Category Archives: Courts

A Number of Misunderstandings

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Los Angeles passed an ordinance requiring hotel operators to give up data in their guest registers to the police, even when they don’t have a warrant.

The ordinance, approved by the city in 2006, requires hotels to collect and maintain guest information such as name and address, the number of people in the guest’s party, vehicle information, arrival and checkout dates, room number, and method of payment. Hotel operators who fail to comply with it face as many as six months behind bars and a $1,000 fine.

A motel operator demurred, and at this point, the 9th Circuit agrees: they struck the ordinance as unconstitutional under the 4th Amendment.

There are a couple of fundamental misunderstandings, though. One is in the 9th‘s ruling, paraphrased by Joe Palazzolo at the above link:

[H]otels have an interest in keeping guest records private, even if the guests themselves have no such privacy rights because they willingly give their information to a third party.

Guests do have a legitimate expectation of privacy regarding “their information,” though. They’re not giving their information to “a” third party; they’re giving it to a particular third party as a necessary thing so that the particular third party can provide the contracted service. Moreover, much of the information that is given over is not necessary for the transaction to occur; it’s mandated by a different third party—a government entity, for the government’s convenience.

A second misunderstanding is in the argument offered by LA’s lawyers.

These laws expressly help police investigate crimes such as prostitution and gambling, capture dangerous fugitives and even authorize federal law enforcement to examine these registers, an authorization which can be vital in the immediate aftermath of a homeland terrorist attack[.]

Say that’s all true. Get a warrant. Time hardly seems of the essence in these hypotheticals, even with the apocalyptically offered “homeland terrorist attack:” the cops are unlikely to be near the hotel or motel when an attack goes in. If time really is of the essence, come armed with a warrant in the first place; they’re disappointingly easy to get.

A third misunderstanding is in Judge Richard Tallman’s dissent, again summarized by Palazzolo.

[T]he hoteliers challenging the ordinance failed to show that police were applying the statute in an unconstitutional way.

The hoteliers had no requirement to do so. The law must be constitutional in the first place; its application by the police is wholly irrelevant after its unconstitutionality is shown.

The matter now is before the Supreme Court, and we’ll learn later who’s right. Legally, anyway.

The Government and Privacy

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The government is continuing to misunderstand the import of the 4th Amendment’s stricture regarding searches, the right of the people to be secure in their persons, houses, papers, and effects and especially Warrants…particularly describing the place to be searched, and the persons or things to be seized, and of the major purpose of our Constitution generally.

Even accepting things like Edward Snowden’s leaks and the NSA’s overbroad and non-particular descriptions of things for which to be “searched” in our cell phone metadata as being aberrations, the existence of the aberration demonstrates the fragility of government handling of that much searching capacity.

I wrote nearby about the FBI’s dangerous zeal in demanding that cell phone operating system software be made vulnerable to government-desired searches. Following is another demonstration of the government’s misunderstanding.

“This sort of encryption creates a virtual sanctuary for criminals who are very determined and smart,” warned Ron Hosko, the former head of the FBI’s criminal division….

So does the 2nd Amendment’s right to keep and bear arms give criminals who are very determined and smart access to tools for supporting their efforts. So does the 1st Amendment’s acknowledgment of a range of freedoms give criminals who are very determined and smart access to tools for supporting their efforts.

That’s a risk we members of our social compact have agreed to accept in order to have a government with the strength otherwise to protect and enforce those freedoms. We’ve done nothing to alter those terms of our compact—our Constitution—since then.

Our Constitution was written the way it was, in fact, to limit our government’s powers as far as we could and still leave it the necessary strength with which to effect those protections. The powers of our government are, by design, few and defined. Our Constitution was, in fact, written to restrain our government, and to carry out that restraint before our government could act, not to attempt to redress a situation after government has acted. This relationship between us compact members, us citizens, and our government, furthermore, is neither symmetrical nor reciprocal.

We restrain our government before the fact; it does not engage in prior restraint of us. Yet, this government demand for ready and broad, non-particular access to the contents of our communications—the contents of our private speech—through a third party and not through us is exactly that attempt by our government to priorly restrain us, if only through the chilling of our speech through government snooping with its implied threat of subsequent harassment. Think IRS. Think Federal whistleblower treatment.

This final thought:

“I don’t think the legislative branch or the judicial branch can sit idly by while destruction comes,” said Hosko….

Neither can We the People sit idly by while the destruction of our inalienable rights comes.

Privacy and the Government

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This time, as represented by the FBI.

The head of the Federal Bureau of Investigation urged Silicon Valley Thursday to reverse course on encrypting phone data, suggesting the pendulum on privacy issues “has swung too far” against the government in the wake of revelations by former National Security Agency contractor Edward Snowden.

No. It hasn’t swung far enough, as too many judges’ attitudes illustrate.

FBI Director James Comey added,

We also need a legislative and regulatory fix.

Again, no. We have too many laws on the books already; the government, including the FBI, aren’t capable of enforcing those existing. And this elides the premise that the government has made illegal and has outright criminalized too many things. Beyond that, we have far too many regulations already, every one of them written by Federal agencies and Cabinet departments that are only tenuously accountable to us citizens.

And

Mr. Comey’s speech [at the Brookings Institution] was another indication of how far apart the two sides remain. He denied they wanted a back door, saying that using a warrant to gather evidence is the equivalent of walking through the front door.

Say that’s true about the current government. There’s no guarantee any future administration would be as restrained with those “legislative and regulatory” fixes. Just look at the out of control regulation writing that’s already been going on for an example of how a tool, originally restrained in its use, gets more and more abusively used over time.

Moreover, beyond individual security and privacy, there’s this national security question, raised by the ACLU’s Christopher Soghoian:

…weakening the security of systems to enable law enforcement access also makes them far more vulnerable to compromise by foreign governments and hackers. If anything, we should be doing more to secure our data.

In Which the Florida Supreme Court Gets One Right

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Police in Florida aren’t allowed to use a cellphone to track someone’s movements according to a sweeping new ruling from the Florida Supreme Court.

The court by a 5-2 vote ruled Thursday that authorities in Broward County had no right to stop and arrest Shawn Tracey for possession of more than 400 grams of cocaine.

The police had a warrant to tap his cell phone calls, but that warrant didn’t include authorization to use his cell phone to track him.

This is entirely appropriate. If the police want to invade a citizen’s privacy, they need either to convince a court that they have probable cause for that, or they need to actually and overtly invade: in the present context, to assign a cop to follow him around.

One of the two dissenting justices, Charles Canady, though, misunderstands the concept of privacy. He cited the US 5th Circuit as follows:

Because a cell phone user makes a choice to get a phone, to select a particular service provider, and to make a call, and because he knows that the call conveys cell site information,…he voluntarily conveys his cell site data each time he makes a call.

Canady added under his own thinking,

Given the known realities of how cell phones operate—realities understood and accepted by all but the most unaware—…cell phone users have neither a subjective expectation of privacy nor an objectively reasonable expectation of privacy regarding the cell site information generated by their cell phones.

Of course the cell phone user does, on both counts. Notice, as Canady apparently does not, that the voluntary conveyance of the information is to a private enterprise, not to a government entity. We citizens can, and we do, have a very strong expectation of privacy regarding any information we surrender to a private entity as a necessary requirement for that entity to provide the service for which we’re paying it.

Notice further, that the caller expects that private enterprise to safeguard our private information, whether it’s surrendered so that the enterprise becomes able to provide the contracted service or whether it’s surrendered more voluntarily as a non-necessary adjunct to that service. This is made clear by the public’s—us people’s—hue and cry over such trackings, by any entity, commercial or otherwise.

If a government entity wants to invade a man’s privacy, it must convince a court of sufficient probable cause as to get a warrant authorizing the invasion. As the police understood in the present case, when they got the warrant to tap Tracey’s cell phone calls—and chose not to get a warrant to collect his location data.

The Court’s ruling, including Canady’s dissent, can be seen here.

Born in Jerusalem Means Born in Israel?

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There is a case on the Supreme Court’s docket this session (which began Monday) that can be summarized thusly:

Born in Jerusalem: The case of an American born in Jerusalem who wants his passport to list his birthplace as Israel underlies a major dispute between Congress and the president, with Middle Eastern politics as the backdrop. The United States has never recognized any nation’s sovereignty over Jerusalem, believing the city’s status should be resolved in peace negotiations. The administration says a 2002 law passed by Congress allowing Israel to be listed as the birthplace of Jerusalem-born Americans would in essence be seen as a US endorsement of Israeli control of the city.

This should be a no-brainer, and it never should have reached this point.

“The Administration” signed the bill into law; it wasn’t merely “passed by Congress.” If the President didn’t like the way it would be perceived by foreign nations, he should have vetoed it, instead.

The courts cannot rule on American domestic law on the basis of how foreign nations might perceive the thing. The courts can only rule on what the law says, in its context—which is domestic. Even at that, what the law says must be primary.

Perceptions of the law by foreign nations are matters of politics not of law, as the separate existences of Articles I and III in our Constitution make clear. The courts have nothing to say on matters of politics.

Finally, if the present administration—or the present Congress, come to that—no longer believe this law to be appropriate in any way, including because of foreign nations’ perceptions, those two should work together on this purely political matter to alter or rescind it. Resorting to the courts is inappropriate and a waste of judicial (and Congressional and administration) resources.

(Aside: that neither Congress nor the President should worry overmuch about foreign opinion when considering American laws is a separate matter.)

Another summary of the case, which gives an outline of its legal history, is here. In my view, the district court, as summarized by this link, erred in both of its rulings. Having held originally, the matter was a non-justiciable political question, the judge should have required State to follow the law. The court was not equipped to rule otherwise, since it had not found the law “illegitimate,” which is to say unconstitutional.

The judge’s second error, when told (correctly) by the Supremes to quit waffling and make a decision, was to rule the relevant section of the law to be an unconstitutional interference with the President’s sole authority to recognize foreign states. Of course, the section does no such thing; it merely accepts that Jerusalem is a part of Israel. The President’s recognition power is unaffected.