The Volokh Conspiracy

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.

Law enforcement has successfully captured Dzhokar Tsarnaev, and DOJ has announced that Tsarnaev is being interrogated without first being read his Miranda rights because the DOJ thinks that the public safety exception to Miranda applies. Back in 2010, I blogged a lot about Miranda in this setting. Here are a few reminders about the law here:

1) A lot of people assume that the police are required to read a suspect his Miranda rights upon arrest. That is, they assume that one of a person’s rights is the right to be read their rights. It often happens that way on Law & Order, but that’s not what the law actually requires. The police aren’t required to follow Miranda. Miranda is a set of rules the government can chose to follow if they want to admit a person’s statements in a criminal case in court, not a set of rules they have to follow in every case. Under Chavez v. Martinez, 538 U.S. 760 (2003), it is lawful for the police to not read a suspect his Miranda rights, interrogate him, and then obtain a statement. Chavez holds that a person’s Miranda rights are violated only if the statement is admitted in court, even if the statement is obtained in violation of Miranda. See id. at 772-73. Further, the prosecution is even allowed to admit any physical evidence discovered as a fruit of the statement obtained in violation of Miranda — only the actual statement can be excluded. See United States v. Patane, 542 U.S. 630 (2004). So, contrary to what a lot of people think, it is legal for the government to even intentionally violate Miranda so long as they don’t try to seek admission of the suspect’s statements in court.

2) Even if we assume that the police later seek to admit a statement from Tsarnaev from post-arrest custodial interrogation outside Miranda, a court would allow an initial pre-Miranda interrogation to be admissible under the public safety exception of New York v. Quarles, 467 U.S. 649 (1984). It’s not clear how long the public safety exception will continue to apply: At some point in time, it becomes harder to say that the agents needed to dispense with Miranda in light of the threat to public safety. We don’t have good cases on when that line might be crossed, in part because (fortunately) there aren’t many similar cases. So the longer investigators interrogate Tsarnaev outside Miranda, the more they run the risk that some statements they obtain from him may be inadmissible. But recall that under (1), the government is still free to question Tsarnaev outside Miranda as long as the government accepts the uncertainty of whether those statements would be admissible in a criminal case against him. Assuming that the evidence against Tsarnaev’s many different crimes over the last week is likely to be overwhelming, agents may not need any statements from him for a criminal case. They may simply want whatever intelligence he can provide for use in broader antiterrorism efforts, and Miranda is no impediment in that case. The agents are free to question Tsarnaev outside Miranda to gather intellligence as long as they don’t cross the line into coercing statements from him. See, e.g., Townsend v. Sain, 372 U.S. 293 (1963).

3) It is true that, under existing law, interviewing Tsarnaev for an extended period without reading him his Miranda rights and obtaining a waiver creates a risk that any incriminating statements made after an extended period may not be admissible in court in a criminal prosecution against Tsarnaev. However, if Tsarnaev does end up making incriminating statements that fall outside the public safety exception, and the government wants to use those statements in court against him, the government has a possible remedy to get the substance of even those statements admitted. At the end of the interrogation, agents can give him his Miranda warnings, see if he will waive his rights waiver, and, if he does, try to get Tsarnaev to repeat his pre-waiver incriminating statements. Because the two-stage interview likely would not be deemed an intentional two-step interrogation technique designed to circumvent Miranda, a court would very likely allow the post-Miranda, post-waiver statement under Justice Kennedy’s controlling opinion in Missouri v. Seibert, 542 U.S. 600 (2004).

UPDATE: I have fiddled with the post a bit to make it clearer.

ANOTHER UPDATE: If Tsarnaev is going to be charged in federal court, the more pressing limit on his interrogation may be the limits imposed by Rule 5 of the Federal Rules of Criminal Procedure. See generally Corley v. United States (2009).

Current events in Boston raise the question of whether the Fourth Amendment allows the government to conduct house-to-house searches for an armed and dangerous suspect on the loose. Assume the police enter a home without consent searching for Dzhokhar Tsarnaev; does the entry violate the Fourth Amendment? The answer depends on whether such home entries are “reasonable” under the Fourth Amendment, which requires a case-by-case balancing of the government’s interest in making the searches and the scope of the privacy invasion. The constitutional question would seem to depend on whether the searches are reasonably limited in scope (such as limited to a specific geographic area), the dangerousness of the suspect (here, very high), and the strength of the government’s case that the suspect may be in the area and cannot be caught another way. Fortunately there aren’t a lot of cases on anything like we’re seeing in Boston, at least as far as I could find. The closest cases I know of involve roadblocks instead of home searches, which is in the ballpark of dragnet searches and seizures but not particularly close on the facts. See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (noting in dicta that “the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route.”); United States v. Paetsch, — F.Supp.2d —-, 2012 WL 5213011 (D.Colo. 2012) (dragnet roadblock at intersection to catch bank robber held reasonable under the Fourth Amendment).

Note that caselaw on these sorts of facts are particularly unlikely for reasons beyond the fortunate rarity of their occurrence. The suspect won’t have Fourth Amendment standing to bring a suit or a motion to suppress to challenge a search of someone else’s house in which he was hiding. See Rakas v. Illinois, 439 U.S. 128 (1978). As a result, only the legitimate residents could bring such actions in a civil case. And if they did bring such suits, qualified immunity would bar recovery unless the violation was clearly established — which is unlikely here given the novelty of the facts.

Today the Supreme Court handed down Missouri v. McNeely, a Fourth Amendment case involving whether the government needs a warrant to draw blood after a suspect’s arrest for drunk driving to determine the suspect’s alcohol level. The Court held that whether a warrant is required “must be determined case by case based on the totality of the circumstances” to determine if the government could have obtained a warrant “within a reasonable amount of time” or if obtaining a warrant would “produce unacceptable delay” in light of the exigency of the dissipating alcohol levels in the arrestee’s blood.

So how do the police know when they need a warrant to conduct a blood draw following a drunk driving arrest? The majority starts with this general guidance: If the police can “reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” On the other hand, if case by case circumstances “make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test,” no warrant is needed.

So that’s the general guidance. How about specifics? Here’s one piece of guidance the majority offers on when a warrant must be obtained:

[In] a situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer[, . . ]there would be no plausible justifica­tion for an exception to the warrant requirement.

More broadly, the issue seems to be how much delay is introduced by getting a warrant. Can the officers get the warrant “within a reasonable period of time”? If the jurisdiction allows telephone warrants, or otherwise has ways to get warrants quickly, then that ability will push in the direction of needing a warrant:

[T]echnological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge’s es­sential role as a check on police discretion, are relevant to an assessment of exigency.

On the other hand, if the warrant process becomes delayed, then exigent circumstances may come to exist:

While experts can work backwards from the BAC at the time the sample was taken to determine the BAC at the time of the alleged offense, longer intervals may raise questions about the accuracy of the calculation. For that reason, exigent circumstances justifying a warrantless blood sample may arise in the regular course of law en­forcement due to delays from the warrant application process.

The standard thus requires each officer to have a good sense of how long it would take to get a warrant in a particular setting, as well as how quickly the evidence is needed given the exigency of the dissipating alcohol in the blood:

[B]ecause “[t]he police are presumably familiar with the mechanics and time involved in the warrant process in their partic­ular jurisdiction,” post, at 8 (opinion of ROBERTS, C. J.), we expect that officers can make reasonable judgments about whether the warrant process would produce unacceptable delay under the circumstances.

A few quick thoughts:

1) At the time of the cert grant, it was widely expected that this case would be an easy win for the government. It’s somewhat surprising that the Court rejected the government’s proposed bright-line test. This is more evidence of my view that there is a rights/remedy distinction in how the current Supreme Court approaches Fourth Amendment cases. If the case is about remedies, the government pretty much always wins. But if the case is about Fourth Amendment rights, the current Court can be hard to predict.

2) It will be interesting to see if this issue will end up back at the Court in a few years to resolve the various ways that lower courts are likely to apply this general guidance. I suspect it will.

3) There is a long-running dispute between the use of rules vs. standards in the interpretation of the Fourth Amendment. Today’s case is a big win for standards, all the more interesting because Justice Scalia was in the majority.

4) I see echoes of Arizona v. Gant in today’s decision. The Court divided 5-4 in adopting a defense-friendly narrow interpretation of a decades-old precedent, adopting a standard instead of a bright-line rule sought by the government that reflected how many courts had interpreted the prior precedent. The line-ups are somewhat similar, too. Not identical, but similar.

I announced last month that I had joined Twitter, using the account @orinkerr. One month and 100 tweets later, I’ve enjoyed the experience so far. I joined Twitter mostly because lots of people in the cyber/privacy world use it, so I figured it was good way to follow and interact with folks in the field. As a result, I’ve mostly stuck to tweets within the subject of my academic interests, with occasional links to my relevant blog posts here at the VC. It’s not a place to get involved in deep conversations, but it’s a good way to follow the news and post links. And it’s always interesting to learn the ins and outs of new media platforms, especially those as widely-referenced as Twitter.

One concern I had when I started the account was where I would get the time to add Twitter into the mix. So far, I don’t think it has added much time, in part because tweets are necessarily quick to write. Plus, I think I’ve engaged in some social networking substitution: Introducing Twitter has led me to spend less time on Facebook, and even perhaps a bit less time on the VC. So I’ll keep it up, at least for now.

On Wednesday, Judge Pryor handed down a Fourth Amendment decision in Myers v. Bowman that begins:

This appeal presents the question whether three officials in a rural county of Georgia are entitled to a summary judgment against a complaint that they violated the civil rights of a father and son who had been involved in an aborted exchange of property between a previously engaged couple. When Dustin Myers and Kelley Bowman ended their engagement to be married, Dustin attempted to retrieve the diamond ring he had given Kelley and other personal property, but that attempt prompted allegations that Dustin had stolen Kelley’s dog, followed by a police chase on rural roadways and a brief arrest of Dustin and his father, Rodney Myers. The end of the police chase, which resembles a scene from a rerun of the 1980s television show, The Dukes of Hazzard, fittingly was captured on a video camera on the dashboard of a police car.

The fact section opens:

There would be no wedding bells, no wedding cake, and no tuxedo and white dress for Dustin Myers and Kelley Bowman. The couple was engaged to be married, but before the time came to say “I Do,” Kelley found herself a new Romeo. She broke Dustin’s heart, and she tried to hurt his finances too by hosting two yard sales at which she sold some of his property. Kelley’s mother called Dustin late in the evening of August 12, 2009, to tell him that his fiancée had been unfaithful and to provide the helpful advice that he should “come get [his] stuff before everything was gone.”

And later we get this:

As if in homage to Stephen the Irishman, the character in Braveheart who declared his native Ireland to be “My Island!” Murry said to his former future son-in-law, “Once again, this is my county. I don’t want to ever see you back up here. . . .I’m fixing to let you go. You get your shit, and I better not fucking catch you back in my county.”

Thanks to FourthAmendment.com for the link.

I blogged below about whether recording the McConnell meeting violated federal law; in this post I’ll offer some thoughts on whether it violated state law. With the caveat that I had never looked at Kentucky’s surveillance statutes until an hour ago, my sense is the answer is pretty unclear from the sparse sources available.

Kentucky’s eavesdropping statute is Ky. Stat. 526.020, and its relevant text is extremely simple:

A person is guilty of eavesdropping when he intentionally uses any device to eavesdrop, whether or not he is present at the time.

“Eavesdrop” is then defined in Ky. Stat. 526.010:

“Eavesdrop” means to overhear, record, amplify or transmit any part of a wire or oral communication of others without the consent of at least one (1) party thereto by means of any electronic, mechanical or other device.

So the basic terms here seem to mirror the federal statute — recording an “oral communication” is unlawful unless a party to the communications consents. Unlike the federal statute, however, there is no definition of “oral communication” under the state statute. And as far as I can tell, there are no Kentucky cases interpreting the phrase.

However, there is commentary on the meaning of the eavesdropping provision from the Kentucky Crime Commission/Legislative Research Commission that accompanied the enactment of the provision. The KCC/LRC commentaries seem to be taken quite seriously in interpreting Kentucky state criminal statutes — I found 29 citations to it in Kentucky state criminal cases in the KY-CS Westlaw database. Here’s the most relevant commentary:

A conversation which is loud enough to be heard through the wall or through the heating system without the use of any device is not protected by KRS 526.020. A person who desires privacy of communication has the responsibility to take the steps necessary to insure that his conversation cannot be overheard by the ordinary ear.

The same commentary then seems to suggest that the statute is designed to reflect modern Fourth Amendment law, much like the federal definition of “oral communication”:

KRS 526.020 is in no way based on the property concept of trespass. The rationale of Olmstead v United States, 277 US 438, 48 SCt 564, 72 LEd 944 (1928), which was based on the common law concept of trespass, has been overruled by the Supreme Court in Katz v United States, 389 US 347, 88 SCt 507, 19 LEd(2d) 576 (1967). The Court rejected the view which required a physical intrusion into any given enclosure, ruling that the Fourth Amendment protects people, not places, and that which a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. (Olmstead v United States also overruled by Berger v New York, 388 US 41, 87 SCt 1873, 18 LEd(2d) 1040 (1967).)

I also found a reference via Westlaw to a 1984 Kentucky Attorney General opinion construing the statute. The Ky AG website only has opinions going back to 1992, but here’s the West headnote for the AG opinion:

Where a person inadvertently hears on a radio a conversation emanating from a cordless telephone, there is no violation of the state eavesdropping statute; but the recording of that conversation and the playing of that recording on a radio or television station without the consent of one of the parties to the original conversation would violate Kentucky’s eavesdropping statute, and subject the violator to criminal penalties.

Hmm, hard to know what to make of that, at least without reading the AG’s opinion.

So what to make of these sources? It’s hard to say, given that the key terms are undefined and there is very little caselaw interpreting the state eavesdropping law (which is often the case for state surveillance statutes). Perhaps the Kentucky statute really just mirrors the federal statute discussed below. I’m not entirely sure.

One intriguing clue is the Kentucky Crime Commission commentary that “[a] conversation which is loud enough to be heard through the wall or through the heating system without the use of any device is not protected by KRS 526.020. A person who desires privacy of communication has the responsibility to take the steps necessary to insure that his conversation cannot be overheard by the ordinary ear.” This is arguably quite relevant: the McConnell campaign discussion apparently was loud enough to be overheard from outside the door; from what we can tell, it was recorded from a phone or video camera without audio amplification. So that language makes me think that the recording was probably not a crime. At the same time, the commentary is ambiguous. It could be read as merely making the obvious point that eavesdropping requires a device. That is, listening with your ears is different from recording with a microphone. That distinction might explain the Ky AG opinion, which (form the headnote, at least) appears to distinguish between listening live and making/using a recording. But it’s hard to know without seeing that opinion, which I couldn’t find online.

Anyway, that’s my sense after spending just a little time with the relevant materials. But as I said, I’ve never looked at Kentucky’s statute before. If anyone is more familiar with this law than I am, I hope you’ll offer your thoughts in the comment thread.

UPDATE: A few readers sent on a copy of the Attorney General opinion, and unfortunately it contains almost no reasoning. Here’s all it says about the relevant application of Kentucky law:

A person inadvertently hearing such conversation from a radio receiver or on another wireless telephone has not
violated KRS Chapter 526 since he would fall within the exception cited in the first part of KRS 526.070.
But, when he records that information and passes it on to another without the consent of one of the parties to the
original conversation, he has violated the eavesdropping statutes.

That doesn’t help much. The reference to the first part of 526.070 is Kentucky’s version of the extension telephone exception, a historical exception from the era of party lines when many people shared a phone: If you listened in on your phone on the party line, that wasn’t an illegal interception. So they seem to be suggesting that the inadvertent listening in thanks to the inadvertent broadcast makes your phone an extension telephone. But there’s no analysis at all of why that applies, or why recording the conversation would be illegal; it’s just a conclusion.

Mother Jones recently released a surreptitiously recorded conversation of a Mitch McConnell campaign meeting. Talking Points Memo reports on some allegations about who recorded the communication and in what circumstances:

A local Democratic official in Kentucky said that two leaders of the group Progress Kentucky recorded a behind-closed-doors meeting between Senate Minority Leader Mitch McConnell (R-KY) and campaign advisers, WFPL News reported Thursday.

Jacob Conway, who sits on the executive committee of the Jefferson County, Ky. Democratic Party, told WFPL that Shawn Reilly and Curtis Morrison of Progress Kentucky bragged to him about recording the meeting from outside the room where it was held.

The meeting was held Feb. 2 at the newly opened McConnell campaign headquarters at the Watterson Office Park in Louisville, Ky. following an open house event.

Conway said Reilly and Morrison told him that they did not attend the open house, but overheard the meeting from outside the room. According to WFPL, the door leading to the room where the meeting was held has a vent at the bottom and a large gap underneath, which is presumably how Reilly and Morrison recorded the meeting.

“They were in the hallway after the, I guess after the celebration and hoopla ended, apparently these people broke for lunch and had a strategy meeting, which is, in every campaign I’ve been affiliated with, makes perfect sense,” Conway told WFPL. “One of them held the elevator, the other one did the recording and they left. That was what they told to me from them directly.”

Conway continued, “Apparently the gentlemen overheard the conversation and decided to record it with a phone or recording device they had in their pocket. Could’ve been an iPhone, could’ve been a Flip camera or something like that.”

The new facts raise two issues: First, whether this violated federal law, and second, whether it violated Kentucky state law. I’ll cover federal law here, and if I have time later I’ll try to get to the state law issue.

So did it violate federal law? It turns out that the issue is complicated. At this point, I think we need more facts to know.

Here’s my tentative thinking. Under federal law, the primary question is whether the recording violates the Federal Wiretap Act’s ban on intercepting “oral communications.” Oral communications are defined in relevant part under 18 U.S.C. 2510(2) as a communication “uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” In simple terms, it’s okay to record someone speaking in public; it’s a crime to record them speaking in private.

But there’s an exception to the statute: “a party to the communication” is allowed to record the conversation “unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.” 18 U.S.C. 2511(2)(d). In simple terms, a person who is part of the communication is allowed to record it as long as they don’t have an unlawful purpose in making the recording, but someone who isn’t part of the communication can’t make the recording.

So we need to break down the analysis into two parts: First, did the recording intercept an “oral communication,” and, if so, was the interception by a party to the communication with a lawful purpose.

Let’s start with the first part, whether the recording intercepted an oral communication, focusing on Sixth Circuit precedent where possible. In general, courts have indicated that the test mirrors the Fourth Amendment standard: Use of a recording device to record a conversation is illegal if the listener had a reasonable expectation of privacy. McKamey v. Roach, 55 F.3d 1236 (6th Cir. 1999). But the courts are not exactly coherent in how they apply this equivalence. Some courts focus on whether there would have been a Fourth Amendment “search” if a government official had done the same recording — that is, whether the government act would violate a reasonable expectation of privacy given where the recording device was placed and in what circumstances. On the other hand, other courts focus more on the likelihood that the conversation would be recorded from the standpoint of the speaker.

If you take the former approach, then I don’t think we have all the facts yet that would allow us to answer the Fourth Amendment question. The TPM story tells us that Reilly and Morrison were in a “hallway” after an open house, and that they overheard the meeting from outside a closed door to a “room” where the meeting was held. I’d want to know if that hallway was inside the campaign headquarters or in some public place. In other words, were Reilly and Morrison standing where any person was allowed to be, such as in a public area of an office building, where there is no reasonable expectation of privacy? Or were they in a private hallway inside the offices of the McConnell campaign after the open house was over, where the case that there was a reasonable expectation of privacy among the participants of the conversation was much greater? It sounds like it was a private hallway, just based on the fact that the door had a vent at the bottom (which I’m imagining is something like this). But I don’t think we know that with any certainty yet.

At least one Sixth Circuit precedent took the latter approach. In Dorris v. Absher, 179 F.3d 420 (6th Cir. 1999), the Sixth Circuit held that an violated the Wiretap Act when he surreptitiously recorded employees in a storage room/bathroom through a recording device that worked when the employer was not there. The Court focused on the fact that it was unlikely that the employees would be overheard in their conversations without their knowledge:

The conversations took place only when no one else was present, and stopped when the telephone was being used or anyone turned onto the gravel road that was the only entrance to the office. The record thus indicates that the employees took great care to ensure that their conversations remained private.

Moreover, the office was a small, relatively isolated space. The employees could be sure that no one was in the building without their knowledge. The Abshers rely on Kemp v. Block, 607 F.Supp. 1262 (D.Nev.1985), a case in which the employee-plaintiffs, who worked in a single room, were found to have had no reasonable expectation of privacy. In that case, however, the single room was part of a larger office complex, meaning that others could easily overhear their conversations. In contrast, the entire office in the present case consisted of a single room that could not be accessed without the employees’ knowledge. We therefore conclude that the employees had a reasonable expectation of privacy in their workplace.

If that’s the prevailing approach, then you’d want to know more about the layout of the office building: How easily could others with rights to the space overhear such conversations?

The most factually similar case I could find was a district court case from DC that was decided soon after the Wiretap Act was passed. In United States v. Carroll, 337 F.Supp. 1260 (D.D.C.1971), the court held that it was not an interception of an oral communication to record a loud conversation from an adjacent hotel room where the person who made the recording happened to be staying. That’s the closest set of facts I could find, although it’s not clear how close that case is: As the judge noted, the recorder did “not eavesdrop in a position where an individual would not normally be expected to be,” which may not be the case here. Again, it depends on facts we don’t yet know.

In short, I think we need to know more facts, and even then, the legal standard is likely to be pretty murky. We may not be able to know with confidence if the recording was legal or illegal.

I mentioned that there is an exception to the statute: A party to the conversation can record the call, at least if they have a lawful purpose in doing so. Let’s turn to that issue now. The question of who is a party to the communication is clearest in the phone call case: as most circuits have recognized, a party is the actual participant in the call. See S.Rep. No. 90-1097, at 93-94 (1968). Anyone who is on the line counts. But it’s harder to apply the concept of a party to the communication in the case of an oral communication, in which a person might be present but not speak. I haven’t found that many cases on it for a simple reason: Most audio bugging cases involve installation of bugging equipment and subsequent use when the installer is not present, so it is obvious that they are not parties to the communication in those cases. But who is a party to a conversation when they are carrying the recording device? Is a anyone who is present in the room a party? Anyone who is known to be present? Anyone in earshot? At this point I’m not entirely sure. My guess is that courts would say that a person who is eavesdropping from just outside the room with a closed door is not a party to the communication, as they were unknown to the speaker, but there’s not a lot of case law on it that I could find.

UPDATE: I should have added two more points.

First, the two issues above are actually closely related, in that they’re both trying to do the same thing: Model Fourth Amendment caselaw. Under the Fourth Amendment, a party to a conversation can record the conversation, which the Court has expressed at various times both as a question of a reasonable expectation of privacy but also expressed using language echoing consent. See, e.g., United States v. White, 401 U.S. 745 (1971); United States v. Hoffa, 385 U.S. 293 (1966). For some technical reasons that aren’t relevant here, the Wiretap Act ends up somewhat awkwardly codifying this concept in two different places — first in the definition of oral communication, and second in the consent exception. But the two parts are trying to codify the same Fourth Amendment concepts and cases. Given that, I think it’s probably more analytically straightforward to rest the analysis in such cases on the oral communication issue rather than the consent issue. But I just point out both prongs because that’s how the statute is written.

Second, I should have said a bit about the added wrinkle if you think that the people doing the recording are parties, you also need to deal with whether they conducted the recording for an unlawful purpose. The standard for this varies a bit circuit to circuit, and I didn’t see any 6th Circuit case law on it when I looked earlier, but in general the issue is whether the purpose of the recording was to further some sort of tortious or criminal act independent of the act of recording itself. See, e.g., Caro v. Weintraub, 618 F.3d 94 (2d Cir. 2010).

Every year, the Mississippi Law Journal publishes a symposium issue on an aspect of the Fourth Amendment. The latest symposium issue is now available as a single .pdf file: William Rehnquist’s Fourth Amendment.

So reports McClatchy’s Suits & Sentences blog:

Sri Srinivasan seems assured of winning approval from the Senate Judiciary Committee, following the conclusion of a 90-minute confirmation hearing that featured lots of bipartisan praise and no particularly tough questions.

With Republican Sen. Orrin Hatch of Utah saying he supports Srinivasan, and Republican Sen. Ted Cruz of Texas throwing softball questions and stories of their long friendship, there appear to be no obstacles to committee approval.

I haven’t watched the hearing yet , but it’s available here (click “live webcast”).

Today is Yom HaShoah, Holocaust Memorial Day. In 2009, I blogged about my father’s experience as a Holocaust survivor. My father died last May, and so I wanted to post a somewhat longer version of his wartime story in his memory. I have taken it from the eulogy that our family rabbi gave at my father’s memorial service, and it appears below. Following my father’s death, obituaries were also published in The Philadelphia Daily News and Progressive Railroading.

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Arnold D. Kerr began his life as Aronek Kierszkowski. He was born on March 9, 1928 in Suwalki, Poland,the second of four sons of Oszer and Riva Kierszkowski. His father owned a successful fur import and export business which his mother helped operate. The family lived in Suwalki, a town near the border with East Prussia and Lithuania, now Poland.

When the war broke out in Europe in 1939, Aronek, his mother and three brothers became refugees, fleeing to Wilno (Vilnius), or perhaps you might know it by Vilna, home to the great Vilna Gaon, known in some circles as the Jerusalem of the North, the seat of European Jewish learning, and a city given to Lithuania by the occupying Soviet authorities. Aronek’s family moved to Wilno in order to escape the German and Russian occupations. At the same time, Aronek’s father took part of the fur inventory and went to Warsaw, believing it was a safer place for storage. The family never saw him again, and Aronek learned after the war that his father had been shot at Trawniki, near Warsaw, where concentration camp guards were trained.

Shortly after Germany attacked the Soviet Union in 1941, the town of Wilno was occupied by the German Army. Degrading pronouncements about acceptable behavior for the Jews were issued daily, and a gradual thinning of the Jewish population began, with groups of people marched out of town each day and murdered in a nearby forest by Lithuanian auxiliaries. Jews that remained in Wilno, such as Aronek and his family, were packed into a medieval ghetto, and subjected to a starvation diet, continuous shootings, and hard labor. It was here that he and his extended family lived in 2 rooms, Aronek became a bar mitzvah, and where he and his older brother, Dudek, “volunteered” to work at area farms to earn food for their family.

In 1943, the Germans liquidated the ghetto of Wilno, sending the men and older boys to labor camps. As Aronek and Dudek, ages 15 and 17, were marched toward the ghetto gate, they passed their mother and youngest brother. That was the last time they saw their family. After the war, Aronek found out that his mother and two younger brothers were gassed at Auschwitz.

The two brothers were transported to the labor camps in Estonia where they worked in the brown coal mines. Later, during the harsh winter of 1943–44, they had to build fortifications on the Estonian coast of the Baltic Sea. When prodded by other laborers to slow down, Aronek refused, knowing the deeper he dug the warmer he would be.

In the early summer of 1944, the Soviet Army broke the siege of Leningrad and proceeded to cut off the Baltic states of Estonia, Latvia, and Lithuania. The Einsatz Kommandos SS, who ran the camps in Estonia, prepared to escape by confiscating three ships from the German Army, who planned to use them to evacuate part of their troops stationed in the Baltic states. In the fall of 1944, Dudek was shot in Estonia during the SS flight preparations; after being appointed to dig a mass grave, Dudek and several other men were shot into it. Approximately fifty of the Einsatz Kommandos SS boarded the ships taking with them a few hundred camp guards and several thousand of the remaining prisoners, including Aronek. They sailed for Danzig, while the German Army units were left behind and were later taken as prisoners of war by the Russian Army.

Aronek ended up alone in Stutthof, a concentration camp near the port of Danzig at the southern end of the Baltic Sea. Although there were no mass killings at Stutthof, Aronek had one particularly close call. After his arrival there, all 516 teenagers were rounded up and were told they would be sent to another camp, to be reunited with their families. The SS prescribed that the 10 freight cars brought to transport them could carry only 500 prisoners. Aronek was one of 16 youths randomly picked to stay; not having glasses on, at first Arnold was unaware that he was selected to stay. The other 500 teenagers were taken to Auschwitz and gassed upon arrival.

In the bitter winter of 1945, Aronek was sent, along with thousands of other prisoners, on the infamous death marches. Later it became clear that the SS used the marches to escape westward, away from the Russians. As long as they had some of the prisoners, they had a “mission” and did not have to join the German Army and fight for the “Fatherland.”

The death march brought Aronek and his group to a death camp called Rieben in West Prussia. On the way there, they slept on church floors and were barely fed by their Ukrainian guards. Soon, people began to die of starvation and cold. One day when there was virtually no food left, a full supply train overturned after running off tracks that had been blown up by partisans. Aronek was selected to help clean up. Knowing he would be shot for stealing any provisions, Aronek tucked his pant leg into his boot and poured sugar into his pant leg. He allowed him himself two spoonfuls of sugar each day, which lasted until liberation.

The day before Aronek’s seventeenth birthday, the SS camp commandant, Meisel, tried to gather up the inmates for another march. However, this march was more or less voluntary, and Arnold and his friends decided not to go. Although he could have been shot for his choice, he and the rest of the group were left unharmed because the SS and their Ukrainian guards were in a hurry to run away from the advancing front line.

In the early morning of March 10, 1945, five Russian Army scouts, (three men and two women), entered the camp and liberated it. Staying with a loose group of friends, Aronek survived a bad case of typhus and was nursed him back to health with fresh milk and food from a farm near the camp.

Aronek returned to Poland to look for his family, and he traveled without identification papers in order not be identified as a Jew. Other than one uncle who survived, returned to Suvalki and died soon after, the remainder of his family had perished. Aronek found former house staff living at his family’s home. When he arrived, they refused him entry. They finally agreed to give him a small stack of photographs of his childhood and family.

Aronek’s former gym teacher from Suvalki convinced him to enter a Displaced Persons Camp and finish high school, which Aronek completed in one year by paying an outside tutor with leftover oatmeal rations. In November of 1947, Aronek began his studies at the Technical University of Munich. He graduated in 1952 with a Dipl.-Ing. degree in Civil Engineering and served as president of the Jewish Student Union. In December 1953, Aronek received his immigration papers to come to the United States as a “special citizen” because of his engineering degree.

Upon arriving in the U.S. in December 1954, he worked for a year as a bridge designer and then decided to continue his education. He enrolled at Northwestern University, where he completed his M.S. degree in Mechanics in 1956 and his Ph.D. in Theoretical and Applied Mechanics in 1958. He went on to teach at NYU, Princeton, and the University of Delaware, along the way authoring over 100 papers and several books.

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