The Second-Day Story on U.S. v. Jones
Does a more careful reading of the Supreme Court’s decision in U.S. v. Jones turn up a lurking victory for the government?
Modern media moves so fast that the second-day story happens in the afternoon of the first. The Supreme Court ruled unanimously Monday morning that government agents conduct a Fourth Amendment search when they place a GPS device on a private vehicle and use it to monitor a suspect’s whereabouts for weeks at a time. Monday afternoon, a couple of commentators suggested that the case is less a win than many thought because it didn’t explicitly rule that a warrant is required to attach a GPS device to a vehicle.
Writing on the Volokh Conspiracy blog, George Washington University law professor Orin Kerr noted “What Jones Does Not Hold.”
The Court declined to reach when the installation of the device is reasonable or unreasonable. … So we actually don’t yet know if a warrant is required to install a GPS device; we just know that the installation of the device is a Fourth Amendment “search.”
And over on Scotusblog, Tom Goldstein found that “The Government Fared Much Better Than Everyone Realizes“:
[D]oes the “search” caused by installing a GPS device require a warrant? The answer may be no, given that no member of the Court squarely concludes it does and four members of the Court (those who join the Alito concurrence) do not believe it constitutes a search at all.
So there is a constitutional search when the government attaches a GPS device to a vehicle, but the Court conspicuously declined to say that such a search requires a warrant. Do we have an “a-ha” moment?
U.S. v. Jones: A Big Privacy Win
The Supreme Court has delivered a big win for privacy in U.S. v. Jones. That’s the case in which government agents placed a GPS device on a car and used it to track a person round-the-clock for four weeks. The question before the Court was whether the government may do this in the absence of a valid warrant. All nine justices say No.
That’s big, important news. The Supreme Court will not allow developments in technology to outstrip constitutional protections the way it did in Olmstead.
Olmstead v. United States was a 1928 decision in which the Court held that there was no Fourth Amendment search or seizure involved in wiretapping because law enforcement made “no entry of the houses or offices of the defendants.” It took 39 years for the Court to revisit that restrictive, property-based ruling and find that Fourth Amendment interests exist outside of buildings. “[T]he Fourth Amendment protects people, not places” went the famous line from Katz v. United States (1967), which has been the lodestar ever since.
For its good outcome, though, Katz has not served the Fourth Amendment and privacy very well. The Cato Institute’s brief argued to the Court that the doctrine arising from Katz “is weak as a rule for deciding cases.” As developed since 1967, “the ‘reasonable expectation of privacy’ test reverses the inquiry required by the Fourth Amendment and biases Fourth Amendment doctrine against privacy.”
Without rejecting Katz and reasonable expectations, the Jones majority returned to property rights as a basis for Fourth Amendment protection. “The Government physically occupied private property for the purpose of obtaining information” when it attached a GPS device to a private vehicle and used it to gather information. This was a search that the government could not conduct without a valid warrant.
The property rationale for deciding the case had the support of five justices, led by Justice Scalia. The other four justices would have used “reasonable expectations” to decide the same way, so they concurred in the judgement but not the decision. They found many flaws in the use of property and “18th-century tort law” to decide the case.
Justice Sotomayor was explicit in supporting both rationales for protecting privacy. With Justice Scalia, she argued, “When the Government physically invades personal property to gather information, a search occurs.” This language—more clear, and using the legal term of art “personal property,” which Justica Scalia did not—would seem to encompass objects like cell phones, the crucial tool we use today to collect, maintain, and transport our digital effects. Justice Sotomayor emphasized in her separate concurrence that the majority did not reject Katz and “reasonable expectations” in using property as the grounds for this decision.
Justice Sotomayor also deserves special notice for mentioning the pernicious third-party doctrine. “[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” The third-party doctrine cuts against our Fourth Amendment interests in information we share with ISPs, email service providers, financial services providers, and so on. Reconsidering it is very necessary.
Justice Alito’s concurrence is no ringing endorsement of the “reasonable expectation of privacy” test. But he and the justices joining him see many problems with applying Justice Scalia’s property rationale as they interpreted it.
Along with the Scalia-authored Kyllo decision of 2001, Jones is a break from precedent. It may seem like a return to the past, but it is also a return to a foundation on which privacy can be more secure.
More commentary here in the coming days and weeks will explore the case’s meaning more fully. Hopefully, more Supreme Court cases in coming years and decades will clarify and improve Fourth Amendment doctrine.
“You could use it at a specific event. You could use it at a shooting-prone location…”
That’s NYPD Commissioner Ray Kelly touting a new technology called “terahertz imaging detection” to a local news outlet.
Terahertz radiation is electromagnetic waves at the high end of the infrared band, just below the microwave band. The waves can penetrate a wide variety of non-conducting materials, such as clothing, paper, cardboard, wood, masonry, plastic, and ceramics, but they can’t penetrate metal or water. Thus, directing terahertz radiation at a person and capturing the waves that bounce off them can reveal what is under their clothes without the discomfort and danger of going “hands-on” in a search for weapons. Many materials have unique spectral “fingerprints” in the terahertz range, so terahertz imaging can be tuned to reveal only certain materials. (In case you’re wondering, I got this information off the top of my head…)
Will the machines be tuned to display only particular materials? Or will they display images of breasts, buttocks, and crotches? The TSA’s “strip-search machines” got the moniker they have because they did the latter—until the agency tardily re-configured them.
Then there’s the flip-side of not going “hands-on.” Terahertz imaging detection doesn’t natively reveal to the person being searched that law enforcement has picked him or her out for scrutiny. A pat-down certainly lets the individual know he or she is being searched, positioning one to observe and challenge one’s treatment as a suspect. Terahertz imaging lacks this natural—if insufficient—check on abuse.
So terahertz imaging is not just a “hi-tech pat-down.” Its potential takes what would be a pat-down and makes it into a secret, but intimate, visual examination—a surreptitious strip-search. Pat-downs and secret strip-searches are very different things, and it is not necessarily reasonable, where a pat-down might be called for, to use terahertz imaging.
And that brings us to the fundamental problem with Commissioner Kelly’s proffer to use this technology at a “specific event” or at a “shooting-prone location.” These contexts do not create the individualized suspicion that Fourth Amendment law demands when government agents are going to examine intimate details of a person’s body and concealed possessions.
It is certainly possible to devise a terahertz imaging device and a set of use protocols that are constitutional and appropriate for routine, domestic law enforcement, but Commissioner Kelly hasn’t thought of one, and I can’t either.
Consider the dollar costs and potential health effects of terahertz imaging detection, it might just be that the pat-downs pass muster far better than the high-tech gadgetry.
U.S. v. Jones: The Court’s Search for a Rationale
I attended the Supreme Court’s oral argument in U.S. v. Jones today, the case dealing with the Fourth Amendment constitutionality of using GPS to track individuals’ movements without a warrant. Predicting outcomes is fraught, and you’re getting your money’s worth from the following free observations.
It seemed to me that most members of the Court want to rule that the government does not have free reign to attach GPS devices to cars. Justices Kennedy, Breyer, and Sotomayor, for example, noted the vast consequences if the government were to win the case. Law enforcement could attach tracking devices to people’s overcoats, for example, and monitor their movements throughout society without implicating the Fourth Amendment. Voluble as he often is, Justice Scalia did not say that the Fourth Amendment doesn’t reach GPS because GPS data wasn’t around for the Framers to insulate from government access.
Justice Alito’s thinking seemed to venture the furthest. He noted how insufficient it would be if the Court were to decide the case based on the narrow ground that attaching a GPS device to a car is an unreasonable seizure. Doing so would not account for the vast amount of personal data the government might access without attaching something to a car, clothing, or other property. If not in this case, the Court will soon have to face the (pernicious) third-party doctrine, which holds that a person has no Fourth Amendment interests in information shared with others.
If the Court desires to rule against the government, the one thing it lacks is a rationale for doing so. When it was time for Jones’s counsel to argue, the Justices seemed frustrated not to have a principle on which to base a decision.
Justice Scalia early-on declared his concern with GPS tracking and his dismay that the “reasonable expectation of privacy” test from Katz v. United States (1967) might shrink the zone of privacy the Framers sought to protect in the Fourth Amendment. But he later retreated into a sort of catch-all posture: the Congress can control GPS tracking if it wants. (Jones’s counsel cleverly suggested that there were 535 reasons not to do that.)
Other Justices’ questions danced awkwardly with the “reasonable expectation of privacy” test. Justice Kennedy was equivocal once about whether it would apply. Chief Justice Roberts seemed acutely aware of the Court’s incompetence to make judgments of such broad societal sweep. This is for good reason: there is no way to determine what society thinks, or what is “reasonable” in terms of privacy, when new technologies are applied new ways.
The solution to this conundrum can be found in the Cato Institute’s amicus brief in the Jones case. The Court should not use the “reasonable expectation of privacy” test from Justice Harlan’s Katz concurrence. Rather, it should follow the majority holding, which accorded Fourth Amendment protection to information that Katz had kept private using physical and legal arrangements. The government stands in the same shoes as the general public when it comes to private information—that is, information that can’t be accessed legally or with ordinary perception. When the government accesses information that was otherwise private, those searches and seizures must be reasonable and must almost always be based upon a warrant.
This way of administering the Fourth Amendment is not a snap of the fingers. There will be details to hash out when the Court eventually finds that having a Fourth Amendment interest in information turns on a factual question: whether someone has concealed information about him- or herself.
The biggest impediment to adoption of this rule may be getting lawyers to realize that “reasonable expectation of” is not a prefix required every time they use the word “privacy.”
Will GPS Tracking Render the Fourth Amendment Quaint?
If the government put a GPS monitor on your car and used it to track every vehicular movement of yours for four weeks, do you think that would violate your Fourth Amendment rights? The government would like to be able to do that kind of thing without getting a warrant, and the Supreme Court will soon decide whether it can.
On November 8th, the Court will hear oral argument in U.S. v. Jones. Yours truly was the lead author of Cato’s amicus brief in the case, which may have a significant effect on how Fourth Amendment law intersects with new information technologies for decades to come.
In 2004, suspecting that Antoine Jones was dealing drugs, the FBI secretly attached a GPS tracking device to his car without a valid warrant. The FBI used this device to monitor and record the car’s movements, noting its location every ten seconds when it was in motion, for nearly a month before finally arresting Jones. The U.S. Court of Appeals for the D.C. Circuit found that the FBI’s action was unconstitutional because it violated Jones’s “reasonable expectation of privacy”—the two-part Fourth Amendment standard developed in the landmark case of Katz v. United States. Though he traveled on public roads, the totality of his movements was available to nobody and thus was private.
Our brief argues that the government’s conversion of Jones’s vehicle into a surveillance device was an unreasonable seizure under the Fourth Amendment. Even though he didn’t lose a “possessory” interest in his car, the government invaded Jones’s various property rights, including the right to exclude, the right to manage, the right to use, and the right to the profits. Similarly, using his car to collect detailed data on his movements over this extended period without getting a warrant was an unreasonable search. The data reflecting his movements would never have come into existence without the government attaching its GPS device to his car. These are tough, interesting issues arising in the new circumstances created by information technology.
We spent as much time in the brief on the “reasonable expectations of privacy” test. The product of one Justice’s lone concurrence in the Katz case, it holds that if a person has an actual (subjective) expectation of privacy and that expectation is one society is prepared to accept, then the Fourth Amendment protects the object of that expectation.
Courts have never faithfully applied this test, and for good reason: it’s a doctrinal mess that reverses the Fourth Amendment’s focus. Courts have second-guessed what the citizenry thinks in terms of privacy rather than examining government action to see if it is reasonable. Under “reasonable expectations” doctrine, things that are left in plain view are always available to the government while things that are hidden—well, the Court will look to see whether keeping it private comports with “reasonable expectations.”
The majority ruling in Katz rested on physical and legal protection that Katz had given to the sound of his voice when he entered a telephone booth. Because Katz had secured the privacy of his conversation, the government wasn’t allowed to access it using a wiretap—not without a warrant. That’s the rule the Court should apply here. The government can’t use uncommon surveillance technology to access private information, including private information about things that happened “in public,” without a valid warrant.
With information technology still rapidly increasing in power, it is critically important that the Supreme Court update Fourth Amendment law while maintaining its consistency with ancient property principles. Doing so will ensure that technology doesn’t render the Fourth Amendment’s protections for our “persons, papers, houses, and effects” quaint.
You can read more, and our brief, on the Cato.org page about U.S. v. Jones.
Kozinski on Privacy at Constitution Day
The Hon. Alex Kozinski gave the annual B. Kenneth Simon lecture at Cato’s Constitution Day conference on September 15, 2011. He spoke about changing cultural expectations of privacy regarding new technologies and how judicial applications of the Fourth Amendment have changed over time to reflect these expectations. Judge Kozinski is the Chief Judge on the U.S. Court of Appeals for the Ninth Circuit.
Strip-Search Machines: A Loss Seeds the Win
Last week, the D.C. Circuit Court of Appeals rejected a Fourth Amendment challenge to the Transportation Security Administration’s strip-search machine policies, but it found that the TSA violated the Administrative Procedure Act in rolling them out. Too bad that the court arrived at the Fourth Amendment issues before they were ripe.
The bulk of the decision was devoted to the TSA’s law violation in creating strip-search machine policies without doing a notice-and-comment rulemaking. That’s the procedure federal agencies are required to carry out when Congress has delegated them legislative authority. Congress did delegate such authority when it told the Department of Homeland Security to develop technologies that detect nonmetallic, chemical, biological, and radiological weapons in 2004′s Intelligence Reform and Terrorism Prevention Act.
“[T]he TSA has advanced no justification for having failed to conduct a notice-and-comment rulemaking,” the court wrote, adding that it expects the agency “to act promptly on remand to cure the defect in its promulgation.”
The TSA will likely spout “constantly changing threat environment” boilerplate to try and argue that it can avoid notice and comment under the APA’s “good cause” exception. An agency can skip notice and comment “when the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”
But the threat environment is not “constantly changing” at the level of abstraction relevant for the strip-search machine policy—some people are out there who might try to get dangerous articles onto planes—and these machines will be in place for decades, if not permanently, under the TSA policy. They will affect the privacy and security of billions of air passenger journeys. Even if there were need for haste in rolling out the machines, nothing makes it uniquely difficult, or anything other than appropriate, for the TSA to engage in a public process to substantiate its actions.
Friday Links
- “PBS used to ask, ‘If not PBS, then who?’ The answer now is: HBO, Bravo, Discovery, History, History International, Science, Planet Green, Sundance, Military, C-SPAN 1/2/3 and many more.”
- “The fiscal problem that is destroying U.S. economic confidence is not the fiscal balance, however. It is the level of government expenditures relative to GDP.”
- “The Pentagon’s first cyber security strategy… builds on national hysteria about threats to cybersecurity, the latest bogeyman to justify our bloated national security state.”
- “How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?”
- National debt is driving the U.S. toward a double-dip recession:
Thursday Links
- “Consistent bets for higher oil prices in futures markets have not been particularly lucrative.”
- “The vast, swaying bulk of America’s military has absolutely nothing to do with effectively combating terrorism—including the large land armies that we deploy to Muslim countries in efforts to destroy and then reconstitute their states.”
- “‘Poking and prodding’ is what good government does to perfect strangers. And that’s what the Obama administration has been doing, with unusual zeal, for the past 2 1/2 years.”
- The Cato 2011 State Legislative Guide is designed to help state policymakers free their constituents from the burden of overextended government and addresses unfunded pension liabilities, ballooning Medicaid enrollment, massive budget gaps, failing education systems, and other important issues.
- The Kentucky v. King decision has delivered a blow to Fourth Amendment protections:
Read more here.
The ‘Privacy Bill of Rights’ Is in the Bill of Rights
Every lover of liberty and the Constitution should be offended by the moniker “Privacy Bill of Rights” appended to regulatory legislation Senators John Kerry (D-MA) and John McCain (R-AZ) introduced yesterday. As C|Net’s Declan McCullagh points out, the legislation exempts the federal government and law enforcement:
[T]he measure applies only to companies and some nonprofit groups, not to the federal, state, and local police agencies that have adopted high-tech surveillance technologies including cell phone tracking, GPS bugs, and requests to Internet companies for users’ personal information–in many cases without obtaining a search warrant from a judge.
The real “Privacy Bill of Rights” is in the Bill of Rights. It’s the Fourth Amendment.
It takes a lot of gall to put the moniker “Privacy Bill of Rights” on legislation that reduces liberty in the information economy while the Fourth Amendment remains tattered and threadbare. Nevermind “reasonable expectations”: the people’s right to be secure against unreasonable searches and seizures is worn down to the nub.
Senators Kerry and McCain should look into the privacy consequences of the Internal Revenue Code. How is privacy going to fare under Obamacare? How is the Department of Homeland Security doing with its privacy efforts? What is an “administrative search”?
McCullagh was good enough to quote yours truly on the new effort from Sens. Kerry and McCain: “If they want to lead on the privacy issue, they’ll lead by getting the federal government’s house in order.”
Blurry Lines, Discrete Acts, and Government Searches
I’ve written before about the “Mosaic Theory” some courts have recently employed to conclude that certain forms of government surveillance may trigger Fourth Amendment protection in the aggregate, even if the surveillance can be broken down into components that don’t fall under the traditional definition of a Fourth Amendment “search.” This has been applied specifically to high-tech forms of location tracking, where several judges have concluded that a person may have a privacy interest in the totality of their public movements over a long period of time, even though observing a person at any particular public place in a specific instance is not an intrusion on privacy. I’ve explained in that previous post why I find this reasoning compelling. Legal scholar Orin Kerr, however, remains unmoved, and suggests that divergent decisions applying the Mosaic Theory to government acquisition of stored cell phone location records effectively serve as a reductio of that theory:
To my mind, this opinion reveals the absurdity of Maynard’s mosaic theory. The analysis is all “look ma, no hands.” No one knows where the line is, or even what the line is. Sure, you could just count days of surveillance: perhaps 30 days triggers a warrant but 29 days doesn’t. But there is no reason the access to records has to be continuous. The government can skip around days, or get records from a few days here and a few days there. Who can tell how much is enough? No one knows what is revealing, because what is revealing depends on what the records actually say — and no one but the phone companies know what they say. So Judge Orenstein has to wing it, announcing that “he cannot assume” that the information would be revealing because it has breaks in time. But it’s not clear to me why the break in time matters: It’s the same net amount of data collected, so I don’t know why it matters if it was collected all at once or over several discrete periods. And how much of a break matters? If 21 days is too long, is 21 days with a one-day break enough? How about a 3-day break? One week? No one knows, it seems, not even the judge himself. [....]
There are some readers who will say that the cause of justice sometimes requires hard decisions, and that if judges need to make arbitrary calls like that, then that is what we pay them to do in order to enforce the Constitution. But as I see it, the oddity of the inquiries called for by the Maynard mosaic theory shows why it is not part of the Constitution at all. In Fourth Amendment law, the lawfulness of government conduct has always been viewed discretely: Each government act is either a search or it is not a search. Under Maynard, conduct can be a non-search if viewed in isolation but a search if viewed in context — but there is no guide to tell how much context is proper. If you want to say that certain conduct is a search, then just be direct and say it’s a search. That’s fine. But a mosaic theory, in which non-searches become searches if grouped a particular way, has no proper place in Fourth Amendment law.
“To Declare [Kinetic Military Action]“
Recently, I’ve been blogging over at the Washington Examiner‘s lively “Beltway Confidential” site, mostly on the subject of congressional war powers and President Obama’s Libyan adventure. Today’s post, “Obama Makes ‘Kinetic Military Action’ on the English Language” has a little fun with the administration’s wordgames and the legal rationales behind them. Other posts and a column on the subject are here, here, and here.
Today also brings a pair of columns–in the Wall Street Journal and the Washington Post, respectively–from conservative luminaries defending the notion that Obama has the constitutional power to bomb Libya without congressional authorization. Yoo, the legal architect of George W. Bush’s Terror Presidency, chides Tea Party Republicans like Jason Chaffetz of Utah and Justin Amash of Michigan for questioning Obama’s authority to launch a nondefensive war:
Their praiseworthy opposition to the growth of federal powers at home misleads them to resist Washington’s indispensable role abroad. They mistakenly read the 18th-century constitutional text through a modern lens—for example, understanding “declare war” to mean “start war.” When the Constitution was written, a declaration of war served diplomatic notice about a change in legal relations between nations. It had little to do with launching hostilities. In the century before the Constitution, for example, Great Britain fought numerous major conflicts but declared war only once beforehand.
Similarly, in the Post, David B. Rivkin, Jr., and Lee A. Casey write:
As commander in chief, the president has the authority to determine when and how U.S. forces are used…. When the Constitution was adopted, the power to “declare war” was not equivalent to permitting the use of military force.
The president certainly can’t derive the authority to bomb Libya from the commander-in-chief clause. As Hamilton explained in Federalist 69, that provision merely indicates that the president is the “first General and admiral” of US military forces. Important as they are, generals and admirals don’t get to decide whether and with whom we go to war.
It’s more common for presidentialists to combine a broad reading of Article II, sec. 1′s “executive Power” with an exceptionally narrow interpretation of Article I, sec. 8′s congressional power “to declare War,” to conclude that the president can start wars, leaving it up to Congress to make it official if they so choose.
One problem with that view is that virtually no one from the Founding Generation seems to have understood the clause in that way. For example, James Wilson told the Pennsylvania ratifying convention that ‘‘this system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power in declaring war is vested in the legislature at large.’’ Pierce Butler, like Wilson, had been a delegate to the Philadelphia Convention, and–to the dismay of some delegates–had actually argued for vesting the power to go to war in the president. Yet during the ratification debates, Butler assured the South Carolina legislature that the proposed constitution prevented the president from starting wars: ‘‘Some gentlemen [i.e., Butler himself] were inclined to give this power to the President; but it was objected to, as throwing into his hands the influence of a monarch, having an opportunity of involving his country in a war whenever he wished to promote her destruction.’’
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