Indiana Computer Consent Case:
A few people have e-mailed me about this decision from the Southern District of Indiana striking down Indiana's new law requiring sex offenders to consent to a search of their personal computers. There are some interesting Fourth Amendment issues here, but I think the the Seventh Circuit will reverse on case or controversy grounds. My recent draft article, The Limits of Fourth Amendment Injunctions, covers most of the relevant precedents for those that are interested.
In other words-the government can't write an injuction that specifically states all the 4th amendment exceptions into its wording. The order "the government is enjoyed form doing x except when a, b, c and d) is impossible to write-becuase a, b, c, and d have exceptions and exceptions to exceptions. The injunction would be too difficult to understand and follow.
On the other hand, you argue, a court with facts can simply say-ok what you did here is bad. (or what you did here is ok).
But thats not how the injunction in Warshack or here work.
The injunctions simply say the government is prohibited from using this particular law to make the search. The order makes no attempt, and need not, tell when and how or under what circumstances they can search-they are simply told that this section doesn't warrant the search. There is no need to get into what facts may make the search work outside this section.
Myabe your article could address this point?
I'm not sure I follow your argument. First, that's not what the Sixth Circuit did in Warshak: The Court wrote a very detailed set of instructions on when the government could obtain e-mails. Second, my sense is that you are suggesting that the federal courts have some sort of prophylactic injunctive power, so that they can ban the government from taking steps quite apart from whether those steps would actually violate the Fourth Amendment. If I'm right about that, what authority would you cite for that position?
From the Warshack order-
The United States is accordingly ENJOINED, pending final judgment on the merits of Plaintiffs' claims, from seizing, pursuant to court order under 18 U.S.C. ยง 2703(d), the contents of any personal email account maintained by an Internet Service Provider in the name of any resident of the Southern District of Ohio without providing the relevant account holder or subscriber prior notice and an opportunity to be heard on any complaint, motion, or other pleading seeking issuance of such an order.
in other words-the court is limiting its order not to a specific set of instructions-but a ban on using a specific statute. The court leaves open any other way to search the computer as long as it does not involve 18 USC 27039d). Perhaps probable cause and exigence, etc.
Second, my sense is that you are suggesting that the federal courts have some sort of prophylactic injunctive power, so that they can ban the government from taking steps quite apart from whether those steps would actually violate the Fourth Amendment. If I'm right about that, what authority would you cite for that position?
I'm simply suggesting that a court may enjoin the government from acting pursuant to an unconstitutional statute. True, there are no good examples of successful injunctions/pre-enforcement challenges to 4th amendment statutes out there, but the district court in the sex offender computer search case from the above post points out in a long analyses that the decisions on the a matter have left open the possibility.
Also, I forgot to bring this up before but your article does bring up the following issue: You state that the 4th amendment is very complex and fact specific and hence facts are integral to any ddecision based upon it. This line of argument demands that we compare the 4th amendment to the 1st in this regard. week when considering the way we treat the 1st. I know your not a 1st amendment scholar (obviously neither am I), but on what basis can you say that the 4th amendment has any more exceptions, nuances, exceptions to exceptions,etc, than the first amendment does? Or are you also in favor of abolishing 1st amendment facial challenges as well?
I am curious as to why you think this case will be vacated on case and controversy grounds. The harm the two class representatives state is not hypothetical and neither wants to either sign the "consent" or risk prosecution for a felony.
Like Dave N., I'd like to hear why you think there's no case or controversy (or why the 7th won't find one.) I found Judge Hamilton's discussion persuasive and nuanced.
It's unusual to see a pre-enforcement case brought only under the 4th A, when if they'd added a 1st A claim (and the usual state con claims) there would be a whole raft of precedents, e.g Elrod v Burns, since the consent-under-duress chills speech.
The Indiana ACLU litigates this way sometimes. I don't know if they do it for strategic purposes, deliberately making only a 4th A pre-enforcement claim, in order to have a shot at a good ruling on that issue, or if they kinda just don't bother to do a broader complaint. Example would be Crawford, where they didn't make a 24th A. argument. On the one hand it's a kind of victory because the plurality rejected the mis-use of the Burdick v Takushi deferential standard in a voting rights case; on another hand they lost the case.
Isn't this obvious under Los Angeles v. Lyons? The fact that the plaintiffs have a fear that they may be searched is completely irrelevant.
Plus, you can't facially invalidate a statute on Fourth Amendment grounds unless it is a statute governing the issuance of a warrant, which this is not. See Sibron v. New York.
Isn't this obvious under Los Angeles v. Lyons? The fact that the plaintiffs have a fear that they may be searched is completely irrelevant.
no-considering facial challenges exist in the context of other amendments.
Plus, you can't facially invalidate a statute on Fourth Amendment grounds unless it is a statute governing the issuance of a warrant, which this is not. See Sibron v. New York.
possible distinctions:
a) was a stop and frisk statute not a real search statute
b) the sibron and his co defendant were arguing for facial invalidity in a case in which the court found the way in which the statue had been executed in that very case was constitutional with regard to Sibron's co-defendant. Its one thing to facially challege statute. Its another thing to facially challenge a statue when your case is an example of the statute being applied constitutionally.
c) the statue in Sibron did not provide a procedural process for gaining judicial approval for a search-it merely told police they could do something according to state law. the statue in the forced consent to search computers of sex offenders is a blatant attempt to gain judicial approval for a search. it has the same goal and form as a statue providing a process for the issuance of a warrant (a process to gain judicial approval for a search)
btw. my opinions on inductions have nothing to do with the merits. i do agree with orin that the panel appeals decision in warshack was wrong on the merits of the fourth amendment. I would agree with the district court entirely in the case in this post though.
What happens in the case of other amendments is not relevant, I think; the Court has a distinct approach in Fourth Amendment cases. Lyons is a Fourth Amendment case: It lays out the Fourth Amendment standard.
I should also add that I'm not looking at the merits, either: I didn't even read that part of the opinion.
Given the language of Sibron, the recent caselaw developments strongly discouraging facial challenges, and the absence of Fourth Amendment facial challenges in other contexts since Sibron, what's the legal basis for concluding that they are appropriate here?
I am not as sure as you are that Lyons controls. Lyons sought injunctive relief against future potential harm in the form of theoretical choke holds during future theoretical traffic stops.
Judge Hamilton, on pages 9-12 of his opinion, discusses whether there is a true case and controversy. What do you disagree with in Judge Hamilton's analysis? I truly am interested.
they both are there to try to pass judicial muster after a search. really what is the conceptual difference?
The entire analysis on 9-12 is wrong. The Judge is relying on precedents in which the statute or regulation impacted a person's rights. But that's not how the Fourth Amendment works. The fact that a statute exists does not impact any person's rights at all; the enactment of a statute is not a search. Only an actual search is a search. See, e.g., ACLU v. NSA (6th Cir). Cf. United States v. Karo ("[W]e have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment.").
Is the FBI using its CIPAV trojan horse malware to destroy the computers and speech recognition assistive technology disabled Americans use as their medicine prescribed by their medical doctors for the objective of obstructing cases seeking speech recognition access to the U.S. Supreme Court and other Federal Courts?
It is no secret that the key logging devices inherent in CIPAV do not work when a disabled American is using a speech recognition assistive technology as his/her First Amendment protected effective comunication device.
There does not appear anywhere in the USA Patriot Act or other Federal laws any legitimate law enforcement auhorization for the FBI to use CIPAV to directly commit a civil rights violation on a disabled American's medically prescribed Dragon NaturallySpeaking speech recognition computer to corrupt the speech recognition software, destroy the trained voice files, and ultimately dstroy the operating system of the disabled American's computer upon which he/she relies and depends to communicate to others.
How is the FBI authorized to use CIPAV to destroy a Dragon NaturallySpeaking speech recognition First Amendment communication device to the extent of causing physical bodily injuries to the disabled American by forcing him/her to keyboard contraindicated by his/her physical impairments?
And if the FBI did not use CIPAV to mount a cyberattack on my disability speech recognition computer to destroy it ...
WHO DID, and
Why is the FBI not prosecuting those perpetrators?