4th Amendment Thread

[de officiis]

From Orin Kerr at the Volokh Conspiracy:

Courts grapple with the mosaic theory of the Fourth Amendment

This post updates readers on the current status of the mosaic theory of the Fourth Amendment. As regular readers know, that’s the novel approach to the Fourth Amendment introduced by the DC Circuit in United States v. Maynard — and then suggested by the concurring opinions in United States v. Jones — by which an aggregation of non-searches and subsequent analysis of the collected data at some point becomes a Fourth Amendment search.

There has been a lot of litigation on the mosaic theory recently. I wanted to flag three recent developments: an oral argument before the Eleventh Circuit, a decision by the Foreign Intelligence Surveillance Court, and a novel procedural step by Magistrate Judge Facciola.

1) On Friday, the Eleventh Circuit heard oral argument in a case that directly raises the mosaic theory for historical cell-site data, United States v. Quartavious Davis. ACLU attorney Nathan Wessler presented argument, presumably drawing from the joint civil liberties group amicus brief. The groups filed a very similar brief before the Fourth Circuit in the Graham case. Davis came before Graham only because Graham is on hold pre-argument pending the Supreme Court’s decisions in Wurie and Riley.

As an aside, it’s interesting to me that the civil liberties group amicus brief opts not to use the phrase “mosaic theory” to describe its position. That’s an understandable litigation strategy for the pro-mosaic side. If you’re trying to get judges to adopt a fundamentally new approach to an important part of the Constitution, it’s probably better to downplay the newness of the approach — and its many difficult implications — by not labeling it as something new.

I don’t know much at this point about how the panel reacted to the mosaic arguments in Davis. Eleventh Circuit oral arguments aren’t available online. Plus, the AP story doesn’t give much in the way of clues. The story reports that Judge Sentelle of the DC Circuit was on the panel sitting by designation. Judge Sentelle asked the government a critical question: “Why isn’t that at least as much an invasion of privacy as a GPS driving down the highway?” That might mean something, but it’s hard to know what to make of one question by one judge. Plus, we know that Judge Sentelle was highly skeptical of the mosaic approach of Maynard before the Jones decision. In dissenting from denial of rehearing en banc, Judge Sentelle described the mosaic theory as “novel aggregation approach” inconsistent with Supreme Court precedent. He also rejected the basic thinking behind the mosaic theory with a blunt response: “The sum of an infinite number of zero-value parts is also zero.” Perhaps the concurring opinions of Jones persuaded Judge Sentelle to look at the matter differently. But if not, I would think he is a hard vote for the defense in Davis. Anyway, If I learn more about the argument, I’ll add an update.

2) As my co-blogger Stewart Baker noted earlier, Judge Collyer authored a recently-declassified opinion for the Foreign Intelligence Surveillance Court disagreeing with Judge Leon’s view for the DC District Court that the telephony metadata program violates the Fourth Amendment. Notably, Judge Collyer’s opinion directly rejects the mosaic theory around pages 24-30.

3) I’ve written several posts about Magistrate Judge Facciola’s string of warrant application denials raising novel theories of the Fourth Amendment. In light of those posts, I should point out that Judge Facciola has recently suggested that he may adopt — or, in his case, re-adopt, after being previously reversed for adopting — the mosaic theory of the Fourth Amendment for historical cell-site records. Here’s some context. Soon after Maynard was decided by the DC Circuit, Judge Facciola denied an application for historical cell-site records on the ground that the mosaic theory required a warrant for such records. DOJ appealed, and then-Chief Judge Lamberth reversed Magistrate Judge Facciola. According to then-Chief Judge Lamberth, the mosaic theory does not extend to access to historical cell-site records.

In his most recent order, Judge Facciola is looking into the issue again based on a routine DOJ application for historical cell site data. This time, Judge Facciola is reinvestigating the prior bases for a possible warrant requirement through a novel procedural step: He is planning to hold a mini-trial to conduct fact-finding that could effectively challenge at least some parts of the reasoning from Judge Lamberth’s opinion that reversed Magistrate Judge Facciola last time. In his new opinion, Judge Facciola asks EFF to represent the interests of the unknown subject of the records. He then describes his plan to to find facts — and have a trial if necessary — about several questions that he feels he must have answered to establish how the surveillance statutes and Fourth Amendment will apply in light of the state of caselaw. That caselaw includes what Judge Facciola revealingly describes as “the shadow majority opinion in United States v. Jones, 132 S.Ct. 945 (2012)”. (Pro-mosaic advocates sometimes call the two concurring opinions in Jones, viewed collectively, as a “shadow majority” opinion.)

As I see it, Judge Facciola is trying to overcome the fact that there is no factual record — and therefore no constitutionally ripe dispute — by having a trial on what the facts might turn out to be in some typical case. If I am reading the opinion correctly, Magistrate Judge Facciola then plans to apply the Fourth Amendment and statutes to the expected facts, presumably on the assumption that the application before him raises that typical set of facts. Here are sample factual questions that Judge Facciola plans to answer, as listed in his latest order:

How frequently is CSLI generated and how closely can it track a person’s location? Is it only generated when a phone call is made? If the government asks for only a narrow subset of CSLI, what does the provider actually give the government? What do the terms of service say about tracking a person’s location? Does any location information appear on a person’s bill? . . . .

• How precise is CSLI in an urban setting like Washington, D.C.?
• If the phone is in range of multiple towers when it makes a call, does it generate CSLI with each tower in range or only the tower that has the strongest signal?
• Is CSLI generated when the data functions are used? E.g., e-mail, Twitter, Facebook, web surfing, etc.
What kind of CSLI records are stored by the provider?
• For what length of time is CSLI stored?
• Does the provider have the capability to sort CSLI for any given phone number so that it provides CSLI that is made only for incoming/outgoing phone calls?
• When a phone “updates” with the network—independently of specific use by the user—is CSLI generated?
• How often does the average phone “update” with the network and connect to a cell tower?
• Is the collection of CSLI at all affected by the network that is used? E.g., LTE, WIMAX, 3G, 2G
• Are all phones certified for E-911 Phase II regulations per 47 C.F.R. § 20.18(h)(1)(I), (ii)?
• When a request for CSLI is received, what exactly is given to the government?

I don’t personally don’t think that judges can establish a ripe dispute by appointing an amicus and holding a mini-trial to establish future “facts” based on a hypothetical typical case. On the other hand, I suppose it’s better than Magistrate Judge Stephen Smith’s decision in very similar circumstances to just announce “facts” on his own based on his own independent research. (Incidentally, for a fascinating look at how Magistrate Judge Smith and Magistrate Judge Facciola consult each other and other judges on these questions, see this Washington Post story from last week.)

Anyway, we’ll see what happens. This should certainly be interesting to watch. Some have wondered why Magistrate Judge Facciola would try this approach after being reversed on the issue last time. I don’t know, but here are at least three possibilities. First, appeals from magistrate judges in the DC District Court go to the Chief Judge, and the DC District Court has a new Chief Judge as of July 2013. The appeals now go to Chief Judge Richard Roberts, not former Chief Judge Royce Lamberth, and it’s possible that Chief Judge Roberts will look at the issues differently. Second, at least some of Lamberth’s reasoning was about how invasive historical cell-site monitoring can be, and I gather that Judge Facciola’s focus on that question is designed to establish a factual record to help on appeal assuming that DOJ appeals Judge Facciola’s decision. Third, in ex parte litigation, the case ends when the government first wins. The only way to get an ex parte case to the DC Circuit that invented the mosaic theory in Maynard is to present it in a way that persuades the district court and then prompts another DOJ appeal to the circuit court.

For Fourth Amendment nerds, we certainly live in interesting times.

[de officiis]

In Re APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING DISCLOSURE OF HISTORICAL CELL SITE INFORMATION FOR TELEPHONE NUMBER, Misc. No. 2014-0286 (JMF) (4/11/14)

[de officiis]

Stops and Frisks, Race, and the Constitution

Paul J. Larkin, Jr.

82 Geo. Wash. L. Rev. 1 (2013)

For more than a decade, the New York City Police Department (“NYPD”) has pursued an aggressive strategy to reduce street crime. Among the steps that the NYPD has taken is to stop and frisk anyone suspected of having committed, committing, or being about to commit a crime, such as the illegal possession of a firearm. New York City Mayor Michael Bloomberg and NYPD Police Commissioner Ray Kelly have touted the NYPD’s stop-and-frisk practice as being responsible for the reduction in crime, particularly homicides, that New York City has witnessed over the past decade. The practice is controversial, however, because the vast majority of individuals stopped are African American or Hispanic. This controversy eventually made its way into court. Nineteen parties who had been stopped by the NYPD brought suit against the City in Floyd v. City of New York. After a trial, the federal district court ruled that the NYPD’s stop-and-frisk practice violated the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment. The court, however, applied the wrong legal analysis to the plaintiffs’ Fourth Amendment claims. The court relied on a statistical analysis of the NYPD’s stop-and-frisk practice as a whole, but the Fourth Amendment requires each stop or frisk to be examined individually. By contrast, the district court may have been correct in its equal protection ruling. The court was troubled by evidence in the record that the NYPD cared only about the number of stops, not their legality, as well as evidence of bigotry. That evidence may be sufficient to support the court’s ruling.

Full Article: http://www.gwlr.org/wp-content/uploads/ ... _Final.pdf

[de officiis]

RESPONSE: Targeted Killing and Judicial Review

Stephen I. Vladeck

82 Geo. Wash. L. Rev. 11 (2014)

In Drones: The Power to Kill, former Attorney General Alberto Gonzales argues for increased oversight and accountability for targeted killing operations undertaken by the U.S. Government against its own citizens. Modeled on the procedures adopted by the government for the detention of terrorism suspects after, and in light of, the Supreme Court’s decision in Hamdi v. Rumsfeld, these mechanisms would include at least some form of limited ex ante judicial review. This Response offers a detailed series of critiques of the means by which Judge Gonzales proposes to achieve increased oversight and accountability. More fundamentally, though, it argues that the buried lede of Judge Gonzales’s article is the view that U.S. courts are not categorically incompetent to review the legality of uses of military force. Thus, Judge Gonzales has penned a defense of judicial review of targeted killings that is far more robust than it might appear at first blush, because it both underscores why the target’s citizenship is irrelevant to the underlying judicial competency question and clarifies that debates over the scope and timing of such judicial review should take place on policy—rather than constitutional—terms. To that end, the Response closes by offering an alternative proposal to maximize vigorous and efficient judicial oversight of targeted killing operations.

Full Article: http://www.gwlr.org/wp-content/uploads/ ... k_SME2.pdf

[de officiis]

On the Bulk Collection of Tangible Things

David Kris*

* Former Assistant Attorney General for National Security, U.S. Department of Justice

7 J. Nat'l Security L. & Pol'y 209 (2014)

Beginning in June 2013, in response to a series of unauthorized disclosures of classified information, the government confirmed and revealed information about its use of FISA's tangible-things provision, 50 U.S.C. § 1861, to acquire telephony metadata in bulk. This paper discusses that use. Disclosure of the bulk metadata collection also contributed to a broader policy debate concerning the transparency and scope of intelligence activities, particularly signals intelligence, and the role of the FISA Court, among other issues. This paper also discusses those issues.

Full Article: http://www.lawfareblog.com/wp-content/u ... o.-4-2.pdf

Benjamin Wittes' LawFare Blog comment on Kris article: http://www.lawfareblog.com/2013/09/davi ... er-series/

[de officiis]

The NSA and Accountability in an Era of Big Data

Remarks of Rajesh De, General Counsel, National Security Agency

Georgetown Law School, February 27, 2013

(as prepared for delivery)

Thank you for the introduction and the opportunity to speak today at this distinguished event. I’d also like to extend my appreciation to the Georgetown Center on National Security and the Law, as well as to the Journal of National Security Law & Policy for hosting this conference. I understand this is the first year the Journal has been co-sponsored by Georgetown Law School and the Syracuse University Institute for National Security and Counterterrorism, after many years at the McGeorge School of Law. It is a special pleasure to be hosted by a publication that was founded by a former General Counsel for the National Security Agency, Elizabeth Rindskopf Parker. I’d also like to specifically thank Professor Carrie Cordero for graciously extending this opportunity to me and for coordinating this conference.

You have chosen a theme for today’s conference that could not be more timely, significant, or challenging: “Swimming in the Ocean of Big Data: National Security Information in an Age of Unlimited Information.” Looking at the agenda, it is also clear that you have a number of participants who are far more knowledgeable than I to help untangle the imperatives and complexities attendant to big data. I have admired the work of many of your panelists, and I have had the distinct pleasure of knowing several of them personally, like Dan Weitzner, with whom I worked at the White House; Alex Joel, the current Civil Liberties Protection Officer for the Office of the Director of National Intelligence (ODNI); and Beth Cook, whom NSA recently welcomed in her capacity as a member of the Privacy and Civil Liberties Oversight Board. Considering that both the ODNI as well as the Privacy and Civil Liberties Oversight Board were recommendations of the 9/11 Commission, for which I served as Counsel, and were established by the Intelligence Reform and Terrorism Prevention Act, which I helped draft as a Hill staffer, it is especially rewarding to see those institutions represented by such talented individuals.

So what do I have to add to this conversation, as the relatively new General Counsel for an agency whose general approach is to stay mum whenever possible, so much so that historically its initials jokingly have been said to refer to “No Such Agency” or “Never Say Anything”? I have been General Counsel of NSA for about ten months, and I am not expert on big data like those whom you have assembled today. Moreover, much of what I have learned since joining NSA is classified, so I must take caution in how I attempt to contribute to any such discussion. Nevertheless, I believe strongly that it is important for agencies like NSA to try to be a part of the public discourse to the greatest extent possible, as ultimately its public legitimacy is strengthened by such attempts. I believe what NSA does is important for the nation; it is my role to ensure that its activities reflect its commitment to the rule of law; and I would like to help bridge a gap that has already become readily apparent in only ten months on the job: the gap between public discourse about NSA and the reality of the legal rules, oversight, and accountability that I see at work every day.

There are three pervasive false myths about NSA that I believe are belied by this reality, which I would like to address:

False Myth #1: NSA is a vacuum that indiscriminately sweeps up and stores global communications.

False Myth #2: NSA is spying on Americans at home and abroad with questionable or no legal basis.

False Myth #3: NSA operates in the shadows free from external scrutiny or any true accountability.

Full Article: http://www.lawfareblog.com/2013/03/nsa- ... eorgetown/

[de officiis]

How Private Is Your Front Yard? Court Considers Warrantless Police Filming

Dustin Segovia

Imagine you live in this home in this remote area (scroll to pages 18-21). Imagine further that you enjoy target shooting. You walk out your front door and into your front yard, which is surrounded by a chain link fence and next to a dirt road. Once in the yard you set up a target and begin to shoot. Because of the remoteness of your location, you believe that nobody is watching. Unbeknownst to you, a month ago, the police installed a video camera on a pole adjacent to your property. The camera is aimed at the front of your house and yard, can pan and zoom, and has recorded everything that has happened in the front of your home over the last month. Should the police have been required to obtain a warrant prior to installing the camera?

Full Article: http://www.pennstatelawreview.org/the-f ... e-filming/

[de officiis]

School Surveillance and the Fourth Amendment

Jason P. Nance

2014 Wis. L. Rev. 79 (2014)

In the aftermath of several highly publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their schools than other students, even after taking into account factors such as neighborhood crime, school crime, and school disorder. These empirical findings are problematic on two related fronts. First, research suggests that students subjected to these intense surveillance conditions are deprived of quality educational experiences that other students enjoy. Second, the use of these measures perpetuates social inequalities and exacerbates the school-to-prison pipeline. Under the current legal doctrine, students have almost no legal recourse to address conditions creating prison-like environments in schools. This Article offers a reformulated legal framework under the Fourth Amendment that is rooted in the foundational Supreme Court cases evaluating students’ rights under the First, Fourth, and Fourteenth Amendments. The historical justification courts invoke to abridge students’ constitutional rights in schools, including their Fourth Amendment rights, is to promote the educational interests of the students. This justification no longer holds true when a school creates a prison-like environment that deteriorates the learning environment and harms students’ educational interests. This Article maintains that in these circumstances, students’ Fourth Amendment rights should not be abridged but strengthened.

Full Article: http://wisconsinlawreview.org/wp-conten ... -Final.pdf

[de officiis]

Protecting Privacy in the Digital Age

Will Thomas DeVries

8 Berkeley Tech. L.J. 283 (Feb. 2014)

"You have zero privacy anyway .... Get over it.''

With this proclamation, Scott McNealy, founder of Sun Microsystems, anchored the radical edge of the privacy debate for the digital world. 2 He viewed it as a foregone conclusion that, in the information age, any "secret" thing committed to digital form was subject to instant and inevitable distribution. But while digital technology has drastically changed the privacy landscape, reports of the death of privacy have been greatly exaggerated.

Nevertheless, Mr. McNealy's statement speaks some truth in that the conceptions of "privacy" carried over from the analog world have not aged gracefully. For example, the Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures .. .." 3 These words conceive personal privacy in physical terms, but in the digital world, many of one's most private things, such as medical records, may be stored in a database far from one's "person" or "house." How can one tell if a search of such a database is unreasonable?

Mr. McNealy also intuited correctly that the existing legal framework for privacy is failing. As digital technology renders obsolete the theories on which the laws are based, the legal protections themselves become at best incomplete and at worst perverse. Privacy law has traditionally developed in tandem with technology-reshaping itself to meet the privacy threats embodied in new technology. 4 The information revolution, however, is occurring so fast and affects so many areas of privacy law that the old, adaptive process is failing to address digital privacy problems.

Fortunately for those who value privacy, most people cannot "get over it" so easily. Even if attempts at theoretical and substantive adaptation in this new era are so far preliminary and halting, progress is underway. In the last few years, we have seen an explosion of new laws (both state and federal), development of new business practices, new diligence on the part of regulatory agencies, new international mandates, and more sensitive judicial decisions on privacy.

This Note attempts to survey the state of privacy in the midst of the digital age. Part I summarizes the current status and theoretical roots of the two most distinct "branches" of privacy law-autonomy (both physical and decisional) and informational privacy. This Part will also outline the technology and developments of the digital age. Part II will survey the impact of digital technology on these two areas of privacy law. Part III will examine the ways in which the old, analog conception of privacy breaks down in these areas. This Part discusses why the distinction between privacy-as-autonomy and privacy-as-information-control is inadequate in the face of new technology.

Full Article: http://scholarship.law.berkeley.edu/cgi ... ntext=btlj

[de officiis]

The Due Process Exclusionary Rule

Richard Re

127 Harv. L. Rev. 1885 (May 2014)

Abstract:

As the Supreme Court continues to cut back on and perhaps eliminate Fourth Amendment suppression, the exclusionary rule has entered a new period of crisis. The rule’s greatest vulnerability today stems from the consensus that it can be justified only based on policy arguments from deterrence or atextual values like judicial integrity. Instead of pursuing those prevailing theories, the exclusionary rule’s defenders should draw on arguments centered on constitutional text and historical change. Under that approach, the exclusionary rule would spring not from the Fourth Amendment itself, but rather from the historically evolving interrelationship between the Fourth Amendment and the Due Process Clauses. By the mid-twentieth century, changes in law and practice had recast the Fourth Amendment as a source of pre-trial “process” analogous to in-trial procedural guarantees such as the Confrontation Clause. And when a criminal conviction is predicated on a violation of the Constitution’s criminal procedure requirements, including the Fourth Amendment, the conviction works an ongoing deprivation of liberty without due process. This approach has a number of advantages and implications. It provides a constitutional foundation for the harmless error doctrine, explains why the same exclusionary principles apply to different constitutional rights, clarifies the contested bounds of many exclusionary exceptions, and supplies a manageable framework for analyzing the remedial implications of newly emerging Fourth Amendment rules for digital surveillance technologies.

Full Article: http://papers.ssrn.com/sol3/Papers.cfm? ... id=2401979