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.
The Non-Defense of DOMA
The Obama Administration’s decision to stop defending DOMA in the courts has provoked some widespread commentary. Jim Burroway hints that Obama’s strategy here is both deep and cynical. Obama’s locked in a losing fight with Republicans over the budget, because Americans really do want to cut federal spending. This remains true even if, notoriously, nearly the only specific program they want to cut is our negligible foreign aid.
The mood is anti-spending, and it’s just possible that a government shutdown scares Obama even more than it scares the Republicans. The remedy? Change the subject. Make Republicans in Congress defend their stance on gay marriage, which is so not the discussion they’d like to be having.
It could be one of the first instances in which gay marriage counts as a wedge issue against Republicans, rather than for them. Opposing same-sex marriage appeals strongly to a smallish base. To the center, the whole subject is distasteful either way, and they don’t mind if Obama drops it. Finally, more and more people just find the conservatives embarrassing here. Obama sees no need to do their dirty work for them, especially when the work really is that dirty.
Meanwhile, Orin Kerr is worried about executive power:
By taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.
If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress’s power. Again, it will be a power grab disguised as academic constitutional interpretation.
Liberals: If you think declining to defend DOMA is the right decision, how will you feel when a Republican administration declines to defend in a school prayer case? Or an abortion case? Or on Obamacare itself?
There are two very, very distinct issues here. One concerns gays and lesbians. The other concerns the proper relationship among the three branches of the federal government. One is about policy; the other is about procedure. Deciding a procedural question based on what it means for a one-time policy outcome is just bad governance. The questions we should be asking are — How much power would this really give the president? Is this a particularly new power? (Arguably it’s not.) And in any case, are we comfortable with the president having it, even if he or she has radically different views about policy?
When we look at it that way, there’s a near-perfect parallel to the perennial debate over the filibuster. Everyone hates it when they’re in the majority. Everyone loves it when they’re in the minority. Politics really is the mind-killer.
Wikileaks, Twitter, and Our Outdated Electronic Surveillance Laws
This weekend, we learned that the U.S. government last month demanded records associated with the Twitter accounts of several supporters of WikiLeaks—including American citizens and an elected member of Iceland’s parliament. As the New York Times observes, the only remarkable thing about the government’s request is that we’re learning about it, thanks to efforts by Twitter’s legal team to have the order unsealed. It seems a virtual certainty that companies like Facebook and Google have received similar demands.
Most news reports are misleadingly describing the order [PDF] as a “subpoena” when in actuality it’s a judicially-authorized order under 18 U.S.C §2703(d), colloquially known (to electronic surveillance geeks) as a “D-order.” Computer security researcher Chris Soghoian has a helpful rundown on the section and what it’s invocation entails, while those who really want to explore the legal labyrinth that is the Stored Communications Act should consult legal scholar Orin Kerr’s excellent 2004 paper on the topic.
As the Times argues in a news analysis today, this is one more reminder that our federal electronic surveillance laws, which date from 1986, are in dire need of an update. Most people assume their online communications enjoy the same Fourth Amendment protection as traditional dead-tree-based correspondence, but the statutory language allows the contents of “electronic communications” to be obtained using those D-orders if they’re older than 180 days or have already been “opened” by the recipient. Unlike traditional search warrants, which require investigators to establish “probable cause,” D-orders are issued on the mere basis of “specific facts” demonstrating that the information sought is “relevant” to a legitimate investigation. Fortunately, an appellate court has recently ruled that part of the law unconstitutional—making it clear that the Fourth Amendment does indeed apply to email… a mere 24 years after the original passage of the law.
The D-order disclosed this weekend does not appear to seek communications content—though some thorny questions might well arise if it had. (Do messages posted to a private or closed Twitter account get the same protection as e-mail?) But the various records and communications “metadata” demanded here can still be incredibly revealing. Unless the user is employing anonymizing technology—which, as Soghoian notes, is fairly likely when we’re talking about such tech-savvy targets—logs of IP addresses used to access a service like Twitter may help reveal the identity of the person posting to an anonymous account, as well as an approximate physical location. The government may also wish to analyze targets’ communication patterns in order to build a “social graph” of WikiLeaks supporters and identify new targets for investigation. (The use of a D-order, as opposed to even less restrictive mechanisms that can be used to obtain basic records, suggests they’re interested in who is talking to whom on the targeted services.) Given the degree of harassment to which known WikiLeaks supporters have been subject, easy access to such records also threatens to chill what the courts have called “expressive association.” But unlike traditional wiretaps, D-order requests for data aren’t even subject to mandatory reporting requirements—which means surveillance geeks may be confident this sort of thing is fairly routine, but the general public lacks any real sense of just how pervasive it is. Whatever your take on WikiLeaks, then, this rare peek behind the curtain is one more reminder that our digital privacy laws are long overdue for an upgrade.
Citizen Shahzad
Two smart guys on opposite sides of the political spectrum have sound points about the treatment of suspected Times Square bomber Faisal Shahzad. First, Orin Kerr points out that investigators have some flexibility in determining when and whether to read Miranda rights. In this case, they refrained initially and questioned Shahzad for a while under the public safety exception. And despite the apparent belief of the perpetually terrorized that Miranda warnings are some kind of magical incantation that causes the cone of silence to descend upon blabbermouths, they determined that he would probably continue cooperating even after being Mirandized. But as Kerr points out, they could have proceeded sans Miranda had that seemed necessary—provided they were willing to waive the ability to introduce Shahzad’s confession at trial. Given that there appears to be plenty of other evidence against him, that might well have been a viable option.
Either way, this surely seems like the kind of judgment call best left to the investigators on the scene, not Monday morning quarterbacks in Congress like Rep. Peter King (R-NY) who gave us this priceless reaction:
“Did they Mirandize him? I know he’s an American citizen but still,” King said.
Putting aside that nauseating “but still,” does King really imagine that he possesses some deep insight into the pernicious effect of Miranda warnings that the agents on the ground lacked? Again, Shahzad is apparently still cooperating—maybe they knew what they were doing.
From Steve Benen, meanwhile, we have one of many posts around the blogosphere pointing out the incoherence of a cowardly proposal mooted by Joe Lieberman (I-CT) that would revoke the citizenship of Americans who join foreign terror groups. The blindingly obvious question: By what process do we determine that a suspected member of a foreign terror group is really a member of a foreign terror group? As Glenn Greenwald writes, there’s not much point to having a Bill of Rights if the government gets to revoke those rights at its whim. But no, Lieberman wants to assure us that suspects would have a right to challenge the revocation of their citizenship in a court—a civilian court, one hopes. Except giving material support to a foreign terror groups is, in fact, a crime. If there’s enough evidence to persuade a court of law that someone is a member of such a group—congratulations, there’s enough evidence to convict them in the civilian system as well! It’s heartening that there doesn’t seem to be a great deal of support for this odious proposal, but depressing that a sitting senator would treat the rights of citizenship so lightly for the sake of a vapid, strutting display of “toughness.”
Internet Privacy Law Needs an Upgrade
Imagine for a moment that all your computing devices had to run on code that had been written in 1986. Your smartphone is, alas, entirely out of luck, but your laptop or desktop computer might be able to get online using a dial-up modem. But you’d better be happy with a command-line interface to services like e-mail, Usenet, and Telnet, because the only “Web browsers” anyone’s heard of in 1986 are entomologists. Cloud computing? Location based services? Social networking? No can do, though you can still get into a raging debate about the relative merits of Macs and PCs.
When it comes to federal privacy law, alas, we are running on code written in 1986: The Elecronic Communications Privacy Act, a statute that’s not only ludicrously out of date, but so notoriously convoluted and unclear that even legal experts routinely lament the “mess” of electronic privacy law. Scholar Orin Kerr has called it “famously complex, if not entirely impenetrable.” Part of the problem, to be sure, lies with the courts. It is scandalous that in 2010, we don’t even have a definitive ruling on whether or when the Fourth Amendment requires the government to get a search warrant to read e-mails stored on a server. But the ECPA statute, meant to fill the gap left by the courts, reads like the rules of James T. Kirk’s fictional card game Fizzbin.
How Will the Court Vote on “Incorporating” the Second Amendment?
Yesterday I described the brief Alan Gura filed on behalf of the petitioners challenging Chicago’s gun ban in the Supreme Court — asking the Court to apply the individual right to keep and bear arms to the states.
Late last night, Orin Kerr at the Volokh Conspiracy sketched out his predictions of whether the individual justices would go for Gura’s main argument: that the indefensible Slaughter-House Cases should be overturned and thus that the Court should “incorporate” the rights at issue via the Privileges or Immunities Clause. (Cato supports this argument, as we’ll show in the brief we’ll be filing next week.) He concludes that Justice Thomas is the only vote available for this claim. According to Orin, the Chief Justice and Justices Scalia and Alito are too enamored with stare decisis to overturn an 1873 precedent, Justice Kennedy isn’t an originalist and likes substantive due process too much, and the other four are too afraid of Lochner and Institute for Justice-style economic liberty arguments to go there.
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