The Volokh Conspiracy

I was puzzled by the sudden spike in coverage earlier this week, both here and elsewhere, on how to spin various possible outcomes of the Affordable Care Act litigation (and how the other side was trying to spin them). It may just be a coincidence, of course, but a story from National Journal made me wonder if it might explain the spike:

Rumors were flying around the Capitol this week that the Supreme Court would decide the health care cases on Thursday. They were wrong.

Hill staffers, Health and Human Services Department employees, and think-tankers were all abuzz on Wednesday with speculation that the Supreme Court of the United States might issue its opinion on the Affordable Care Act case on Thursday, a month sooner than most court-watchers predict. . . .

[Although the rumors were incorrect,] it was tough for people who cared about the case to ignore the rumors entirely, despite their implausibility. And the Court’s press office, which does not comment on cases, was unable to deny it. Many government staffers and reporters were on edge. A survey at Scotusblog’s live blog announcing Thursday’s decisions showed that more than a third of people watching were there only because they thought the health care case would land.

There has been lots of interesting stuff at Popehat recently — especially Ken’s posts about online speech and harassment. Well worth reading.

The case is United States v. Metter, — F.Supp.2d —, 2012 WL 1744251 (E.D.N.Y. May 17, 2012), by District Judge Dora Irizarry. The government obtained three different warrants to search and seize computers in a massive securities fraud action. One warant was to seize computers from a business; another warrant was to seize computers from a home; and a third was to obtain the contents of an e-maul account from an ISP. The government executed the warrants, and seized 61 computers from the business, 4 computers from the home, and the contents of the e-mails from the ISP. The first two warrants also authorized the retrieval of some paper documents that were found. The government promptly made copies of the electronic files from the 65 seized computers, and then returned the original computers to their respective owners. There were privileged materials on some of the computers, and the government did not complete the forensic process of searching all the copies of the computers pursuant to a “taint team” by 15 months after the search occurred. Exactly what the government did do during the 15-month window is pretty uncertain from the opinion. Searching computers can take a lot of time, and the opinion confusingly says both that the government didn’t “review” the files and that the government claims that that it did. The defense moved to suppress whatever evidence might be found on the computers based on the government’s failure to conduct the forensic process in the 15 month window. Held: All of the electronic evidence from all three warrants is suppressed in its entirety. The analysis:

The Court recognizes that under current law there is no established upper limit as to when the government must review seized electronic data to determine whether the evidence seized falls within the scope of a warrant. See, e.g., Mutschelknaus, 564 F.Supp.2d at 1076 (“Neither Fed.R.Crim.P. 41 nor the Fourth Amendment provides for a specific time limit in which a computer may undergo a government forensic examination after it has been seized pursuant to a search warrant.”). However, the Fourth Amendment requires the government to complete its review, i.e., execute the warrant, within a “reasonable” period of time. Numerous cases hold that a delay of several months between the seizure of electronic evidence and the completion of the government’s review of that evidence as to whether it falls within the scope of the warrant is reasonable. See id. at 1076–77 (finding a two-month delay reasonable); see also Burns, 2008 WL 4542990, at *8–9 (finding a ten-month delay for completion of the government’s review reasonable).

The parties have not provided the Court with any authority, nor has the Court found any, indicating that the government may seize and image electronic data and then retain that data with no plans whatsoever to begin review of that data to determine whether any irrelevant, personal information was improperly seized. The government’s blatant disregard for its responsibility in this case is unacceptable and unreasonable. See United States v. Debbi, 244 F.Supp.2d 235, 237–38 (S.D.N.Y.2003) (finding a Fourth Amendment violation in the search, seizure, and retention of seven boxes of documents from the defendant’s home, which included “personal and religious files, general correspondence, [and] family financial records,” when “no meaningful attempt” was made to separate and retain only the items the warrant permitted to be seized). The government contends that Debbi is inapposite because, in that case, the government retained original paper documents, whereas, in this case, the government returned the original electronic documents and equipment and retained only the imaged electronic documents. The Court disagrees. It is a distinction without a difference. The government’s retention of all imaged electronic documents, including personal emails, without any review whatsoever to determine not only their relevance to this case, but also to determine whether any recognized legal privileges attached to them, is unreasonable and disturbing.

. . .
The Court has not reached this conclusion lightly. However, the Court cannot, in the interest of justice and fairness, permit the government to ignore its obligations. Otherwise, the Fourth Amendment would lose all force and meaning in the digital era and citizens will have no recourse as to the unlawful seizure of information that falls outside the scope of a search warrant and its subsequent dissemination. Accordingly, Metter’s motion to suppress is granted. This conclusion is limited to the electronic evidence seized and imaged pursuant to the Metter Home Search Warrant, Office Search Warrant, and Email Search Warrant and does not include the paper documents and currency seized pursuant to those warrants.

It sounds like Judge Irizarry was really annoyed by the Government’s conduct. At the same time, I have trouble understanding exactly what Fourth Amendment principle Judge Irizarry thinks was violated here. She seems to be assuming that the Fourth Amendment ensures a right to the privacy of information seized pursuant to a search warrant if the information seized is not within the scope of the warrant. The idea seems to be that the government needs to complete its review of seized information quickly so the data outside the scope of the warrant can be taken outside the government’s reach — kind of a duty to separate the digital wheat from the digital chaff in a reasonable period of time, even if the government has warrants and the owners have their computers back. The assumption seems to be that evidence outside the scope of the warrant will be destroyed or made unavailable to the government after that search is completed, so the government needs to complete the forensic process quickly to enable that to happen. We saw some of this thinking in Judge Kozinski’s Compehrensive Drug Testing opinion, although it’s not generally found in existing Fourth Amendment caselaw. (It’s not clear if Judge Kozinski was trying to apply the Fourth Amendment, some other legal rule, or was just announcing new rules as some sort of advisory opinion.) Anyway, it will be interesting to see how this goes: This seems like the kind of case that would merit an interlocutory appeal, and I’m not sure the Second Circuit would look at this the same way.

Hat tip: Cybercrime Review.

The Harvard Law Review has just posted the final version of my response to Professor Slobogin’s critique of my recent article, An Equilibrium-Adjustment Theory of the Fourth Amendment. Here’s a short excerpt from my response, Defending Equilibrium-Adjustment:

Equilibrium-adjustment is not originalism. It is a theory of maintaining the status quo balance of power, not an effort to restore eighteenth-century rules. That understanding explains why living constitutionalists and pragmatists alike have embraced equilibrium-adjustment, and why the chief attack on it has been launched on originalist grounds. It is true, as Slobogin says, that the theory “harks back to some earlier time.” But that does not make it originalist. The relevant “earlier time” is a time before a triggering technological development, but it need not be the year the Fourth Amendment was ratified.

To be sure, it is possible for originalists to adopt the method of equilibrium-adjustment. But nonoriginalists can adopt it, too. In my view, its widespread appeal is what makes equilibrium-adjustment a valuable tool for understanding Fourth Amendment law: Justices from very different interpretive schools use it. It operates equally well within all of the different theories of interpretation. Different Justices might tailor the method based on their interpretive commitments. But they all can engage in equilibrium-adjustment, and almost all do. The Supreme Court’s recent decision in United States v. Jones provides a revealing illustration of how equilibrium-adjustment can occur in both originalist and nonoriginalist forms.
. . . .

The Supreme Court handed down Jones just a few weeks after my Article appeared, and the case divided the Court into two main camps. One adopted an originalist methodology; the other explicitly rejected originalism. But both approaches relied heavily on equilibrium-adjustment.
. . . .
The majority opinion by Justice Scalia engaged in equilibrium-adjustment using an originalist framework. When the Government argued that Jones had no reasonable expectation of privacy in the public location of the car, Justice Scalia responded that the Fourth Amendment should be read to protect rights beyond the reasonable expectation of privacy test. Quoting from his opinion in Kyllo v. United States,28 Justice Scalia reasoned that the Fourth Amendment must be interpreted to “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” To assure preservation of that privacy, Justice Scalia interpreted the Fourth Amendment as protecting against common law trespasses. The installation of the GPS device with intent to use it to obtain information was a common law trespass, and therefore a Fourth Amendment search.

Justice Alito filed an opinion concurring in the judgment, joined by Justices Ginsburg, Breyer, and Kagan. Justice Alito criticized the majority’s originalist approach as inconsistent with precedent and unworkable. Instead, Justice Alito engaged in equilibrium-adjustment using the Katz “reasonable expectation of privacy” framework. He explained that “[i]n the pre-computer age,” surveillance that could reveal information as extensive as GPS monitoring was impractical in most cases. It would require “a large team of agents, multiple vehicles, and perhaps aerial assistance.” Changing technology had expanded government power by making such monitoring “relatively easy and cheap.” Accordingly, Justice Alito interpreted the Fourth Amendment to limit the government’s new powers. Although Justice Alito’s opinion is not a model of clarity, he seems to have interpreted the reasonable expectation of privacy test to lock in prior understandings of how invasive police investigations might be. Long-term use of GPS monitoring constituted a Fourth Amendment search because it exceeded pre-GPS societal expectations that such invasive monitoring was unlikely or even impossible.

Justice Sotomayor joined the majority opinion and filed a concurrence agreeing with and going beyond Justice Alito’s rationale. Like the opinions filed by Justices Scalia and Alito, Justice Sotomayor’s opinion engaged in equilibrium-adjustment. GPS monitoring “may alter the relationship between citizen and government,” Justice Sotomayor reasoned, and the Fourth Amendment had to be interpreted to limit use of “a tool so amenable to misuse.” Justice Sotomayor also expressed a need to revisit the third-party doctrine, the rule that information disclosed to third parties does not receive Fourth Amendment protection. That doctrine is “ill suited to the digital age,” Justice Sotomayor reasoned, given that now “people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

The three opinions in Jones proceed from different premises. One is originalist; two are not. But all three opinions rest on the principle of equilibrium-adjustment.

Kyle Graham takes a look into this critical question. My own name can be turned into “Ink Error,” which certainly was true of my first article or two. Entertain yourself here.

Judge Katherine B. Forrest of the Southern District of New York, a freshly-appointed Obama nominee, issued a surprising ruling on Wednesday preliminarily enjoining Congress’s recent law providing the President with the authority to detain individuals indefinitely as part of the war on terror. I find Judge Forrest’s analysis quite puzzling, so I thought I would blog a bit about the opinion.

The law is Section 1021 of the National Defense Authorization Act for Fiscal Year 2012. Entitled “Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force,” the Section states:

(a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons. A covered person under this section is any person as follows
. . .
(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under the Law of War. The disposition of a person under the law of war as described un subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].

Some readers may recall that President Obama issued a signing statement when he signed the bill that added a cautious note about this provision. It stated in relevant part:

Section 1021 affirms the executive branch’s authority to detain persons covered by the [AUMF]. This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then . . . . Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens . . . . My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the law.

In this case, Hedges v. Obama, Congress’s statement about the Executive Branch’s power has been challenged as facially unconstitutional by a group of plaintiffs, consisting primarily of a member of the Icelandic Parliament; a London-based pro-Wikieaks activist; and two U.S. based journalists who write about the war on terror. The plaintiffs claim that Congress’s effort to provide the executive branch indefinite detention power makes them fear that they are “subject to prosecution under Section 1021,” and that the law infringes upon their First and Fifth Amendment rights. In defending the law, DOJ has taken the view that the law merely restates the Executive Brach’s power under the AUMF. Although DOJ declined to say whether the detention power could cover any of the individual plaintiffs, DOJ also claimed that the plaintiffs lacked standing.

In her opinion, Judge Forrest finds that the plaintiffs have standing to challenge the law because they might be “prosecuted” under the law, particularly because DOJ refused to answer whether the law covered any of the individual plaintiffs. She then preliminarily enjoins the law because it likely violates the First and Fifth Amendments. The key to the First Amendment analysis seems to be this passage:

Here, each of the four plaintiffs who testified at the evidentiary hearing put forward evidence that their expressive and associational conduct has been and will continue to be chilled by § 1021. The Government was unable or unwilling to represent that such conduct was not encompassed within § 1021. Plaintiffs have therefore put forward uncontroverted proof of infringement on their First Amendment rights.

Applying strict scrutiny to the question of whether there is a compelling government interest that outweighs infringement upon First Amendment rights, the Court finds that plaintiffs have shown a likelihood of success that there is not. Again, that is particularly so in light of the Government’s position that §1021 does no more than the AUMF; therefore, the infringing potential for § 1021 may well be unintentional, but it is real nonetheless. There is no doubt that the type of speech in which Hedges, O’Brien, Wargalla, and Jonsdottir engage is political in nature. It is also likely that some of their views may be extreme and unpopular as measured against views of an average individual. That, however, is precisely what the First Amendment protects.
. . .

This Court is left then, with the following conundrum: plaintiffs have put forward evidence that § 1021 has in fact chilled their expressive and associational activities; the Government will not represent that such activities are not covered by § 1021; plaintiffs’ activities are constitutionally protected. Given that record and the protections afforded by the First Amendment, this Court finds that plaintiffs have shown a likelihood of succeeding on the merits of a facial challenge to § 1021.

Judge Forrest next concludes that the law also is likely void for vagueness under the Fifth Amendment because it doesn’t indicate clearly what conduct Congress is subjecting to criminal penalties. First, she concludes that Congress’s effort to give the President detention power is effectively a criminal law:

[T]his Court preliminarily finds that § 1021, which could be used for the indeterminate military detention, is sufficiently akin to a criminal statute to be treated as such. At the hearing on this motion, the Government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under § 1021. Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years. In relevant part, then, that is the analytical equivalent of a penal statute.

Treating Congress’s statement about the President’s detention power as akin to a criminal statute, Judge Forrest concludes that the statute is not sufficiently clear as to what is made a crime under void-for-vagueness principles. Judge Forrest again focuses on the fact that DOJ refused to take a position on whether the law applied to the individual plaintiffs: “Finally, and most importantly of course, the Government was unable to state that plaintiffs’ conduct fell outside § 1021. In the face of what could be indeterminate military detention, due process requires more.”

Whatever the merits of Section 1021 as a matter of policy, I find Judge Forrest’s opinion quite puzzling as a matter of constitutional law. First, Section 1021 does not seem to prohibit conduct or impose punishment. It appears to be a statement of Executive branch detention authority, not a law that criminalizes certain activity. As a result, I’m not sure it makes sense to treat Section 1021 as if it were a prohibition of conduct, and then to strike down the law facially on the basis of constitutional doctrines, like the First Amendment and the void-for-vagueness doctrine, that limit the government’s power to prohibit conduct. You could have an as-applied challenge to detention under the First Amendment, but I don’t see how a law expressing Congress’s view of the Executive Branch’s detention power can be subject to this sort of facial challenge. Also, I don’t understand why Judge Forrest sees DOJ’s refusal to say whether the law authorizes the detention of any of the individual plaintiffs likely renders the law facially unconstitutional. I can see why it helps grant standing under Clapper, but why does it indicate the unconstitutionality of the statute on the merits? Further, Judge Forrest’s view that Section 1021 is akin to a criminal statute because it might be used to justify military detention strikes me as odd: The authority that Section 1021 tries to reaffirm is not detention relating to criminal authorities, so I don’t know why the statement of authority is “the analytical equivalent” of a crime. Finally, I’m not sure how a member of the Icelandic Parliament who lives in Iceland has standing to bring a facial challenge to a federal law. What U.S. constitutional rights does an Icelandic member of parliament have that this law might violate? I realize that the Second Circuit’s view of standing is now super-broad under the recent Clapper case, which DOJ recently asked the Supreme Court to review, but I’m not sure I follow how Article III standing is that broad.

My reaction may partially reflect my familiarity with the many statutes that Congress has passed authorizing federal agents to make criminal arrests — that is, detentions for criminal activity. For example, 18 U.S.C. 3052 authorizes FBI agents to “make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.” This is a statute that tries to define executive power, not to punish conduct. It would be pretty strange if a group of plaintiffs could file a civil lawsuit, express fear that they might be arrested by the FBI, and thereby obtain an injunction against warrantless arrest under 3052 if DOJ refuses to say if the plaintiffs might be arrested — all on the ground that 3052 authorizes detention and is therefore like a criminal statute, while it isn’t sufficiently clear as to what conduct it “prohibits.” Such a suit would seem quite strange because 3052 doesn’t “prohibit” anything; it merely provides for a detention power to help enforce conduct prohibited elsewhere. I’m not sure why Section 1021 should be treated differently.

Anyway, Judge Forrest’s decision has more symbolic importance than actual importance: It’s not clear what it even means to enjoin a law that expresses Congress’s view about executive power. And this is just a preliminary injunction ruling, not a final ruling on the merits. But I thought the opinion is pretty interesting nonetheless, and I look forward to comments from readers who think there is more to the decision than I am currently seeing. (I should add that Glenn Greenwald — a harsh critic of the detention law on policy grounds — has a post celebrating the decision that runs through some of its reasoning. Glenn doesn’t express a view as to whether the decision is persuasive as a matter of law, but he does call the ruling “amazing” and indicates that he saw the case as an “uphill battle” for the plaintiffs and that he did not expect the plaintiffs to succeed. For Glenn’s views, see here.)

UPDATE: For more good questions about the decision, check out the LawFare Blog: In particular, Steve Vladeck’s post, Why Hedges v. Obama is Terribly Perplexing, and Bobby Chesney’s post, Issues with Hedges v. Obama, and a Call for Suggestions for Statutory Language Defining Associated Forces.

The Chronicle of Higher Education has an interesting article on responses to a forthcoming book I recently blogged about, Brian Tamanaha’s Failing Law Schools. The Chronicle article is behind a paywall, so to read it you need to click here and then click on the link.

The article includes this defense of the status quo from law prof Michael Olivas:

Michael A. Olivas, a professor of law at the University of Houston and a past president of the Association of American Law Schools, says relaxing accreditation standards to allow more-diverse education models, which Mr. Tamanaha calls for, could lead law schools in the direction of for-profit institutions like the University of Phoenix, which critics contend shortchange students.

As Mr. Olivas puts it, the result could be “the Phoenix-ation of law schools, churning students through, having a contingent and transient faculty, and none of the institutional investment in the broad roles of legal education.”

If so, what is wrong with that? Some law schools may follow that approach, but others won’t. And students ultimately will be the ones to decide which balance of approaches is best, as their decisions where to enroll will determine which schools remain viable. I don’t see why we wouldn’t want students to have that choice. “Institutional investment in the broad roles of legal education” is expensive. If students can get a good legal education without it, I don’t know why they shouldn’t be able to choose to do that.

Thanks to Brian Leiter for the link; Brian has his own thoughts here.

That is, with respect to his support for same-sex marriage, telling ABC’s Robin Roberts:

Over the course of several years as I have talked to friends and family and neighbors when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together, when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that Don’t Ask Don’t Tell is gone, because they are not able to commit themselves in a marriage, at a certain point I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married.

Having recently married — albeit in the legally boring kind of wedding that raises no constitutional issues — I suspect that Obama sees this as an excellent way to jumpstart the economy.

The news is here, announcing that Ward Farnsworth is the new Dean. Congrats to Ward. Although if guestblogging at the VC leads to Deanships, we may start to have a hard time attracting guest bloggers in the future.

Last week I had the pleasure of reading a pre-publication draft of Brian Tamanaha’s new book, Failing Law Schools, which has not yet been released but can be pre-ordered now. I found the book engrossing and its argument powerful. I read it in 2 days after receiving a copy, and I think it should be required reading for all legal academics.

Brian’s basic argument is that law schools have been on an unsustainable path fueled by the ready availability of student loans, the cartel power of the ABA, and the influence of the U.S. News rankings, all of which have led schools to adopt policies that help law professors more than they serve students. In most states, you can’t be a lawyer unless you graduated from an ABA-accredited school. Law professors have run the ABA accreditation process, however, and have done so in ways that ensure that all ABA-accredited schools treat professors extremely well and that law schools are quite nice places to work. This has led to a surprisingly uniform educational system in which nearly every school adopts a high tuition model that gives professors low teaching loads, nice salaries, and lots of time for research. Some professors work extremely hard and produce important scholarship, which is the goal. But many other professors just coast and take advantage of their good fortune after making it past the (typically low) tenure hurdle. And Deans generally can’t treat the hard workers and productive scholars better than the dead wood because Deans generally require faculty support to stay in office: A Dean who favors the productive scholars and top teachers too much may not stay in office long. So salaries for all professors are high and course loads are low, whether the professors work 80 hours a week or 20.

While this is a great situation for law professors who want a cushy life, it doesn’t serve students. The high cost model of legal education means that students are mostly denied ways of obtaining low-cost legal educations, which has led to spiraling costs for legal education that make law school best suited for the wealthy, those on scholarship, and those able to compete successfully for corporate or public-interest jobs. Some applicants don’t realize this, in part because loans are so easy to obtain and schools are in no hurry to point out the economics of legal education. And even while law school is so expensive, the obsessive focus by law school applicants and alumni on the U.S. News ranking has led schools to change their programs and their admission standards to whatever helps their U.S. News ranking, even if it hurts the quality of their educational programs. Maximizing U.S. News rankings has led schools to restructure their admissions standards, limit part-time programs, raise the number of transfers, and raise tuitions to make room for scholarships that can be used to maximize the numbers of the entering class. A Dean who doesn’t do this won’t stay a Dean long; the U.S. News rankings are so widely considered authoritative that a Dean whose school falls in the ranking is considered a failure. So even at the high dollar figure of most law schools, the focus is on making changes that maximize rankings, not delivering the most effective education for students. The model is unsustainable, Brian argues, and we have begun to see that already with the recent drop in law school applications that may soon threaten the viability of a number of law schools.

Importantly, Brian does not argue that every school needs to change. His basic argument is that there are lots of different kinds of law schools, and they should be allowed to follow different models. There is no one way to create a lawyer, contrary to the assumption of the ABA accreditation process. The “top” schools can and should continue basically as-is. Their students want a 3-year academic degree in a scholarly atmosphere, and their graduates generally can get the jobs needed to pay off loans quickly. So there is no need to change there. But less elite institutions should be free to adopt lower cost models. They should be free to rely more on adjuncts, or have professors with higher teaching loads or who don’t focus on research. They should be free to offer two-year degrees instead of three-year degrees. A diversity of offerings will better serve students who have different needs and different abilities to pay for legal education. One-size-fits-all just can’t work.

I found Tamanaha’s analysis compelling, and his basic deregulatory solution pretty convincing. (I wasn’t fully convinced by all of the details in the various proposals he makes, but that’s a quibble in the overall scheme of things.) Whether people agree or disagree with the book, it should — and I think will — receive a wide audience among legal academics. Tamanaha’s book is both thoughtful and damning, made all the more persuasive because Tamanaha is an experienced and respected academic who builds his argument carefully step by step with an insider’s understanding. It’s definitely worth a careful read — and for defenders of the status quo, a thoughtful response.

Strange but true. Paul Campos has the scoop, which begins:

The Thomas M. Cooley Law School served me with a subpoena yesterday afternoon, commanding me to produce certain documents purportedly relevant to [a defamation lawsuit Cooley has filed against certain critics of the law school]. The documents in question include all my communications with the defendants, and “all documents and communications . . . that you had or exchanged with any person regarding how (i) Thomas M. Cooley Law School reports its post graduation employment rates or (ii) your communications with David Anziska regarding any inquiry or investigation he discussed with you about how law schools report post-graduate employment and salary data.”

The sad news is here; some stories are reporting his age as 47 and others as 48. I would have never guessed that the Beastie Boys would put out so much good stuff over the years back in 1986 when Licensed to Ill came out. But they did. In my view, the group’s high point was clearly Paul’s Boutique, which remains one of my favorite and most-played CDs. But their later work was good, too: Although I never really got into their most recent release, Hot Sauce Committee Part 2, I thought To the 5 Boroughs was excellent.

Over at Prawfs, Sam Bagenstos flags a new investigation by the DOJ Civil Rights Division:

Yesterday, the Division announced the opening of a novel joint investigation of the University of Montana (under Title IV of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972), and the City of Missoula Police Department and the Office of the Missoula County Attorney (under the police misconduct provision of the 1994 Violent Crime Control and Law Enforcement Act and the antidiscrimination provision of the 1968 Safe Streets Act). The investigation will assess whether the University and the local authorities violated the Constitution or civil rights laws by failing to protect women against sexual assaults. In announcing the investigation, AAG Perez said that “[i]n the past three years, there have been at least 80 reported rapes in Missoula. At least 11 sexual assaults involving University students are alleged to have occurred in the past 18 months.” This investigation seeks to vindicate the constitutional guarantee of equal protection of the laws in its core, original sense — the guarantee that state and local law enforcement will protect all citizens equally against private depradations.

. . . [W]hat breaks new ground is not the investigation of the University — that’s standard fare for Title IX investigations — but the broader investigation of the local Missoula police and prosecutor’s office. This is the first Division law enforcement investigation of which I am aware in which the discriminatory failure to protect a class of victims of crime has been the main focus, and in which the Division has targeted prosecutors as well as police. This is, as I said, an effort to vindicate the equal protection of the laws in its core, original sense. Discriminatory failure to investigate and prosecute crimes has been a major problem for victims of sexual assault and violence against women (something the Supreme Court acknowledged, then disregarded, in United States v. Morrison). And, as Randy Kennedy’s work highlights, it has been a major problem for racial minorities who are victims of crime as well.

And DOJ is basically the only entity that can challenge these sorts of systemic patterns of discrimination in court. Discrimination is likely to be impossible to prove in any individual case. . . [I]n Missoula, any individual victim is likely to be unable to show that the police or proseuctors responded less vigorously to her crime because of her gender rather than because of the individual facts. . . .

So DOJ is likely the only entity that can bring these sorts of claims into court. I still wouldn’t underplay the difficulties of proof here. But the Civil Rights Division’s efforts to attack the problems of . . . failure to protect crime victims are incredibly important.

I favor aggressive investigation and prosecution of sexual assault crimes. With that said, I’m a bit puzzled by the legal theory animating DOJ’s investigation. If equal protection requires similar treatment of similar things, what is the standard for measuring whether sexual assault crimes are being treated equally? Do we compare prosecutions for sexual assaults in cases with female victims with prosecutions for sexual assaults in cases with male victims? Or do we compare prosecutions for sexual assaults as a whole with prosecutions for other crimes that are generally deemed equally serious? And if the latter, does that mean that the federal constitution’s Equal Protection clause mandates a particular approach to allocation of state and local law enforcement resources in sexual assault cases? This isn’t at all my area, so I’m not sure what to make of this. But at least at first blush, I’m not sure I see a proper role for federal intervention here.

I think the most interesting commentary so far on the Elizabeth-Warren-Native-American kerfuffle has been Brian Leiter’s. After Brian’s usual potshot at this blog, he makes a rather intriguing argument for why Warren probably didn’t rely on her apparent Native American heritage in getting hired. In legal academia, he writes,

there is no pressure to hire Native Americans for affirmative action reasons, except, perhaps, at some law schools in states with large Native American presences (I have this only anecdotally about Arizona and New Mexico). For affirmative action purposes, all law schools care about are African-Americans and Latinos, and even in those two categories, law school commitment to affirmative action usually varies by region of the country.

Brian discounts the listing of Warren as a minority professor in the AALS book as indicating more about the AALS’s priorities than Warren’s:

[B]ecause the AALS aggressively polices the racial and ethnic diversity of law faculties, law schools are careful to make sure anyone who could count as an under-represented minority is so-listed (thus, I can recall a faculty member who was the proverbial “Jewish kid from New York” but with some South American ancestry being listed as “Hispanic,” though no one would have ever so identified him).

I don’t have an independent basis on which to assess either claim. Brian is very savvy about legal academia in general, however, so I’m inclined to credit his view. I should add that I share Brian’s skepticism that Warren relied on her ancestry to help get a job at Harvard. My sense is that Warren was indeed among the top bankruptcy scholars at the time Harvard was looking to hire her — and that she very likely was the top female bankruptcy scholar, a distinction that likely carries some significance to at least some faculty members. As Brian notes:

[Warren's] record of scholarship in bankruptcy is clearly sufficient to get her appointed at Harvard. She is, after all, one of the three most-cited scholars in the bankruptcy/commercial law field, and she is the only woman in the top ten. (I could imagine being the top woman in the field might have played more of a role than her being Native American . . .

The March 2012 issue of the William and Mary Bill of Rights Journal has an unusual article by Thomas Krattenmaker, Looking Back on Cohen v. California: A 40-Year Retrospective From Inside the Court. Krattenmaker writes:

During the 1970 Term of the Supreme Court, I had the good luck and great privilege to serve as one of Justice Harlan’s law clerks. One of my tasks that year was to draft, at his direction, an opinion for the court in Cohen. With two alterations, Justice Harlan filed the opinion as drafted.[fn8]

[fn8] Harlan added the first paragraph of the opinion, quoted in full in, supra note 1 and accompanying text, and discussed infra, at note 78. He also added the phrase “within established limits” to a sentence that read in the draft: “These are, however, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve.” Cohen, 403 U.S. at 25. I continue to believe that the first paragraph is the best part of the opinion. On the other hand, I did not, and still do not, understand why the phrase “within established limits” improves the opinion. Given Harlan’s natural tendency to avoid sweeping statements that might be susceptible to an absolutist reading, I think the best interpretation is that the addition of this phrase was simply “Harlan being Harlan” (or correcting a clerk’s oversight, if one prefers!).

One other thing about the opinion will puzzle me forever. When the Justice told me that I was to write an opinion finding Cohen’s conviction could not stand under the First Amendment, he told me to make the opinion “Elizabethan.” I had no idea what he meant and still do not. Harlan was quite an Anglophile, so his direction did not startle me. But, unless I got that part right by accident, how an opinion in this case in 1971 from the Supreme Court of the United States might be “Elizabethan” eluded me. Shakespeare frequently employed bawdy language and allusions, but I knew Harlan did not want an opinion peppered with obscenities. I took him to mean something like, “Tend to err on the side of using florid and fancy phrases, and avoid vulgar or common words when writing about this vulgar thing.” Many people have asked me where the phrase, in Part II of the opinion, that “it is . . . often true that one man’s vulgarity is another’s lyric,” id., originated. I suspect that was me trying to be Elizabethan!

Regarding the breach of law clerk confidentiality required to write the article, Krattenmaker writes:

I have no doubt that I was under a strict cloak of confidentiality when I had these conversations [with Justice Harlan] and that my obligation to keep quiet about them stayed with me after I finished my clerkship. I also believe, however, that this “law clerk privilege” does not survive forty years later, when all the participants are dead, and most of the participating Justices have left their working papers pertaining to this case in public libraries. At some point, it seems to me, the values of unobstructed historical inquiry outweigh the privacy or secrecy interests of deceased Justices.

Thanks to Adam Liptak for the link.

In 2011, the U.S. Supreme Court handed down Kentucky v. King, a Fourth Amendment case on police-created exigent circumstances. In King, the police were chasing after a drug dealer in an apartment building when they came across a door to an apartment that had the smell of burning marijuana emanating from inside. The officers banged on the door and announced their presence, and the officers then heard sounds inside. Fearing that the sounds were the sounds of destruction of evidence of crime, the police entered the apartment based on exigent circumstances and found Mr. King smoking weed. In its initial opinion, the Supreme Court of Kentucky had suppressed the weed on the ground that the noise from inside the apartment was a “police created exigency” — a response to the officers banging on the door — and therefore could not be considered relevant facts in the exigent circumstances analysis. The U.S. Supreme Court reversed and remanded, holding because the police had not violated the Fourth Amendment nor threatened to violate the Fourth Amendment, the banging on the door did not cause a “police created exigency” and the noise inside the apartment could be factored into the exigent circumstances analysis. As I wrote last May, the holding in King was widely misreported at the time. Specifically, a lot of analysts read the decision as holding that the entry was constitutional because exigent circumstances existed. In that post, I explained the misunderstanding as follows:

King did not consider whether the facts of the King case amounted to exigent circumstances. The Court did not consider whether the warrantless entry was constitutional. Instead, the limited cert grant addressed only a small piece of the puzzle: The Court only considered the right test for police-created exigent circumstances — the part to be subtracted from the totality of the circumstances — and then remanded the case back to the Kenucky courts. . . . [T]he Court’s conclusion was that all the facts could be considered — the usual “exigent circumstances rule” applies — without subtracting out the evidence of noises inside the home. . . .

Importantly, though, the Court did not hold that the warrantless entry was justified — much less that warrantless entries are generally justified — in such circumstances. The Court only held that the usual exigent circumstances rule applies: That is, whether or not there were exigent circumstances, the Kentucky courts should have considered the totality of the circumstances instead of subtracting out the reaction inside the house to the officers’ knocking and announcing their presence.

In light of that narrow holding — and the frequent misunderstandings of it — I thought it worth pointing out that the Supreme Court of Kentucky handed down its decision on remand last week in King v. Commonwealth . The court held that the entry was unconstitutional and not based on sufficient exigent circumstances:

[W]e conclude that the Commonwealth failed to meet its burden of demonstrating exigent circumstances justifying a warrantless entry. During the suppression hearing, Officer Cobb repeatedly referred to the “possible” destruction of evidence. He stated that he heard people moving inside the apartment, and that this was “the same kind of movements we’ve heard inside” when other suspects have destroyed evidence. Cobb never articulated the specific sounds he heard which led him to believe that evidence was about to be destroyed.

In fact, the sounds as described at the suppression hearing were indistinguishable from ordinary household sounds, and were consistent with the natural and reasonable result of a knock on the door. Nothing in the record suggests that the sounds officers heard were anything more than the occupants preparing to answer the door.

The police officers’ subjective belief that evidence was being (or about to be) destroyed is not supported by the record, and this Court cannot conclude that the belief was objectively reasonable. “[N]o exigency is created simply because there is probable cause to believe that a serious crime has been committed[.]” Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (citing Payton, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639). Exigent circumstances do not deal with mere possibilities, and the Commonwealth must show something more than a possibility that evidence is being destroyed to defeat the presumption of an unreasonable search and seizure.

Consistent with the instructions on remand from the United States Supreme Court, this Court concludes that exigent circumstances did not exist when police made a warrantless entry of the apartment occupied by Appellant King. Therefore, the denial of King’s motion to suppress evidence is reversed, and King’s judgment of conviction stands vacated.

The vote was 5-2. The dissenting Justices filed only the following statement:

CUNNINGHAM, J., dissents simply because he believes the officers involved were acting under exigent circumstances. SCOTT, J., joins.

“

ESPN has the story of the accusation:

The U.S. Attorney’s Office in the Eastern District of Louisiana was told Friday that New Orleans Saints general manager Mickey Loomis had an electronic device in his Superdome suite that had been secretly re-wired to enable him to eavesdrop on visiting coaching staffs for nearly three NFL seasons, “Outside the Lines” has learned.

Sources familiar with Saints game-day operations told “Outside the Lines” that Loomis, who faces an eight-game suspension from the NFL for his role in the recent bounty scandal, had the ability to secretly listen for most of the 2002 season, his first as general manager of the Saints, and all of the 2003 and 2004 seasons. The sources spoke with “Outside the Lines” under the condition of anonymity because of fear of reprisals from members of the Saints organization. . . .

Sources told “Outside the Lines” the listening device was first installed in the general manager’s suite in 2000, when Loomis’ predecessor, Randy Mueller, served as Saints GM. At that time, according to sources, Mueller had the ability to use the device to monitor only the game-day communications of the Saints’ coaching staff, not the opposing coaches. Mueller, now a senior executive with the San Diego Chargers (he also was an ESPN.com NFL analyst from 2002 to ’05), declined to comment when contacted by “Outside the Lines.”

After the transition from Mueller to Loomis, the electronic device was re-wired to listen only to opposing coaches and could no longer be used to listen to any game-day communications between members of the Saints’ coaching staff, one source said.

“There was a switch, and the switch accessed offense and defense,” said the source. “When Randy was there, it was the Saints offense or defense, and when Mickey was there it changed over so it was the visiting offense or defense,” the source said.

The sources said when Loomis took his seat during home games, then in the front row of box No. 4 in the 300 level of the Superdome’s north side, he was able to plug an earpiece into a jack that was under the desk in front of him. The earpiece was not unlike those used to listen to inexpensive transistor radios, the sources said. With the earpiece in place, Loomis could then toggle back and forth with a switch that he controlled, enabling him to listen to the game-day communications of either the opposing offensive or defensive coaches.

Also underneath the desk in front of Loomis, said the sources, was a metal box that contained two belt packs similar to those worn around the waists of NFL head coaches during games. The packs powered the listening device available to Loomis, which was, according to sources, hard-wired to the audio feed of the opposing coaches.

If the report is true, it’s a pretty clear violation of the federal Wiretap Act, also known as the Electronic Communications Privacy Act (ECPA). The ESPN story has a pretty good run-down of the legal issues. To expand on that coverage a bit, use of the bugging device would constitute an interception of an oral communication under 18 U.S.C. 2510(2), which violates 18 U.S.C. 2511 and would allow both civil and criminal remedies. One difficulty with criminal remedies is the 5-year statute of limitations under federal law. Civil remedies would be easier because the statute of limitations expressly runs from two years “after the date upon which the claimant first has a reasonable opportunity to discover the violation.” See, e.g., Andes v. Knox, 905 F.2d 188, 189 (8th Cir. 1990) (holding that the two-year statute of limitations period under 18 U.S.C. § 2520 begins to run when a party first discovers wiretapping). State law provides its own remedies, too, in addition to those of federal law.

Over at Bench Memos, Matthew Franck has an interesting post on “the strange turn George F. Will has taken toward endorsing judicial activism — and the way in which his constitutional views today constitute an unacknowledged contradiction of arguments he has made many times before.” I’ve noticed something similar in Will’s recent columns. I suppose the most cynical explanation is that arguments in favor of judicial restraint seem sound when your side is in the minority, while arguments in favor judicial activism come to seem rather enlightened when your side happens to have five votes. Or is there a less cynical explanation?

UPDATE: In the comment thread, my co-blogger Ilya Somin suggests that Will’s “commitment to originalism” may explain the difference: Perhaps “he has been influenced by the last 25 years of scholarship showing that many restraints on government power have strong roots in the original meaning of the Constitution.” This explanation strikes me as problematic because Will’s arguments in his recent columns do not appear to be originalist.

A few days ago, David Bernstein mentioned David Schraub’s post explaining his disagreement with my view questioning the propriety of Judge Brown’s concurring opinion calling for a return to Lochner in Hettinga v. United States. At the time, I wrote:

I’m not convinced of the propriety of placing these views in the Federal Reporter instead of a law review or published speech. Questions of judicial propriety are matters of taste, of course. But given that these views have no obvious relevance to the job of a lower court judge, and yet resonate with certain current political movements, a decision by judges to publish such comments in a judicial opinion (even in a non-binding concurrence) runs a risk of being perceived as blending political and judicial roles. In my view, it’s better to keep the roles more separate by reserving criticisms of settled Supreme Court doctrine to contexts like speeches and articles that are clearly outside the judicial capacity. But then I realize I am more squeamish about such matters than others.

That post led to several interesting responses, including this one from Lyle Denniston. But I wanted to reply to the response by David Schraub , in which he wrote:

I strongly disagree — while obviously I disagree with the content of Judge Brown’s opinion, I see nothing at all improper with Judges Brown and Sentelle registering their opinion about what the law should be in their opinion about what the law is (Kerr does say he recognizes the differing views on this topic). I actually swing sharply the other way — I’d like a stronger norm of judges doing things like this, so long as they divorce it from their legal judgment of the case.

Opinions of the form “the law is constitutional, but moronic” (or vice versa, for that matter) serve at least two important functions. First, they serve a dialogic function that can help make better law. Courts see how laws play out on the ground, this experience gives them insight on how (and whether) the law works and whether it is worth preserving. Why should the judiciary not provide the public with this perspective, parallel to (not replacing) their primary obligation to interpret the law in front of them?

But more importantly, these opinions help sap judicial decisions of unwarranted and unintended “moral endorsements” by the judiciary. When a law is upheld by a court, this usually is followed by a press release by its supporters bragging about how “this demonstrates we were right all along and this law is the bestest thing ever and totally just and fair.” Of course, courts often mean to imply none of these things — the decision might be based on anything from a jurisdictional block to a contested turn of a statute. The blurriness by which courts are seen as moral as well as judicial arbiters means that, absent language to the contrary, a favorable ruling on the law is considered to be a favorable ruling on the underlying ethical merits of the dispute.

As with most questions of propriety, context matters. In the abstract, I think Schraub’s arguments can have merit in some cases. But focusing on the Hettinga case speficially, the arguments don’t seem to apply. For the handful of readers who care, I wanted to say a bit about why.

Let’s start with Schraub’s first argument, that concurring opinions can provide valuable feedback about how the law is working in the trenches. That can be true, when lower court judges really do attempt to provide feedback about how law is working in the field. (Judge Sutton’s concurring opinion in Lyons v. Xenia, 417 F. 3d 565 (6th 2005) comes to mind as a good example.) But I’m not sure how that general role justifies Judge Brown’s opinion. Judge Brown’s opinion did not purport to express how the demise of Lochner in the 1930s is now “playing out on the ground.” She does not claim to base her opinion on her experience as a judge, or what she is seeing in the lower courts. She does not purport to have any special insight on the problem — just a strongly-held opinion that the Court of the 1930s got it wrong. I guess I don’t see how that provides helpful feedback to the Justices.

The same is true with Schraub’s second point that concurring opinions “help sap judicial decisions of unwarranted and unintended moral endorsements by the judiciary.” While that may have merit in some cases, it does not seem to apply to the opinion in Hettinga. Judge Brown’s opinion does not say that the Milk Regulatory Equity Act of 2005 is moronic but constitutional. Rather, it says that that the law is moronic, and the Supreme Court is moronic for its opinions that require lower courts to uphold it. That is not the kind of opinion that will “sap judicial decisions of unwarranted and unintended moral endorsements by the judiciary.” To the contrary, it is a call to change the law so that constitutionality more closely reflects sound policy — a world in which judicial decisions actually wouldconstitute a kind of endorsement. If the commendable goal of a concurring opinion is to stop people from wrongly thinking that constitutional decisions reflect policy judgments about the merits of statutes, then the concurring opinion in Hettinga strikes me as a step backward rather than forward.

Anyway, I realize that I have a different take on these issues than many others. I tend to be more process-oriented than most, and I think it’s important to keep politics and law as separate as possible. Others don’t have these priorities, and will look at this diffferently.

My friend and former colleague Jessica Herrera-Flanigan was on C-SPAN’s Washington Journal program this morning discussing pending cybersecurity legislation:

Justice Kagan’s opinion this morning in Caraco v. Novo Nordisk has an interesting passage about how context changes meaning. The relevant statute says that a party can bring a counterclaim if “the patent does not claim . . . an approved method of using the drug.” The question before the Court was whether that means that the counterclaim can be brought only if the patent claims no method of using the drug, or only if in doesn’t claim that particular method of using the drug. Justice Kagan writes:

Truth be told, the answer to the general question “What does ‘not an’ mean?” is “It depends”: The meaning of the phrase turns on its context. See Johnson v. United States, 559 U. S. ___, ___ (2010) (slip op., at 5) (“Ultimately, context determines meaning”). “Not an” sometimes means “not any,” in the way Novo claims. If your spouse tells you he is late because he “did not take a cab,” you will infer that he took no cab at all (but took the bus instead). If your child admits that she “did not read a book all summer,” you will surmise that she did not read any book (but went to the movies a lot). And if a sports-fan friend bemoans that “the New York Mets do not have a chance of winning the World Series,” you will gather that the team has no chance whatsoever (because they have no hitting). But now stop a moment. Suppose your spouse tells you that he got lost because he “did not make a turn.” You would understand that he failed to make a particular turn, not that he drove from the outset in a straight line. Suppose your child explains her mediocre grade on a college exam by saying that she “did not read an assigned text.” You would infer that she failed to read a specific book, not that she read nothing at all on the syllabus. And suppose a lawyer friend laments that in her last trial, she “did not prove an element of the offense.” You would grasp that she is speaking not of all the elements, but of a particular one. The examples could go on and on, but the point is simple enough: When it comes to the meaning of “not an,” context matters.

An interesting passage for its professorial style, use of gendered pronouns, and dicta on the Mets. Oh, and for what it’s worth, Justice Kagan reportedly is a Mets fan.

In a concurring opinion today in Hettinga v. United States, Judge Janice Rogers Brown (joined by Judge Sentelle) contends that the Supreme Court should overturn its rational basis caselaw in the economic area and return to a Lochner-era regime of judicial scrutiny for economic regulations. A taste:

America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.

First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Nebbia v. New York, 291 U.S. 502, 516 (1934). Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. United States v. Carolene Products Co., 304 U.S. 144, 152–53 (1938). Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.” Vance v. Bradley, 440 U.S. 93, 97 (1979). “The Constitution,” the Court said, “presumes that, absent some reason to infer antipathy, even mprovident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Id.

As the dissent predicted in Nebbia, the judiciary’s refusal to consider the wisdom of legislative acts—at least to inquire whether its purpose and the means proposed are “within legislative power”—would lead to only one result: “[R]ights guaranteed by the Constitution [would] exist only so long as supposed public interest does not require their extinction.” 291 U.S. at 523. In short order that baleful prophecy received the court’s imprimatur. In Carolene Products (yet another case involving protectionist legislation), the court ratified minimalist review of economic regulations, holding that a rational basis for economic legislation would be presumed and more searching inquiry would be reserved for intrusions on political rights. 304 U.S. at 153 n.4. . . .

The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions. See Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 260 (2004).

The hope of correction at the ballot box is purely illusory. See generally Ilya Somin, Political Ignorance and the Counter-Majoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 Iowa L. Rev. 1287 (2004). In an earlier century, H. L. Mencken offered a blunt assessment of that option: “[G]overnment is a broker in pillage, and every election is a sort of advance auction sale of stolen goods.” On Politics: A Carnival of Buncombe 331 (1996). And, as the Hettingas can attest, it’s no good hoping the process will heal itself. Civil society, “once it grows addicted to redistribution, changes its character and comes to require the state to ‘feed its habit.’” Anthony De Jasay, The State 226 (1998). The difficulty of assessing net benefits and burdens makes the idea of public choice oxymoronic. See id. at 248. Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more.

It is unsurprising that Judge Brown holds these views: She expressed some similar points in a 2000 speech before the Federalist Society chapter at the University of Chicago. And I’m always pleased when my co-bloggers are cited in judicial opinions. At the same time, I’m not convinced of the propriety of placing these views in the Federal Reporter instead of a law review or published speech. Questions of judicial propriety are matters of taste, of course. But given that these views have no obvious relevance to the job of a lower court judge, and yet resonate with certain current political movements, a decision by judges to publish such comments in a judicial opinion (even in a non-binding concurrence) runs a risk of being perceived as blending political and judicial roles. In my view, it’s better to keep the roles more separate by reserving criticisms of settled Supreme Court doctrine to contexts like speeches and articles that are clearly outside the judicial capacity. But then I realize I am more squeamish about such matters than others.

Incidentally, I’m reminded of a somewhat analogous example of liberal judges using a concurring opinion to express rather fiery disagreement with a conservative Supreme Court ruling: The concurring opinion of Judges Boyce Martin and Gilbert Merritt in United States v. Almany, which I criticized here. It’s not exactly analogous, and obviously the issue had less ideological valence. But I think it’s an interesting example to consider.

Thanks to How Appealing for the link.

In my forthcoming article, The Mosaic Theory of the Fourth Amendment, I discuss why the mosaic theory of the Fourth Amendment raises puzzling questions about standing:

Fourth Amendment rights are personal, and individuals can only invoke a remedy if their own rights were violated. The Fourth Amendment standing inquiry arises as an application of the reasonable expectation of privacy test; each person must established that his or her own reasonable expectation of privacy was violated to have standing to challenge the government’s act. But who has standing to challenge a mosaic search? The question is difficult because mosaic searches occur over time, and the overall mosaic therefore may monitor different people at different times in different degrees. To appreciate this, imagine that Alan has a GPS device installed in his car, and Bob then steals Alan’s car and begins to drive it around as his own. Bob drives the car for 30 days, and during that time he often gives rides to Charles, Dave, and Elizabeth. Charles gets a ride almost every day; Dave every other day; and Elizabeth only rides in the car twice. The police remotely turn on the GPS device when the car is reported stolen, and they monitor the car for 28 days.

We know from Jones that five Justices would say that the 28 days of GPS monitoring amounts to a search. But who has standing to challenge it? Does Bob have standing on the ground that his location was monitored for the full 28 days? Or does he lack standing because the stole the car, and therefore has no rights in it?203 If Bob has standing, what about Charles, Dave, and Elizabeth? Do all three have standing because their location was monitored as part of a broader mosaic search? Or must the standing inquiry look to each individual, requiring an assessment of whether the monitoring of each individual suspect was enough to constitute a mosaic?

A district court recently became the first court to grapple with these questions in United States v. Luna–Santillanes, 2012 WL 1019601 (E.D. Mich. March 26, 2012). The facts of the case nicely bring out some of the difficulties of the mosaic approach.

Luna-Santillanes, Jiminez, and Chaviravelazquez were running a heroin conspiracy. The conspiracy used three cars: a Lincoln Aviator, a Chrysler Sebring, and a Mazda. Different drivers drove different cars at different times. Investigators ended up installing GPS devices on all three cars, and they used the GPS devices to track the movements of the cars to know what the heroin ring was up to. The Chrysler had a GPS device installed and monitored for 2 months; the Lincoln, for 2 days; and the Mazda, for “a few” days. The GPS tracking was useful to the investigators not only to understand the conspiracy, but also to bring the police to the scene of particular events so they could conduct searches and try to find drugs. For example, the investigators tracked the movements of the Lincoln Aviator when it was used to transport heroin when being driven by Chaviravelazquez. The officers used the GPS to know where the car was to pull over the car for a traffic stop. During the stop, the officers asked Chaviravelazquez to consent to search; a search of the car led to the discovery of two kilos of heroin inside. The GPS devices on the other two cars led to similar discoveries.

At trial, Luna-Santillanes and Jiminez moved to suppress both the location evidence from the GPS devices and all the evidence that was a fruit of the poisonous tree — that is, the drugs found in the cars when they were stopped thanks to the GPS surveillance. The district judge denied the motion to suppress on grounds that neither Luna-Santillanes (who the Court refers to as D-1) nor Jiminez (who the Court refers to as (D-2) had standing to challenge the mosaic search:

Applying Katz to the facts presented here, it is Defendants’ reasonable expectation of privacy in their movements, not merely the movements of a vehicle they sometimes used, that triggers Fourth Amendment protections. Although D–1 was observed using the red Lincoln Aviator on April 11, 2011, he was not using the vehicle when the GPS device was placed on it. Rather, the TFOs installed the GPS device on that vehicle after they saw it unoccupied and parked on the street near the River Rouge residence that they were observing for reported drug activity. More importantly, neither D–1 nor D–2 was driving the red Lincoln Aviator on April 14, 2011 when the traffic stop and search occurred that produced the kilograms of heroin that these Defendants seek to suppress.

Rather than ownership or exclusivity, the record evidence establishes that D–1 drove the red Lincoln Aviator one time—on April 11, 2011—, a few days before the GPS device was attached. It further establishes that the GPS device was installed on the red Lincoln Aviator only one day before the April 14, 2011 traffic stop, consented-to search, and seizure. Moreover, as established by testimony at the March 20, 2012 hearing, the GPS device on the red Lincoln Aviator was removed within hours of the April 14, 2011 traffic stop. Thus, even if Defendants could establish that they had standing to challenge the April 14, 2011 search and seizure of the red Lincoln Aviator, the one-day monitoring of that vehicle constituted a reasonable search. As Justice Alito observed in his concurring opinion in Jones, “relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable.” Id. at 964. For the above stated reasons, D–1′s and D–2′s motions to suppress the kilograms of heroin seized on April 14, 2011 are denied

. . . . At the March 20, 2012 hearing, these Defendants argued that, because the government placed a GPS device on every vehicle available to them, they had a legitimate expectation of privacy, not in the three vehicles at issue here but rather in the totality of their movements on the roadways over an extended period of time. The Court rejects that argument for the following reasons. First, Jones did not go this far, and Defendants cite no binding decision that does. Second, the facts presented do not support Defendants’ claim. The testimony at the suppression hearing failed to establish that there was a GPS device on the silver Chrysler Town and Country minivan driven by D–2 during the July 21, 2011 traffic stop where the kilograms of cocaine were seized. Moreover, rather than exclusivity of use, the evidence presented shows that Defendants 1, 2, and 3 used the three vehicles at issue here, and other vehicles, interchangeably. In fact, there is evidence that a CS was allowed to drive the rented black Mazda. (Gov’t Ex. 12.) Finally, as the testimony at the hearing established, although the GPS device was on the silver Sebring for about two months, a GPS device was on the red Lincoln Aviator for two days at the most and was on the rented black Mazda for only “a few days.”

The Court’s analysis here is not exactly a model of clarity, perhaps reflecting the difficulty of applying the mosaic frameowrk to such complicated facts: There are three defendants, three cars, and three different periods of GPS monitoring, with each car being used by different people at different times. But it arguably suggests that one day of GPS monitoring is lawful under Jones, and perhaps that standing to challenge a stop that is a fruit of GPS monitoring requires that the stop implicate the suspect’s rights rather than just that the monitoring as part of the mosaic implicate the suspect’s rights.

I’m curious, for readers who are proponents of the mosaic theory, do you think this case was correctly decided? Why or why not?

I’ve been working on an updated draft of my forthcoming article on the mosaic theory of the Fourth Amendment, and I could use help from readers on a relatively simple labeling question. In the article, I’m trying to contrast two understandings of the Fourth Amendment. The first understanding is the traditional view that courts must analyze whether government conduct is a Fourth Amendment search by focusing just on that one act at that one moment — that is, viewing each government act as a discrete step, and analyzing that discrete step as a search or a non-search. The second understanding is the new idea that courts should analyze whether government conduct is a Fourth Amendment search by aggregating over some range of different acts over different times, and considering whether the collective set of acts considered in the aggregate amounts to a search. When the first decision on the new approach came down, I decided to call the new approach “the mosaic theory,” as it is based on the notion that the aggregate of government conduct paints a mosaic of information about a suspect. I like that label, and plan to stick with it. My question is, what should I call the traditional approach? My current draft calls it “the discrete steps approach,” as it uses each discrete law enforcement act as the basic unit of analysis. But that label seems awkward, and I wonder if any readers have better ideas. I’d like a label that is relatively short, descriptive, and intuitive. I considered calling it “the atomistic approach,” but that label has been used in Fourth Amendment scholarship for a different idea, and using it here would be too confusing. I also thought of just calling it “the traditional approach,” but I’d like something more descriptive. Any ideas?

The Ninth Circuit has just handed down its long-awaited en banc decision in United States v. Nosal, the case I’ve blogged a lot about involving the scope of the Computer Fraud and Abuse Act and whether violating employee restrictions on workplace computer use is a federal crime. The opinion by Chief Judge Kozinski is a huge victory for those of us who have urged the courts to adopt a narrow construction of the CFAA. Chief Judge Kozinski’s analysis essentially adopts the argument we made in the Lori Drew case (and that I pushed in two articles) that “exceeds authorized access” has to be interpreted narrowly to avoid turning the CFAA into the statute that inadvertently criminalizes a tremendous scope of innocuous activity. From the conclusion of the opinion:

[W]e hold that the phrase “exceeds authorized access” in the CFAA does not extend to violations of use restrictions. If Congress wants to incorporate misappropriation liability into the CFAA, it must speak more clearly. The rule of lenity requires “penal laws . . . to be construed strictly.” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820). “[W]hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.” Jones, 529 U.S. at 858 (internal quotation marks and citation omitted).

The rule of lenity not only ensures that citizens will have fair notice of the criminal laws, but also that Congress will have fair notice of what conduct its laws criminalize. We construe criminal statutes narrowly so that Congress will not unintentionally turn ordinary citizens into criminals. “[B]ecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity.” United States v. Bass, 404 U.S. 336, 348 (1971). “If there is any doubt about whether Congress intended [the CFAA] to prohibit the conduct in which [Nosal] engaged, then ‘we must choose the interpretation least likely to impose penalties unintended by Congress.’” United States v. Cabaccang, 332 F.3d 622, 635 n.22 (9th Cir. 2003) (quoting United States v. Arzate-Nunez, 18 F.3d 730, 736 (9th Cir. 1994)).

This narrower interpretation is also a more sensible reading of the text and legislative history of a statute whose general purpose is to punish hacking—the circumvention of technological access barriers—not misappropriation of trade secrets—a subject Congress has dealt with elsewhere. Therefore, we hold that “exceeds authorized access” in the CFAA is limited to violations of restrictions on access to information, and not restrictions on its use.

Given that I have been beating the drum for this view for about a decade now, I am happy to conclude that Kozinski’s opinion is superb and extremely insightful. Judge Kozinski also recognizes that the Ninth Circuit is creating disagreement among the circuits:

We remain unpersuaded by the decisions of our sister circuits that interpret the CFAA broadly to cover violations of corporate computer use restrictions or violations of a duty of loyalty. See United States v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010); United States v. John, 597 F.3d 263 (5th Cir. 2010); Int’l Airport Ctrs., LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006). These courts looked only at the culpable behavior of the defendants before them, and failed to consider the effect on millions of ordinary citizens caused by the statute’s unitary definition of “exceeds authorized access.” They therefore failed to apply the long-standing principle that we must construe ambiguous criminal statutes narrowly so as to avoid “making criminal law in Congress’s stead.” United States v. Santos, 553 U.S. 507, 514 (2008).

We therefore respectfully decline to follow our sister circuits and urge them to reconsider instead. For our part, we continue to follow in the path blazed by Brekka, 581 F.3d 1127, and the growing number of courts that have reached the same conclusion. These courts recognize that the plain language of the CFAA “target[s] the unauthorized procurement or alteration of information, not its misuse or misappropriation.” Shamrock Foods Co. v. Gast, 535 F. Supp. 2d 962, 965 (D. Ariz. 2008) (internal quotation marks omitted); see also Orbit One Commc’ns, Inc. v. Numerex Corp., 692 F. Supp. 2d 373, 385 (S.D.N.Y. 2010) (“The plain language of the CFAA supports a narrow reading. The CFAA expressly prohibits improper ‘access’ of computer information. It does not prohibit misuse or misappropriation.”); Diamond Power Int’l, Inc. v. Davidson, 540 F. Supp. 2d 1322, 1343 (N.D. Ga. 2007)(“[A] violation for ‘exceeding authorized access’ occurs where initial access is permitted but the access of certain information is not permitted.”); Int’l Ass’n of Machinists & Aerospace Workers v. Werner-Masuda, 390 F. Supp. 2d 479, 499 (D. Md. 2005) (“[T]he CFAA, however, do[es] not prohibit the unauthorized disclosure or use of information, but rather unauthorized access.”).

As always, stay tuned. For thoughts on whether the Supreme Court might be interested in this case, see the bottom of this post.