked Rojas to step out of the apartment so that they could conduct a protective sweep.  Fernandez came to the door and objected.

Police suspected that Fernandez assaulted Rojas and arrested him.  They then identified him as the perpetrator in an earlier robbery and took him to the station.

An officer later returned to the apartment, obtained oral permission from Rojas to search it, searched it, and found items linking Fernandez to the robbery. 

Fernandez moved to suppress the items, arguing that he did not give consent to search.  He relied on Georgia v. Randolph (2006), which held that the consent of one occupant is insufficient to allow a warrantless search if another occupant is present and objects to the search.

The Court declined to extend Randolph to this case, where Fernandez was absent.  Justice Alito wrote for the majority:

Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present.  We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.

Justices Scalia and Thomas concurred, both taking issue with the Randolph rule itself, and Justice Scalia trying to shoehorn in a property law analysis.

Justice Ginsburg, writing for herself and Justices Sotomayor and Kagan, dissented:

Instead of adhering to the warrant requirement, today's decision tells the police that they may dodge it, nevermind ample time to secure the approval of a neutral magistrate.  Suppressing the warrant requirement, the Court shrinks to petite size our holding in [Randolph] that "a physically present inhabitant's express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant."

February 25, 2014 in Cases and Case Materials, Fourth Amendment, News | Permalink | Comments (0) | TrackBack (0)

Thursday, February 20, 2014

Third Circuit on Pennsylvania's Funeral Director Law: Mostly Constitutional

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."

Anna_Ancher_-_A_Funeral_-_Google_Art_Project
"A Funeral" by Anna Archer via

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.

 [citation omitted]

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

Calls for Congressional Action on Surveillance: "The Day We Fight Back"

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.

Daywefightback

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)

Sunday, January 26, 2014

Daily Read: Marjorie Cohn on the NSA Decisions and the Constitutionality of Surveillance

Over at Jurist, LawProf Marjorie Cohn (pictured below) intervenes in the constitutional conundrum caused by NSA metadata surveillance.

CohnRecall 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.

 

January 26, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, Fourth Amendment, Scholarship, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, January 13, 2014

New Report on the Efficacy of NSA Surveillance of Telephony Metadata

A new report from the New America Foundation is entitled with the question "Do NSA's Bulk Surveillance Programs Stop Terrorists?" 

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.

January 13, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, Fourth Amendment, Privacy, Recent Cases, Scholarship, State Secrets, Theory | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 7, 2014

Does the NSA Spy on Congress?

Senator Bernie Sanders asked the NSA on Friday if it spies on Members of Congress.  As of Monday, he hadn't received an answer.  Here's Sanders on CNN:

 

January 7, 2014 in Fourth Amendment, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, December 30, 2013

Reconsidering the "Pen Register": Smith v. Maryland and the Constitutionality of NSA Surveillance

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.

POLARISBoth 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]

 

December 30, 2013 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Fourth Amendment, Opinion Analysis, State Secrets, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

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.

352px-TelephoneHelloNellieThe 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.

[image via]

 

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

Recommendations from President's NSA Surveillance Review Group

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.

December 18, 2013 in Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fourth Amendment, Fundamental Rights, Privacy, Web/Tech | Permalink | Comments (0) | TrackBack (0)