Unwarranted, p.28
Unwarranted, page 28
It’s both true and unavoidable, as Justice Alito noted in Jones, that technology may alter social convention. That is exactly what the law must take account of. Technology invariably is going to shift the way we interact with one another, and what our expectations of appropriate social behavior are. The law must be concerned with how people understand their privacy in the world in which we actually live. And it is to those expectations that law enforcement must adhere.
The telephone provides an apt example of social convention changing the meaning of privacy, even explaining the differing conclusions in Olmstead and Katz, the cases of the bootlegger and the bettor. Plenty of folks alive today can remember picking up the phone and hearing others’ conversations. “Party lines” were familiar well into the 1960s, and more than one nosy neighbor would listen in. Calls were placed through live operators, who—at least in a small town—seemed to know everyone’s business. New York City’s Police Commissioner Arthur Woods in 1916 made the point that “[t]elephone conversations … cannot be private in a way that letters can be, since the employees of the telephone company cannot help hearing parts of conversations and may, if they are inclined, easily hear all.” But by 1967 such eavesdropping was frowned upon, and there simply was no way to get around the fact that in nailing Katz, the government was spying in a socially unacceptable fashion: “To read the Constitution more narrowly,” said the Katz Court, getting it exactly right, “is to ignore the vital role that the public telephone has come to play in private communication.” 44
Because the reasonable expectation of privacy test properly incorporates social convention, it is true that there will be hard cases—even for the most mundane of technologies. In a case out of Washington State, for example, an officer—acting on a report of someone growing pot—looked in the window of a mobile home with a flashlight, discovering marijuana and paraphernalia. The Washington Supreme Court leaned heavily on social convention in concluding this was not a search. “An officer may act as any reasonably respectful citizen.” People, the justices said, commonly walk up to one another’s front doors and peer in their windows. They also use flashlights: “in this state” it “would be an expected device for someone to use approaching a mobile home in a rural area at dusk or after nightfall.” Still, there was room to doubt this seemingly obvious conclusion. The dissent felt the officer—who had also trespassed by going further onto the property to check out a shed, and had peered in a back window of the home as well—had wandered too far off the permissible “access route” to the house. Do “reasonably respectful” citizens do that?45
The real problem in this area, though, is not the difficulty of determining social convention in most cases; it is once again the judges’ lack of fortitude to make law enforcement adhere to acceptable social norms. Judge Kozinski hit the nail on the head in Pineda-Moreno when he said that his colleagues simply lacked the will to constrain law enforcement, the privacy of all of us be damned. In the Greenwood trash case, the majority, in support of its argument that we have no expectation of privacy in our trash, quoted an article about “journalistic ‘trashpicking,’” which said that “evidently … everybody does it,” citing as an example Henry Kissinger’s trash being combed through by a tabloid when he was Secretary of State. As the dissent pointed out, however, the public “roundly condemned” this, calling it “a disgusting invasion of personal privacy” and “indefensible … as civilized behavior.” In complete disregard of social convention, courts have approved overflights of glass ceilings, secret video cameras fixed onto poles outside of homes, and the use of night-vision goggles to peer through windows. Though the technology exists for law enforcement to do all these things, none of it is cricket—at least not without probable cause and a warrant.46
Lest there be any doubt about where social convention stands, it is instructive to see how the justices and other public officials react when the shoe is on the other foot. In Portland, for example, officials went berserk when a local newspaper decided to paw through their trash to make a point about police spying. The brouhaha began when the Portland police did a “garbage pull” on one of their colleagues with whom they had a vendetta, finding—among other things—a “bloody tampon” that they sent off for a drug screen. A local judge disapproved the trash drop—relying of course on the Oregon Constitution, because, as we have seen, the federal Constitution has nothing to say about this. The local DA and police chief then challenged the wisdom of the judge’s decision, believing trash drops a valuable tool. So Willamette Week decided to see what was in their trash. When reporters came to show the police chief what they’d found, he said “This is very cheap” and tossed them out of his office. The mayor had stronger things to say: “I consider Willamette Week’s actions in this matter to be potentially illegal and absolutely unscrupulous and reprehensible. I will consider all my legal options in response to their actions.” The mayor and police chief were right; what Willamette Week did was outrageous. But the germane question is why the Supreme Court thinks it is okay for the police to do the same sort of thing, without warrant or probable cause.47
Justice Scalia—who was with the majority in allowing trash drops in Greenwood—had a similar negative reaction when, in 2009, a Fordham professor had his class engage in a “teaching moment”—assembling a dossier on the justice by trolling the Internet and seeing what they could find. They found a lot: what TV shows and food he likes, his home address and phone number, his wife’s email address. Justice Scalia had set himself up for it. At a conference he’d scoffed at Internet and personal privacy. When confronted with the class project, though, Justice Scalia was, to say the least, displeased. He called the exercise “abominably poor judgment,” and snidely added that because the professor “was not teaching a course on judgment, I presume he felt no obligation to display any.” 48
There is simply no excuse for courts inviting the police to ignore the norms of society. People can physically stand on toilet seats and peer into the next stall, but it’s not at all acceptable, and for that reason cops shouldn’t be allowed to either—at least not without probable cause and a warrant. As Judge Kozinski said in Pineda-Moreno, lambasting the lackluster diligence of his colleagues, “To say that the police may do to your property what urchins might do spells the end of Fourth Amendment protections.” 49
SOLVING HARD CASES
Because social conventions change, there are going to be hard cases, of course. But neither the police nor the courts need to figure out on their own what social convention permits. The tools for “policing with permission” are available to help, and should be used.
Warrants
To the extent law enforcement wants greater clarity in any given case, there is an easy answer: get a warrant. In many of the cases in which courts have waved a green flag at the police after the fact, a warrant would have been utterly obtainable. The government did get a warrant in Jones; they just failed to comply with it by attaching the GPS after the deadline, and in the wrong jurisdiction to boot. And surely in cases like Rose, the marijuana flashlight case from Washington State, where the tipster is a known citizen who could be prosecuted for sending the police on a false mission, detailed allegations of why they think the law is being violated should provide the police with ample probable cause. Investigating marijuana growing was hardly an emergency that justified skipping over getting a warrant before snooping around.50
If the government decides to spy without getting court permission on the front end, then courts should be extra-reluctant to push the boundaries of the Fourth Amendment on the back end by deeming what the government did in that case not to be a search. If the government can get a warrant in close cases, it should. It is true that in some cases it is tougher to develop probable cause than in others—a problem we’ll tackle in the next chapter. Only when cause is absent, though, should courts struggle with this difficult question of whether a search even occurred. If there was probable cause, and doubt about whether a warrant was necessary, the right answer is to get a warrant. If courts are quick to say that what police did was not even a “search”—and thus placing it wholly outside the Fourth Amendment—the police will never bother to get an independent opinion from a magistrate. That is precisely how and why the privacy of all of us is at risk.
The Legislative Solution
Emerging technologies present two very real sorts of problems. If social convention allows something, then the police don’t need a warrant. Yet it can be difficult for courts to know precisely what is socially acceptable. In addition, for some of these technologies, we have to ask whether, even if the police have probable cause, a warrant is enough protection.
Take drone technology. Drones have the capability of changing our world, in many ways for the better. They can be used for fire patrol, traffic snarls, locating lost children. But the fact that drones are remarkably cheaper than their aerial predecessors means there also could be widespread abuse. The Federal Aviation Administration had licensed just over 300 drones as of 2013; that number is expected to top 30,000 by 2020. “Hummingbird” drones can hover outside our windows with cameras and microphones. “Mosquito” drones can be remotely controlled and take blood samples without our knowing. Is a warrant enough to justify law enforcement in utilizing these technologies, or are further rules necessary?51
Automatic license plate recognition, or ALPR, provides another apt example. On the one hand, all that ALPRs record are license plates visible to anyone in public. On the other hand, using nothing but a camera and an optical character reader, this technology allows law enforcement to harvest the location of millions of vehicles, and store that information in searchable databases. ALPR has enormous potential as a crime-fighting tool. A 2011 survey found 71 percent of police agencies used license plate readers. And 85 percent of agencies planned on acquiring or increasing their use of license plate readers over the next five years. In Montgomery County, Maryland, for example, one officer using an ALPR for some hundred hours over a twenty-seven-day period collected almost 50,000 license plate “reads.” These reads resulted in more than two hundred traffic citations, identified twenty-six suspended licenses, sixteen emission violations, four stolen and one expired set of plates, and three arrests.52
But just as ALPR has promise, it also poses a threat to civil liberties. The International Association of Chiefs of Police, which has done excellent work in this area, explained that ALPR cameras “may collect the license plate numbers of vehicles parked at public locations that, even though public, might be considered sensitive, such as doctor’s offices, clinics, churches, and addiction counseling meetings, among others.” A sergeant with the Los Angeles Sheriff’s Department said of ALPR data: “I’d keep it indefinitely if I could”; it is not “Big Brother”; and “[i]t’s doing what a deputy normally does in his routine duties.” That’s not true: the normal deputy can’t collect 50,000 license plate numbers, let alone millions, and store them away in a database that can be used to reconstruct a vehicle’s movements over a week, month, or year.53
What is needed to address the difficult questions with regard to emerging technology is policy—the sort courts just can’t give, and democratically accountable bodies should, as we saw in Part I. Justice Alito made precisely this point in the Jones case. “In circumstances involving dramatic technological change,” he wrote, “the best solution to privacy concerns may be legislative.” That is because “[a] legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.” The ACLU’s chief technologist, Christopher Soghoian, said much the same thing regarding the use of malware: “We have transitioned into a world where law enforcement is hacking into people’s computers, and we have never had a public debate.”54
Where judges and others have gone wrong, though, is in thinking that courts must act if legislatures have not. Soghoian pointed out that in the absence of legislative action, “[j]udges are having to make up these powers as they go along.” Alito said the same in Jones. Ruing the fact that “[t]o date … Congress and most States have not enacted statutes regulating the use of GPS tracking technology for law enforcement purposes,” he concluded the justices were forced to do “[t]he best that we can do”—i.e., to decide whether or not it is a search.55
This is simply incorrect: there is something else the judges not only could do, but should, which is to refuse to allow emerging technologies to be used by the police for surveillance until rules are in place to regulate them. As we discussed in detail in Chapter 4, courts do not have to say “aye” or “nay” to police activities. All they need do is ask the question “Is the police use of long-term GPS tracking (or malware, or drones) authorized by law?” General statutes authorizing policing agencies to enforce the law, adopted in some cases decades before such technology was even imaginable, ought not to be held to authorize anything the police choose to do. That is particularly the case with regard to the new policing, which uses some of these technologies—such as ALPR—not just when there is probable cause to suspect someone of wrongdoing, but on all of us at any time the police wish, without cause or warrants.
Instead of forcing democratic debate about the use of technology for spying, the justices have done the opposite, choosing to disregard relevant legislative enactments. In Greenwood, local law required the trash be put on the curb, it prohibited the trash collector from going through that trash, and the California Supreme Court had held that as a matter of state law, one had a right of privacy in one’s trash. No matter, said the Supreme Court: “We have never intimated that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs.” In United States v. Dunn government agents went over a perimeter fence, one interior fence, two additional barbed-wire interior fences, and a final wooden fence on the defendant’s 198-acre ranch located half a mile from a public road, then used a flashlight to see a drug lab in a barn located near a private home. The justices ignored the fact that state law prohibited just such trespassing, holding (somewhat incoherently) that it was not a search at all because it occurred in an “open field” rather than the home or its surrounds.56
If state law forbids what the cops have done, that should be the end of the matter. What is more telling of social convention than the laws adopted by democratically accountable bodies? It is possible those laws will fall out of date. But the way to discern this is for courts to follow them—even if it means limiting the police—unless and until democratic processes change the law.57
As we have seen time and again, giving people a voice makes for very different policy. Take data retention policies for ALPR. Is it a coincidence that under rules drafted by the New Jersey Attorney General, ALPR data can be kept for five years, while under a democratically adopted Maine statute it is twenty-one days? The District of Columbia was set to adopt a widespread system of closed-circuit video surveillance, like that omnipresent in the United Kingdom. The use of such cameras, originally part of the fight against terror, was to be expanded “to deter and/or eliminate crime in residential and commercial areas.” Community leaders applauded them as a popular solution to crime. But then the D.C. government did what it should, and engaged in rule-making, inviting public participation. The result was a significantly scaled-down project that included provisions for erasing the recordings on a regular basis.58
In the face of rapidly changing technology, what is required of judges is caution, some humility about their ability to understand what expectations of privacy society deems reasonable, and deference to democratic processes. In one of the first of the current era’s electronic communications cases to reach the Supreme Court, City of Ontario v. Quon, the justices recognized their own limitations. The case involved a police officer’s use of a department beeper for private communications—including sending sexually explicit messages. The Court said it must “proceed with care” because “[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society becomes clear.” “[I]t is uncertain how workplace norms, and the law’s treatment of them, will evolve.” The justices concluded, “Prudence counsels caution,” lest any single case, with its own peculiar facts, establish “far-reaching premises” about privacy expectations.59
The Court in Quon had it exactly right. What is needed when technology is at issue is ongoing democratic intervention. The justices should force it to occur by refusing to allow the use of new surveillance technologies until they are authorized by public action.
To be clear, deeming more activity a “search” puts law enforcement in a little bit of a bind. Because searches require probable cause (and often a warrant), there will be instances in which law enforcement officials have reason to suspect something is up, but not enough evidence to add up to probable cause—i.e., enough to search or get a warrant. What do they do then? This has proven a particularly contentious issue in the Internet and cellular age, and so that is where we will turn next.
10
THIRD-PARTY INFORMATION AND THE CLOUD
There’s long been a serious chink in the Fourth Amendment’s armor: a Supreme Court rule that says if the government demands information about you from a third party, it is not a “search,” and therefore doesn’t implicate your rights at all. Time and technology have worn that chink into a spyhole on what we hold both intimate and dear.1 As our lives have moved from actual homes and offices to the virtual world of cyberspace, most everything about us is now sitting in some third party’s hands. If the government wants it, the Supreme Court says, it need only subpoena it from whoever happens to be holding it. No warrant is needed and no probable cause required, thank you very much.2
