The Volokh Conspiracy

No, claims the plaintiff in Wong v. Hard Drive Productions, in the Northern District of California. Here’s what Judge Young of the District of Massacusetts had to say about the issue recently:

[T]t is a matter of first impression in the First Circuit, and indeed is unsettled in many circuits, whether pornography is in fact entitled to protection against copyright infringement. Copyright protection in the United States was “effectively unavailable for pornography” until the landmark decision by the Fifth Circuit in Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 854–55, 858 (5th Cir.1979) (holding that the Copyright Act neither explicitly nor implicitly prohibits protection of “obscene materials,” such as the films at issue there, and rejecting the defendant’s affirmative defense of “unclean hands”). See also Jartech, Inc. v. Clancy, 666 F.2d 403, 406 (9th Cir.1982) (stating, in the context of copyright infringement of a pornographic film, that “[p]ragmatism further compels a rejection of an obscenity defense” because “obscenity is a community standard which may vary to the extent that controls thereof may be dropped by a state altogether”). Compare Devils Films, Inc. v. Nectar Video, 29 F.Supp.2d 174, 175–77 (S.D.N.Y.1998) (refusing to exercise its equitable powers to issue a preliminary injunction against infringement of pornographic films and “commit the resources of the United States Marshal’s Service to support the operation of plaintiff’s pornography business,” holding that the films were “obscene” and illegally distributed through interstate commerce), with Nova Prods., Inc. v. Kisma Video, Inc., Nos. 02 Civ. 3850(HB), 02 Civ. 6277(HB), 03 Civ. 3379(HB), 2004 WL 2754685, at *3 (S.D.N.Y. Dec. 1, 2004) (holding that the question of whether particular pornographic films are “obscene” is one of fact for the jury, and that, even were the films deemed to be obscene, it would not prevent their protection under a valid copyright) (citing Jartech, Inc., 666 F.2d 403; Mitchell Bros., 604 F.2d 852). Congress has never addressed the issue by amendment to the Copyright Act. See Ann Bartow, Pornography, Coercion, and Copyright Law 2.0, 10 Vand. J. Ent. & Tech. L 799, 833 (2008).

Liberty Media Holdings, LLC v. Swarm Sharing Hash File AE340D0560129AFEE8D78CE07F2394C7 B5BC9C05, — F.Supp.2d —-, 2011 WL 5161453 (D.Mass. 2011) (Young, J.).

Reading the blog and media reaction to Judge Reinhardt’s opinion for the Ninth Circuit in Perry v. Brown, it’s interesting how much it resembles the reaction to Judge Walker’s opinion at the District Court level. Most agree that both opinions were written solely for an audience of one, Justice Kennedy. In both cases, a lot of the reactions focus on whether the opinions successfully figured out a clever way to get Kennedy’s vote.

After Judge Walker’s opinion, for example, a lot of commenters thought Walker was particularly clever for announcing rather aggressive findings of fact that seemed to bleed over into the legal issues; the thought was that Walker could force the higher courts to see things his way because facts ordinarily are reviewed under the “clearly erroneous” standard instead of a de novo standard. After Reinhardt’s opinion, a lot of commenters have suggested that Reinhardt was particularly clever because he framed the issue narrowly under Romer, avoiding the broader questions of gay marriage.

I have no idea what the Supreme Court might do in the Perry case. But my own sense is that Judges Walker and Reinhardt are not quite as clever as some people seem to think. Or, at the very least, the reasoning of their opinions don’t really matter very much. First, I think it’s unlikely that the particular reasoning of either opinion will have a substantial influence on the Justices. The issues in Perry are extremely important, and they’re the kind of issues that force the Justices to fall back on first principles. The details of how the lower courts reached the results they reached matter a lot less in that kind of case than in an ordinary case. Consider how Judge Reinhardt dealt with Judge Walker’s extensive factual findings: He basically ignored them.

Second, to the extent the reasoning of the lower court decisions matter — which, as I said, I tend to doubt — the fact that both opinions are widely understood as advocacy briefs to Justice Kennedy from judges who are same-sex marriage supporters probably hurts the same-sex marriage cause more than helps it. The Justices aren’t dumb: They get it. And when they get the sense that the lower courts were crafting their opinions to try to maneuver a single Justice into a desired result in such a high profile case, that kind of heavy handedness runs a risk of backfiring. It creates a sort of patina of unreliability. I think a more clever strategy would have been to be more subtle: Create more of a sense of the opinions as routine legal opinions and less as advocacy briefs. And if you’re Reinhardt, make the opinion “per curiam” so it doesn’t come to the Court with your name on it.

The Houston Chronicle reports, via ATL:

Karla Ford and Jonathan Chan expected to be spending this year studying legal briefs and litigation as second-year law students at Texas Southern University’s Thurgood Marshall School of Law. Instead, last spring, both students were dismissed after getting a D grade in their Contracts II course.

Now, the two are suing the school and their former professor, saying their final grade was “arbitrary and capricious.”

It’s been a while since I blogged about the case of Professor Lawrence Connell, the Widener Law Professor who was brought up on disciplinary charges for the way he taught his criminal law class. Connell then filed suit in state court against Dean Linda Ammons, the law school, and the two students whose complaints formed the basis of the disciplinary charges.

Today I received the following e-mail from Connell’s lawyer, Thomas Neuberger:

“All claims amongst all parties have been resolved amicably and Professor Connell’s employment with the University and Law School has been concluded. Specific terms of the resolution are confidential. So, we have no further comment.”

So the civil case is over, and Connell has left Widener. I sure would like to hear more as to what actually happened at Widener that led to the charges in the first place.

News that a Supreme Court justice appeared on a TV show would normally make me cringe. But I think this appearance by Justice Sotomayor on Sesame Street is really terrific. Kudos to Justice Sotomayor for being a good sport about it.

Putting aside the lack of a federal question, it seems a tad unfair to ignore the trespass before pressuring the parties to settle in way so favorable to the trespasser. But I suppose it’s nicer to hear the case than just deny cert as factbound and splitless. Hat tip: How Appealing.

Having read Judge Reinhardt’s opinion in Perry v. Brown, it seems to me that the weight of the analysis hinges on an interesting question: What counts as a rational basis to enact a symbolic law? Reinhardt’s basic reasoning is that Prop 8 is unconstitutional because it was merely symbolic. The ballot initiative didn’t do anything substantive: It amended the California Constitution to say that “Only marriage between a man and a woman is valid or recognized in California,” but it left in place domestic partnerships with most or all the rights of marriage.

According to Reinhardt’s opinion, this dooms Prop 8. The rational basis test requires some theoretical reason to think that the Amendment might improve society in some way. The gist of Reinhardt’s opinion is that a symbolic law like Prop 8 can’t improve society because it doesn’t make any actual difference. As a result, even if there are lots of rational reasons to ban same-sex marriage generally, it is irrational to forbid only the symbolism of the word “marriage.” Finding no rational utilitarian reason to forbid the word “marriage,” Reinhardt concludes that the law fails the rational basis test and must have been passed to express animus towards or disapproval of homosexuality.

I don’t find this argument persuasive. Prop 8 was a direct response to a judicial decision by the California Supreme Court. One rational reason to support a symbolic law like Prop 8 would be to issue a rebuke to the California Supreme Court that issued that decision, with the hope that such a public rebuke might influence the Court’s decisions in the future. Different people will disagree on whether this argument is persuasive, but I think it satisfies the rational basis test.

To see this, imagine you’re a California voter and you’re not sure if you think the state should recognize same-sex marriage. Then the California Supreme Court hands down the Marriage Cases, announcing by judicial fiat that the state constitution protects same-sex marriage. “There goes that activist California Supreme Court again,” you think to yourself, “interfering with the rights of the people to pass laws the democratic way.” You decide you want to teach the Justices a lesson. How can you do it? One way is the Rose Bird strategy: You can wait until a future retention election and vote the Justices out of office. But a second way is to support a voter initiative overturning the decision, even if only as a symbol that the California Supreme Court overstepped its bounds.

This is not only a hypothetical. Although I’m no expert on Prop 8, a quick google search confirms that this argument was made by at least some influential supporters of Prop 8. Here’s Newt Gingrich making the case that Californians should support Prop 8 to stop the imperial tyranny of activist judges and to restore democracy in California:

Different people will disagree on whether Gingrich’s argument is persuasive. But I would think the argument is at least rational under the standards of the rational basis test. And it doesn’t seem to have anything to do with animus towards or disapproval of homosexuality.

Why bother with the headlines of today when you can offer the headlines of tomorrow? Judge Reinhardt’s amicus brief in favor of striking down Prop 8 — aimed squarely at Justice Kennedy, naturally, and based largely on his opinion in Romer v. Evans — is available here.

UPDATE: Based on a quick skim, Reinhardt decided that the Supreme Court wasn’t ready yet to embrace a full right to same-sex marriage, and that it was wiser to offer AMK a narrow rationale based on Romer rather than a broad rationale based on Lawrence or Loving. So Reinhardt’s reasoning seems to be California-specific: He argues that Prop 8 took away rights provided by the California Supreme Court’s Marriage Cases, and that those who voted for Prop 8 acted out of animus towards or disapproval of gays, making Prop 8 unconstitutional under a Romer rationale regardless of whether same-sex marriage is constitutional in the general case. I assume Reinhardt is figuring that this either will work or at the worst might buy some time: If the Supreme Court grants cert and reverses on the merits, on remand the case presumably goes back to the same panel. On remand, Reinhardt can then strike down Prop 8 again, but this time under a broader theory along the lines of Judge Walker’s opinion below. That would take a few years, though, keeping the issue alive in the meantime — giving the social attitudes more time to develop, more states time to change their laws, and possibly more time for a change in personnel at the Court.

The private respondents’ brief, with Michael Carvin of Jones Day as counsel of record, and our co-blogger Randy Barnett as co-counsel, is available here. The state respondents’ brief, with Paul Clement counsel of record, is here.

When DOJ filed its brief, I noted that “The word ‘Sutton’ appears 14 times, and the word ‘Kavanaugh’ appears 5 times.” I suppose the analogous stat for the respondents’ briefs would be that the word ‘unprecedented’ appears 23 times. I was interested (and somewhat surprised) that the word “inactivity” appeared only 4 times between the two briefs; it was mentioned 3 times in the private respondents’ brief, and only once in the state respondents’ brief (and in the procedural history section rather than the argument section).

Hat tip: ACA Litigation Blog.

UPDATE: I have rewritten the post because the state’s brief is also now available.

Writing in the Arizona Law Review, Chuck Weisselberg and Su Li have a very interesting article, Big Law’s Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms. The abstract:

Over the last three decades, corporate white-collar criminal defense and investigations practices have become established within the nation’s largest law firms. It did not used to be this way. White-collar work was not considered a legal specialty. And, historically, lawyers in the leading civil firms avoided criminal matters. But several developments occurred at once: firms grew dramatically, the norms within the firms changed, and new federal crimes and prosecution policies created enormous business opportunities for the large firms. Using a unique data set, this Article profiles the Big Law partners now in the white-collar practice area, most of whom are male former federal prosecutors. With additional data and a case study, the Article explores the movement of partners from government and from other firms, the profitability of corporate white-collar work, and the prosecution policies that facilitate and are in turn affected by the growth of this lucrative practice within Big Law. These developments have important implications for the prosecution function, the wider criminal defense bar, the law firms, and women in public and private white-collar practices.

Here’s my favorite comment on the FOXnews.com story about the holding of Jones, in which I pointed out that the Supreme Court opted not to rule on whether a warrant was required:

every common citizens KNOWS what the SCOTUS ruled. leave it to the know nothing know it all lawyers to think they’re better than you.

And I would have gotten away with it, too, if not for commenter Christopher K.

FoxNews.com reports that legal experts are divided on whether United States v. Jones requires a warrant to install a GPS device:

Most media reports of the Supreme Court’s decision said the court was requiring police to obtain warrants for attaching GPS devices.

But several experts argued that the court had not in fact ruled that a warrant is now required.

“The court merely held that the installation of the GPS was a Fourth Amendment ‘search,’” George Washington University Professor of Law and computer law expert Orin Kerr wrote on The Volokh Conspiracy website.

“The court declined to reach when the installation of the device is reasonable or unreasonable. So we actually don’t yet know if a warrant is required to install a GPS device; we just know that the installation of the device is a Fourth Amendment ‘search.’”

But other experts have said the court did create a warrant requirement for installing GPS devices. They point to past Supreme Court rulings that held that all Fourth Amendment searches require warrants unless the police action meets a specific and well-delineated exception.

These scholars say that because the court did not create an exception for GPS searches, those intrusions therefore require a warrant.

“Orin Kerr would probably not say that you don’t need a warrant to break down the door of someone’s house,” Priscilla Smith, who is a senior fellow at the Yale Law School Information Society Project, told NewsCore. “He would say you do need one unless one of the exceptions apply. Same is true here.”

Other scholars had views that fell somewhere in between those of Kerr and Smith.

University of Iowa Law School Professor of Law James Tomkovicz told NewsCore that the Supreme Court “dodged” the warrant issue, but said it would be very difficult to persuade courts in the future that police do not need warrants to install GPS devices on automobiles.

“It would be pretty unprecedented for the court to call it a search and then turn around and say you don’t need a warrant or you don’t even need probable cause,” Tomkovicz said.

Lawrence Muir, who teaches a cybercrimes seminar as an adjunct professor at Washington and Lee University School of Law, said that police are now generally required to obtain warrants for GPS attachments after Monday’s decision.

Two thoughts in response. First, to the extent anyone really claims that Jones ruled on whether the police must obtain warrants, the text of the opinion clearly indicates to the contrary:

The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because “officers had reasonable suspicion, and in-deed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.” Brief for United States 50–51. We have no occasion to consider this argument. The Government did not raise it below, and the D.C. Circuit therefore did not address it. See 625 F.3d, at 767 (Ginsburg, Tatel, and Griffith, JJ., concurring in denial of rehearing en banc). We consider the argument forfeited. See Sprietsma v. Mercury Marine, 537 U.S. 51, 56, n. 4 (2002).

The D.C. Circuit concurring opinion referenced above notes that “because the Government did not argue the points, the court did not decide whether, absent a warrant, either reasonable suspicion or probable cause would have been sufficient to render the use of the GPS lawful[.]” Maybe I lack creativity, but I cannot see how anyone — much less an expert — can read the Supreme Court’s discussion here as a ruling that a warrant is required to install a GPS device.

Second, I’m puzzled by the claim that a warrant is obviously or very likely required for GPS surveillance because the Fourth Amendment requires warrants for home searches. The police install GPS devices on cars, not homes. Sure, the Fourth Amendment requires warrants to search homes. But the Supreme Court has always treated searches of automobiles quite differently. The unbroken rule from the first automobile case in 1925 to the present is that searching an automobile requires probable cause but does not require a warrant. This is known as the “automobile exception” to the warrant arequirement.

The Court has justified the different treatment of cars on two grounds. First, cars can be quickly moved. By the time an officer obtains a warrant to search a car, the car might be outside of the court’s jurisdiction; if the car is outside the court’s jurisdiction, the car can’t be searched either as a matter of law or fact. As the Supreme Court recognized as far back as 1925, in language that it has repeated since:

[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.

Carroll v. United States, 267 U.S. 132, 153 (1925).

The second justification for treating automobile searches differently than home searches is that while searching a car is still a search, cars are simply less private than homes.

Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.

The public is fully aware that it is accorded less privacy in its automobiles because of this compelling governmental need for regulation. Historically, individuals always [have] been on notice that movable vessels may be stopped and searched on facts giving rise to probable cause that the vehicle contains contraband, without the protection afforded by a magistrate’s prior evaluation of those facts.

In short, the pervasive schemes of regulation, which necessarily lead to reduced expectations of privacy, and the exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met.

California v. Carney, 471 U.S. 386 (1985) (internal quotations and citations omitted).

So let’s return to Jones. The Jones majority opinion argues that installing the device with intent to use it constitutes a search of the car. That’s the traditional set of circumstances that trigger the automobile exception. And the rationale of the automobile exception plausibly applies here, too. If the police delay to get a warrant, the car known to be in one place today might be lost tomorrow. A car in one jurisdiction today can be driven outside the court’s jurisdiction in minutes or hours. And if it is a reasonable search to break open a car’s trunk and rifle through a suspect’s private stuff without a warrant, why isn’t it a reasonable search to attach a device to the outside of a car’s frame? Isn’t the placing of the device on the outside of the car less invasive than rummaging through a suspect’s personal items stored in the locked trunk?

To be clear, I’m not arguing that the automobile exception definitely applies to the installation of a GPS device. You can make arguments that it does not.** Maybe those arguments will carry the day, maybe they won’t. But it seems mistaken to me to suggest that the relevant Fourth Amendment precedents strongly point to requiring a warrant to install a GPS device. Under the automobile exception to the warrant requirement, that’s not where the relevant precedents most naturally point.

_______________
** For example, in his opinion concurring in the denial of rehearing en banc, Judge Ginsburg briefly suggested two reasons why the automobile exception didn’t apply. First, Jones’s car was not “readily mobile”; second, the automobile exception only applies to searches for contraband. As for the first reason, it’s hard to know why: If the motor home in Carney was deemed readily mobile, I don’t know why Jones’s car wasn’t, as well. As for the second reason, it”s true that the early cases did limit the automobile exception to contraband instead of mere evidence. But as the Sixth Circuit noted in United States v. Kemper, 503 F.2d 327 (6th Cir. 1974), this limitation reflected the “mere evidence rule” later overturned in Warden v. Hayeden (1967), and is hard to justify post-Hayden. See Kemper, 503 F.2d at 331 (“While it could initially have been said that Carroll is applicable to the search for and seizure of contraband only, the demise of the ‘mere evidence’ rule in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), would suggest that the distinction between contraband and instrumentalities, on the one hand, and mere evidence on the other, would no longer be a valid limitation on the automobile exception.” See also Arizona v. Gant, 556 U.S. 332 (2009) (articulating the automobile exception as being that”[i]f there is probable cause to believe a vehicle contains evidence of criminal activity, [the automobile excerption] authorizes a search of any area of the vehicle in which the evidence might be found.”) (emphasis added). In my view, a better argument that the automobile exception doesn’t apply would start from the point that the kind of information revealed by GPS surveillance is not information about the inside of the car, but rather about its public location. You could then try to argue that the automobile exception should apply only when the relevant information involves the former not the latter. This isn’t an easy or obvious argument to make, but it might go somewhere.

Greg Lastowka points to a very interesting new decision of the Supreme Court of the Netherlands on whether a theft of virtual goods in a virtual world game can be a subject of a real-world theft prosecution. Here’s the Google Translate version of the summary of the decision:

Virtual amulet and mask in the online game Runescape can be regarded as ‘good’ in the sense of Art. Sr and 310 are susceptible to theft. Suspect and co-defendant forced the victim to violence and threats of violence to login to his account in the online game Runescape and virtual objects to leave (dropping) in the virtual game environment. The suspect was then the virtual amulet and mask to transfer to his own Runescape account, making the victim the power to dispose of these objects is lost. These virtual objects, which the actual victim and exclusive sovereignty had had for him, suspect and his accomplice a real value. In light of the intent of the legislature to the disposal of the holder of a ‘good’ protection, and the earlier case as including non-physical objects can fall, the Supreme Court held that the virtual nature of the objects itself does not preclude the state to be regarded as good in the sense of art. Sr. 310. The mere fact that an object also has properties of ‘data’ in the sense of Art. 80quinquies Sr. does not mean that this object has therefore not as good in the sense of art. 310 Sr can be considered. In borderline cases where non-physical characteristics of both a business ‘good’ as ‘data’ show, the legal interpretation depending on the circumstances of the case and their valuation by the court. The complaint that the removal of the virtual property of another is precisely one of the goals of the game Runescape is bounce up to it that the rules do not provide the suspect and his accomplice followed method of removal.

For the full decision as translated by Google, go here and scroll down a bit.

I posted a reader poll yesterday on the video of the U.S. Park Police officer tasing an OccupyDC protester, and the responses are fascinating. With about 2,000 votes, opinion is almost exactly evenly divided. 43% say the officer acted appropriately; 41% say the officer did not act appropriately; and 16% say that they need more information before deciding. The comment thread is equally divided, with over 300 comments so far.

Why is opinion so divided? My pet hypothesis is that most people recognize two competing narratives when it comes to police-citizen interaction. The first narrative is what you might call the equality narrative. The equality narrative posits that the police are just citizens who happen to wear uniforms, and they have no more right to get their way than anyone else. If an officer asks a person questions, for example, he doesn’t have to respond. Unless the officer orders him to stay put, he can walk away.

The second narrative is what I’ll call the inequality narrative. The inequality narrative posits that the police have special authority by virtue of being police officers, and that people interacting with the police have to recognize that special authority and should expect trouble if they don’t. If an officer decides to make an arrest, for example, the subject of the arrest can’t just decide he would rather not be arrested and try to resist the officer’s efforts.

The key to these two narratives is that they’re both true — at times. The equality narrative is often true. In some circumstances, the police have no more power than anyone else. The inequality narrative is also often true. In other circumstances, the police do have the power to use force to overcome the resistance of individuals who may not want to do what the police want.

The OccupyDC taser video is particularly interesting because it starts midway through the scene. The offense that triggered the officers’ approaching the suspect (tearing down the notices) is minor. The video therefore presents a circumstance in which viewers can reasonably differ as to whether we should be in the equality-narrative zone or the inequality-narrative zone. As a result, different viewers fill in the uncertainty by just picking a narrative. In general, those who are more distrustful of the police pick the equality narrative. They interpret the officers’ conduct as bullying. In their view, grabbing the protester was an act of thuggery. Those who are less distrustful of the police generally pick the inequality narrative. They see the protester as practically asking for an elevated use of force by resisting the officers’ efforts to arrest him, and they see the officers as acting appropriately in response.

Yesterday afternoon, at the OccupyDC protest in Washington, DC, a police officer tased a protester. As I understand it, the police were putting notices around the protest site that all camping supplies had to be removed because the site was no longer going to be made available for the protest. A protester in a red shirt proceeded to tear down the notices after the police left them, and he is heard screaming at the police: “Let them clean up the trash in the fucking parkway! It was your fucking trash, you fucking pigs!” The police then walked after the protester, who ran away from the police. A bunch of officers then surrounded the man, who started repeating that he had done nothing wrong. Two officers then went to grab him, but he resisted; after he continued to resist, a third officer tased him. Here’s the video:

And here’s the question, which you should answer only after having watched the video:

If anything is clear from the Supreme Court’s decision last week in United States v. Jones, it’s that not very much is clear from the Supreme Court’s decision in United States v. Jones. Reading over the commentary on Jones both in the print media and on blogs, I think I’ve seen just about every reaction (at least from enthusiasts of greater privacy, from which the commentariat is almost exclusively drawn). My favorite analysis so far is this new post from Tom Goldstein. I think it’s a real gem. But it’s only one view among many as to what the case means.

Why is Jones such a puzzling decision? I think there are two major reasons. First, Justice Scalia creates a new test for Fourth Amendment searches without being fully candid that he’s doing something quite new. Trespass has long been relevant to the Fourth Amendment search inquiry, to be sure. But the Court never embraced a straight trespass test, and even in the old days deviated from it (see Boyd, McGuire, etc). So this test is new. And yet Scalia writes his opinion as if a well-established trespass test existed that he is returning to, and that returning to it is some sort of obvious step. The disjunct between Scalia’s doctrinal innovation and his apparent incredulity that anyone could find his opinion confusing makes for some very strange reading.

For example, if you want to understand the new trespass test, you mostly have to read the footnotes — especially footnotes 3 and 5, which are responses to Alito’s concurrence. Here, though, Scalia is so dismissive of Alito’s critique that it’s hard to know why Scalia sees Alito’s questions as so obviously answered. Scalia is the one who is introducing a new test; presumably he’s the one who knows what the new test will look like. But these footnotes are filled with phrases indicating tremendous certainty: “no doubt,”"quite irrelevant,” “undoubtedly occurred”, “undoutedly true, but undoubtedly irrelevant,” “similarly irrelevant,” etc. Such certainty makes it hard to know what principle Scalia is applying that makes him so certain he’s right.

The second reason Jones is so confusing is that Justice Alito spends only a single paragraph of his 14-page opinion explaining how he would resolve the Jones case. Most of his opinion is spent criticizing Scalia’s test in great detail. Alito makes some very good points in that section, I think. But we only get to how Alito would resolve the case in the middle of page 13, near the end. And in that one paragraph, Alito is surprisingly unclear as to what he is doing. Without giving the issue any analysis, Alito seems to assume that the reasonable expectation of privacy test is simply about what privacy a hypothetical reasonable person would think — a common error, as I have noted — and then he just says that this case has gone too far, in his view.

But the reader is left uncertain as to why. Is Alito embracing the DC Circuit’s novel “mosaic theory”? If so, isn’t such a revolutionary change in Fourth Amendment doctrine worth a bit of explanation? (Or does Alito not recognize the revolutionary nature of that approach?) And if the line is to be drawn, where and why? Like Justice Scalia, Alito uses a statement of judicial certainty as a substitute for analysis: “the line was surely crossed before the 4-week mark,” he says, emphasis added, with no explanation of why that is sure.

I don’t mean to be too critical of the Justices here. They’re generalists, not Fourth Amendment nerds. But I think these characteristics of the Jones opinions make the decision a Rorschach test. You can read the opinions in many different ways depending on what you want to read into them. And I think that explains why the commentary about Jones is all over the map.

I was interviewed recently by Bob Garfield of NPR’s “On the Media” about the Supreme Court’s opinions in the Jones GPS case.  The 6-minute interview has been posted here.

If you’re interested in developments in computer crime law, check out Cybercrime Review, a very useful blog on new cases and other developments in the field.

David Segal drew a lot of attention in the law school world — both positive and negative — with his recent series on law schools in the New York Times. Bloomberg Law interviewed Segal about the series here:

Hat tip: Lat via FB.

In United States v. Jones, Justice Scalia wrote a majority opinion holding that when the police trespass onto property enumerated in the text of the Fourth Amendment with the purpose of obtaining information, they commit a search. In Bond v. United States, however, Justice Scalia dissented — more specifically, he joined Justice Breyer’s dissent — when the Court held that it is a Fourth Amendment search for the police to grab a suspect’s duffel bag and squeeze it with intent to see what it contains inside. According to Justices Breyer and Scalia, this was not a Fourth Amendment search.

Does anyone have ideas for how to reconcile Scalia’s votes in Bond and Jones? One answer is that in Jones, Justice Scalia is engaging in equilibrium-adjustment — he’s trying to maintain Fourth Amendment protection in light of technological change, so he favors broader Fourth Amendment protection to counter new powers by the Government. Equilibrium-adjustment isn’t necessary in Bond, which just involved the old-fashioned facts of grabbing a bag. But are there other ways to reconcile those two votes? Is manipulating a bag not a common law trespass? Does a bag not count as “effects”? Does Justice Scalia see Bond as only asking about the Katz test, not whether the conduct is a search generally?

UPDATE: Some commenters contend that Bond obviously only involved the Katz test, not the broader question of what was a Fourth Amendment search. But here’s the Question Presented in Bond:

Whether a search occurs when a law enforcement officer manipulates a bus passenger’s personal carry-on luggage to determine its contents.

It’s true that the briefing in Bond talks a lot about the Katz test; until Monday, no one was aware that the Katz test was only one among two or more tests for what counts as a search. But a lot of the briefing in Bond talks generally about whether a search occurred, not just about a reasonable expectation of privacy.

Fill in your own, for fun and education! Entertainment for the whole family. Ages 4 and up.

I blogged a lot about this topic a few years ago when the Boucher case was pending; although an appeal was filed in that case in the First Circuit, the appeal was dropped so the appellate court never decided it. In any event, several readers point me to a new decision on the topic, United States v. Fricosu, out of the District of Colorado.

Based on a quick read of the opinion, the legal analysis in the Fricosu opinion is not a model of clarity. But it strikes me as a replay of the district court decision in Boucher: The Court ends up ordering the defendant to decrypt the hard drive, but only because the court made a factual finding that in this specific case, the government already knew the information that could be incriminating — and as a result, was a “foregone conclusion” that dissipated the Fifth Amendment privilege.

If I’m reading Fricosu correctly, the Court is not saying that there is no Fifth Amendment privilege against being forced to divulge a password. Rather, the Court is saying that the Fifth Amendment privilege can’t be asserted in a specific case where it is known based on the facts of the case that the computer belongs to the suspect and the suspect knows the password. Because the only incriminating message of being forced to decrypt the password — that the suspect has control over the computer — is already known, it is a “foregone conclusion” and the Fifth Amendment privilege cannot block the government’s application.

UPDATE: A reader asks what happens if a person refuses to comply with the order or claims to have forgotten the password. Here’s the Second Circuit’s summary of the law in In re Weiss, 703 F.2d 653 (2d. Cir. 1983):

Testimonial obduracy by a witness who has been ordered by the court to answer questions may take any of a number of forms. The witness may refuse categorically to answer. Or he may respond in a way that avoids providing information, as, for example, by denying memory of the events under inquiry, denying acquaintance with targets of the inquiry, or denying knowledge of facts sought to be elicited. Or he may purport to state informative facts in response to the questions while in fact testifying falsely.

Any of these three forms of obduracy may be met with the imposition of one or more judicial or governmental sanctions. For example, when the witness has refused to answer questions, he may be adjudged in civil contempt and ordered to answer, e.g., Shillitani v. United States, supra, 384 U.S. at 370, 86 S.Ct. at 1535; In re Grand Jury Investigation of Giancana, 352 F.2d 921 (7th Cir.), cert. denied, 382 U.S. 959, 86 S.Ct. 437, 15 L.Ed.2d 362 (1965); or he may be adjudged in criminal contempt and punished for his past failure to answer, e.g., Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). In some cases both coercive and punitive sanctions have been imposed. See, e.g., Yates v. United States, 355 U.S. 66, 74, 78 S.Ct. 128, 133, 2 L.Ed.2d 95 (1957); United States v. Petito, 671 F.2d 68 (2d Cir.1982); In re Irving, supra.

If the witness has responded falsely to the questions propounded, he may be subject to prosecution for a criminal offense in violation of, e.g., 18 U.S.C. § 1621 (perjury), or 18 U.S.C. § 1623 (false declarations before grand jury or court). If the witness’s false testimony has obstructed the court in 663*663 the performance of its duty, the witness may be met with sanctions for civil contempt, see Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 339, 63 L.Ed. 656 (1919), or criminal contempt, see In re Michael, 326 U.S. 224, 227-29, 66 S.Ct. 78, 79-80, 90 L.Ed. 30 (1945).

The middle category of testimonial obduracy, i.e., the witness’s equivocal responses or disclaimers of knowledge or memory, has also been dealt with as contemptuous conduct, warranting sanctions that were coercive, punitive, or both. It has long been the practice of courts viewing such testimony as false and intentionally evasive, and as a sham or subterfuge that purposely avoids giving responsive answers, to ignore the form of the response and treat the witness as having refused to answer. See, e.g., In re Schulman, 167 F. 237 (S.D.N.Y.1909), aff’d, 177 F. 191 (2d Cir.1910); United States v. Appel, 211 F. 495 (S.D.N.Y.1913); United States v. McGovern, 60 F.2d 880, 889 (2d Cir.), cert. denied, 287 U.S. 650, 53 S.Ct. 96, 77 L.Ed. 561 (1932); Schleier v. United States, 72 F.2d 414 (2d Cir.), cert. denied, 293 U.S. 607, 55 S.Ct. 123, 79 L.Ed. 697 (1934); In re Eskay, 122 F.2d 819 (3d Cir.1941); Howard v. United States, 182 F.2d 908 (8th Cir.), vacated and remanded as moot, 340 U.S. 898, 71 S.Ct. 278, 95 L.Ed. 651 (1950); Richardson v. United States, 273 F.2d 144 (8th Cir.1959); Martin-Trigona v. Gouletas, 634 F.2d 354, 357-59 (7th Cir.), cert. denied, 449 U.S. 1025, 101 S.Ct. 593, 66 L.Ed.2d 486 (1980); In re Battaglia, supra, 653 F.2d at 422; In re Bongiorno, supra.

In In re Schulman, for example, the district court found that a bankrupt’s repeated responses of “I don’t remember” and “What do you mean?” to questions concerning the disposition of his assets in the six months preceding his declaration of bankruptcy were disingenuous and evasive. The court thus construed the responses as refusals to answer and imposed a combination of civil and criminal contempt sanctions by ordering the witness imprisoned for six months, with the proviso that if the witness chose, after five days, to provide nonevasive answers, he would be released from prison. This Court affirmed, stating as follows:

The testimony as it appears in the record evinces a deliberate purpose to conceal the truth and prevent the trustee from becoming possessed of facts which would lead to a recovery of the missing property. The witness was being asked regarding transactions directly within his knowledge and facts which he must have known. When, therefore, he answered repeatedly “I don’t remember,” it is obvious that he was deliberately withholding information to which the trustee was entitled. In effect his attitude was one of defiance. He did not affirmatively tell the referee that he refused to disclose the facts which would enable the trustee to follow the property, although these facts were well known to him, but his conduct produced the same result as if he had stated his purpose openly.

177 F. at 193.

Tom Goldstein weighs in with some excellent points about United States v. Jones over at SCOTUSblog.

Today’s decision in United States v. Jones holds that the Katz test is not the exclusive test for what is a Fourth Amendment search: When the government conducts a common-law trespass into a person, house, paper, or effects, that trespass is a search if it is done “for the purpose of obtaining information.” Three questions come to mind about what this means:

1) What kind of “trespass” counts for purposes of this test? As Blackstone noted in his Commentaries (Vol. 3. Ch 12), at common law there were two understandings of “trespass” — a broad one and a narrow one. Blackstone wrote:

Trespass, in its largest and most extensive sense, signifies any transgression or offence against the law of nature, of society, or of the country in which we live, whether it relates to a man’s person or his property. Therefore, beating another is a trespass, for which (as we have formerly seen) an action of trespass vi et armis in assault and oattery will lie; taking or detaining a man’s goods are respectively trespasses, for which an action of trespass vi et armis, or on the case in trover and conversion, is given by the law: so also, non-performance of promises or undertakings is a trespass, upon which an action of trespass on the case in assumpsit is grounded: and, in general, any misfeasance or act of one man whereby another is injuriously treated or damnified is a transgression or trespass in its largest sense: for which we have already seen(a) that whenever the act itself is directly and immediately injurious to the person or property of another, and therefore necessarily accompanied with some force, an action of trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought.

But, in the limited and confined sense in which we are at present to consider it, it signifies no more than an entry on another man’s ground without a lawful authority, and doing some damage, however inconsiderable, to his real property.

So which conception of trespass does Scalia mean to adopt — the broad one or the narrow one? Scalia says that he has “no doubt” that there was a trespass here, but he doesn’t say why or what kind of trespass he has in mind. Scalia quotes Entick v. Carrington for the idea that setting foot on a neighbor’s “close” and “tread[ing] upon his neighbor’s ground” is a trespass. It seems that Entick was relying on the narrow trespass concept of trespass to land, which, after all, was the cause of action alleged in Entick. That obviously isn’t the case in Jones, though: The agents installed the GPS device when the car was parked in a public parking lot, so there was no trespass to land in the traditional sense.

In his concurring opinion, Justice Alito indicates that he takes the majority to be referring to a trespass to chattels cause of action, but as far as I can tell the majority never establishes this. Moreover, the common law doesn’t seem to provide an answer: The common law of searches and seizures provided a defense to a civil tort action, not an independent cause of action. So it’s hard to know what kind of conduct counts as a “trespass” for purposes of the new Fourth Amendment test.

2) Did Jones unintentionally make the use of undercover agents and informants illegal, at least without a warrant or probable cause? This is a long shot, to be sure, but it’s not a frivolous argument. The common law of trespass included the doctrine of trespass ab initio, by which a person who was permitted to come on to your land could be guilty of trespass if they engaged in some sort of misconduct once there. In the first Fourth Amendment challenge to the use of informants, On Lee v. United States, 343 U.S. 747 (1952), the defendant tried to invoke this doctrine. Lee sold opium from his laundry store and one day made incriminating statements to his friend Poy. It turned out that Poy was an undercover informant wearing a wire, and the recording of Lee’s statements was used against Lee at trial. Lee argued (among other things) that Poy’s misleading him rendered Lee a trespasser ab initio, such that Poy’s entry was a Fourth Amendment search. Justice Jackson rejected the argument:

Petitioner contends, however, that Chin Poy’s subsequent ‘unlawful conduct’ vitiated the consent and rendered his entry a trespass ab initio.

If we were to assume that Chin Poy’s conduct was unlawful and consider this argument as an original proposition, it is doubtful that the niceties of tort law initiated almost two and a half centuries ago by the case of the Six Carpenters, 8 Coke 146(a), cited by petitioner, are of much aid in determining rights under the Fourth Amendment. But petitioner’s argument comes a quarter of a century too late: this contention was decided adversely to him in McGuire v. United States, 273 U.S. 95, 98, 100, 47 S.Ct. 259, 260, 261, 71 L.Ed. 556, where Mr. Justice Stone, speaking for a unanimous Court, said of the doctrine of trespass ab initio: ‘This fiction, obviously invoked in support of a policy of penalizing the unauthorized acts of those who had entered under authority of law, has only been applied as a rule of liability in civil actions against them. Its extension is not favored.’ He concluded that the Court would not resort to ‘a fiction whose origin, history, and purpose do not justify its application where the right of the government to make use of evidence is involved.’ This was followed in Zap v. United States, 328 U.S. 624, 629, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477.

By the same token, the claim that Chin Poy’s entrance was a trespass because consent to his entry was obtained by fraud must be rejected. Whether an entry such as this, without any affirmative misrepresentation, would be a trespass under orthodox tort law is not at all clear. See Prosser on Torts, s 18. But the rational of the McGuire case rejects such fine-spun doctrines for exclusion of evidence.

Does the rationale of McGuire survive Jones? If the test for a Fourth Amendment search is established by common law trespass doctrine, then I’m not sure why the “fiction” of trespass ab initio shouldn’t be restored to the Fourth Amendment despite McGuire. As a practical matter, I doubt the Supreme Court would go this way. But if you take the majority opinion in Jones at face value, it seems like an argument worth making.

3) What happens to Kyllo’s “general public use” exception? I read Jones as relying on Kyllo for the idea that there is more than just the Katz test to determine what is a search. I gather then that the Court is casting Kyllo as an example of a case which was not a Katz “reasonable expectation of privacy” case but rather was a common law trespass case. If that’s right, then does that mean the “general public use” inquiry is no longer applicable? After all, the general public use idea was rooted in Katz cases, not the common law of trespass. If use of a thermal imaging device was a search because it was a common law trespass, then presumably it should stay a search regardless of how common thermal imaging devices may be.

One of the puzzles of Jones is how Scalia’s opinion ended up being the majority opinion of the Court, while Justice Alito’s view is merely a concurring opinion. The puzzle is that the apparent 5th vote for the Jones majority, from Justice Sotomayor, wrote a concurrence strongly hinting that she would accept a far broader rationale something akin to that in Justice Alito’s concurrence in the judgment. The question is, why sign on to Scalia’s opinion instead of Alito’s?

There are a bunch of possible reasons, of course, but one possibility involves the timing of circulated drafts. The Chief assigned the majority opinion to Scalia, who had floated his theory of the case at oral argument. Imagine Scalia circulated his majority opinion quickly, and Sotomayor joined it pretty soon after that. Some time passed, and then Justice Alito sent around his concurring opinion. Justice Alito’s opinion is mostly a criticism of Scalia’s approach, but it then has a relatively brief pro-privacy section at the end that addresses questions not reached by Scalia’s opinion. Imagine Sotomayor read Alito’s opinion and really liked that part of Alito’s opinion. But she had already signed on to Scalia’s draft majority, and it’s considered bad form to un-join an opinion after signing on. It’s especially bad form if you followed the common practice of asking for a few changes to the draft majority opinion as a condition of signing it. Also, while Alito hinted at how he would decide the case, that section is relative brief and quite vague. So Sotomayor might have stuck with Scalia’s opinion as a matter of propriety and good internal court relations, and then written her solo concurring opinion indicating her agreement with much (although by no means all) of Alito’s opinion.

Of course, that’s just one possibility among many.

UPDATE: Over at SCOTUSblog, Tom Goldstein notes a point that I simply missed on my initial reading of the opinions: Alito’s concurring opinion not only rejects the new trespass theory, but further indicates that the installation and short-term monitoring is fine — it’s only long-term monitoring that Alito would say is regulated by the Fourth Amendment. So Sotomayor’s choice wasn’t between a narrow and broad theory, as I had initially surmised, but between two very different theories. Sotomayor joined one and indicated strongly that she would likely favor the other, but she didn’t need to reach that; doing would have required a United States v. Booker-esque combination of two sets of Justices, which in addition to being complicated wasn’t needed because at least the result was settled in this case.

In its opinion below in what became United States v. Jones, the D.C. Circuit introduced a new “mosaic” theory of the Fourth Amendment. Under that theory, whether government conduct is a search is measured not by whether an individual act is a search, but rather whether the collective sum of the different acts over time amount to a search. Although that argument didn’t get much play in the Supreme Court briefs or at argument, it surfaced this morning in the Jones opinions. And perhaps the most fascinating aspect of the Jones opinions is that there appears to be a majority ready to embrace the mosaic theory, at least in some form.

Let’s start with Justice Alito’s concurring opinion for himself, Ginsburg, Breyer, and Kagan. Alito’s concurring opinion is mostly devoted to criticizing Scalia’s new trespass theory. But near the end of his concurrence, Alito then turns to how he would decide Jones:

[R]elatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. See Knotts, 460 U. S., at 281–282. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant. We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques

It sounds like Alito is using what I have elsewhere called the “probabilistic” approach to the reasonable expectation of privacy test, where an expectation of privacy is reasonable based on what a reasonable person would expect, and then he is allowing for at least some sort of mosaic aggregation. Thus, echoing the D.C. Circuit, Alito appears to be looking at whether the government conduct taken over time collects an amount of information that is somehow surprising or unexpected.

In his majority opinion, Justice Scalia concludes that the mosaic theory need not be addressed, but that it is a “novelty” that raises “thorny problems” if embraced. Responding to Alito, Scalia writes:

There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4-week investigation is “surely” too long and why a drug-trafficking conspiracy involving substantial amounts of cash and narcotics is not an “extraordinary offens[e]” which may permit longer observation. See post, at 13–14. What of a 2-day monitoring of a suspected purveyor of stolen electronics? Or of a 6-month monitoring of a suspected terrorist? We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.

That brings us to Justice Sotomayor, whose concurring opinion was sort of with Scalia, sort of with Alito, and then hints at being even more pro-privacy than either one. Sotomayor calls the Scalia rationale for the case “an irreducible constitutional minimum,” but she then goes on to look favorably on Alito’s opinion:

As JUSTICE ALITO incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations. Post, at 10–11. Under that rubric, I agree with JUSTICE ALITO that, at the very least, “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Post, at 13. . . .

Sotomayor then goes on to discuss the nature of GPS surveillance specifically, and then writes:

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.

Fascinating. What’s particularly interesting to me is that the mosaic theory seems like a revolutionary new approach to Fourth Amendment law, and yet here 5 Justices seem ready to embrace it without even really recognizing how dramatic the change might be or what it might mean. Perhaps that means that the Justices see it as having some non-obvious limitation that makes it narrower than it might seem. Perhaps it only would apply to GPS devices or beepers, for example? Or perhaps the Justices just didn’t think too deeply about the issue and the complications it raises — perhaps because Scalia came forward with his new trespass test and any other theory would just be dicta?

Either way, the biggest surprise of Jones is that the mosaic theory lives. And it may have five votes. As always, stay tuned.