Can Magistrate Judges Rule on How the Fourth Amendment Applies to the Execution of a Court Order At the Time of the Application?

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 criminal investigation. See 18 U.S.C. 2703(d). Some people think that the Fourth Amendment demands more protection than Congress provided, and that the Constitution requires a full warrant, at least in some cases. Other people think that the Fourth Amendment does not extend to cell-site records at all, so the statute only allows conduct that falls within constitutional bounds.

In the pending case, the government came to Magistrate Judge Steven Wm. Smith of the Southern District of Texas with applications for cell-site records under 2703(d). Although Judge Smith agreed that the statutory threshold was satisfied, he nonetheless denied the applications and issued an opinion explaining the denials. Magistrate Judge Smith created his own set of facts sua sponte, and he then applied the Fourth Amendment to those facts and concluded that the statute was unconstitutional. Judge Smith thus denied the applications to avoid the perceived future Fourth Amendment violation. DOJ appealed to the District Court, which agreed with Judge Smith and held in a one-page order that the statute fell below the required constitutional standard. DOJ has now appealed again, and argues in its merits brief that the Fourth Amendment does not extend to cell-site data. Because the Fourth Amendment is not implicated, DOJ argues, the applications should have been granted.

My amicus brief takes no position on how the Fourth Amendment applies to cell-site data. Instead, it argues that the district court’s order must be reversed because the Fourth Amendment issues here are not yet ripe for adjudication. The core reason is that ripeness requires facts. Courts can’t apply the Fourth Amendment without knowing what facts exist. But magistrate judges can’t know what the facts will turn out to be when they are asked to grant or deny applications. Even worse, there is no adversary process yet in play that would allow magistrate judges to have a hearing and try to develop those facts. As a result, the most judges can do is guess at the facts on their own and hope they’re right. But I don’t think ripeness doctrine permits that kind of “look ma no facts” judging. Judges can only adjudicate Fourth Amendment dispute when the facts are reasonably certain, and the facts are wholly speculative at the time of the application.

As I mentioned at the top of the post, I believe this is a question of first impression in any court. The obvious question: Why is that? The first reason is that it hasn’t come up much. My sense is that only a few magistrate judges have tried to enter Fourth Amendment rulings at the time of the application, and those judges have done so only in the last 6 or 7 years. Plus, the Justice Department is the only party in these ex parte applications, and for whatever reason they have not raised ripeness issues. A cynical explanation might be that DOJ can appeal any loss and no one can appeal a government win, so DOJ has an incentive to argue for rulings on the merits. But that may be overly cynical. Whatever the reasons, this appears to be an issue of first impression, and it’s a hugely important issue. If magistrate judges can issue Fourth Amendment opinions whenever they receive ex parte applications, and if they have the power to deny applications on that basis, then it is potentially a major shift in how Fourth Amendment law will develop. It’s closely related to an issue I’ve written extensively about, whether the Fourth Amendment permits magistrates to impose ex ante limits on warrants to search and seize computers. My view in both cases is pretty simple. I don’t think magistrate judges have the power to impose such limits at the time of the ex parte applications for orders.

Although this is an issue of first impression, the precedents on the limitations on Fourth Amendment injunctions provide a ready analogy. The Supreme Court and circuit courts have imposed substantial limitations on injunctive relief in Fourth Amendment cases on the ground that prospective injunctions are too hypothetical: Either the hypothetical nature of the dispute means there is no case or controversy, or else the dispute is not ripe. I think the same principle applies in the context of ex parte court order applications, the denial of which are effectively a form of injunctive relief. If anything, the justiciability concerns are much greater in the context of ex parte applications. Motions for injunctive relief at least occur in an adversarial environment. There are two sides, both sides file briefs, and courts can have hearings and find facts. Ex parte applications have none of these features. No briefing is filed unless the judge decides to ask for it; there is no adversary unless the judge finds someone to file an amicus brief; and there is no hearing or factual development. The denial of an application on Fourth Amendment grounds is like sua sponte injunctive relief entered without briefing or even a pending case.

Anyway, I realize that ripeness doctrine is a pretty nerdy subject for an amicus brief. And the section of the amicus brief on appellate jurisdiction is even nerdier (see pages 19-25). I suspect that a lot of people — especially non-lawyers — just want courts to reach the merits to make sure the law is better understood and followed. But I’d be interested in comments on the amicus brief anyway, both from those sympathetic to my argument and those unsympathetic to it. Finally, I realize it’s unusual to file a lawprof amicus brief without rounding up a group of fellow travelers to make it seem like a group effort. But I don’t know of any other law professors who are passionate about ripeness doctrine and appellate jurisdiction in Fourth Amendment disputes, so I figured I would just file it solo.