Concurring Opinions » Constitutional Law

Omelets and Eggs

Gerard Magliocca — Sun, 12 Feb 2012 16:03:08 +0000

I have now reached the Thirty-Ninth Congress and Bingham’s drafting of Section One of the Fourteenth Amendment, which means that my blogging will cease for a while. (Besides, I think I annoyed enough people with my posts last week. Next month I look forward to irritating people of a different persuasion when the Supreme Court hears the health care arguments.)

Couple of thoughts about the chapter that I just finished about Bingham’s prosecution of John Wilkes Booth’s co-conspirators (including Mary Surratt). The obvious irony in this case is that the great civil libertarian argued for a military trial and rejected the application of the Bill of Rights to the defendants. Here’s the more subtle point, though. But for the fame that Bingham achieved in this (highly questionable) prosecution, he may not have received a spot on the Joint Committee on Reconstruction and would not have been in a position to write the Due Process Clause into the Fourteenth Amendment. It’s probably going too far to say that Section One of the Fourteenth Amendment rests in part on the conviction of innocent people, but it’s worth pondering.

Tempest in Tempe: First Amendment in the Desert

Derek Bambauer — Fri, 10 Feb 2012 22:10:48 +0000

In the spirit of the excellent colloquy here about Marvin’s thinking on First Amendment architectures, I bring up this news item: Arizona State University blocked both Web access to, and e-mail from, the change.org Web site. ASU students had begun a petition demanding that the university reduce tuition. The university essentially made three claims as to why it did so (below, in order of increasing stupidity):

It was a technical mistake;
Change.org was spamming ASU; and
ASU needs to “protect the use of our limited and valuable network resources for legitimate academic, research and administrative uses.”

#1 and #2 run together. If spam is the problem, you don’t need to block access to the Web site. However, if you are concerned that students are going to read the petition, and sign it, you do need to block access to the Web site.

For #2, sorry, ASU, this isn’t spam. Spam is unsolicited bulk commercial e-mail. Change.org is, allegedly, sending unsolicited political e-mail. And that’s protected by the First Amendment – see, for example, the Virginia Supreme Court’s analysis of that state’s anti-spam law that covered political messages. Potential political spammers have a sharp disincentive to fill recipient’s inboxes – it’s a sure-fire way to annoy them into opposing your position.

For #3, ASU doesn’t get to determine what academic and research uses are “legitimate.” If they throttle P2P apps, that’s fine. If they limit file sizes for attachments, no problem. But deciding that the message from Change.org is not “legitimate” is classic, and unconstitutional, viewpoint discrimination.

This looks like censorship. I think it’s more likely to be stupidity: someone in ASU’s IT department decided to block these messages as spam, and to filter outbound Web requests to the site contained within those messages. But: with great power over the network comes great responsibility. Well-intentioned constitutional violations are still unlawful. It would also help if ASU’s spokesperson simply admitted the mistake rather than engaging in idiotic justification.

As I mention in Orwell’s Armchair, public actors are increasingly important sources of Internet access. But when ASU and other public universities take on the role of ISP, they need to remember that they are not AOL: their technical decisions are constrained not merely by tech resources, but by our commitment to free speech. Let’s hope the Sun Devils cool off on the filtering…

Cross-posted at Info/Law.

Can’t the Supreme Court Just Say No to Cameras?

Dave Hoffman — Fri, 10 Feb 2012 18:40:32 +0000

It’s been widely reported that SB.1945, if passed, would compel the Supreme Court to televise its proceedings. Here’s the relevant bill text:

‘The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.”

Two questions.

(1) This seems badly drafted to me. What does “television coverage” mean for the purposes of this bill? Does it mean that the camera gets to swivel between Justices and the attorney? That it can face the wall? But more interestingly,

(2) What ifthe Supreme Court just says no? The Marshall of the court reports to the Chief, not to the President or the Congress. What is the Coult were simply to decide, as a body, that it didn’t feel bound by another branch’s wishes on how to conduct its proceedings? Obviously, this would never actually happen. But imagine a different case, where the Congress prescribed wig-wearing? Or how long arguments would last? Or brief length or content? I recall a Larry Tribe con law exam in which the Congress wrote a law the required the court to decide its constitutionality in a matter of days. That struck me as unlikely to survive scrutiny. Similarly here, there’s a plausible separation of powers argument that the Congress doesn’t have the right to tell the Court how to run its house. That’s precisely what Mike Dorf argued in this column, and it’s surprising to me that so few mainstream journalists have picked up the objection. (But see this Scotusblog discussion.) Basically, if I were the Court and I didn’t want to be on TV, I’d consider telling Congress to go pound sand. They don’t have an army either.

Employment Division v. Smith is Wrong

Gerard Magliocca — Wed, 08 Feb 2012 20:53:18 +0000

I’ve never been a fan of the Court’s holding that a neutral statute of general application is constitutional even if it imposes a significant burden on a religion. There is decent evidence that this was contrary to the original understanding of the Fourteenth Amendment, Michael McConnell wrote a terrific article making the case against the decision when it first came out, and others have offered plenty of criticisms.

Recent events, though, show why Smith rests on a questionable understanding of the First Amendment. When a neutral and generally applicable employment discrimination statute was applied to churches, the Court adopted a “ministerial exception” and distinguished Smith. When HHS adopted a rule about contraceptives and made no exception for Catholic institutions, howls went up that this violates religious freedom. And those howls are right. Now I’ll grant that you could say that this is just a matter for Congress or state legislatures. (In other words, religious freedom could mean more than what the Court says is constitutionally required, though that doesn’t explain the “ministerial exception” case.) But I think that the Catholic organizations upset about the new regulation ought to have a constitutional claim. But they don’t.

Same Sex Marriage in Hawaii

Gerard Magliocca — Wed, 08 Feb 2012 13:17:48 +0000

In 1993, the Hawaii Supreme Court held that the state’s ban on same-sex marriage was unconstitutional. In 1996, Hawaii voters approved a constitutional amendment overruling this decision. In 2011, the state created civil unions for same-sex couples. I presume that what Hawaii did in its referendum was invalid under the Ninth Circuit panel’s decision yesterday, since it it indistinguishable from Proposition 8. And Hawaii is in the Ninth Circuit, and therefore covered by the panel opinion. Let the litigation begin.

Same-Sex Marriage Opinion

Gerard Magliocca — Tue, 07 Feb 2012 19:46:10 +0000

The Ninth Circuit’s decision invalidating Proposition 8, which overruled the California Supreme Court’s holding that the state could not prohibit same-sex marriage, is here. I am unpersuaded by the majority’s analysis.

My take is that the panel majority really wants to say that any ban on same-sex marriage is unconstitutional. But due to a concern that the Supreme Court will not agree, they came up with a narrower rationale. Because the CA Supreme Court read the State Constitution to say that same-sex couples could marry (and many did), it is unconstitutional to remove that right even if it might be constitutional not to grant the right in the first place.

This line of reasoning, if you take it seriously, is dangerous. First, it basically says that people have a vested right in a State Supreme Court’s interpretation of its constitution. Really? I wonder what the Ninth Circuit would have said if the California Supreme Court had simply reversed itself –is stare decisis now constitutionally mandated in some cases? Second, the only mechanism for people to express their disapproval for a state supreme court opinion that they dislike will be to recall, impeach, or not retain the judges, as was done in Iowa after that state’s same-sex marriage decision. I submit that we are better off with a system where some states use referenda to repeal unpopular decisions (even ones you like) than having all states eject judges when the voters don’t like one of their many decisions. Third, the Court’s analysis would render many state referenda constitutionally suspect (at least those that were done in response to a court decision). Finally, how would this analysis apply to the Federal Constitution? Are “We The People” prohibiting from amending the Constitution to overrule Citizens United because that would take away a First Amendment right from corporations that they are now happily exercising?

Of course, I don’t take the panel’s reasoning seriously. Neither will the en banc Court, I think. Whether they will bite the bullet and just say that a prohibition on same-sex marriage is invalid–pure and simple–is another question.

UPDATE: I hasten to add that President Obama still officially holds the view described by the Ninth Circuit as irrational.

Maryland Law Review 71:1 (December 2011)

Maryland Law Review — Sat, 04 Feb 2012 14:13:31 +0000

Volume 71, Issue 1 (December 2011):

Tributes to Professor Robert I. Keller

Symposium: The Maryland Constitutional Law Schmooze

Foreword: Plus or Minus One: The Thirteenth and Fourteenth Amendments, Mark A. Graber

The Thirteenth Amendment, Interest Convergence, and the Badges and Incidents of Slavery, William M. Carter, Jr.

Congressional Authority to Interpret the Thirteenth Amendment, Alexander Tsesis

Congressional Authority to Interpret the Thirteenth Amendment: A Response to Professor Tsesis, Jennifer Mason McAward

Involuntary Servitude, Public Accommodations Laws, and the Legacy of Heart of Atlantic Motel, Inc. v. United States, Linda C. McClain

Constitutional Politics, Constitutional Law, and the Thirteenth Amendment, Michael Les Benedict

What’s Different About the Thirteenth Amendment, and Why Does It Matter?, James Gray Pope

The Thirteenth Amendment and the Meaning of Familial Bonds, Julie Novkov

Beyond Originalism: Conservative Declarationism and Constitutional Redemption, Ken I. Kersch

Conclusion: The Political Thirteenth Amendment, Rebecca E. Zietlow

Comment

The Right to Refuse: Should Prison Inmates Be Allowed to Discontinue Treatment for Incurable, Noncommunicable Medical Conditions?, Daniel R. H. Mendelsohn

Lebron v. Padilla cont.

Elizabeth A. Wilson — Wed, 01 Feb 2012 01:39:33 +0000

I received an interesting question asking how my analysis is informed by the recent trend in Bivens cases (outside the national security context) to “assimilate the Bivens inquiry to the Court’s now restrictive jurisprudence on implied statutory causes of action.” Here is a brief answer. I’m not in general agreement with an approach conflating implied constitutional and statutory causes of action as, say, two variants of federal common law, because I do believe it makes a difference whether the source is a statute or the Constitution. But even if you accept the premise of the more restrictive approach, it is problematic that due regard is not being given to the extensive activity of Congress with respect to Bivens that lies between legislating and not-legislating, between creation of an express cause of action and silence.

As I pointed out in my post on Lebron, Congress has on numerous occasions taken affirmative steps to preserve and ratify Bivens and to clarify its relation to statutorily created remedies. This is true in the 1974 amendments to the FTCA creating a cause of action against the government for law enforcement constitutional torts while preserving a Bivens remedy against individual officers. It is also true of the Westfall Amendment to the FTCA. (Under Westfall, suits against individual federal officials are automatically converted to suits against the federal government unless it is alleged that a statute expressly creating a private right of action has been violated or unless that the U.S. Constitution has been violated.) With the Westfall Act, Congress made a place in its statutory framework for a cause of action that already existed. This may not be “action” in the exact sense of creating an express cause of action, but it is not exactly “inaction” either.

A few years ago, James Pfander and David Baltmanis published an article in the Georgetown Law Journal arguing that courts should stop treating Bivens as a threshold inquiry into whether a particular constitutional claim will support a cause of action. Instead, Pfander and Baltmanis argue, courts should begin with a presumption that a well-pleaded complaint for an unconstitutional invasion of individual rights gives rise to an action for damages under Bivens and then look to evidence that Congress intended to displace the remedy. They base their argument on the some of the Congressional activity that I mentioned in my earlier post, particularly the Westfall Act, and argue that these legislative acts preserving and ratifying Bivens put it on a firmer statutory foundation.

While I am in general agreement that courts should look more closely at the legislative context, I think this approach too broad. Congress’ pattern of legislative activity in relation to Bivens could also be taken as ratifying the Supreme Court’s current Bivens jurisprudence – i.e., the case-by-case, claim-by-claim threshold inquiry. Congress intervenes when it wants, as it did after the Supreme Court, in McCarthy v. Madigan, held that a federal prisoner bringing a Bivens action for violation of his Eighth Amendment rights is not required to exhaust administrative remedies available through the Bureau of Prisons grievance procedure. Congress responded to Madigan by enacting legislative changes to require exhaustion of administrative remedies in Bivens and other cases. So far, Congress has not intervened in light of the narrowing in the Supreme Court’s Bivens jurisprudence. Nonetheless, it does seem to me basically correct to argue that this extensive legislative activity means something in the Bivens context – it just doesn’t seem to have had attention called to it.

Now, an argument about congressional activity ratifying Bivens arguably does not fully address the point made by then Justice Rehnquist in his dissent in Carlson v. Green. Noting that the majority opinion stated that the 1974 amendments made it clear that Congress viewed FTCA and Bivens as complementary causes of action, Justice Rehnquist disagreed, saying “I think it more likely that they reflect Congress’ understanding (albeit erroneous) that Bivens was a constitutionally required decision. If I am correct, the comments [accompanying the 1974 amendments] comprise merely an effort on the part of the Senate committee to avoid what it perceived as a constitutional issue.” Perhaps if you are hostile to Bivens, as Justice Rehnquist was, no amount of activity by Congress preserving or ratifying Bivens will be persuasive, because such legislative action can always be interpreted as a reaction to antecedent judicial action. Pfander & Baltmanis have an argument about why congressional intent can be inferred from the structure of the Westfall Act, but their view does not go to this question and to the question of Bivens’ independent viability.

The Congressional Regulation of Inactivity

Gerard Magliocca — Tue, 31 Jan 2012 01:14:42 +0000

As the briefs in the Affordable Care Act litigation are still being filed before the Supreme Court, I was intrigued by this new paper by Professor Corey Yung on “The Incredible Ordinariness of Federal Penalties for Inactivity that sheds new light on the problem before the Justices. Here is the Abstract:

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Those arguing that insurance mandate in the recent health care reform legislation, the Patient Protection and Affordable Care Act (ACA), is unconstitutional have prominently and repeatedly advanced the claim that the mandate’s punishment of personal inactivity is an unprecedented exercise of federal power. That contention is simply and unequivocally false. Federal criminal law contains scores of provisions that facially or in application punish inactivity by individuals. These criminal statutes regulating inaction include not just traditional crimes by omission where a common law duty is violated, but also offenses related to registration, record keeping, possession, receipt, preventive measures, nondisclosure, organizational, misprision, and obstruction. By providing this account of criminal laws punishing and regulating inactivity, this Essay puts the ACA’s insurance mandate in the larger context of federal laws at issue if the mandate is held to be unconstitutional by the Supreme Court. The case of the ACA in regard to the Commerce and Necessary and Proper Clauses is not merely about the enforcement mechanism used for a single health care law as many have contended–it is about the shape and scope of federal criminal law that has been in place for over fifty years.

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Of course, if you try to dismiss Professor Yung’s examples as the regulation of “activities,” then the decision not to purchase health care is probably also an activity.

The Potentially Profound Implications of United States v. Jones

Daniel Solove — Sun, 29 Jan 2012 18:18:32 +0000

I must respectfully disagree with a recent post by Renee Hutchins on our blog about the recent U.S. Supreme Court case, United States v. Jones. She concludes:

With full knowledge of this history, the Jones decision should give us pause. It is widely believed that the test the court enunciated nearly a half-century ago better protects the privacy interest of citizens in the face of advancing technology. By reverting to the language of trespass, the court this week took a step back when it could have taken a bold step forward. Moreover, by failing to engage the admittedly “thorny” question of whether the monitoring of the GPS device alone violated Mr. Jones’ constitutional rights, the court missed a momentous opportunity to speak clearly in a brave new world.

Although it is true that the majority opinion is narrow, the concurring opinions indicate five votes for a broader more progressive view of the Fourth Amendment, one which breaks from some of the Court’s antiquated notions of privacy. When I read Jones, I see cause for celebration rather than disappointment.

I have long argued that the Court has failed to understand that aggregated pieces of information can together upend expectations of privacy. See Privacy and Power 1434-35 (2001), The Digital Person 44-47 (2004), Understanding Privacy 117-21 (2008). I have also critiqued what I call the “secrecy paradigm” where the Court has held that privacy is only invaded by revealing previously concealed information. See The Digital Person 42-44 (2004), Understanding Privacy 106-12 (2008). I have argued that privacy can be invaded even by public surveillance. More recently, in Nothing to Hide 178 (2011), I argued:

The problem with the secrecy paradigm is that we do expect some degree of privacy in public. We don’t expect total secrecy, but we also don’t expect somebody to be recording everything we do. Most of the time, when we’re out and about, nobody’s paying any special attention to us. We do many private things in public, such as buy medications and hygiene products in drug stores and browse books and magazines in bookstores. We expect a kind of practical obscurity—to be just another face in the crowd.

In Justice Alito’s concurring opinion, he seemingly recognizes both of the concept of aggregation and the fact that the extent of the surveillance matter more than merely whether it occurs in public or private:

Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.

Justice Sotomayor discusses this passage with approval in her concurrence, indicating five votes for this view. Indeed, she would go even further than Justice Alito.

I see profound implications in Jones for the future direction of the Fourth Amendment and privacy law more generally. I explain this in detail in a recent essay, United States v. Jones and the Future of Privacy Law: The Potential Far-Reaching Implications of the GPS Surveillance Case, Bloomberg BNA Privacy & Security Law Report (Jan. 30, 2012). From the essay:

The more contextual and open-ended view of privacy articulated by Justice Alito has five votes on the Court. This is a sophisticated view of privacy, one that departs from the antiquated notions the Court has often clung to. If this view works its way through Fourth Amendment law, the implications could be quite profound. So many of the Court’s rationales under the reasonable expectation of privacy test fail to comprehend how technology changes the dynamic of information gathering, making it ruthlessly efficient and making surveillance pervasive and more penetrating. We might be seeing the stirrings of a more modern Fourth Amendment jurisprudence, one that no longer seems impervious to technological development.

I continue:

Jones has implications that extend far beyond the Fourth Amendment. A considerable amount of common law, statutes, and policymaking – as well as federal constitutional law in other areas and state constitutional law – looks to Fourth Amendment jurisprudence for guidance about what constitutes privacy. Foreign law also is influenced by this jurisprudence. A new direction in the Court’s thinking when it comes to privacy will likely have effects on this law, opening the door to more progressive and nuanced conceptions of privacy.

Courts have long clung to the antiquated notions that the Court has articulated, failing to see privacy in public places, viewing information exposed to others as no longer private, and so on. I have referred to this view as the “secrecy paradigm” – the notion that a privacy violation occurs only when something completely hidden is revealed.For example, tort privacy cases involving surveillance in public have often failed because courts have concluded that there was no invasion of privacy.

Will the recognition by five justices that long-term surveillance can constitute a privacy violation even in public change other areas of law? I think it might. Will other courts and legislatures begin to recognize that aggregating small details about a person’s behavior over the course of time might upend expectations of privacy? I believe so. A majority of justices on the Supreme Court are willing to break away from the secrecy paradigm, and this fact is significant enough to spark considerable rethinking about privacy in many areas of law.

In Katz, the majority opinion was important, but the greatest impact stemmed from the Justice Harlan’s concurring opinion. The same might be true for Jones.

United States v. Jones, A Step Back for Rights

Renee Hutchins — Sun, 29 Jan 2012 15:29:04 +0000

I appreciate the chance to engage with CoOp readers on the United States v. Jones case. I wrote an Op Ed for the Baltimore Sun, so here’s what I have to say.

I really wanted to love the Supreme Court’s decision Monday in United States v. Jones. As one deeply committed to personal liberty and restrained government, what’s not to love when the nation’s highest court finds the police must obtain a warrant before continuously tracking the citizenry with installed GPS devices? Unfortunately, the answer is “plenty.”

The Supreme Court in Jones could have categorically denounced intrusive government monitoring in the mold of the Orwellian state. It didn’t. And so, while the result in Jones is being roundly celebrated in many quarters, there remain good reasons for privacy fans to hold our applause.

Acting on suspicions that Antoine Jones was selling drugs, the government attached a GPS device to his car. From that device, police computers received a steady stream of information about the car’s location for 28 days. In all, more than 2,000 pages of location data were transmitted. Some of the data linked Mr. Jones to a house where substantial quantities of drugs and money were found. Mr. Jones was consequently charged with drug trafficking offenses. The trial court held that most of the data gleaned from the GPS device was admissible.

Commendably, the Supreme Court reversed that decision and declared the GPS monitoring of Mr. Jones unconstitutional. In doing so, however, the court refused to answer the long-standing question of constitutional limits on the Orwellian state. The case was an opportunity for the court to announce that round-the-clock surveillance of citizens without a warrant offends Fourth Amendment guarantees. Instead, the court based its analysis upon the narrower observation that the police attached a device to Mr. Jones’ car. The Supreme Court’s reluctance is understandable; the broader questions are complex and not easily resolved. But, now more than ever, advances in technology make pressing the need to confront the questions head on.

The court’s refusal to tell us whether the Constitution protects us from suspicion-less government monitoring is alone cause for frustration. But perhaps as troubling is the language the court used to accomplish its elusion.

Writing for the majority, Justice Antonin Scalia revitalized what had been widely viewed as a dead (or at least dying) branch of Fourth Amendment analysis. Using as his starting point a Supreme Court case decided in 1765, Justice Scalia wrote that the Fourth Amendment has historic anchors in notions of physical intrusion. Building upon this foundation, he determined that the government trespass necessary to install the GPS device on Mr. Jones’ vehicle (rather than the government’s use of the device to monitor Mr. Jones) made law enforcement’s actions constitutionally offensive.

Why does it matter that the court reached back to early trespass notions to justify its decision? Because nearly a half-century ago, the court walked away from physical trespass as the touchstone of Fourth Amendment protection. In walking away, the court recognized that, as technology progresses, continuing to tie constitutional protection to trespass results in an unacceptably shrinking realm of privacy. The court therefore assured us that, beyond protecting against physical intrusions, the Fourth Amendment guarantees each of us a reasonably expected realm of privacy. As the court then famously stated, the Fourth Amendment “protects people, not places.”

With full knowledge of this history, the Jones decision should give us pause. It is widely believed that the test the court enunciated nearly a half-century ago better protects the privacy interest of citizens in the face of advancing technology. By reverting to the language of trespass, the court this week took a step back when it could have taken a bold step forward. Moreover, by failing to engage the admittedly “thorny” question of whether the monitoring of the GPS device alone violated Mr. Jones’ constitutional rights, the court missed a momentous opportunity to speak clearly in a brave new world.

Barry Friedman on United States v. Jones

Danielle Citron — Sun, 29 Jan 2012 12:50:08 +0000

Professor Barry Friedman’s opinion piece in the New York Times on Jones is characteristically insightful: we’ve featured his work in our Bright Ideas series and other posts. His piece adds an important layer to, and echoes, the conversation our experts have been having this past week. If you haven’t seen it, here it is:

EVERY day, those of us who live in the digital world give little bits of ourselves away. On Facebook and LinkedIn. To servers that store our e-mail, Google searches, online banking and shopping records. Does the fact that so many of us live our lives online mean we have given the government wide-open access to all that information?

The Supreme Court’s decision last week in United States v. Jones presents the disturbing possibility that the answer is yes. In Jones, the court held that long-term GPS surveillance of a suspect’s car violated the Fourth Amendment. The justices’ 9-to-0 decision to protect constitutional liberty from invasive police use of technology was celebrated across the ideological spectrum.

Perhaps too quickly. Jones, along with other recent decisions, may turn the Fourth Amendment into a ticking time bomb, set to self-destruct — and soon — in the face of rapidly emerging technology.

Dog sniffs. Heat sensors. Helicopter flyovers. Are these “searches” within the meaning of the Fourth Amendment? The court has struggled with these questions over the years.

Writing for the court in Jones, Justice Antonin Scalia looked to the 18th century for guidance. In his view, attaching the GPS was the sort of physical invasion of property the framers had in mind when they wrote the Bill of Rights.

Though Justice Samuel A. Alito Jr. agreed that GPS tracking was a search, he ridiculed Justice Scalia for focusing on “conduct that might have provided grounds in 1791 for a suit for trespass to chattels.” For Justice Alito, the risk the GPS posed was loss of privacy, not property. Instead the question was whether long-term GPS tracking violated today’s “reasonable expectations of privacy,” not those of another era. As a matter of existing doctrine, he asked the right question, but when applied to the government, the standard he used could turn our lives into the proverbial open book, and soon.

Focusing on public expectations of privacy means that our rights change when technology does. As Justice Alito blithely said: “New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile.”

But aren’t constitutional rights intended to protect our liberty even when the public accepts “increased convenience or security at the expense of privacy”? Fundamental rights remain fundamental in the face of time and new inventions.

Paradoxically, Justice Scalia’s approach will better protect privacy rights over the long term. (He didn’t deny the importance of today’s expectations; he simply stressed that at the very least, the Fourth Amendment protects rights we had when the framers drafted the Constitution.) Still, his approach is problematic. There isn’t always an available 18th-century analog for current government conduct, like GPS tracking. Justice Alito facetiously suggested that the only 18th-century analog would have been a constable hiding in the back of someone’s carriage. (When Justice Scalia agreed, Justice Alito wryly remarked that “this would have required either a gigantic coach, a very tiny constable, or both.”) And when 18th-century analogs run out, the court is left with its reasonable expectation test.

In a related case, Kyllo v. United States, even Justice Scalia held that police use of a thermal imager to detect marijuana “grow lamps” within a home was a search — but only so long as such technology was “not in general public use.” There’s that time bomb: expanding use of technology narrows rights.

Among the justices in the Jones case, only Sonia Sotomayor insisted that fundamental rights not be hostage to technological change. She called into question the court’s longstanding reliance on expectations of privacy, which she deemed “ill-suited to the digital age.” She suggested reconsidering the rule that the police can, without a warrant, get the vast amounts of information about ourselves that we give to third parties. To her, sharing our secrets — including e-mail and banking histories — with someone else does not necessarily mean the government gets access, too. It is too bad her separate opinion mustered no other votes.

Barry Friedman is a professor at the New York University School of Law and the author of “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.”

Lebron v. Rumsfeld: the Fourth Circuit Drops an Anvil on Bivens

Elizabeth A. Wilson — Sat, 28 Jan 2012 15:43:12 +0000

I’m going to interrupt my look at the ECHR’s decision in Othman, in order to offer a few observations on the Fourth Circuit decision this week in Lebron v. Rumsfeld. (There has been a little discussion on Lawfare.) This case is one of two Bivens cases that had been pending involving Jose Padilla. (The other is still before the Ninth Circuit and the parties have just been ordered to brief the effect of the Fourth Circuit decision, especially with respect to the issue of non-mutual collateral estoppel). In Lebron, the Fourth Circuit found that “special factors” preclude a Bivens remedy in cases involving “enemy combatants” in military detention, even in cases of U.S. citizens held in the United States. It’s a blunt instrument of a holding. While a number of issues were before the Court, this post looks at the Bivens part of the decision and identifies a few errors in the Court’s reasoning. The Fourth Circuit overreads Supreme Court precedents on Bivens dealing with the military and ignores Congress’s clear intention to preserve Bivens for citizens in its post-9/11 activity in the field of national security.

For those who are not national security junkies, Jose Padilla is the U.S. citizen who after training at an Al Qaeda training camp was arrested in the United States while allegedly engaged in activities related to a “dirty bomb” plot. He was then transferred to a military brig, held incommunicado, and subjected to “enhanced interrogation techniques” (aka torture). Padilla filed suits in South Carolina against Rumsfeld (and other Department of Defense officials) and against John Yoo in California for damages related to the injuries he suffered while in military detention. Estela Lebron is his mother.

“Special factors” is part of the two-prong Bivens test. Before fashioning a Bivens remedy, a court must consider whether any existing alternative process protects the interest at issue; if not, the court must engage in the kind of “remedial determination that is appropriate for a common law tribunal,” taking account of any “special factors counseling hesitation.” (Bush v. Lucas). In Lebron, the Fourth Circuit found two “special factors” especially important – first, that military affairs are delegated by the Constitution to Congress and the President as Commander in Chief; and second, that judicial scrutiny in cases involving national security pose formidable issues of administrability. Though the facts before the Court involve a designated “enemy combatant” held in special circumstances by the military, the logic of the decision potentially gives it much broader sweep.

The Fourth Circuit’s decision here leans heavily on two Supreme Court precedents involving Bivens and the military context, United States v. Stanley and Chappell v. Wallace, but radically enlarges their application. Both of those cases held that an enlisted man is precluded from bringing a Bivens suit for injuries sustained in the course of his military service. (Stanley is a particularly ugly case involving a soldier who sustained injuries after enrolling in an Army program testing the effects of chemical weapons but was secretly ministered LSD.) Both cases hold that the explicit constitutional grant of authority to Congress to “make Rules for the Government and Regulation of the land and naval Forces” and Congress’s subsequent exercise of that authority in enacting the Uniform Code of Military Justice mean that Congress has created an alternate remedial scheme in the case of military servicemen that provides the exclusive remedy to servicemen for injuries that are “incident to service.” In other words, Stanley and Chappell are best read as cases dealing with the internal regulations of the military – with soldiers who have voluntarily waived some of their rights, not with prisoners who are being involuntarily held. In Lebron, the Fourth Circuit takes the limitation of injuries “incident to service” and transforms it into something much different — injuries “incident to the conduct of armed conflict.” Given that the government has argued that the war on terror – I know we’re not supposed to use that term anymore, but whatever the new war is, it feels a lot like the war on terror to me – potentially encompasses the entire world, this would mean that no citizen could ever sue military personnel for anything done in the name of national security.

As important as its over-reading of Stanley and Chappell is the error the Fourth Circuit arguably makes in concluding that Congress has affirmatively decided not to provide a damages remedy to citizen enemy combatants for injuries suffered in detention. The Court points to the lack of express causes of action in the Military Commissions Act of 2009, the Military Commissions Act of 2006, and the Detainee Treatment Act of 2005 as evidence that “Congress was no idle bystander” to the debate about detainee treatment. That Congress did not expressly create causes of action in these statutes is taken as “ample evidence” that “congressional inaction has not been inadvertent” (citing Schweiker v. Chilicky). Since the “special factors” analysis goes to the question of which branch is better suited to create the remedy, the Fourth Circuit concluded that it should not intrude into areas constitutionally delegated to a coordinate branch.

The mistake the Court makes here is not to recognize that although these statutes did not create a damages remedy for alien enemy combatants, they were careful to preserve damages remedies available to citizens. By 2004, after the cases of John Walker Lindh and Yaser Hamdi, Congress was well aware that U.S. citizens could be designated enemy combatants. (Full disclosure: I was counsel of record on an amicus brief focused on special factors in the Ninth Circuit appeal in Padilla v. Yoo – the following sentences draw from that brief.) In 2005, in the DTA, Congress stated that “[n]othing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody…of the United States.” In the MCA, Congress limited the stripping of jurisdiction to aliens in U.S. custody. §2241(e)(2)(stripping federal courts of jurisdiction “to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”) In addition, the U.S ratified the Convention against Torture (CAT) without lodging a reservation against the obligation in Art. 14 to provide a remedy for victims of torture occurring within the United States. In a set of “Reservations, Understandings, and Declarations” accompanying its ratification, Congress expressed his understanding that the CAT required it to provide a private right of action only “for acts of torture committed in territory under [its] jurisdiction.” In its first report to Committee on Torture, the treaty body overseeing implementation of the CAT, the Department of State enumerated Bivens as one of the existing federal laws that would provide the required right of action. In ratifying the CAT, Congress surely realized that one agency of government that might potentially torture is the military.

The Court’s reading of these statutes would be correct if Padilla were an alien, but he is not. As I’ve shown, 41 Seton Hall L. Rev. 1491, the pattern of post-9/11 damages claims brought thus far is that they succeed to greater or lesser extent when brought by citizens or resident aliens and fail completely when brought by aliens abroad. Padilla’s enemy combatant label may put him in different category from other post-9/11 Bivens plaintiffs, but it seems to me clearly wrong to say that Congress has expressed its intent to foreclose a Bivens remedy in the case of citizen enemy combatants.

Landscape of the Amici Supporting Florida’s Medicaid Brief

Nicole Huberfeld — Fri, 27 Jan 2012 05:35:08 +0000

Reporting results for its monthly Health Tracking Poll published today, the Kaiser Family Foundation introduced the summary of its findings thus: “As the Supreme Court prepares to hear legal challenges to the health reform law in March, most Americans expect the Justices to base their ruling on their own ideological views rather than their interpretation of the law…. Other key findings include: The public doubts the Supreme Court renders judgments based solely on the law. Three-quarters (75%) say they think that, in general, Justices let their own ideological views influence their decisions while 17 percent say they usually decide cases based on legal analysis without regard to politics and ideology….” Notable for a term that has the potential to render a few blockbuster cases. (The public’s opinion of the Court is worthy of its own conversation, but it’s best left for another post.)

It is not just the general public that believes politics will win out; amici supporting the states seem to be appealing to ideology. In reading all of the amicus briefs supporting Petitioners’ claim that the Medicaid expansion is unconstitutionally coercive, several themes reflecting this strategy emerge, such as:

Rejection or non-acceptance of New Deal era programs and precedents (the foundation of spending programs such as Medicare and Medicaid).
Asking the Court to invent a coercion doctrine to limit the power to spend and/or seeking a return to U.S. v. Butler, the 1936 decision that articulated a Hamiltonian understanding of the power to spend as a separate enumerated power but that also declared the provision of the act at issue to be unconstitutional as infringing on states’ rights. (One brief even seeks reversal of Butler’s adoption of the Hamiltonian view in favor of the Madisonian view that the power to spend only supports the other enumerated powers.)
Eschewing precedent - paragraphs unfold with no cites (the Texas brief is a good example). Citations that do exist are often to concurrences, dissents, scholarship, or think-tank reports. Justice Kennedy’s concurrences and dissents are well represented.
Providing a limited picture of the Medicaid Act and the expansion by failing to account for prior mandatory modifications to the program as well as the statutory architecture of the program (which contains both mandatory and optional elements).
An assertion that states cannot leave Medicaid because the federal government somehow improperly taxes state citizens, therefore states cannot tax their populations enough to pay for a state-based Medicaid equivalent. (This reflects an argument articulated by Professor Lynn Baker in her spending power articles, though it is not always attributed.)
Hyperbolic analogies (such as characterizing states as drug addicts).

A couple of additional thoughts come to mind in reading the amicus briefs:

State dependence on federal funding speaks to state behavior, not federal.
Coercion is too nebulous and perverse to be a coherent constitutional doctrine. This is illuminated by the amicus briefs, which essentially assert that the more money the federal government offers, the less control it should be able to exercise over either the money or the states.
The Court has no standard by which to judge whether the federal government offers too much money to states. Too much money relative to what? If healthcare is expensive, then in a cooperative federalism arrangement the federal government must offer sufficient money to encourage a state to implement a program that will be costly. The sum of money speaks to the nature of the program, but it does not dictate whether the federal government may permissibly offer the money to the states.
The tax argument is a distraction that denies the existence and purpose of the 16th Amendment as well as long-standing reliance on redistributive tax policy.

Despite the Medicaid expansion being the surprise question before the Court for many observers, it may dictate the outcome of the case. The Court could dodge the Commerce Clause question by virtue of the Anti-Injunction Act but still limit congressional authority by adopting the anti-federal spending position of the states and their amici. An additional theme - that Medicaid is essential to the minimum coverage provision – could make it so that Medicaid is the downfall of PPACA rather than the individual mandate. Such a result would fly in the face of severability jurisprudence; but, much about this litigation is unprecedented.

The State of the Union and the Individual Mandate Litigation

Gerard Magliocca — Wed, 25 Jan 2012 02:41:03 +0000

The President proposed in his speech that the states require all students to stay in high school until they turn eighteen or they graduate. I wonder if that means he thinks that Congress lacks the constitutional authority to order that change.

Not necessarily, of course. But the position that I’ve taken in my essay is that Congress can require individuals to buy health insurance but probably cannot enact a compulsory education law. Food for thought.

Why Scalia is Right in Jones: Magic Places and One-Way Ratchets

Derek Bambauer — Tue, 24 Jan 2012 17:05:12 +0000

The Supreme Court handed down its decision in U.S. v. Jones yesterday, and the blogosphere is abuzz about the case. (See Margot Kaminski, Paul Ohm, Howard Wasserman, Tom Goldstein, and the terrifyingly prolific Orin Kerr.) The verdict was a clean sweep – 9-0 for Jones – but the case produced three opinions, including a duel between Justices Antonin Scalia and Samuel Alito. Thus far, most privacy and constitutional law thinkers favor Alito’s position. That’s incorrect: Justice Scalia’s opinion is far more privacy protective. Here’s why:

Scalia’s theory is basically Katz (reasonable expectation of privacy) plus trespass. For Scalia, the conduct in Jones – law enforcement attaching a GPS transmitter to Jones’s car, and then tracking its movements – is a search because “The Government physically occupied private property for the purpose of obtaining information.” But, that’s not quite precise enough: the key is that the government must “physically intrud[e] on a constitutionally protected area.” (emphasis mine) The tricky part, naturally, is deciding what counts as such an area. Scalia disposes of Oliver (the open fields case) by emphasizing that a field “is not one of those protected areas enumerated in the Fourth Amendment.” Katz is still around for “Situations involving merely the transmission of electronic signals without trespass.”

Scalia thus wants to create magic places: spots where any governmental intrusion, with any physicality, is a search. The home is certainly such a place (see Kyllo) – Jane Yakowitz pointed out to me that this has to explain why the Court took cert in Florida v. Jardines, when we already have Caballes and Place on the books. Determining which places are magic is hard. It’s here that Scalia’s originalism does its work: Scalia wants to apply the understanding and expectations from 1791 to sort places into protected/magic and unprotected.

Alito thinks this is rubbish: his footnote 3 openly makes fun of Scalia’s contention that we can analogize the Jones facts to a constable hiding in a coach (“this would have required either a gigantic coach, a very tiny constable, or both”). His method would instead simply apply the Katz reasonable expectation of privacy test, which he rightly points out is more consonant with the Court’s jurisprudence since its rejection of the physical trespass test set out in Olmstead. This approach looks analytically cleaner, although Alito forthrightly acknowledges the circularity inherent in the reasonable expectations test – expectations derive from the law, in addition to driving it. And, of course, there is the one-way ratchet worry: the government can reduce our reasonable expectations of privacy by abusing our privacy.

Alito, though, proceeds to mess up a previously tidy picture by inventing two new considerations for Fourth Amendment analysis: the duration of the information-gathering (such as GPS tracking), and the severity of the crime. Scalia rightly smacks Alito around for this, as he fails to ground this analysis in anything remotely resembling precedent. At best, this is judicial activism, and at worst, it’s an invitation for a wave of new cases where the government tests boundaries and magnifies the threat posed by those surveilled.

I like Scalia’s approach much better. It sets out clearly that there are some spaces that get heightened privacy protection: we don’t have to engage in the weighing involved in the reasonable expectations test, so it’s cheaper, and there won’t be instances where judges decide that in fact society is willing to permit certain observations in the home, for example. Scalia’s approach is a firewall: it offers a redoubt for privacy. And, it maintains the viability of Katz in other instances. Alito’s two additional considerations point towards the worry that makes me prefer Scalia. Imagine observation of the interior of a home – say, using tiny drones – that would clearly constitute a search under the magic places theory. If the observation is fairly short, or if the crime involved is serious (drug smuggling, terrorism, child pornography), Alito’s analysis would find that there isn’t a search, and hence no need for a warrant. Scalia’s approach always forces the cops to get a warrant. That reassures me.

There are two issues that neither Alito nor Scalia deals with, although to her credit Justice Sonia Sotomayor tackles both: pervasive surveillance, and cloud computing. Pervasive surveillance involves the government’s increasing capabilities to deploy low-cost observation technology – everything from traffic cameras to facial recognition technology – and to store, index, and analyze the resulting torrent of data. Cloud computing involves the shift from maintaining information on devices we control to storing it on devices controlled by Google or Apple or Amazon. The former presents the mosaic theory that the D.C. Circuit endorsed in its opinion in Jones. The latter invites us to re-visit the third party doctrine, whereby one loses any reasonable expectation of privacy if one turns over data to someone else (unless that someone is, say, a priest or lawyer). One failing of the two major opinions in Jones is that they fail to provide any guide for how the Court thinks about these issues – other than to hope mightily that Congress will take care of it for them.

I like Scalia’s hybrid with its magic places. What our privacy rights are when we venture outside the castle walls is a topic the court reserves for another day.

Cross-posted at Info/Law.

United States v. Jones: Privacy in Public Space? Piece it all Together and You Get 5.

Priscilla Smith — Tue, 24 Jan 2012 16:39:23 +0000

By Priscilla Smith, Nabiha Syed & Albert Wong, Information Society Project at Yale Law School

There was exciting news from the Supreme Court yesterday. By a rare 9-0 vote, in United States v. Jones, No. 10-1259, the Court held that the Government should have obtained a warrant before placing a GPS surveillance device on the defendant’s car and monitoring his movements. This result was not completely unexpected, especially considering the Justices’ interest at oral argument in the Government’s position that GPS surveillance technology could be used without a warrant to track the movements of any car — even the Justices’ own cars — for an unlimited period of time. The Government argued — unsuccessfully — that this result was compelled because citizens have no privacy interests in their public movements.

Of particular note, the three opinions in the case and the unusual line-up make for a broader ruling than is apparent at the outset. The most narrow rule comes from the Court’s opinion written by Justice Scalia and joined by Justices Roberts, Kennedy, Thomas, and — wait for it — Sotomayor, holding that that “the Government’s installation of a GPS device on a target’s vehicle,²and its use of that device to monitor the vehicle’s movements, constitutes a “search.” Slip op. at 3. Scalia notes that the Fourth Amendment protects the “right of the people to be secure in their . . . effects,” and it “is beyond dispute that a vehicle is an ‘effect’ as that term is used in the [Fourth] Amendment.” Id. at 3. Ergo, he holds the installation done with the intent to “use … th[e] device to monitor the vehicle’s movements” was a search. Id. at 3. He describes the action at issue, saying “[t]he Government physically occupied private property for the purpose of obtaining information.” He holds that since this form of physical trespass and monitoring would have been a search within the meaning of the Fourth Amendment at the time it was adopted, it is a search now. Hello, original application guy.

On first glance, it seems that Scalia might be returning to old interpretations of the Fourth Amendment that required a physical trespass to have occurred before an action could be considered a search. But what Scalia is actually doing here is defining the Court’s task, which is “at a minimum, is to decide whether the action in question would have constituted a ‘search’ within the original meaning of the Fourth Amendment,” and because it would have, it is a search now. Just because in 1967 Katz said that the Fourth Amendment protects more than physical trespass, doesn’t mean that the Fourth Amendment doesn’t protect physical trespass. See slip op. at 6-7 (noting Katz did not erode the principle that a search occurs where the Government “does engage in physical intrusion of a constitutionally protected area in order to obtain information.”) (emphasis in original). So Scalia establishes and emphasizes a threshold for determining when a search has occurred — a threshold that is not comprehensive, but sufficient to resolve the issue at hand.

And thus Scalia declines to go further and consider what would happen if, hypothetically, there was no physical trespass. He does hold open the possibility that “achieving the same result through electronic means [as they achieved here with physical trespass], without an accompanying trespass, is an unconstitutional invasion of privacy.” Id. at 11. Simple enough. Why decide the harder issue with all its accompanying “vexing problems” that would arise in a case involving electronic surveillance without an accompanying trespass? Scalia argues that there is no reason to “rush forward” to resolve them now. Slip op. at 12. Put aside for a minute that he encouraged the Court in United States v. Kyllo, a case holding that the use of heat-seeking technology required a warrant, to adopt rules that “take account of more sophisticated systems that are already in use or in development,” Kyllo, 533 U.S. at 37.

But Scalia has a problem. As he points out, in its opinion in United States v. Knotts, the Court upheld the use of beeper technology to track a target’s movements, holding there was no invasion of privacy. He distinguishes Knotts from this case because Knotts did not involve physical trespass. The beeper there was placed inside a container with consent of the then-owner of the container, and only then was the container placed in the driver’s car. Moreover, Knotts didn’t challenge the installation. Right. But the Court didn’t decide there was no search in Knotts based on an absence of a physical trespass; the Court decided the case holding there was no invasion of privacy. So shouldn’t Scalia explain to us why he holds open the possibility that “achieving the same result through electronic means [as they achieved here with physical trespass], without an accompanying trespass, [like they did in Knotts] is an unconstitutional invasion of privacy?” Id. at 11. Saying that GPS is a different technology, as he does in a footnote, is not enough. Doesn’t he owe us an explanation of why Knotts doesn’t preclude that possibility, as the Government so vehemently argued it did and the Ninth Circuit in a similar case agreed? See Pineda-Moreno v. United States.

Of course he does — or so says Justice Alito, with Justices Ginsburg, Breyer and Kagan joining. See Alito’s concurrence, slip op. at 13. In fact, not only did Alito think the Court should reach the Katz expectation of privacy test, he didn’t buy the physical trespass holding at all, and lists its many flaws. Justice Alito then evaluates the GPS surveillance here, noting that “devices like the one used in the present case … make long-term monitoring relatively easy and cheap.” “[T]he best we can do in this case,” reasons Alito, “is to apply existing Fourth Amendment doctrine” and “ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.” Alito at 13. Under this inquiry, “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy,” because “society’s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual’s car for a very long period.” Id. Now, Justice Alito recognizes the “degree of circularity” inherent in Katz’s expectation of privacy test — i.e., the problem that, if read literally, the test would permit a situation in which the government takes away your privacy so that one no longer has an“expectation” of it — and in so doing, one no longer has a constitutionally protected interest in it. Hello, 1984. Unfortunately, though, his concurrence does nothing to address, and instead relies exactly on, that circular part of it — the intrusion you would or would not have anticipated. The concurrence is also remarkably skimpy in its explication of why exactly the surveillance is “intrusive” — you know, the point that is the actual crux of the case.

The only Justice who doesn’t avoid the issues is Justice Sotomayor. Although she joins the narrow majority opinion because she buys Scalia’s argument that the physical trespass here suffices to decide the case, she writes separately to make clear that “physical intrusion is now unnecessary to many forms of surveillance,” her slip op. at 2, a statement that Scalia certainly does not deny.

Moreover, and making this a much broader ruling than it appears on first glance, unlike Scalia, Sotomayor explains the distinction between Jones and Knotts. She agrees with the Alito Four that “’longer term GPS monitoring in investigation of most offenses impinges on expectations of privacy.’” Sotomayor concurrence at 3, quoting Alito concurrence at 13. Rather than relying on whether citizens “anticipate” invasions of their privacy, her opinion reflects the concerns of the D.C. Circuit, New York Court of Appeals, and C.J. Kozinski writing in dissent from denial of rehearing en banc in a similar case in the Ninth Circuit, that the information collected by GPS monitoring generates a “comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Id. at 3. (In fact, unless we missed something, she appears to be the only one who cites to Chief Judge Kozinski’s dissenting opinion in the Pineda-Moreno case; no one seems to cite the DC Circuit opinion, scared off perhaps by some folks’ misplaced railing against its “mosaic” language). She further discusses the concerns raised in a brief filed by some of us at the ISP on behalf of a group of privacy scholars that GPS surveillance, as she says, “evades the ordinary checks that constrain abusive law enforcement practices” and is susceptible to abuse, and that awareness of government monitoring chills associational and expressive freedoms. Id. She summarizes:

I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent “a too permeating police surveillance,” United States v. Di Re, 332 U. S. 581, 595 (1948).

Finally, Sotomayor suggests a more fundamental change in the jurisprudence to “reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” and notes that the rule is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” Sotomayor at 5, questioning the notion at the heart of the rule that “secrecy [is] a prerequisite to privacy.”

The long and the short of it is that by agreeing with the Alito Four that the use of GPS surveillance technology for a prolonged period violates a reasonable expectation of privacy, Sotomayor’s concurrence means that five justices agree to veer away from the inside/outside distinction relied upon by the Government. It seems that we may have some privacy interests in our public movements after all.

Jones is a Near-Optimal Result

Paul Ohm — Tue, 24 Jan 2012 16:11:21 +0000

Thanks to Danielle for inviting me to post my thoughts. I’ll try to come up with some new, original thoughts in a later post, but to start, let me offer an abridged version of what I posted yesterday on my home blog, Freedom to Tinker.

I think the Jones court reached the correct result, and I think that the three opinions represent a near-optimal result for those who want the Court to recognize how its present Fourth Amendment jurisprudence does far too little to protect privacy and limit unwarranted government power in light of recent advances in surveillance technology. This might seem counter-intuitive. I predict that many news stories about Jones will pitch it as an epic battle between Scalia’s property-centric and Alito’s privacy-centric approaches to the Fourth Amendment and quote people expressing regret that Justice Alito didn’t instead win the day. I think this would focus on the wrong thing, underplaying how the three opinions–all of them–represent a significant advance for Constitutional privacy, for several reasons:

Justice Alito?

Maybe I’m not a savvy court watcher, but I did not see this coming. The fact that Justice Alito wrote such a strong privacy-centric opinion suggests that future Fourth Amendment litigants will see a well-defined path to five votes, especially since it seems like Justice Sotomayor will likely provide the fifth vote in the right future case.

Justice Scalia and Thomas showed restraint.

The majority opinion goes out of its way to highlight that its focus on property is not meant to foreclose privacy-based analyses in the future. It uses the words “at bottom” and “at a minimum” to hammer home the idea that it is supplementing Katz not replacing it. Maybe Justice Scalia did this to win Justice Sotomayor’s vote, but even if so, I am heartened that neither Justice Scalia nor Justice Thomas thought it necessary to write a separate concurrence arguing that Katz’s privacy focus should be replaced with a focus only on property rights.

Justice Sotomayor does not like the third-party doctrine.

It’s probably best here just to quote from the opinion:

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U.S., at 742; United States v. Miller, 425 U.S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “dimunition of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

Wow. And Amen. Set your stopwatches: the death watch for the third-party doctrine has finally begun.

The wrong case for a privacy overhaul of the Fourth Amendment.

Most importantly, I’ve had misgivings about using Jones as the vehicle for fixing what is broken with the Fourth Amendment. GPS vehicle tracking comes laden with lots of baggage–practical, jurisprudential and atmospheric–that other actively litigated areas of modern surveillance do not. GPS vehicle tracking happens on public streets, meaning it runs into dozens of Supreme Court pronouncements about assumption of risk and voluntarily disclosure. It faces two prior precedents, Karo and Knotts, that need to be distinguished or possibly overturned. It does not suffer (as far as we know) from a long history of use against innocent people, but instead seems mostly used to track fugitives and drug dealers.

For all of these reasons, even the most privacy-minded Justice is likely to recognize caveats and exceptions in crafting a new rule for GPS tracking. Imagine if Justice Sotomayor had signed Justice Alito’s opinion instead of Justice Scalia’s. We would’ve been left with a holding that allowed short-term monitoring but not long-term monitoring, without a precise delineation between the two. We would’ve been left with the possible new caveat that the rules change when the police investigate “extraordinary offenses,” also undefined. These unsatisfying, vague new rules would have had downstream negative effects on lower court opinions analyzing URL or search query monitoring, or cell phone tower monitoring, or packet sniffing.

Better that we have the big “reinventing Katz” debate in a case that isn’t so saddled with the confusions of following cars on public streets. I hope the Supreme Court next faces a surveillance technique born purely on the Internet, one in which “classic trespassory search is not involved.” If the votes hold from Jones, we might end up with what many legal scholars have urged: a retrenchment or reversal of the third-party doctrine; a Fourth Amendment jurisprudence better tailored to the rise of the Internet; and a better Constitutional balance in this country between privacy and security.

Welcoming Experts to Discuss the Supreme Court’s Decision in United States v. Jones

Danielle Citron — Tue, 24 Jan 2012 13:26:15 +0000

As my co-blogger Dan Solove noted, the Supreme Court ruled in United States v. Jones, finding the warrantless GPS surveillance of a car unconstitutional. There’s much to discuss about the majority opinion written by Scalia (with Roberts, Thomas, Kennedy, and Sotomayor), a concurrence written by Sotomayor, and a concurrence by Alito (with Ginsburg, Breyer, and Kagan). We’re lucky to have experts on board to help us sort it out: Margot E. Kaminski, Executive Director of the Yale Information Society Project and Research Scholar and Lecturer at Yale Law School whose scholarship focuses on civil liberties, privacy, and surveillance, guest blogger Paul Ohm, Associate Professor of Law at the University of Colorado School of Law and former computer programmer and network systems administrator who has authored many important pieces on privacy and surveillance, and Priscilla “Cilla” Smith, Senior Fellow at the Yale Information Society Project who has co-authored “When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches,” 121 The Yale Law Journal Online 177 (2011) (with Nabiha Syed, David Thaw and Albert Wong). In a week or so, we will also be hearing from my colleague Renée Hutchins, Associate Professor of Law at the University of Maryland Francis King Carey School of Law, whose article “Tied Up in Knotts?” GPS and the Fourth Amendment, 55 UCLA Law Review 1 (2007) appeared in many district and Court of Appeals decisions wrestling with warrantless GPS tracking on cars.

Fetal Gender and Abortion

Gerard Magliocca — Mon, 23 Jan 2012 20:25:13 +0000

Recently I put up a post asking if a state statute prohibiting doctors from disclosing the gender of a fetus to the parents would be constitutional. I received the following thoughtful reply from Margo Kaplan, a Visiting Assistant Professor at Brooklyn Law School. Here response is below the fold:

Your post on statutes prohibiting physicians from disclosing the sex of the child was interesting and timely. I recently read an article in the Canadian Medical Association Journal by Dr. Rajendra Kale advocating a similar policy for Canadian physicians. And I think the comments in response to your blog brought up some wonderful points about the potential constitutional problems this raises.

Another issue that I find fascinating that seems to receive less attention is the possibility that this may violate physicians’ ethical and legal requirements to obtain informed consent. The American Medical Association Opinion 8.08, for example, requires physicians to disclose “relevant medical information” and states that “[t]he quantity and specificity of this information should be tailored to meet the preferences and needs of individual patients.” While these ethical guidelines are not law, several states use professional standards of conduct to determine if a physician has violated a patient’s legal right of informed consent.

This raises the really interesting question of whether and in what context sex of a fetus is relevant medical information. In his article, Dr. Kale dismisses sex as “not medically relevant” when sex-linked genetic diseases are not a concern. For most women obtaining an abortion, the sex of the fetus is not relevant and, in fact, might be something they would prefer not to know.

But, as morally abhorrent as many find it, the sex of the fetus is clearly relevant to many women choosing whether to undergo a medical procedure. For example, consider a woman who is obtaining an abortion based on her belief that the fetus is female. The physician who will perform the abortion, however, determines the fetus is male during a preliminary ultrasound. Is he ethically required to inform his patient of this information before the procedure? The question becomes particularly thorny where patients cannot obtain the information elsewhere.

Sex of the fetus is clearly relevant to many women making treatment decisions; but is it relevant medical information? Informed consent does not require physicians to disclose non-medical information that would be relevant to the patient’s decisionmaking, such as whether a patient’s spouse is planning to leave him should the surgery result in scarring. But sex of the fetus does not fall neatly into the category of “non-medical” information. On the one hand, barring genetic illnesses, sex of the fetus is not information that will influence the health of the mother or fetus. On the other hand, it is information about her pregnancy and its outcome that the physician obtains solely through treatment of the patient and to which he alone has access.

The answer to this question has implications in other contexts. For example, if sex is not medically relevant, is paternity? A particularly sympathetic hypothetical is that of a married woman who was raped by a man not her husband, and who only wants to continue the pregnancy if the child is her husband’s. Is it ethical for a physician to refuse to disclose her paternity test results until the choice of an abortion is foreclosed to her?

This also raises questions in the context of intersex children; if a physician is aware that a fetus is intersex, is he obligated to disclose that information to the mother? The answer reflects the current debate over whether the medical profession should view as a “disorder” sex that does not fit into the binary classification of male or female.

These questions reflect a deeper problem in the proposed policies. Our interpretations of “relevant medical information” in the context of these hypotheticals are often simply code for “appropriate reasons for terminating a pregnancy.” Even if the state can regulate these disclosures—or physicians can collectively agree to adopt a non-disclosure policy—without running afoul of informed consent principles, do we want them to?