The Volokh Conspiracy

As regular readers know, I have written at length about ex ante search restrictions on computer warrants. As I explained in a 2010 article in the Virginia Law Review, these restrictions are conditions of how a warrant is executed that some magistrate judges have begun to impose in cases involving searches of a computer. I have argued that such conditions are not only ultra vires but actually harmful because they impede the development of the law. Specifically, post-search litigation over the execution of the warrant turns into litigation over compliance with the ex ante search restrictions instead of compliance with the reasonableness requirement of the Fourth Amendment. As a result, courts do not have the opportunity to develop the Fourth Amendment law that applies to searching computers with a warrant. The result is an ironic cycle. The absence of Fourth Amendment precedents leads some magistrates to impose their own individual ideas to limit computer searches using ex ante restrictions, and the ex ante restrictions then impede the development of Fourth Amendment precedents.

A recent decision from the United States Court of Appeals for the Armed Forces, United States v. Cote (C.A.A.F. March 8, 2013), provides an interesting case study. In Cote, the government applied for a search warrant to search for and seize computers suspected of containing child pornography. The magistrate judge hand-wrote in the following restriction:

The search of any Electronic Device or Storage Media authorized by this warrant shall be completed within 90 days from the date of the warrant unless, for good cause demonstrated, such date is extended by an order of the Court.

Just by way of background, Federal Rule of Criminal Procedure 41 does impose a 14-day limit on when warrants must be executed. However, the rule is clear that this limit only applies to the initial search for the computer, not the later forensic analysis of it. See Rule 41(e)(2)(B) (“The time for executing the warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to the seizure or onsite copying of the media or information, and not to any later off-site copying or review.”). In other words, the magistrate judge’s condition was not based on the Rule but rather the judge’s own view that the government ordinarily should search seized computers within 90 days.

Here’s where things get tricky. Unbeknownst to the magistrate judge, the computer hard drive that was seized turned out to be damaged and inoperable. The state forensic analyst tried to search it within the 90 day period but couldn’t get it to work. So he sent it to federal investigators, where it sat around for a long time. Thirteen months elapsed before federal forensic analysts repaired the hard drive and searched it — far outside the 90 day period.

When child pornography images were found and the government wanted to use them agains the defendant, the reviewing court then faced the critical question: On a motion to suppress the evidence, what is the relevant standard? Is the standard the reasonableness of the search under the Fourth Amendment based on the amount of delay and the justifications for the delay? Or is the standard compliance with the terms of the warrant? The government argued that the relevant standard was the Fourth Amendment and its reasonableness requirement, based on the sparse caselaw on how long a delay to search a seized computer is constitutionally reasonable. Under that caselaw, it it argued, the delay was a reasonable one under the circumstances because the computer had been damaged. In contrast, the defendant argued that the evidence should be suppressed because the terms of the warrant were violated. Because the computer had been searched after 90 days had elapsed, and no extension had been obtained, the evidence was inadmissible.

In a majority opinion by Judge Erdmann, the court concluded that the evidence had to be suppressed because the terms of the warrant were violated. According to the majority, the government presumptively had to follow any ex ante search restrictions handwritten into the warrant:

We believe that the limitation reflects a judicial determination that under the circumstances of this case, ninety days was a reasonable period of time in which to conduct the off-site search. This is particularly true since the term of “90” days was handwritten into the warrant, indicating that the duration of the limitation was tailored to the facts of this case, rather than simply being boilerplate language of the warrant. In addition, the judge established a procedure to extend the off site search period if the Government found they were unable to meet the ninety-day limitation.

While we do not believe that a violation of the ninety-day period mandates per se exclusion of the evidence, we do believe that the violation imposes an additional burden on the Government to show that the violation was either de minimis or otherwise reasonable under the circumstances.

At trial, the Government did not show any fact which would support the argument that its violation of the warrant’s terms was reasonable under the circumstances. Further, performing a search over a year after the expiration of the search period, without following already established procedures for requesting a new warrant or an extension of the existing warrant, is not a de minimis violation. As a result, we cannot conclude that the Government has met its burden at trial to show that the search comported with constitutional requirements.

Further, the good faith exception to the warrant requirement did not apply because the officers engaged in “deliberate or reckless” conduct by not complying with the magistrate’s hand-written restriction.

Judge Ryan dissented on the ground that the Court had failed to apply the Fourth Amendment: It had simply suppressed the evidence for failure to comply with the added restriction and had not bothered to engage in the reasonableness analysis that the Fourth Amendment requires. That reasonableness standard required the government to balance the delay in searching the computer against the government’s reason why it hadn’t done so in light of the government’s level of cause and the degree of certainty that the warrant contained child pornography. Accoridng to Judge Ryan, the majority had erred by using the 90-day limit as the guide instead of reasonableness-balancing required by Fourth Amendment precedents.

I think the majority was wrong and Judge Ryan was right. First, Judge Ryan is right that the court was not applying the Fourth Amendment, at least in any form I recognize. The relevant Supreme Court precedent is Richard v. Wisconsin, 520 U.S. 385 (1997), in which the magistrate crossed out by hand the part of the warrant application that had allowed the government to execute a warrant at a hotel room without first knocking and announcing their presence. When the police went to execute the warrant, they searched without first knocking and announcing. On review, the United Staes Supreme Court concluded that the magistrate’s ‘decision’ that the officers had to knock and announce was completely irrelevant under the Fourth Amendment. The relevant question was the reasonableness of not knocking and announcing, which was not a question that the magistrate had authority to answer:

In arguing that the officers’ entry was unreasonable, Richards places great emphasis on the fact that the magistrate who signed the search warrant for his hotel room deleted the portions of the proposed warrant that would have given the officers permission to execute a no knock entry. But this fact does not alter the reasonableness of the officers’ decision, which must be evaluated as of the time they entered the hotel room. At the time the officers obtained the warrant, they did not have evidence sufficient, in the judgment of the magistrate, to justify a no knock warrant. Of course, the magistrate could not have anticipated in every particular the circumstances that would confront the officers when they arrived at Richards’ hotel room. [n.7] These actual circumstances–petitioner’s apparent recognition of the officers combined with the easily disposable nature of the drugs–justified the officers’ ultimate decision to enter without first announcing their presence and authority.

I see the magistrate’s hand-written 90-day limitation in Cote as analogous to the hand-crossed-out knock-and-announce limitation in Richards. In both cases, the magistrate cannot make a “ruling” about what Fourth Amendment reasonableness is going to require in some future that the magistrate does not know. Reasonableness must be judge ex post, at the time the events occurred, not ex ante, at the time the warrant is signed. As a result, the magistrate’s ex ante limitation is irrelevant to the reasonableness of the resulting search under Richards.

More broadly, the majority’s emphasis on compliance with the 90-day limitation meant that the Court did not rule on the underlying Fourth Amendment question of how to determine the reasonableness of the timing of an electronic search with a warrant when the computer to be searched is broken. That’s an important and interesting question, but the Court never addresses it. By substituting compliance with one ex ante restriction found in one particular warrant for compliance with the balancing test of Fourth Amendment reasonableness, the court ensured that it did not hand down a decision on reasonableness that would then be automatically incorporated into all future warrants as an appellate precedent.

Anyway, I realize that some readers will have an instinctive reaction that the government should do what judges say they should do and should be punished if they don’t do it — even if Supreme Court precedent indicates to the contrary. Further, I realize that the VC readers who tend to comment on these issues will celebrate the ruling because the government lost. But I think Cote is a good example of the kinds of harms to the development of the law that ex ante restrictions can cause.

NPR’s Planet Money recently posted this important story about how federal disability payments have largely taken the place of federal welfare payments. An excerpt:

“That’s a kind of ugly secret of the American labor market,” David Autor, an economist at MIT, told me. “Part of the reason our unemployment rates have been low, until recently, is that a lot of people who would have trouble finding jobs are on a different program.”

Part of the rise in the number of people on disability is simply driven by the fact that the workforce is getting older, and older people tend to have more health problems.

But disability has also become a de facto welfare program for people without a lot of education or job skills. But it wasn’t supposed to serve this purpose; it’s not a retraining program designed to get people back onto their feet. Once people go onto disability, they almost never go back to work. Fewer than 1 percent of those who were on the federal program for disabled workers at the beginning of 2011 have returned to the workforce since then, one economist told me.

People who leave the workforce and go on disability qualify for Medicare, the government health care program that also covers the elderly. They also get disability payments from the government of about $13,000 a year. This isn’t great. But if your alternative is a minimum wage job that will pay you at most $15,000 a year, and probably does not include health insurance, disability may be a better option.

But, in most cases, going on disability means you will not work, you will not get a raise, you will not get whatever meaning people get from work. Going on disability means, assuming you rely only on those disability payments, you will be poor for the rest of your life. That’s the deal. And it’s a deal 14 million Americans have signed up for.

All Things Considered broadcast the audio version of the story in six parts over the last week:Part 1, Part 2, Part 3, Part 4, Part 5, Part 6. This American Life also covers the issue here.

As I recently noted, Congress is considering legislation to increase maximum punishments under the Computer Fraud and Abuse Act. Here’s my question for supporters of this legislation: Can you identify any cases under the current version of the CFAA in which judges sentenced defendants to the current maximum sentences? In other words, have there been any cases in which judges maxed out the current sentences, suggesting that if they had the power to do so they might have wanted to sentence a defendant to a greater punishment? Or is Congress considering increasing the allowed penalties under the CFAA with a complete absence of evidence that any federal judge anywhere has ever found the current statutory maximum penalties too low in any actual case?

In his most recent post, my co-blogger Randy Barnett writes that “defining marriage — like defining property — is a traditional function of the states.” He continues:

[T]hat is crazy. It would be like saying you “own” your home under the property law of California, but you don’t “own” your home “for purposes of federal law.” Such a dual property system would undermine the institution of property, and the traditional power of States to define property, every bit as much as allowing a dual system of state and federal marriage undermines the institution of marriage, and the traditional power of states to regulate marriage.

But Congress often defines the meaning of “property” for purposes of federal law. See, e.g., 26 U.S.C. § 317(a) (“For purposes of this part, the term ‘property’ means money, securities, and any other property; except that such term does not include stock in the corporation making the distribution (or rights to acquire such stock).”); 26 U.S.C. § 614(a) (“For the purpose of computing the depletion allowance in the case of mines, wells, and other natural deposits, the term ‘property’ means each separate interest owned by the taxpayer in each mineral deposit in each separate tract or parcel of land.”); 21 U.S.C. § 853(b) (“Meaning of term “property” — Property subject to criminal forfeiture under this section includes–(1) real property, including things growing on, affixed to, and found in land; and (2) tangible and intangible personal property, including rights, privileges, interests, claims, and securities.”).

Plus, lots of federal statutes use “property” or similar words without a statutory definition, and courts interpreting those words have approached their interpretation as a question of federal law, not a question of state law. See, e.g., Dowling v. United States, 473 U.S. 207 (1985) (interpreting the National Stolen Property Act as a question of federal law, noting that because “federal crimes, of course, are solely creatures of statute,” the meaning of terms must “pay close heed to language, legislative history, and [Congressional] purpose.”); Gleason v. Thaw, 236 U.S. 558 (1915) (“Congress, we think, never intended that property in the paragraph under consideration should include professional services.”)

I don’t think I have ever encountered an argument that these statutes are unconstitutional, and cases are wrongly decided, because the word “property” cannot be defined for purposes of federal law without “undermining the institution of property.” Rather, I have always thought that definitions are just definitions. As I tell my first-semester 1Ls, legislatures can use words in quirky ways, and they can define them however they like: When a term is specially defined, what matters is the definition the legislature adopted and not the ordinary or expected meaning of the defined term.

Does the Constitution require a different result when Congress drafts statutes, at least for some words? And if so, is there a list available of what the special words are other than “marriage” and “property”? And how far from the core word does this inability to define the term go? For example, if Congress calls the terms “federal marriage” or “federal property,” is that allowed? How about “maredge” or “prawperty”?

The New York Times Caucus blog had a recent article that touched on the lawfulness and propriety of hiring line-standing services for Supreme Court arguments:

By hiring companies like LineStanding.com and Washington Express, people who want to hear the court arguments can pay for a proxy to hold their place in line hours or days ahead of time, improving their odds of getting a front-row seat to one of the most anticipated cases this year.

The second and third people in line on Saturday seemed indifferent about the cases and declined to give their names or say whether they were being paid to be there. One of them said it was his third time in line for a Supreme Court hearing, but he could not remember the other cases. He said he had been in line since Thursday; seat assignments are to be given out on Tuesday morning.

“There’s been a huge demand for standing in line,” said John Winslow, director of operations for LineStanding.com, which charges $50 an hour to hold places for Supreme Court and Congressional hearings, among other events. “I’ve got between 50 and 60 people available, and I’m anticipating that I’ll have to dip into my fleet of couriers.” His company doubles as a Congressional messenger service.

. . .

The practice angers some in Congress who say that the services give an unfair advantage to those willing to pay hundreds or thousands of dollars for access to Supreme Court hearings.

The former congressman Barney Frank, Democrat of Massachusetts, is not a fan. He made a wry remark on Saturday about wealthy lawyers paying poor people to suffer in the cold on their behalf. . . .

In 2007, Senator Claire McCaskill, Democrat of Missouri, proposed banning the line-standing services for Congressional hearings, saying that lobbyists or wealthy people should have to stand in line like everyone else.

Who hired line-standing services for Tuesday’s argument? TPM reported that Rob Reiner and Ken Mehlman appeared at or near the front of the public line on Tuesday morning. I assume that Reiner and Mehlman didn’t camp out for a few days to be at the front of the line; presumably they were two of the wealthy individuals who paid line-standers to wait for them.

The audio of the argument, lasting almost 2 hours, is here. (If you want to listen to the merits discussion, start at the 54 minute mark.) Lyle Denniston’s take on the arguments at SCOTUSblog is here.

In United States v. Jones, 132 S.Ct. 945 (2012), the Supreme Court announced that the Katz reasonable-expectation-of-privacy test is not the only test for what is a Fourth Amendment search. According to Jones, Katz supplemented but did not replace the trespass test that the Court indicated had existed before Jones. According to Jones, “[t]respass . . conjoined with . . . an attempt to find something or to obtain information” constitutes a search.

In a forthcoming article that I updated today on SSRN to the near-final version, The Curious History of Fourth Amendment Searches, I looked closely at the history of the Fourth Amendment search doctrine and concluded that no trespass test existed before Katz. Here’s my summary from the introduction of the article:

The apparent restoration of a pre-Katz trespass test in Jones reflects the widely-shared assumption that pre-Katz search doctrine was in fact based on trespass law. Like many Fourth Amendment scholars, I have previously echoed the common wisdom that this is true. But because the point was only of historical interest, I had not looked closely at pre-Katz law to assess its accuracy. Jones makes the history of Fourth Amendment law doctrinally significant, however, meriting a more careful look at the early understandings of “searches.” This essay explores the history of the Fourth Amendment and reaches the surprising conclusion that no trespass test was used in the pre-Katz era. Neither the original understanding nor Supreme Court doctrine equated searches with trespass. Jones purports to revive a test that did not actually exist.

In short, the common wisdom is false. Before Katz, the Court did not use a specific formulation to identify what counted as a Fourth Amendment search. Supreme Court cases on the meaning of “searches” generally reasoned by analogy to the canonical example of home invasion. But the decisions used no particular methodology to guide the analogy, and opinions sometimes focused on privacy or the perceived invasiveness of the government’s conduct. The Court began to focus on physical intrusion as a guide starting in the 1920s. But even decisions focused on physical intrusion eschewed reliance on the technicalities of trespass law. No historical trespass era existed. Surprisingly, the first case applying a trespass test to identify Fourth Amendment searches appears to be United States v. Jones.

The absence of a pre-Katz trespass test means that courts are going to have to articulate what the new trespass test means, I argued:

Both today and when the Fourth Amendment was adopted, trespass has been a protean concept that can be construed broadly or narrowly. Trespass law today may be different in some ways than trespass law then, raising questions of which era of trespass doctrine counts. Because the trespass test did not exist before Jones, pre-Katz law does not directly answer these questions. Courts called on to interpret the trespass test must do so with little in the way of history or precedent to guide them.

In light of that challenge, I was particularly interested to see how the Supreme Court interpreted the Jones inquiry in today’s decision in Florida v. Jardines. Jardines was 5-4, and Justice Scalia was the senior-most Justice in the majority; that means he assigned the opinion to himself. Given that Justice Scalia generally is not a fan of writing Fourth Amendment opinions, it’s possible that he kept the case to himself to try to further establish his non-Katz approach to search doctrine from Jones. Either way, Jardines is the first Supreme Court application of the Jones test after Jones itself.

But just what kind of test is it?

Notably, Justice Scalia nowhere uses the word “trespass” to describe the Jones inquiry. Instead, he mostly sticks to the concept that the Court had used in the 1961 Silverman case, a few years before Katz, of physical penetration or intrusion into a constitutionally protected area. Here’s the heart of Scalia’s analysis in Jardines:

When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” United States v. Jones, 565 U.S. ––––, ––––, n. 3 (2012) (slip op., at 6, n. 3). By reason of our decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), property rights “are not the sole measure of Fourth Amendment violations,” Soldal v. Cook County, 506 U.S. 56, 64, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992)—but though Katz may add to the baseline, it does not subtract anything from the Amendment’s protections “when the Government does engage in [a] physical intrusion of a constitutionally protected area,” United States v. Knotts, 460 U.S. 276, 286, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (Brennan, J., concurring in the judgment).

That principle renders this case a straightforward one. The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—- in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.

It’s very interesting that Justice Scalia does not use the word “trespass” to describe the Jones test. Justice Scalia also does not use the word trespass when he describes the holding of Jones later in the opinion. He writes:

[B]ecause the GPS receiver [in Jones] had been physically mounted on the defendant’s automobile (thus intruding on his “effects”), we held that tracking the vehicle’s movements was a search: a person’s “Fourth Amendment rights do not rise or fall with the Katz formulation.

Again, note the absence of the word trespass, which was the term used several times in Jones. Instead, the language chosen here is “physical mount[ing]” that “intrud[es]” on protected areas. The absence of the word trespass is particularly interesting given that Justice Alito’s dissent criticizes the majority for misapplying trespass law. It’s at least a possibility that Justice Scalia not address this point in detail in his majority opinion because he wasn’t actually applying a technical trespass test.

With that said, it’s not at all clear that Jardines interprets the Jones test as a physical intrusion test that is necessarily different from trespass. Throughout Jardines, Justice Scalia refers to the Jones inquiry as “property based.” Consider this passage:

The Katz reasonable-expectations test “has been added to, not substituted for,” the traditional property-based understanding of the Fourth Amendment, and so is unnecessary to consider when the government gains evidence by physically intruding on constitutionally protected areas. Jones, supra, at ___ (slip op., at 8).

Thus, we need not decide whether the officers’ investigation of Jardines’ home violated his expectation of privacy under Katz. One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.

How to make sense of these different passages?

One way to square them is that perhaps the Jones test is not about the technicalities of trespass doctrine but rather about physical intrusion into property. Under this reading, the Jones inquiry protects private property from physical intrusion. What counts as a “physical intrusion”? Most cases will be easy — just watch the officer or tools he is using as they cross into the constitutionally protected area of the house, paper, person, or effect. The facts of Jones then become the closer case, with a “physical mount[ing]” of the government’s device to the car deemed a sufficient interference with the property interest to “intrude” onto the effect of the car. The issue isn’t the technicalities of trespass law, but rather the presence of physical intrusion into property owned by the person — specifically, their houses, persons, papers, and effects.

If I’m right about that, a case that is somewhat similar to Jones is the long-forgotten per curiam decision in Clinton v. Virginia, 377 U.S. 158 (1964), which had facts similar to those of Silverman except the microphone was in the wall rather than through the wall. No one remembers Clinton because the the Supreme Court ruled for the defendant in four words – “The judgment is reversed” — with a citation to Silverman. But at least looking at the facts from the state court opinion it reversed, Clinton might help bolster the lineage of Jones with a pre-Katz case applying the Silverman “physical penetration” test where the listening device was on the edge of the constitutionally protected area rather than clearly inside it.

When Ted Olson and David Boies filed their challenge to Prop 8 in 2009, there was a lot of debate about the timing of the case. Olson & Boies expressed their strong confidence that there were five votes on the Supreme Court for a national constitutional right to same-sex marriage. According to Olson & Boies, their case would lead the way and establish that right. Others worried that Olson & Boies were acting too soon, and that an early challenge would lead to another Bowers v. Hardwick that would set back the cause of gay rights by delaying a future Lawrence v. Texas (or, if you prefer, that it would result in a Plessy that would delay a future Brown).

If today’s oral argument was an accurate indicator, Olson & Boies were wrong. Based on the oral argument, it seems like there aren’t five votes on the Supreme Court for a broad constitutional right to same-sex marriage. Nor did it seem like there were enough votes — indeed, perhaps there were no votes at all — for a narrower rule that would establish same-sex marriage in some states but not others. In a sense, then, the critics of Olson & Boies appear to have been correct in their vote-counting. It looks like the votes just aren’t there, at least yet.

Perhaps the most intriguing aspect of the Hollingsworth v. Perry argument, however, is that this doesn’t mean that the Court will render another Bowers. During the oral argument, Justice Kennedy repeatedly suggested that the fact that the issue was in flux meant that the Supreme Court shouldn’t get involved. And he didn’t mean that the Court should not get involved by ruling against the constitutional right and leaving the issue to the ballot box. Instead, he seemed to be arguing that the Court shouldn’t get involved in the sense that Alex Bickel called the passive virtues — declining to rule on the issue while societal views are not yet resolved. See Alexander Bickel, Foreword: The Passive Virtues, 75 Harv. L. Rev. 40 (1961). Recall how Bickel characterized Justice Frankfurter’s opinion in Poe v. Ullman, which had declined to rule on the constitutionality of an anti-contraception law:

The point of Mr. Justice Frankfurter’s opinion announcing the judgment of the Court, as Justice Harlan was able to show, is not that the plaintiffs had no standing, not that the controversy was feigned or unreal, and not, as in Times Film, that it was “so artificially truncated as to make the cases not susceptible to intelligent decision.” The point is that the job of the Court, even in a perfectly real, concrete, and fully developed controversy, is not to resolve issues on which the political processes are in deadlock, but to do what it can to break that deadlock, so that the political institutions may make their decision before the Court is required to pass judgment on its validity.

My sense of Justice Kennedy’s questioning at the argument today was that he might see the model for today’s case as Poe, not Bowers or Lawrence. That is, it may be best for the Court to exercise the passive virtues and wait for “the political institutions [to] make their decision before the Court is required to pass judgment on its validity.” Exactly how to achieve that isn’t entirely clear. Unlike in Poe, many lower court challenges to laws prohibiting SSM can be brought, making it harder for the Supreme Court to stay out of the debate. But it sounded like Kennedy’s reaction was to use the passive virtues to avoid either a Bowers or a Lawrence.

At the oral argument today in Hollingsworth v. Perry, Justice Scalia repeatedly questioned Ted Olson on when same-sex marriage became unconstitutional. From the transcript:

JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became
unconstitutional? Has it always been unconstitutional? . . .

MR. OLSON: It was constitutional when we -­as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

Olson wasn’t inclined to give an specific date or window of dates in response to Justice Scalia’s question. But VC readers have: Results of the VC reader poll from 2010 on when same-sex marriage became unconstitutional (at least among those who think it is currently unconstitutional) is available here.

The audio is here.

Over at SCOTUSblog, Tom Goldstein writes:

The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.

Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure. These likely include not only more liberal members but also the Chief Justice. If standing is lacking, the Court would vacate the Ninth Circuit’s decision.

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule.

But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.

This morning the Supreme Court handed down Florida v. Jardines, the case on use of a drug-sniffing dog at a suspect’s front porch to sniff around for narcotics inside. Held, in a 5-4 decision by Justice Scalia: Entry onto the porch was an unconstitutional search because it was a physical intrusion into the curtilage around the home under Jones that was beyond the scope of any implied consent. In light of my Supreme Court Review article on how there was no “trespass test” before Katz, I was particularly interested to see that the majority’s application of Jones does not use the word “trespass.” Instead, the Court refers to the Jones test as a test of “physical intrusion.”

The Hill reports that a draft of language to reform the CFAA is being circulated among House Judiciary Committee members for feedback:

A draft cybersecurity bill circulating among House Judiciary Committee members would stiffen a computer hacking law used to bring charges against Internet activist Aaron Swartz. 

 The bill draft would tighten penalties for cyber crimes and establish a standard for when companies would have to notify consumers that their personal data has been hacked, according to a copy obtained by The Hill.

It would also change existing law so that an attempt at a cyber crime can be punished as harshly as an actual offense.
Such measures could spark concern among advocates outraged over the death of Swartz, the 26-year-old Internet activist and computer programmer who killed himself earlier this year while facing a possible 35-year prison term for hacking. Advocates have called on Congress to make changes to what they say is a draconian law that led to too harsh a prosecution of Swartz.

. . . It’s unclear which Judiciary members are sponsoring the draft bill, which is unnamed. A House Judiciary Committee aide said the bill is still in the early drafting stage and is being circulated to stakeholders for their feedback on possible changes.

They’re looking for feedback, so here is mine: Stop taking DOJ’s language from back in 2011 and packaging it as something new. Based on a quick read, it seems that the amendments for 1030 in the new draft are mostly copied from a bill that Senator Leahy offered (with substantial input from DOJ, as I understand it) back in November 2011. I criticized that language here. The new circulating draft also adopts the sentencing enhancements (minus mandatories) and the proposed 1030a that DOJ advocated in May 2011. I criticized that initial DOJ language here. (There’s also a breach notification provision in the new language, but I haven’t followed that issue closely; I don’t know if that proposal is also based on old language.)

In some ways, the new circulating language is even more severe and harsh than DOJ wanted even in the Lori Drew case. For example, the proposed language would make it a felony crime to violate Terms of Service if the TOS violation:

(I) involves information that exceeds $5,000 in value;
(II) was committed for purposes of obtaining sensitive or non-public information of an entity or another individual (including such information in the possession of a third party), including medical records, wills, diaries, private correspondence, financial records, photographs of a sensitive or private nature, trade secrets, or sensitive or non-public commercial business information;
(III) was committed in furtherance of any criminal act in violation United States or of any State, unless such state violation would be based solely on the obtaining of information without authorization or in excess of authorization; or
(IV) involves information obtained from a computer used by or for a government entity;

This language is really, really broad. If I read it correctly, the language would make it a felony to lie about your age on an online dating profile if you intended to contact someone online and ask them personal questions. It would make it a felony crime for anyone to violate the TOS on a government website. It would also make it a federal felony crime to violate TOS in the course of committing a very minor state misdemeanor. If there is a genuine argument for federal felony liability in these circumstances, I hope readers will enlighten me: I cannot understand what they are.

In short, this is a step backward, not a step forward. This is a proposal to give DOJ what it wants, not to amend the CFAA in a way that would narrow it.

Or at least that’s how it seems to me based on a quick read. If I am misreading something, which is always possible when in a hurry, I hope readers will point that out in the comment thread; I’ll be offline for a few hours for Passover but I’ll plan on posting updates/corrections later tonight if necessary.

Law.com’s new list of the 100 Most Influential Lawyers in America includes our own Eugene Volokh, together with the following blurb:

If Eugene Volokh had done nothing but create The Volokh Conspiracy, a conservative-libertarian weblog that averages about 25,000 unique hits per weekday, his fame and influence would be secure. Volokh’s blog is a forum for leading conservative and libertarian thinkers on legal and public policy issues. But the Russian-born UCLA law professor, who graduated from college at 15, is a prolific and widely respected writer and expert on the First Amendment, cyberspace and gun rights. Google Inc. hired Volokh, 45, last year to write a paper defending Google search results as protected speech. Volokh clerked for Justice Sandra Day O’Connor of the U.S. Supreme Court.

Very cool. Congrats, Eugene!

Politico has the story, via How Appealing.