Archive | 5th Circuit Cell-Site Case

The Fifth Circuit held its oral argument in its Fourth Amendment cell-site case today; the audio is here. On the whole, I thought the argument was pretty unilluminating. The judges spent a lot of time trying to figure out the statute and the facts, but they had surprisingly few questions about the Fourth Amendment questions DOJ and the amici argued. Here’s a quick run-down of the argument, followed by my thoughts:

I. A Summary of the Argument

A) Nathan Judish of DOJ goes first. The first 10 minutes or so are spent just trying to understand how the Stored Communications Act works, and exactly what records the government is seeking. DOJ apparently found out that the phone company doesn’t have some of the records it asked for in the original 2703(d) order applications. If the phone company doesn’t have the records, DOJ can’t get them, so the facts are different now than they were before. As a result, DOJ wants a ruling on the assumption that it is going to get less information than it asked for originally.

B) After about 10 minutes, Judish gets to merits of his Fourth Amendment argument. The reaction of the first judge — Judge Dennis, I think — is that perhaps the magistrate judge shouldn’t have reached the Fourth Amendment issue but should have instead read the statute to give him the discretion to either demand a warrant or instead issue the 2703(d) order on statutory grounds. Perhaps they should remand and tell the judge just to say that he is demanding a warrant because the statute lets him demand a warrant if he wants to, as the Third Circuit has held. Judish responds that the statute doesn’t give the judge that discretion, and the Third Circuit’s decision is wrong. The same judge [...]

Although I wasn’t planning to post any more on the Fifth Circuit cell-site case, I happened to notice that Magistrate Judge Smith recently posted a new essay on SSRN that is in significant part a response to my amicus brief and my criticisms of his decision. I thought it only fair to point readers to his paper and explore Smith’s argument in some detail. I’ll then offer my thoughts in response at the end.

In his essay, Standing Up for Mr. Nesbitt, forthcoming in the University of San Francisco Law Review, Smith argues that magistrate judges must “stand up” and protect ordinary citizens from “an increasingly surveillance-happy state” because “Congress and the Supreme Court have yet to do so.” None of the three branches of government are standing up to protect the ordinary citizen, Smith argues. The Executive Branch can’t regulate itself, and Congress has not addressed some important issues effectively. The Supreme Court has failed to step in, too, as it has hardly touched electronic privacy and it has expressed caution about its own role in recent decisions. With all three branches failing to protect the ordinary citizen, Smith argues, magistrate judges must step in and “play goalie for the missing side.” That is, magistrate judges must correct for the failures of the three branches by representing the side of the target of the investigation. He explains:

Almost by default, then, these matters have been left to the lowest limb of the Judicial Branch, the magistrate judge. Unlike the Supreme Court we don’t have the luxury of picking and choosing our cases, waiting until various appellate courts have weighed in with their considered judgment on difficult or novel issues of law. We are on the front lines, grappling hand to hand with the various, novel, and creative

I wanted to add another post to my series on the Fifth Circuit’s upcoming cell-site case, which raises the issue of whether magistrate judges have the power to decide prospectively how the Fourth Amendment might apply to executing a court order at the time the government applies for the order — and to deny the application if the judge believes that the court order will be implemented in a unconstitutional way.

Some commenters to earlier posts responded that magistrate judges must have this power because they are tasked with protecting the Constitution, and they need to have this power to meaningfully protect constitutional rights. The major problem with this argument is that there is more to the Constitution than the Fourth Amendment: The limitations of the judicial power in Article III are just as much a part of the Constitution as the Fourth Amendment is. It can’t be that courts should violate or ignore one part of the Constitution to make another part “meaningful.” Courts therefore need to comply fully with the limits of Article III when ruling on what the Fourth Amendment does or doesn’t mean.

In my previous posts, I have discussed the first reason Article III prohibits magistrate judges to treat applications for statutory court orders as opportunities to opine on how the Fourth Amendment might apply to the execution of the order, and to rule accordingly: In my view, the claim is not ripe. There are no facts yet and no adversary proceedings, and therefore no ripe dispute. But in this post I wanted to explore a second problem with magistrate judges asserting this power: It is not at all clear that Article III permits magistrate judges to exercise the power even if the dispute is ripe.

Here’s the problem. Article III vests the federal [...]

This is the third in a series of posts on the pending Fifth Circuit case about a magistrate judge’s power to deny statutory applications to collect records under the Stored Communications Act in light of fears that (depending on how one interprets the Fourth Amendment) the execution of the order might violate the target’s Fourth Amendment rights. In this post I wanted to flag another reason the case is non-justiciable beyond the reasons I explained in my amicus brief: A refusal to review the case now would not cause a hardship to the party seeking to invoke the court’s jurisdiction. I regret that I didn’t spot this issue in my amicus. But I’ve done some more research on it recently, and I thought I would add it into the mix.

Here’s the context. If a legal dispute is not ripe, then a court lacks the subject matter jurisdiction to decide it. See Lopez v. City of Houston, 617 F.3d 336, 341 (5th Cir. 2010) (“Ripeness is a component of subject matter jurisdiction, because a court has no power to decide disputes that are not yet justiciable.”); Bigelow v. Michigan Dept. of Natural Resources, 970 F.2d 154, 157 (6th Cir.1992) (“Ripeness is more than a mere procedural question; it is determinative of jurisdiction. If a claim is unripe, federal courts lack subject matter jurisdiction and the complaint must be dismissed.”) But ripeness also has a prudential component that goes to the hardship to the parties of delaying a ruling on the merits. The party seeking to invoke jurisdiction must show a hardship that will be suffered the court does not accept jurisdiction, even if the legal issues presented by the case are purely legal. See Cent. & S.W. Servs., Inc. v. EPA, 220 F.3d 683, 690 (5th Cir.2000) (“This Court [...]

This is the second in a series of posts on the justiciability of Fourth Amendment disputes. Specifically, the issue is whether magistrate judges have the power, when asked to review a statutory court order for surveillance under the Stored Communications Act, to decline to sign an application that satisfies the statute but that the magistrate fears will be executed in ways that violate the Fourth Amendment. The question is currently pending in the Fifth Circuit, with oral argument scheduled for October 2nd. As I argue in my amicus brief, I don’t think judges have that power because such cases are not yet ripe for adjudication. The facts of how the government will obtain the records are unknown, so there are no facts yet on which to apply the law. Without actual facts, Article III jurisdiction does not yet exist, so the magistrate judge has no constitutional authority to opine on the legal issues and the Court of Appeals has no constitutional authority to rule on the issues in the appeal. The Court of Appeals therefore must reverse the district court with instructions to sign the order because the statutory threshold has been satisfied. In this post I want to run through some of the major cases that support this argument, and then consider the two major precedents that have been asserted against my position.

Perhaps the most analogous ripeness cases are those dealing with the limitation of the federal courts to impose injunctive relief in Fourth Amendment litigation. In these cases, a party who has been searched or seized — or who expects to be searched or seized soon — comes into court and seeks an injunction ordering the government not to engage in the practice again because the practice is unconstitutional. The issue is whether the federal court [...]

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 [...]

Does government collection of cell-site records implicate the Fourth Amendment after United States v. Jones? I mentioned a while back that I had filed an amicus brief in a pending Fifth Circuit case that touches on that question. The question in the Fifth Circuit case is whether magistrate judges can deny applications for court orders to obtain historical cell-site records based on concerns that executing the orders may violate the Fourth Amendment. The United States is the only party to the litigation, but the amicus briefs in support of affirmance were due last week. Here’s a run-down of the briefs so far:

1. Merits Brief of the United States (argues that magistrate judges must grant the applications because historical cell-site data is not protected by the Fourth Amendment).
2. Amicus Brief of Orin Kerr in Support of Reversal (argues that magistrate judges must grant the applications because the constitutional question is not yet ripe for adjudication).
3. Amici Brief of the ACLU, the Electronic Frontier Foundation, the Center for Democracy and Technology, and NACDL in Support of Affirmance (argues that magistrates have the statutory discretion to grant or deny applications on Fourth Amendment grounds, and that the Fourth Amendment requires a warrant for the collection of cell-site records).
4. Amicus Brief of the Electronic Privacy Information Center in Support of Affirmance (argues that cell-site monitoring is a search under United States v. Jones).
5. Amicus Brief of Susan Freiwald in Support of Affirmance (argues that magistrate judges must deny the applications because historical cell-site data is protected by the Fourth Amendment and requires a warrant).

The government now has two weeks to file a reply brief responding to the amicus briefs. [...]

Last week, I filed an amicus brief in the Fifth Circuit on a very important question in high-tech crime investigations. As far as I know, the issue is a matter of first impression in any court. Here’s the question: When privacy statutes require the government to obtain a court order before collecting records or conducting surveillance, is the constitutionality of the future execution of the order ripe for adjudication at the time of the application?

That’s a mouthful, so let me try an example. Imagine you’re a federal magistrate judge. The government comes to you with an application for a court order to collect records as required by a federal privacy statute. The government has satisfied the statutory standard set by Congress. But you think that the statute is unconstitutional, and that compliance with the statute therefore will violate the Fourth Amendment. Here’s the question: Can you deny the order and issue an opinion explaining your denial based on your conclusion that the collection of the records would violate the Fourth Amendment? Or do you have to issue the order, let the government execute it, and then wait for an ex post challenge to the constitutionality of the government’s conduct?

The issue has arisen in a pending Fifth Circuit case on the constitutionality of government access to historical cell-site records. Cell-site records are records obtained from cellular providers indicating which cell towers were in contact with a particular phone over time. Congress created a privacy law that requires investigators to get a court order before collecting such records. But Congress opted to use a lower standard than a probable cause warrant. Instead of requiring probable cause, the statute says that investigators merely need to show specific and articulable facts that the evidence may be relevant and material to an ongoing [...]