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.
Author Archive | Orin Kerr
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 […]
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 […]
Amended Reply Brief in United States v. Auernheimer
In time for Christmas, we just filed the amended reply brief in United States v. Auernheimer.
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 […]
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, […]
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 […]
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 […]
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 […]
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 […]
Can the DC Circuit Use the Mosaic Theory to Invalidate the NSA Telephony Metadata Program?
By Orin Kerr on December 17, 2013 3:05 am in Fourth Amendment, Mosaic Theory of the Fourth Amendment, NSA
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 […]
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 […]
A Useful Political Rule of Thumb
The degree to which a political party leans libertarian is proportional to the number of years since the party last held the White House.
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 […]
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 […]