The Volokh Conspiracy

On Friday, Jonathan pointed out United States v. Blewett, the new Sixth Circuit decision on the 100-1 crack-cocaine sentencing disparity. Jonathan described the issue in that case as being whether the 2010 Fair Sentencing Act applied retroactively. But the most remarkable part of Blewett actually decides a different question that was neither briefed nor argued: Whether the 100-1 disparity in effect before 2010 was constitutional. And the majority’s argument for why the 100-1 disparity was unconstitutional strikes me as not just wrong but obviously so.

According to the majority opinion signed by Judges Merritt and joined by Judge Martin, the Equal Protection Clause requires judges to disregard bodies of law that have known racially discriminatory effects. That’s the case because applying law that has a known discriminatory impact would be an intentional act of discrimination by judges that the Equal Protection clause forbids. Here’s the key part of the opinion:

In view of the statistical facts and the widespread congressional consensus leading to the adoption of the Fair Sentencing Act’s remedial provisions [replacing the 100-1 ratio in 2010 with an 18-1 ratio], there can be no doubt that the old crack law was racially discriminatory in effect. As a matter of legal doctrine, there is no equal protection violation without discriminatory intent. See Washington v. Davis, 426 U.S. 229 (1976). When the old 100-to-1 crack cocaine statute was adopted, it presumably did not violate the Equal Protection Clause because there was no intent or design to discriminate on a racial basis. Its adoption was simply a mistake. Since 1986, however, we have gained knowledge of the old statute’s devastating effect on blacks. Congress itself acknowledged this problem by enacting the Fair Sentencing Act.

The Fair Sentencing Act was a step forward, but it did not finish the job. The racial discrimination continues by virtue of a web of statutes, sentencing guidelines, and court cases that maintain the harsh provisions for those defendants sentenced before the Fair Sentencing Act. If we continue now with a construction of the statute that perpetuates the discrimination, there is no longer any defense that the discrimination is unintentional. The discriminatory nature of the old sentencing regime is so obvious that it cannot seriously be argued that race does not play a role in the failure to retroactively apply the Fair Sentencing Act. A “disparate impact” case now becomes an intentional subjugation or discriminatory purpose case. Like slavery and Jim Crow laws, the intentional maintenance of discriminatory sentences is a denial of equal protection.

As I understand the reasoning, Judges Merritt and Martin work around the requirement of invidious purpose to discriminate by saying that judicial application of laws with known discriminatory effect forces the judges to have invidious purpose to discriminate when they apply the law. In other words, discriminatory effect plus awareness of it amounts to intentional discrimination in the act of applying the law. And the need to avoid discrimination not only trumps the law but also trumps binding precedents saying that the law is constitutional. The argument doesn’t work on its face, as a judge who applies binding law that may have a discriminatory effect does so not because she wants to achieve a discriminatory result but because that result is what the controlling law requires. But in any event, Judge Gilman’s dissent nicely points out the binding precedent to the contrary. The majority doesn’t even bother with much of a response to Judge Gilman’s dissent: See Footnote 6, which for the most part doesn’t even track forms of legal argument.

I agree that the 100-1 disparity was terrible policy. But the majority’s constitutional analysis strikes me as not just wrong but obviously so.

Over at MotherJones, Kevin Drum has an interesting post on the AP leak investigation: Here’s Why the Government Went Ballistic Over the AP Leak.

Also, over at Slate, Emily Bazelon and former VC blogger Eric Posner debate whether the subpoenas of the AP records were justified. Eric gets the better of the argument, I think, but it’s a helpful exchange either way.

I’ve blogged a few times about the substantial lower court division on whether the police can search a seized cell phone incident to arrest without a warrant under the Fourth Amendment. Today the First Circuit further deepened the split in United States v. Wurie by holding that a warrant is required.

With Wurie today and the Florida Supreme Court’s decision in Smallwood a few weeks ago, I would think that Supreme Court review of this legal question is highly likely sometime soon. (Notably, Deputy SG Michael Dreeben argued Wurie for DOJ.)

For my own views on the question, see my short essay Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub. Pol’y 403 (2013).

Most of the reporting on the DOJ investigation into the leak to the AP has said that the DOJ obtained two months of telephone records. The claim of a two-month period comes from the AP’s own reporting about what DOJ disclosed to the AP in its notice about the collection. The AP story began: “The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a ‘massive and unprecedented intrusion’ into how news organizations gather the news.” (emphasis added)

According to a recent clarification by DOJ, however, that reporting was wrong. In a letter signed by Deputy AG James Cole, DOJ pointed out that although the subpoenas covered calls made during two calendar months, April and May 2012, the subpoenas only covered “a portion of that two-month period.” The DOJ letter doesn’t go into more detail than that, citing the need to keep the investigation confidential. But recall that the government asked the AP to delay running the story on May 2, 2012, and that the AP held the story for a few days until publishing it on May 7, 2012. Given that the action here occurred at the beginning of a month, the fact that the records were obtained relating to calls during two calendar months doesn’t indicate that the records were collected over a long period of time. It might have been a week or two, or even less; we just don’t know. We only know that the start date was some time in the month of April and the end date was some time in the month of May.

It will be interesting to see if press coverage will correct that error from the initial coverage of the story, or if media reports will continue to say that two months of records were collected.

News here.

Attorney General Eric Holder recused himself from approving the AP subpoenas in the CIA operation leak case because he himself had been interviewed in the investigation. But at a press conference today, Holder defended the DOJ investigation on the ground that the nature of the leak required “very aggressive action.” Here’s what Holder said:

This was a very serious — a very serious leak, a very, very serious leak. I’ve been a prosecutor since 1976 and I have to say that this is among — if not the most serious, it is within the top two or three most serious leaks that I’ve ever seen. It put the American people at risk. And that is not hyperbole. It put the American people at risk. And trying to determine who was responsible for that, I think, required very aggressive action.

Why might Holder think that? Some will conclude that Holder is lying, and that as a result he doesn’t really think it’s true. But let’s revisit the May 7, 2012, Associated Press story that started the investigation. Here’s the most relevant excerpt:

The CIA thwarted an ambitious plot by al-Qaeda’s affiliate in Yemen to destroy a U.S.-bound airliner using a bomb with a sophisticated new design around the one-year anniversary of the killing of Osama bin Laden, The Associated Press has learned.

The plot involved an upgrade of the underwear bomb that failed to detonate aboard a jetliner over Detroit on Christmas 2009. This new bomb was also designed to be used in a passenger’s underwear, but this time al-Qaeda developed a more refined detonation system, U.S. officials said.

The FBI is examining the latest bomb to see whether it could have passed through airport security and brought down an airplane, officials said. They said the device did not contain metal, meaning it probably could have passed through an airport metal detector. But it was not clear whether new body scanners used in many airports would have detected it.

The would-be suicide bomber, based in Yemen, had not yet picked a target or bought a plane ticket when the CIA stepped in and seized the bomb, officials said. . . .

The AP learned about the thwarted plot last week but agreed to White House and CIA requests not to publish it immediately because the sensitive intelligence operation was still under way.

The AP story tells us three important things: 1) The CIA knew about the details of the plot during its planning stages; 2) The CIA not only interrupted the plot but actually took the bomb into its possession and then passed it off to the FBI; and 3) the CIA’s work was occurring as recently as a few days before the AP story was published on 5/7/2012.

Based on those three facts, it seems pretty likely that the CIA had people “on the inside” of Al Qaeda’s Yemen affiliate who took possession of the bomb. As covert agents, they would have covered up their removal of the bomb by making it seem like something else had happened. That matters, I think, because it means that the Al Qaeda affiliates in Yemen have a ready way to find the CIA plant(s). Just trace back what happened to the bomb, and specifically find the folks who claim to have seen it last and who came up with some story about what happened to it around the beginning of May. Chances are, that would bring you to the guys working for the CIA. And that discovery probably means no more CIA plants working on the inside the next time, which may take away the person(s) who otherwise could disrupt future plots or tip off U.S. authorities to a future attack.

Of course, we can’t be sure that this is the case. But a close read of the original AP story does suggest reasons why this would have been a particularly dangerous leak. And, if so, that may explain why AG Holder thinks that this leak justifies a “very aggressive” investigation.

UPDATE: Helpful comments point me to this New York Times story from May 8, 2012, that added considerably more details after the initial AP story was out:

The suicide bomber dispatched by the Yemen branch of Al Qaeda last month to blow up a United States-bound airliner was actually an intelligence agent for Saudi Arabia who infiltrated the terrorist group and volunteered for the mission, American and foreign officials said Tuesday.

In an extraordinary intelligence coup, the double agent left Yemen last month, traveling by way of the United Arab Emirates, and delivered both the innovative bomb designed for his aviation attack and inside information on the group’s leaders, locations, methods and plans to the Central Intelligence Agency, Saudi intelligence and allied foreign intelligence agencies.

Officials said the agent, whose identity they would not disclose, works for the Saudi intelligence service, which has cooperated closely with the C.I.A. for several years against the terrorist group in Yemen. He operated in Yemen with the full knowledge of the C.I.A. but not under its direct supervision, the officials said.

After spending weeks at the center of Al Qaeda’s most dangerous affiliate, the intelligence agent provided critical information that permitted the C.I.A. to direct the drone strike on Sunday that killed Fahd Mohammed Ahmed al-Quso, the group’s external operations director and a suspect in the bombing of the U.S.S. Cole, an American destroyer, in Yemen in 2000.

He also handed over the bomb, designed by the group’s top explosives expert to be undetectable at airport security checks, to the F.B.I., which is analyzing its properties at its laboratory at Quantico, Va. The agent is now safe in Saudi Arabia, officials said. The bombing plot was kept secret for weeks by the C.I.A. and other agencies because they feared retaliation against the agent and his family — not, as some commentators have suggested, because the Obama administration wanted to schedule an announcement of the foiled plot, American officials said.

Officials said Tuesday night that the risk to the agent and his relatives had now been “mitigated,” evidently by moving both him and his family to safe locations.

But American intelligence officials were angry about the disclosure of the Qaeda plot, first reported Monday by The Associated Press, which had held the story for several days at the request of the C.I.A. They feared the leak would discourage foreign intelligence services from cooperating with the United States on risky missions in the future, said Representative Peter T. King, a New York Republican and chairman of the House Homeland Security Committee.

“We are talking about compromising methods and sources and causing our partners to be leery about working with us,” said Mr. King, who spoke with reporters about the plot on Monday night and Tuesday after he was briefed by counterterrorism officials. Mr. King, who called the bomb plot “one of the most tightly held operations I’ve seen in my years in the House,” said he was told that government officials planned to investigate the source of the original leak. The C.I.A. declined to comment.

The added details complicate the picture somewhat, I think. On one hand, they suggest that the agent’s work may have been done and the information likely was going to become public at least to some extent at some point. On the other hand, the details add the complication about discouraging foreign intel services from working with the U.S., which is a concern that those with intel experience will be able to assess more accurately than I can.

A lot of blogs are expressing outrage at the AP story reporting that the government collected logs of telephone numbers used by the AP. The AP’s story appears to have been written to get people upset. The first sentence of the AP report is not subtle: “The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a ‘massive and unprecedented intrusion’ into how news organizations gather the news.” Yikes, a secret investigation! And a massive and unprecedented intrusion! It sounds like quite the scandal.

But a different picture emerges if you look past the AP’s spin. DOJ is investigating a leak of national security information to AP reporters that culminated in a May 7, 2012 story that disclosed details of a CIA operation in Yemen that stopped a terrorist plot in early 2012. The story had the byline of five AP reporters. DOJ opened an investigation into the leak to the AP, and pursuant to its published special rules on investigations involving the media investigations, issued subpoenas to find out what numbers were dialed from the relevant AP reporters during the months of April and May 2012. Presumably the thinking is that AP reporters called their sources, and the investigators want to trace the phone numbers to see who the sources might be. As far as I can tell, the information collected by the subpoena concerned the work and personal phone numbers of the five reporters and their editor, as well as the general AP office numbers where the reporters were located and for the main number for the AP in the House of Representatives press gallery. The AP knows about this because pursuant to DOJ’s policies found in 28 C.F.R. 50.10, the government was required to give the AP notice that the records were obtained. The AP received that notice in a letter on Friday, and then today (Monday) it released its AP story expressing AP’s outrage. That’s pretty much all we know so far.

Based on what we know so far, then, I don’t see much evidence of an abuse. Of course, I realize that some VC readers strongly believe that everything the government does is an abuse: All investigations are abuses unless there is proof beyond a reasonable doubt to the contrary. To not realize this is to be a pro-government lackey. Or even worse, Stewart Baker. But I would ask readers inclined to see this as an abuse to identify exactly what the government did wrong based on what we know so far. Was the DOJ wrong to investigate the case at all? If it was okay for them to investigate the case, was it wrong for them to try to find out who the AP reporters were calling? If it was okay for them to get records of who the AP reporters were calling, was it wrong for them to obtain the records from the personal and work phone numbers of all the reporters whose names were listed as being involved in the story and their editor? If it was okay for them to obtain the records of those phone lines, was the problem that the records covered two months — and if so, what was the proper length of time the records should have covered?

I get that many people will want to use this story as a generic “DOJ abuse” story and not look too closely at it. And I also understand that those who think leaks are good things will see investigations of leaks as inherently bad. But at least based on what we know so far, I don’t yet see a strong case that collecting these records was an abuse of the investigative process.

It’s here, via How Appealing. The embedding function only has the 1st 20 minutes, which you can watch below (and which will then ask you to click through to the PBS page for the rest).

Watch A More Perfect Union on PBS. See more from Constitution USA with Peter Sagal.

I haven’t blogged recently on judicial decisions considering the mosaic theory of the Fourth Amendment. As regular readers will recall, the “mosaic theory” is a term for the idea that long-term monitoring of a suspect can be a Fourth Amendment search even if short-term monitoring is not. Under this approach, which was suggested by the concurring opinions in United States v. Jones, surveillance and analysis of a suspect is outside the Fourth Amendment until it reaches some point when it has gone on for too long, has created a full picture of a person’s life (the mosaic), and therefore becomes a search that must be justified under the Fourth Amendment. I think the mosaic approach is a misstep for reasons I elaborated on in this article. And the handful of lower courts to have considered the theory since Jones mostly have not adopted it, either because they found it unpersuasive, because they distinguished Jones on the facts, or because they avoided the question under the good-faith exception to the exclusionary rule. See, e.g., United States v. Graham, 846 F.Supp.2d 384 (D.Md. 2012).

In the last week, two district courts have divided on the question: United States v. Rigmaiden (D. Ariz. May 8, 2013), and United States v. Powell, — F.Supp.2d –, 2013 WL 1876761 (E.D. Mich May 3, 2013) In this post, I want to discuss the two rulings, and then offer some critical commentary on Powell at the end.

First, today in United States v. Rigmaiden (D. Ariz. May 8, 2013), Judge Campbell held that the third-party doctrine applies to both cell-site information collected over 38 days and websurfing destination IP address information that collected 1.8 million destination IP addresses. Judge Campbell held that the mosaic theory did not apply when the government obtained historical cell-site records of the target’s location over a 38 day period, which it used to find the defendant:

Defendant argues that the government was able to use the cell-site information to effectively track his aircard from June 10 to July 18, 2008, a period of 38 days, and that this “prolonged surveillance” implicated his reasonable expectation of privacy. Doc. 824 at 215-17. Defendant relies on United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), and United States v. Jones, 132 S.Ct. 945 (2012), but those decisions are inapposite. They do not address orders under the SCA, and the Supreme Court in Jones did not adopt the privacy theory advanced by Defendant.

In this case, a government agent, working in his office with the historical cell-site information and using mathematical and triangulation techniques, was able to calculate a general location for Defendant’s aircard during a 38-day period. The calculation narrowed the location of the aircard to one-quarter of a square mile.The Court cannot conclude that such use of cell-site information [over a 38 day period], obtained from a third party under the SCA, is tantamount to attaching a GPS device to a person’s vehicle. Calculations made from the historical cellsite information did not provide minute-by-minute intelligence on Defendant’s precise movements as did the GPS device in Maynard. The calculations merely identified a general area where the aircard was located – and stationary – for 38 days.

Also, in the case of the IP addresses monitored, the volume of surveillance didn’t matter:

Nor did the government violate Defendant’s Fourth Amendment rights by the volume of IP addresses it obtained. Defendant notes that the government obtained 1.8 million IP addresses from Verizon, and argues that the government should have tailored its request more narrowly and obtained only those IP address it had already connected to the tax-refund scheme. Because obtaining IP addresses is akin to obtaining telephone numbers, an act that does not implicate the Fourth Amendment at all, Forrester, 512 F.3d at 510–11, the Court cannot conclude that the government was required to narrowly tailor its request. Moreover,Forrester specifically held that there is “no difference of constitutional magnitude” between obtaining IP addresses and learning the total volume of communications with such addresses, holding that the government’s monitoring of “the total volume of data transmitted to and from [the defendant’s] account” did not violate the Fourth Amendment. Id. at 511. If the government can obtain destination IP addresses and the total volume of such communications without implicating the Fourth Amendment, the Court cannot conclude that the government somehow violated the Fourth Amendment when it obtained 1.8 million IP addresses accessed by Defendant’s computer.

On the other hand, last week Judge Murphy of the United States District Court for the Eastern District of Michigan handed down a decision adopting what amounts to a mosaic approach for cell-phone tracking in United States v. Powell, — F.Supp.2d –, 2013 WL 1876761 (E.D. Mich May 3, 2013). In Powell, eight defendants in a wide-ranging narcotics conspiracy jointly moved to suppress cell-site and GPS information obtained from six cell phones to monitor the location of the conspirators. The FBI had obtained a series of search warrants to obtain the records pursuant to Federal Rules of Criminal Procedure 41. Each of the warrants allowed the government to monitor an individual phone for at least 30 days, and the collection of all the warrants together allowed the agents to monitor the collection of cell phones for about seven months. The monitoring occurred over seven months in 2010, and one warrant in particular revealed very helpful information about the locations of at least one of the conspirators. Fourteen conspirators were charged in the case, and eight defendants moved together to suppress the location monitoring on the ground that the warrants were defective and thus that the fruits of the location monitoring had to be suppressed.

In Judge Murphy’s opinion, he ultimately rules that the good-faith exception to the exclusionary rule applies, so the motion to suppress is denied. But before he gets there, he adopts a few novel holdings about the Fourth Amendment.

First, Judge Murphy rules that a warrant was required to conduct as much monitoring as the government conducted. It’s true that in United States v. Skinner, the Sixth Circuit (binding on Judge Murphy) had said that cell-phone tracking of a suspect was outside the Fourth Amendment. But Skinner involved tracking for only a few days, while all of the monitoring collectively in this case involved tracking of the various suspects for seven months. This was a long enough period that it was highly likely that some of the tracking occurred when suspects were inside their homes: “Given the duration and intensity of the tracking, it cannot be reasonably argued that only public-thoroughfare data was collected. The government certainly collected cell-site data emanating from within the defendants’ homes or from another place in which the defendants had a legitimate expectation of privacy.” That matters because United States v. Karo had held that it was a search to monitor the location of a beeper device from inside a home. Under Karo, “[i]f at any point a tracked cell phone signaled that it was inside a private residence (or other location protected by the Fourth Amendment), the only other way for the government to have obtained that information would be by entry into the protected area, which the government could not do without a warrant.” This was bolstered by Kyllo v. United States, Judge Murphy reasoned, because the government couldn’t know if it was monitoring a suspect’s location inside the home:

In Kyllo, the Court rejected the argument that the government could restrict its thermal searches to non-“intimate” details based on the practical observation that “[n]o police officer would be able to know in advance whether his through-the-wall surveillance picks up ‘intimate’ details-and thus would be unable to know in advance whether it is Constitutional .” Id. at 38 (italics added). The same problem is posed by requests for prospective real-time cellsite location data. The March 11, 2010 warrant authorized the DEA to collect real-time cellsite location data for up to thirty days. Under virtually any circumstance, there was no way the DEA could know in advance whether or not the location data collected during that period would come from within a protected area.

Having distinguished Skinner, Judge Murphy then turned to the concurring opinions in Jones:

The Court’s Fourth Amendment concerns also overlap with those expressed by the D.C. Circuit in Maynard, and in the Jones concurrences. See Maynard, 615 F.3d at 562; Jones, 132 S.Ct. at 963–64 (Alito J., concurring in the judgment); Jones, 132 S.Ct. at 954–57 (Sotomayor, J., concurring). Generally speaking, those opinions express the view that warrantless long-term tracking by electronic means violates an individual’s reasonable expectation of privacy, not just because of the potential for tracking into protected areas, because the information obtained through such means is, in the aggregate, so comprehensive.FN7 See, e.g., Jones, 132 S.Ct. at 964 (“[S]ociety’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.”) (Alito, J., concurring). The Jones majority found the Fourth Amendment implicated on narrower, property-based grounds, and declined to decide whether surveillance of Jones over thirty days by “electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy.” Id. at 954 (“[T]he present case does not require us to answer that question.”). That basis of decision is not available in this case because no device was installed, and yet the privacy concerns implicated by the tracking seem just as profound.

For these reasons, the Court finds that when the government requests authorization to engage in long-term, real-time tracking of an individual’s movements via his or her cell phone, the situation reaches past the law set forth in Skinner, and Fourth Amendment concerns are implicated.

Judge Murphy reconciles his decision with Skinner as follows:

The cell-phone tracking standard is meant to be read in harmony with the Sixth Circuit’s holding in Skinner. Specifically, if the government seeks to track an individual for a short period of time only, with no foreseeable intrusion into protected areas, the probable-cause showing discussed here would not apply and Skinner would plainly govern. If, for example, the tracking was to be done for a limited purpose on public thoroughfares—like in Skinner, with foreknowledge a suspect was taking a two day cross-country trip—the specific Fourth Amendment concerns addressed here would not be raised. But if the tracking the government seeks to undertake is similar to the “intensive 28–day” monitoring the Sixth Circuit itself distinguished, then the more detailed showing required to meet the cell-phone tracking standard should be made

As I have written about the problems I see with the mosaic theory, I was very interested to know what kind of distinction Judge Murphy was drawing between short term and long term monitoring. Which version of the mosaic theory is Judge Murphy adopting? The DC Circuit’s, Alito’s, Sotomayor’s, or something else? How does it apply? How do you group over six phones and monitoring pursuant to a string of different warrants? Who has standing to challenge a mosaic search? Where are the lines? Judge Murphy responds in Footnote 7:

[The mosaic] view has its critics. See, e.g., Orin Kerr, The Mosaic Theory of the Fourth Amendment, 111 Mich. L.Rev. 311 (2012). The present Order does not adopt any of the “mosaic theory” approaches specifically, nor does it purport to address the questions raised in Kerr’s article regarding the implications of the approach. The Court simply notes that the constitutionality of long-term cell-phone tracking was left open in Jones, submits that the privacy issues presented by such tracking merit a doctrinal response, and finds that the facts presented here fall on the wrong side of the constitutional divide.

Judge Murphy next concludes that such monitoring not only requires a warrant, but that it requires a special kind of warrant:

Continue reading ‘District Judges Divide on Long-Term Cell Phone Tracking Under the Fourth Amendment’ »

I recently mentioned my new short essay, Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub. Pol’y 403 (2013), about how the Supreme Court should resolve the lower court division on the Fourth Amendment rule for searching a cell phone incident to arrest. In light of that, I thought I would flag this morning’s decision by the Florida Supreme Court deepening the lower court division. In the new case, Smallwood v. State, the court ruled that the police can routinely seize a cell phone incident to arrest, but they generally need a warrant to search it absent a demonstrated risk that evidence on the phone could be destroyed after it had been seized. Here are the two key passages from Smallwood:

[W]e . . . conclude that the electronic devices that operate as cell phones of today are materially distinguishable from the static, limited-capacity cigarette packet in Robinson, not only in the ability to hold, import, and export private information, but by the very personal and vast nature of the information that may be stored on them or accessed through the electronic devices. Consistent with this conclusion, we hold that the decision of the United States Supreme Court in Robinson, which governed the search of a static, non-interactive container, cannot be deemed analogous to the search of a modern electronic device cell phone.

. . . .

Gant demonstrates that while the search-incident-to-arrest warrant exception is still clearly valid, once an arrestee is physically separated from an item or thing, and thereby separated from any possible weapon or destructible evidence, the dual rationales for this search exception no longer apply. Applying Supreme Court precedent from Chimel and Gant to the instant case, we conclude that Officer Brown unquestionably was authorized to take physical possession of Smallwood’s electronic device used as a phone as part of the search incident to the arrest because the device was present on Smallwood’s body. See Chimel, 395 U.S. at 762-63. However, once the electronic, computer-like device was removed from Smallwood’s person, there was no possibility that Smallwood could use the device as a weapon, nor could he have destroyed any evidence that may have existed on the phone. Accordingly, neither the officer protection nor the evidence preservation justification for the warrant exception applied.

The Florida Supreme Court has become a regular source of Fourth Amendment cases for the U.S. Supreme Court, as we saw this past Term in Harris and Jardines. I wouldn’t be surprised if this case follows the same path to 1 First Street.

Thanks to reader L. Michael Billmeier Jr. for the tip about today’s decision.

The comment thread on Sasha’s recent post about the gender of VC bloggers – we’re all guys — raises some interesting questions to which I’d like to respond. But before I do, I’d like to ask readers to participate in a simple poll. There are two polls below, and I’d like readers to participate in the one poll that is relevant to them.

The first poll is for readers who have never or only rarely left comments in VC comment threads. The second poll is for readers who have occasionally or often left comments in VC comment threads. Each poll asks readers to identify themselves as men or women, and also to say whether they generally agree with VC posts. The former categorization is probably self-explanatory. The latter isn’t, so here’s the goal: I’m trying to distinguish readers who (a) generally agree with the libertarian-ish conservative-ish themes that are often found in our posts from (b) readers who don’t. I realize that none of these categories are perfect, but my hope is to get a rough gender breakdown of both the commenters and the general readers.

Ok, so here’s the first poll.

PLEASE ANSWER THIS POLL IF YOU NEVER OR RARELY COMMENT IN VC COMMENT THREADS:

And here’s the second poll:

PLEASE ANSWER THIS POLL IF YOU OCCASIONALLY OR OFTEN COMMENT IN VC COMMENT THREADS:

Oh, and to answer the inevitable objections. Yes, I realize this is unscientific. Yes, I realize that the categories are vague. No, I don’t think this would be acceptable in a peer-reviewed journal. I’m thinking that this is better than nothing, but if it’s not, then please feel free to ignore it.

Last month, I blogged about why I agreed to represent Andrew Auernheimer pro bono in his appeal before the Third Circuit. Tomorrow’s Washington Post has a front-page story by Jerry Markon focusing on the case. It begins:

Their guns drawn, a dozen federal agents, police and forensics experts kicked in the door of a run-down two-story home in Arkansas shortly after dawn, barged inside and ordered the occupants to put their hands on their heads.

The target of the raid was neither terrorist nor bank robber. He was a 24-year-old computer hacker suspected of handing off stolen e-mail addresses to the media.

With that, the Justice Department began a case that has come to symbolize what some lawyers and civil libertarians see as overreach in the government’s campaign against cybercrime.

The hacker, Andrew Auernheimer, was convicted and sentenced last month to more than three years in prison for obtaining about 120,000 e-mail addresses of iPad users from AT&T’s Web site — including New York Mayor Michael R. Bloomberg (I), Hollywood executive Harvey Weinstein and other prominent figures — and giving them to the Web site Gawker. When it happened three years ago, the data breach jolted federal officials because it affected one of the nation’s most prominent companies and triggered fears about the security of increasingly popular mobile devices.

Yet only a few, heavily redacted e-mail addresses were published, court documents show. No one’s account was broken into. AT&T fixed the problem in about an hour, and a company official testified that there probably was not enough evidence to sue the hackers.

The case highlights a growing debate over how to define right and wrong in the digital age, what is public and proprietary online, and how far law enforcement should go in pursuing cybercrime.

The Obama administration is confronting what it calls a vast cybersecurity threat, and the Justice Department is waging aggressive efforts, including against national security threats such as cyberterrorism and cyber-espionage. But a series of recent cases involving other types of online activity has prompted criticism that the crackdown may also be scooping up minor hackers who may see themselves as political or anti-corporate activists.

On a related note, the latest issue of the ABA Journal has this article: Hacker’s Hell: Many Want to Narrow the Computer Fraud and Abuse Act.

Here’s a fascinating issue that just led to an unusual opinion by Magistrate Judge Stephen Wm. Smith of the Southern District of Texas, who is no stranger to the Volokh Conspiracy for his, um, unusual opinions. The issue: What are the legal standards for the government to search a hacker’s remote computer to determine the hacker’s identity and location? In this case, someone hacked the e-mail account of a victim in Texas and used the e-mail account to access the victim’s bank account. After the unauthorized access to the account was blocked, the hacker set up an e-mail address almost (not not quite) identical to the real e-mail account and tried to wire money to a foreign bank. The location of the hacker is unknown, although there are signs that he is abroad: The most recent IP address resolved to a country in Southeast Asia. In this case, the government applied for a search warrant to remotely access the intruder’s computer and search it for evidence of who the intruder is and where he located.

I. Magistrate Judge Smith’s Denial of the Warrant Application

The application went before Magistrate Judge Smith, who denied the application for a warrant. As his occasional practice, Smith authored a published opinion, forthcoming in the F. Supp.2d., explaining the different reasons why he denied the warrant application. As far as I can tell, he did not ask for briefing on the issue; he just issued the opinion based on his own research. Anyway, here are the three reasons he offers for denying the application:

1) Rule 41 of the Federal Rules of Criminal Procedure generally only authorizes warrants to search property inside the magistrate’s own district. Because the location of the computer that will be searched is unknown, the magistrate does not have sufficient assurance that the warrant will be executed in his own district and therefore that he has authority to issue the warrant.

2) The applicaton does not explain how the government will execute the warrant. Judge Smith notes that executing the warrant requires a two stage search: first, the government will have to first go and find the computer — presumably by sending some sort of virus to the second e-mail account — and second, the government will have to search the computer that is found. Judge Smith concludes that the warrant application fails because it has not specified a sufficiently careful way of conducting the first search sufficient to persuade Judge Smith that the government is really going to search the correct computer and not accidentally interfere with the rights of innocent users. Because the government has not specified the way that it will find the target’s computer, the warrant application is insufficient. (“There may well be sufficient answers to these questions, but the Government’s application does not supply them.”).

3) The warrant application requests permission to monitor the computer for 30 days to monitor some ways in which it is used, including taking photographs of the users to catch them “in the act” of using the machine and therefore identify them. According to Judge Smith, the warrant application is inadequate because this sort of monitoring will amount to video surveillance, and the application does not satisfy the heightened standards for video surveillance adopted under Fifth Circuit precedent.

II. My Analysis

Was Magistrate Judge Smith right or wrong to deny the application? I’m going to focus on the first two arguments, because the third argument (about the heightened standards for video surveillance in the Fifth Circuit) is pretty technical, not specific to the issue of when the government can get a standard to remotely search a computer, and easy for the government to correct. [See the update for an analysis of the third issue.] The first two issues are much more fundamental, so I’ll analyze them in detail. In short, I think Smith’s analysis of these two issues is mistaken. Here’s why.

Issue 1: Extraterritoriality Of Remote Computer Searches

Magistrate Judge Smith’s first argument is that he lacks the authority to issue the warrant because Rule 41 is territorial. Generally speaking, magistrates are only allowed to issue warrants to search property in their own districts. Because the computer isn’t known to be in Smith’s district, he denies the application. I think this is a tricky issue, but that ultimately Smith was wrong to deny the warrant application on this basis.

For starters, Smith is absolutely right about the general principle that he normally only can authorize searches to be executed in his district. But while that’s true, Smith overlooks the really interesting and important issue: If agents in one district install a remote listening device elsewhere, record information remotely, and only review when in the home district, where does the “search” occur? Does the search occur only in the physical place where the computer was located? Or does the search also occur in the home district where the agents first viewed the information? Judge Smith assumes that the search only occurs where the computer is located. Seeing no assurance that the remote computer would be in his district, he denies the application. But I tend to think his assumption is wrong.

Here’s why I think it’s wrong. It often happens that the government makes an electronic copy of information without a person seeing it, such as when agents “image” a hard drive, and only later the agents look through the copy. In those cases, courts always treat looking through the image as a “search” just as they would treat looking through the original. (And correctly so, as I argued in this 2005 article.) As a result, computer searches can occur in two places. If the government searches a home in one district, finds a computer and images it, and then searches the image in another district, then we would say that searches occurred in two districts: First, the district in which the physical search occurred, and second, the district in which the electronic search of the image occurred. So it seems to me that if the computer is located in one place but the agents are in another, the searches will have occurred in both districts, not just one.

This same issue has arisen often in the context of the Wiretap Act. In that setting, most courts have held that the search (in Title III parlance, the “intercept”) occurs in both the district where the call is actually monitored and the district where the agents sit and listen to the call. Because the new decision arose in the Fifth Circuit, it’s worth pointing out the Fifth Circuit precedent, United States v. Denman, 100 F.3d 399 (5th Cir. 1996). In Denman, a judge issued a Title III warrant to intercept communications in its district. The calls were actually intercepted in another district, but the agents listened to the calls in the home district where the warrant was issued. The Fifth Circuit agreed with a Second Circuit precedent that this was fine because the location of a Wiretap Act intercept included the place where the agents listened to the recorded calls:

[I]nterception includes both the location of a tapped telephone and the original listening post, and [] judges in either jurisdiction have authority under Title III to issue wiretap orders. As the Rodriguez court noted, this interpretation aids an important goal of Title III, to protect privacy interests, by enabling one judge to supervise an investigation that spans more than one judicial district.

Now that brings us to a tricky question: If a search occurs in multiple districts, can a single Rule 41 warrant authorize a search in those multiple districts? That’s the rule in the Wiretap Act setting, as seen in Denman. If that same principle applies to Rule 41, then I would think that the application should have been signed and Smith was wrong to deny it on this ground. At the same time, it’s not at all clear that the same “either district suffices” rule applies to Rule 41. I don’t know of any caselaw on the issue. So it may be that Rule 41 has a different rule: Perhaps it only allows the part of the search that is in the home district, and it does not allow the part of the search that is outside the home district.

But even if that is the case, that doesn’t mean that Magistrate Judge Smith was right to deny the application. The reasons why require a bit of underlying Fourth Amendment law to understand. From a territorial perspective, there are three basic “places” that the computer could be located: 1) Inside the home district; 2) In another district; and 3) Outside the territory of the United States. It seems likely that the physical computer that will be searched in this case is overseas; as I mentioned earlier, the last known IP address is traced back to somewhere in Southeast Asia. That’s important because existing caselaw indicates that the warrant requirement does not apply outside the United States. See In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 157 (2d Cir. 2008). This makes sense of the fact that Rule 41 does not authorize searches outside the United States (with a few narrow exceptions): The government doesn’t need warrants to search outside the United States, so there is no need to ask a magistrate judge to conduct searches there. So if the computer is located outside the United States, the government does not need a warrant to conduct the search of the physical computer: It only needs a warrant to conduct the search inside the United States after the information is retrieved. And even that generously presupposes that the person outside the United States has sufficient contacts to the United States to have Fourth Amendment rights in the first place. It is overwhelmingly likely that a person outside the U.S. has no Fourth Amendment rights in the first place under United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).

In short, it is likely that the only part of the “search” that requires a warrant is the part that will occur in Smith’s home district. Given that, I would think that the proper thing to do is for Smith to issue the warrant. If it turns out that Rule 41 only authorizes the part of the search that occurs in his home district, then the warrant will only authorize the part of the acts that occur in his district. But that’s fine, as the high likelihood is that no warrant will be needed for the rest of the search given that the warrant requirement does not apply outside the United States.

Issue 2: Failure to Specify How the Surveillance Tool Will Be Installed

Now I’ll turn to Smith’s second reason to deny the application: the failure of the application to explain how the surveillance tool would be installed. I think this part of the opinion is wrong because the Supreme Court rejected a very similar argument in Dalia v. United States, 441 U.S. 238 (1979). Dalia involved a Title III warrant to install a bugging device. Like the surveillance device here, the bugging device in Dalia required a two-step search: first, a covert entry to install the bugging device, and second, use of the bug to monitor the place searched over time. The defendant argued that the warrant was improper because it didn’t say anything about the way in which the first step would be executed. The Supreme Court rejected this position:

Nothing in the language of the Constitution or in this Court’s decisions interpreting that language suggests that . . . search warrants also must include a specification of the precise manner in which they are to be executed. On the contrary, it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant — subject, of course, to the general Fourth Amendment protection “against unreasonable searches and seizures.”

Recognizing that the specificity required by the Fourth Amendment does not generally extend to the means by which warrants are executed, petitioner further argues that warrants for electronic surveillance are unique because often they impinge upon two different Fourth Amendment interests: the surveillance itself interferes only with the right to hold private conversations, whereas the entry subjects the suspect’s property to possible damage and personal effects to unauthorized examination. This view of the Warrant Clause parses too finely the interests protected by the Fourth Amendment. Often, in executing a warrant, the police may find it necessary to interfere with privacy rights not explicitly considered by the judge who issued the warrant. For example, police executing an arrest warrant commonly find it necessary to enter the suspect’s home in order to take him into custody, and they thereby impinge on both privacy and freedom of movement. See, e.g. United States v. Cravero, 545 F.2d 406, 421 (CA5 1976) (on petition for rehearing). Similarly, officers executing search warrants on occasion must damage property in order to perform their duty. See, e.g., United States v. Brown, 556 F.2d 304, 305 (CA5 1977); United States v. Gervato, 474 F.2d 40, 41 (CA3), cert. denied, 414 U.S. 864 (1973).

It would extend the Warrant Clause to the extreme to require that, whenever it is reasonably likely that Fourth Amendment rights may be affected in more than one way, the court must set forth precisely the procedures to be followed by the executing officers. Such an interpretation is unnecessary, as we have held — and the Government concedes — that the manner in which a warrant is executed is subject to later judicial review as to its reasonableness.

It seems to me that Magistrate Judge Smith’s argument is pretty much the same argument that was raised and rejected in Dalia. So Smith’s argument seems pretty unpersuasive on this issue, too.

Anyway, it’s a fascinating case. The territorial question is complicated and likely to reoccur, so it’s particularly worth watching. It will be interesting to see if the government appeals the denial, or, perhaps more likely, if the government amends the application to make extra sure they’re covered on the video surveillance issue and then tries again (perhaps before another magistrate judge in the district, cough, cough?). Also, it’s worth noting that the Fifth Circuit is still working on the appeal from Smith’s order on the Fourth Amendment and cell-site surveillance. Oral argument was held on October 2, 2012, and the opinion has not yet issued. The amicus brief I filed in that case is here.

UPDATE: My former colleague and electronic surveillance guru Mark Eckenwiler writes in with his thoughts on Smith’s third argument, which he also finds unpersuasive:

I agree that the application should be analyzed under the video surveillance precedents, given that the FBI is asking to take recurring photographs. However, Magistrate Judge Smith goes astray in applying that precedent.

Specifically, the controlling authority (Cuevas-Sanchez, 1987) holds that video surveillance warrants embody certain requirements borrowed from the Wiretap Act (Title III), including that

the warrant must require that the interception “be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under [Title III]“….

In that case, the Fifth Circuit upheld the warrant used, which the court describes as merely “directing the police to minimize observation of innocent conduct.”

By contrast, Magistrate Judge Smith characterizes Cuevas-Sanchez as requiring that the warrant contain “a statement of the steps to be taken to assure that the surveillance will be minimized ….” (P. 11; emphasis added.) He then finds the affidavit’s promise—that “[s]teps will be taken to assure that data gathered through the technique will be minimized”—inadequate and denies the application on that ground.

This is wrong for two separate reasons. First, as noted, Magistrate Judge Smith invents an additional “steps” requirement nowhere found in the Fifth Circuit test. Indeed, cases construing the Wiretap Act (from which the minimization requirement is borrowed) do not require particular steps to be laid out in the order; rather, the test is whether the actual conduct of the agents is reasonable overall in light of several factors, including the nature and scope of the criminal enterprise and the inferences that may be drawn about a conversation by the identity of the participants. See United States v. Brown, 303 F.3d 582, 604 (5th Cir. 2002). In this regard, Judge Smith also wrongly denies the application on the grounds that the minimization may be imperfect: “there remains a non-trivial possibility that the remote camera surveillance may well transmit images of persons not involved in the illegal activity under investigation.” It is well established that Title III, and thus the parallel standard for video surveillance warrants,

does not “require[ ] government agents to avoid intercepting all nonrelevant conversations when conducting a wiretap investigation.” On the contrary, the practical necessities of conducting a wiretap may, in some circumstances, inevitably lead to the interception of some conversations outside the scope of the wiretap order ….

303 F.3d at 604 (footnote citation omitted).

Second, Judge Smith wrongly focuses on the agent’s affidavit. What matters, however, is the language of the warrant, which (like a wiretap order) need only command generally that minimization occur. It is curious that he does not quote the proposed warrant’s minimization language.

Larry Lessig and I have published a short commentary on CFAA reform in The Atlantic.

I wanted to add a quick point on Nick’s post below about predictions on the Affordable Care Act challenges. In my view, the problem with such public predictions is that the people making them often were trying to create reality as much as predict it. As many have noted, courts are widely thought to be influenced by perceptions as to what is deemed crazy and what is deemed mainstream in the broader legal community. As Jack Balkin puts it, judges tend to stick to arguments that are deemed “on the wall” rather than “off the wall.” Whether or not this is true, the belief is widely shared among legal academics. And as a result, a lot of prominent law professors who were purporting to be making predictions about the challenges on blogs and in news reports were also trying to influence the crazy/mainstream line in order to impact what the courts might do. Not all, certainly, but many. In general, the commentators who wanted the courts to strike down the Affordable Care Act argued that the challenge was serious and mainstream. On the other hand, commentators who wanted the courts to uphold the Act generally argued that the challenge was crazy. In my view, these different predictions don’t suggest that one side has a better sense of American law or the direction of the courts. Instead, they largely show that many of the law professors who made public predictions were acting — at least in part — as advocates trying to influence the public debate to help their side win.