Author Archive | Orin Kerr

It’s An Exciting Time for Fourth Amendment Geeks

Lawprof Miriam Baer reflects on that subject here. And Miriam doesn’t get into the remedies side of the picture: The fact that all this uncertainty is happening right when the remedies for Fourth Amendment violations are also very much in flux makes it all the more interesting. […]

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Judge Pauley of the SDNY Upholds NSA Section 215 Program

The opinion is here, and it’s pretty much the opposite of Judge Leon’s recent opinion. Judge Pauley rules that the Section 215 telephony metadata program is lawful both as a matter of statutory and constitutional law. Based on our experience with lower court rulings on Obamacare, I gather that Pauley’s opinion will draw only a small amount of attention relative to Judge Leon’s contrary ruling. But it’s an interesting contrast, both on the legal merits and as a matter of judicial rhetoric. […]

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Senders’ Fourth Amendment Rights in E-mails Seized from the E-mail Accounts of Recipients

A recent case, United States v. Young (D. Utah, December 17, 2013) (Campbell, J.), touches on a novel, interesting, and quite important question of Fourth Amendment law: Assuming that e-mail account-holders generally have Fourth Amendment rights in the contents of their e-mails, as courts have so far held, when does a person’s Fourth Amendment rights in copies of sent e-mails lose Fourth Amendment protection?

To understand the question, consider Fourth Amendment rights in postal letters. Before a letter is sent, only the sender has rights in the letter; during transmission, both the sender and recipient have rights in the letter; and once the letter is delivered at its destination, the recipient maintains Fourth Amendment rights but the sender’s rights expires. But how do you apply this to an e-mail? By analogy, a sender loses Fourth Amendment rights in the copy of the e-mail that the recipient has downloaded to his personal computer or cell phone. But does the sender have Fourth Amendment rights in the copy of the e-mail stored on the recipient’s server after the recipient has accessed the copy? And does the sender have Fourth Amendment rights in the copy of the e-mail stored on the recipient’s server before the recipient has accessed the copy? At what point does the sender’s Fourth Amendment rights in the sent copy expire?

In Young, the government obtained e-mails from the accounts of defendants in a conspiracy case pursuant to a series of search warrants. Two defendants moved to suppress e-mails obtained from the accounts of their co-defendants, alleging that the warrants were defective. The District Court ruled that the movants had no Fourth Amendment rights in the e-mails found in their co-defendants’ accounts:

As parties to the e-mails obtained from AISC’s computers and the Internet service provider (ISP), America Online,


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Liberals and Conservatives Switch Positions on NSA Surveillance

A recent Washington Post poll asked, “How concerned are you, if at all, about the collection and use of your personal information by the National Security Agency?” I was interested in the different degree of concern among political liberals and political conservatives. Here are the results among political liberals:

  • 26% very concerned
  • 26% somewhat concerned
  • 26% not too concerned
  • 21% not at all concerned

On the other hand, here are the results among political conservatives:

  • 48% very concerned
  • 29% somewhat concerned
  • 12% not too concerned
  • 9% not at all concerned

It’s an interesting reversal from 2006, when the President was a Republican instead of a Democrat. Back then, a Pew poll found 75% of Republicans approved of NSA surveillance but only 37% of Democrats approved. Granted, there are some differences between what we know the NSA was up to then and now. The polling questions are not identical, and party affiliation is not the same as ideology. Still, it’s an interesting shift. Kerr’s Law in action, I suppose. […]

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Supreme Court of Canada Strikes Down Prostitution Laws

I had mentioned the lower court ruling on this when it was handed in 2012; today the Canadian Supreme Court affirmed in a decision you can read here. From the summary by the Globe and Mail:

The Supreme Court of Canada has struck down the country’s major prostitution laws, saying that bans on street soliciting, brothels and people living off the avails of prostitution create severe dangers for vulnerable women and therefore violate Canadians’ basic values.

Chief Justice Beverley McLachlin, writing for a unanimous court, stressed that the ruling is not about whether prostitution should be legal or not, but about whether Parliament’s means of controlling it infringe the constitutional rights of prostitutes.

“Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes,” she wrote.

“The prohibitions all heighten the risks. . . . They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risks.”

The court suspended its ruling for one year to give Parliament time to respond.

Thanks to How Appealing for the link. […]

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Third Circuit Accepts One Brief, Rejects the Second

As a follow-up to yesterday’s post on the briefing in United States v. Auernheimer, the Third Circuit has now ruled: The Court accepted the government’s 120-page merits brief, but rejected the defense’s unopposed request to file an oversized reply brief in response. From the order: “Appellee’s motion for a word limit extension is granted. Appellant’s motion to file an oversized reply brief is denied. Appellant is directed to file an amended reply brief that complies with the word limitations of Fed R. App.P. 32(a)(7) within 10 days of the date of this order.” The good news is that this will get the case moving again. The bad news is that I have a lot of editing to do; expect very light (if not non-existent) blogging from me over the next 10 days. […]

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Update on United States v. Auernheimer

Some readers have asked me about the oral argument schedule in United States v. Auernheimer, the Third Circuit appeal I am working on pro bono involving charges under the Computer Fraud and Abuse Act. Unfortunately, the case is somewhat stuck right now. Although all the briefs have been filed, the Third Circuit has yet to rule on the Government’s August 5th motion to file an oversized brief. Until the Court rules, the briefing schedule is stayed and the case isn’t moving forward. (The two sides agreed on a briefing schedule and filed briefs even though the briefing schedule was stayed, so we’re just waiting on a ruling.) My co-counsel and I today filed this letter again requesting the Third Circuit to lift the stay and allow the briefs, but until the Court rules the case is in a bit of a holding pattern. […]

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President’s Review Group Releases Report

The report — from Messrs. Sunstein, Swire, Stone, Clarke, and Morell — is here. On the whole, it strikes a middle ground. On one hand, it disagrees with a lot of the status quo, making many recommendations for change. On the other hand, the changes it suggests aren’t particularly radical or dramatic: Most of the recommendations are among those that are “in the debate” on these issues already. On the whole, the proposals are pretty thoughtful, whether or not one agrees with them in the details. […]

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Another Problem With Judge Leon’s NSA Opinion: Absolute vs. Relative Measurements and Fourth Amendment Reasonableness

The more I re-read Judge Leon’s opinion in Klayman v. Obama, the more I am struck by how many parts of the opinion strike me as strange, off-key, or just wrong. This post will focus on an aspect of the opinion that has been ignored so far: Fourth Amendment reasonableness. In particular, I hope to explain why I think Judge Leon’s approach to assessing the reasonableness of the NSA program conflicts with established Supreme Court precedent.

First, some context. According to the Supreme Court, reasonableness requires a cost/benefit analysis: “Whether a search is reasonable is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Samson v. California, 547 U.S. 843, 848 (2006). That’s the general test, and Judge Leon recognizes it. But I want to focus here on a specific issue: The methodology for analyzing the latter question, the efficacy of the government’s step.

Consider two different approaches. First, a court could make an absolute measurement. That is, the court could measure how much that step advances the government’s interest as compared to no step at all. Alternatively, a court could make a relative measurement. That is, the court could measure how much that step advances the government’s interest as compared to alternative methods that the government could conduct to try to collect the same information.

The Supreme Court cases that I am aware of have endorsed absolute measurement and rejected relative measurement. For example, in United States v. Martinez-Fuerte, 428 U.S. 543 (1976), the Court considered the reasonableness of an immigration checkpoint set up along a highway. The defendants tried to argue that the checkpoint did not advance the […]

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Can the DC Circuit Use the Mosaic Theory to Invalidate the NSA Telephony Metadata Program?

Here’s a thought experiment. Let’s assume that when DOJ appeals Judge Leon’s opinion in Klayman v. Obama, the DC Circuit does not reverse on the procedural issues. Instead, on appeal the DC Circuit takes precedent seriously and tries to square the NSA surveillance program with United States v. Maynard and its mosaic theory on the merits of the Fourth Amendment. If that happens, how should the court rule? That is, how should the NSA program fare under the Maynard mosaic theory?

In some sense, there is no real answer to the question. Maynard‘s mosaic theory is novel, strange, and yet also strikingly vague. Still, I thought it would be useful to imagine what issues the DC Circuit might encounter if it tries to fairly apply the Maynard precedent on appeal. There are two key issues. First, does the mosaic theory apply to the kind of data collection at issue in the NSA program? And second, if the theory applies generally, how does it apply specifically to the facts of the Klayman case?

(1) Does the Mosaic Theory Apply to the Data at Issue in the NSA Program?

The mosaic theory developed by the DC Circuit in Maynard reasoned that long-term surveillance can allow the government to collect and analyze so much information about a person that eventually the government can develop a complete picture of their lives. When that happens, a Fourth Amendment “search” is deemed to have occurred. In Maynard, the government installed a GPS device on the car that the defendant drove and monitored it for 28 days. The GPS recorded the location of the car every few seconds. On those facts, the DC Circuit concluded that a search had occurred because the GPS surveillance “reveal[ed] an intimate picture of the subject’s life that […]

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Just to Clarify

A New York Times story out on Judge Leon has me quoted as saying:

“He’s very passionate,” said Orin S. Kerr, a professor at the George Washington University Law School and a defender of the N.S.A.’s surveillance programs, who said he found the judge’s ruling short “on legal reasoning.”

Just to be clear, I told the reporter that this specific opinion was passionate, not that Judge Leon is passionate. The reporter specifically asked me if I thought Judge Leon was passionate, and I declined to answer on the ground that I didn’t know Judge Leon or his decisions well enough to feel comfortable characterizing him or his work as a whole.

Second, I am not a defender of the NSA’s surveillance program. Contrary to the reporter’s characterization, I think this program violates the FISA statute. I just happen to think that the program is consistent with existing Fourth Amendment precedent; it is fine under the Constitution but is hard to square with the statutory text.

UPDATE: The reporter contacted me and explained that the problem was in the editing process; the original version made clear that I was commenting just on the opinion, but that was lost in the editing process. […]

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The Procedural Problems With Judge Leon’s NSA Ruling

Over at Dissenting Justice, Law prof Darren Hutchinson points out reasons that the DC Circuit might reverse Judge Leon without reaching the merits of the Fourth Amendment question he decided. According to Hutchinson:

[T]he Supreme Court is very reluctant to enjoin policies related to national security. This is so, even if the defendant has violated the letter of the law. National security could provide a basis to reverse the injunction.

In Winter v. National Resources Defense Council, the Supreme Court reversed a preliminary injunction granted to halt certain naval training operations offshore in California. The plaintiffs argued that the operations could harm protected species of aquatic animals. More importantly, a federal statute literally required the military to submit an environmental impact statement before conducting the activities, but the government did not submit such a statement. Accordingly, the military violated an unambiguous statutory provision.

Despite the fact that the government violated the statute, the Court held that the preliminary injunction was improper. The Court reasoned that it could not second-guess the military on national security concerns (and that it was not clear that the activities would irreparably harm, if at all, any aquatic species). So, national security weighed against issuance of the injunction despite plaintiffs proving actual success on the merits.

The circuit court and the Supreme Court would likely apply similar logic in this case. Rather than delving into the constitutional questions — which courts wish to avoid if possible — the appeals court could reverse on the grounds that the opinion does not give enough weight to national security concerns.

Furthermore, [Judge Leon’s] opinion does not even contain a section that “balances the equities” by weighing the harm to the plaintiffs in the absence of the injunction against the harm to the defendant if the injunction is


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Preliminary Thoughts on Judge Leon’s Opinion

In this post, I’ll offer a few thoughts on Judge Leon’s remarkable opinion on NSA surveillance. Unfortunately, my time was limited, so I have to offer a more brief analysis than I would normally like to do. Here are a few thoughts for now, with more to come later if time permits.

(1) Distinguishing Smith v. Maryland

Judge Leon’s first and most fundamental move is to distinguish Smith v. Maryland, the 1979 case ruling that the Fourth Amendment does not protect numbers dialed from a telephone. I found Judge Leon’s argument on this point not only unpersuasive, but quite plainly so. I realize that a district court judge can’t just announce that he thinks a Supreme Court decision was wrongly decided. But there are plausible ways to write an opinion distinguishing Smith and implausible ways to do so, and Judge Leon’s opinion struck me as a surprisingly weak effort.

Here’s why. Judge Leon says that the most important ground for distinguishing Smith is that we have a fundamentally different relationship with telephones today than existed in 1979. Today’s cell phones are not just phones, Judge Leon emphasizes. They are computers with functionality wholly apart from telephony. Today’s cell phones are maps, cameras, text messaging machines, and even lighters that can be held up at rock concerts. As a result, Judge Leon argues, Americans have an “entirely different” relationship to phones than they did in 1979. And Judge Leon therefore cannot possibly follow a decision from the pre-cell phone era.

I find this argument deeply unpersuasive. Most obviously, why does it matter that today’s phones are combined in a single device with other functions? The NSA’s program is not collecting information about the use of those other functions. It is only collecting the same information that was collected in Smith […]

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