Can Magistrate Judges Deny Statutory Surveillance Orders Based on Prospective Fourth Amendment Concerns?

On October 2, the Fifth Circuit will hold oral argument in case No. 11–20884, In Re Applications of the United States for Historical Cell-Site Data. In this case, the United States applied for a court order under the Stored Communications Act to compel cell phone providers to disclose location information about particular phones suspected in criminal investigations. The magistrate judge denied the applications on the ground that he expected that the orders would be executed in ways that will violate the Fourth Amendment. The government has appealed the denial of the orders, arguing that the orders will be executed in ways that comply with the Fourth Amendment. Although the government is the only party to the litigation, several amici have chimed in on the merits to defend the denial of the applications on the ground that the magistrate judge was right to fear that the orders would be implemented in ways that would violate the Fourth Amendment. You can read the various briefs here, and the government’s reply to the amicus briefs is here.

This is a first in a series of posts on the issues I raised in an amicus brief I filed in the case. In my view, the Fifth Circuit must reverse because the Fourth Amendment issues in the case are not ripe and cannot be reached at this stage. There are no facts yet, so the courts can’t yet adjudicate the law. And magistrate judges cannot get around the absence of facts by just relabeling predictions of what might happen as “facts.” Rather, judicial rulings on Fourth Amendment questions have to follow the usual requirements of ripeness: There needs to be a real factual record formed in an adversarial setting on which courts can apply the very fact-specific principles of Fourth Amendment law. Because there are no facts at this stage, there can be no Fourth Amendment ruling. The magistrate judge must issue the order as the Stored Communications Act requires, and judicial review of whether the order is executed in an unconstitutional way must wait until facts can become known.

Some readers might wonder why I filed an amicus brief in this case. After all, relatively few people care about ripeness. The doctrine comes off as a technicality. And filing a brief on one’s own is pretty unusual. But I filed the brief because the stakes of the question strike me as enormous. In my view, the ripeness of the constitutional question is far more important than whether the Fourth Amendment is held to apply to cell-site records under some assumed set of facts. The reason is that Congress has created a statutory system of electronic surveillance law in the last 25 years that requires many statutory court orders at nearly every stage of every case. As I explained in a recent post:

One of the major differences between traditional criminal investigations and network surveillance investigations is that network investigations generally require lots of lawyers and lots of court orders. In traditional criminal investigations, lawyers and judges play a relatively minor role. The cops run the show, and lawyers and judges mostly get involved only if a warrant is obtained. The police might watch a suspect, stop and detain him, frisk him for weapons, and make an arrest all without lawyers or judges. Review of the legality of the investigation is ex post: The defendant moves to suppress the evidence and argues that the past conduct was unconstitutional.

Criminal investigations involving network surveillance are quite different. When investigators want to obtain evidence over the telephone network or the Internet, Congress has imposed ex ante statutory requirements of court orders at many stages. For the most part, lawyers and judges are involved from the beginning of the case. Lawyers need to be involved at every stage, getting various kinds of court orders required by the Electronic Communications Privacy Act (ECPA), such as pen register orders, 2703(d) orders, and the like. Judges have to be involved from the beginnning, too, as they rule on the government’s applications. There’s a very good reason for the requirement of ex ante court orders, I think. Network surveillance investigations involve third party networks, and often the orders are executed by the third party network provider rather than directly by the government. The introduction of the neutral third party justifies ex ante procedural protections that provide notice to the provider and leave a record of what occurred. But it also leads to a very different role for lawyers and judges. While a typical magistrate judge might only hear about a traditional criminal case when the government has already arrested a suspect, a magistrate judge in a digital evidence case often has signed lots of court orders about the suspect long before an arrest is made.

This system was created based on the assumption that statutory judicial review would be limited to compliance with whatever threshold Congress mandated. The court order requirements could be imposed with a tailored burden on law enforcement: A low statutory threshold means a low hurdle, and a higher threshold means a higher hurdle. If statutory order requirements are read to give individual magistrate judges a new plenary authority to predict facts and enter prospective constitutional rulings that slow down or stop investigations, however, it will signal a major change in how Fourth Amendment law develops and may destabilize the foundations of the new system of ex ante court orders. And in my view, neither would be a change for the better.

First, consider how such a system would work. Any magistrate judge would be allowed to predict the facts of how any court order might be implemented, and to enter a ruling applying the law to those facts. Because the statutory scheme requires lots of orders to obtained — often many in each case — the result could amount to thousands of new rulings a year. If any individual magistrate judge concluded that the Fourth Amendment would not be violated by the order, the ruling could not be appealed because there is no losing party to the litigation. That’s true no matter how quirky or far-fetched the ruling may be, either in its predicted facts or its application of the law to the facts. On the other hand, if the magistrate judge concludes that the Fourth Amendment would be violated and denies the application, the government presumably can appeal — at least in some circumstances. But exactly how this appeal would work is quite uncertain. For example, it is very unclear what appellate courts are supposed to make of the magistrate judge’s asserted “facts” or what factual record the appellate court must use. Is the appellate court bound by the facts that the magistrate judge asserted? What standard of review applies to “facts” of how an order will be executed that are reached without a hearing based solely on the magistrate judge’s preliminary research in chambers? How certain must a judge be about what facts might unfold in order to label the predictions as “facts”? And how can a court properly rule on the constitutional question when there is only one side to the briefing, which will usually be the case? Further, imagine that, on appeal, the circuit court rules that the expected surveillance will be constitutional. Again, no one can appeal this ruling, no matter how far-fetched the decision may be on the facts or the law. The circuit court will issue an appellate ruling that is binding within the circuit but cannot be reviewed at all by the Supreme Court. This strikes me as a like a lousy way to develop constitutional law.

Further, allowing magistrate judges to enter constitutional rulings in this setting would destabilize the system of ex ante court orders. If circuit courts approve this procedure and magistrate judges begin to issue these rulings on a wide scale, it will create a hydraulic pressure on DOJ to push to minimize or completely repeal the court order requirements. Magistrate judges have very different views of surveillance law. Some are happy to defer to the government, and some are quite bold civil libertarians. If individual magistrate judges have the power to single-handedly stop investigative steps from occurring based on their own idiosyncratic predictions of facts, then the structure of ex ante court order requirements may be in doubt. If my sense of how DOJ works is right, DOJ won’t stand for such a system for long. By permitting unpredictable interference with the government’s ongoing investigations, the procedure would create a strong incentive for DOJ to push Congress to eliminate the role of magistrate judges entirely or else minimize it substantially, and to let the law unfold entirely through ex post review unchecked by statutory limits ex ante. Again, I don’t think that would be a change for the better.

In my next post, I’ll discuss some of the relevant precedents and explain why existing doctrine strongly points to the conclusion that the Fourth Amendment issues in this case are not ripe for adjudication.

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