As regular readers know, I’ve given up this solo blog and returned to blogging regularly at the Volokh Conspiracy. I plan to keep this site up for the archives, but at least for now I don’t plan to do any blogging here.
The next few weeks are going to be particularly busy for me, as I finish up a bunch of projects, start some new ones, and prepare to head out to Chicago for the fall (where I will be visiting at U of C). Unfortunately, I don’t think I’m going to have the time to keep up the solo blog as much as I would like, either from the standpoint of daily posts or moderating comment threads. Instead of doing a half-hearted job, my plan is to stop posting here for a bit and instead go back to posting exclusively at the Volokh Conspiracy for a while, albeit on a less-than-fully-regular basis. I know that most of you read the VC anyway, so my hope is that the disruption will be very minor.
Here’s my first post back at the VC: The Hart-Fuller Debate and Student-Edited Law Reviews.
The Ninth Circuit has been handing down a boatload of cases applying the Fourth Amendment to computers recently, and today handed down another important case.
In United States v. Hill, the Ninth Circuit (Fisher, joined by Goodwin and Schroeder) created a new constitutional rule for the execution of computer searches. It imposed as a constitutional requirement a prudential practice that DOJ has been recommending for years: Articulating in the affidavit why computers need to be taken offsite rather than searched onsite. The Ninth Circuit had hinted that this might be a good idea in a 1982 case involving boxes of documents, United States v. Tamura, but then turned it into a constitutional rule today. Here’s the excerpt:
Although computer technology may in theory justify blanket seizures * * * , the government must still demonstrate to the magistrate factually why such a broad search and seizure authority is reasonable in the case at hand. There may well be situations where the government has no basis for believing that a computer search would involve the kind of technological problems that would make an immediate onsite search and selective removal of relevant evidence impracticable. Thus, there must be some threshold showing before the government may “seize the haystack to look for the needle.”
* * * [A]lthough the warrant in this case authorized a wholesale seizure, the supporting affidavit did not explain why such a seizure was necessary. See United States v. Adjani, ___ F.3d at ___ , 2006 WL 1889946 at *7 n.7 (noting favorably an affidavit’s computer search and seizure protocol explaining when a computer had to be searched offsite, because “[s]uch specificity increases our confidence that the magistrate judge was well aware of what he was authorizing and that the agents knew the bounds of their authority in executing the search”); U.S. Dep’t of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations 43, 69 (July 2002) (recommending that “if agents expect that they may need to seize a personal computer and search it off-site to recover the relevant evidence, the affidavit should explain this expectation and its basis to the magistrate judge. The affidavit should inform the court of the practical limitations of conducting an on-site search, and should articulate the plan to remove the entire computer from the site if it becomes necessary.”);* * *
We do not approve of issuing warrants authorizing blanket removal of all computer storage media for later examination when there is no affidavit giving a reasonable explanation, * * * as to why a wholesale seizure is necessary.
This is fascinating. I’ve always thought this was a good practice (full disclosure: I wrote the DOJ manual cited in the passage), but this is new as a constitutional rule. It’s also worth noting something a bit strange: Hill is a child pornography case, in which the computer (if it contains contraband images) is itself an instrumentality of crime and independently forfeitable. Thus the Ninth Circuit seems to be requiring agents to explain why they can’t search the computer onsite to identify whether it is in fact legally seizable. In other words, the agents need to explain why they can’t confirm that the computer hardware is indeed legally seizable before they actually seize it. This is a bit different from prior cases like Tamura, where the concern was carting away documents unrelated to the offense.
Notably, however, the Hill court opted not to impose a suppression remedy in this case:
[T]he officers’ wholesale seizure was flawed here because they failed to justify it to the magistrate, not because they acted unreasonably or improperly in executing the warrant. Because the officers were “motivated by considerations of practicality rather than by a desire to engage in indiscriminate ‘fishing,’ we cannot say . . . that the officers so abused the warrant’s authority that the otherwise valid warrant was transformed into a general one, thereby requiring all fruits to be suppressed.” [citing Tamura]. See also Hudson v. Michigan, 547 U.S. ____, 126 S.Ct. 2159, 2163 (2006) (“Suppression of evidence . . . has always been our last resort, not our first impulse,”and is appropriate “only ‘where its remedial objectives are thought most efficaciously served.’” (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)).
Based on the quotation from Tamura, it seems that the Hill court is applying the flagrant disregard standard here. Under the flagrant disregard standard, the court will only suppress evidence within the scope of a facially proper warrantif the warrant was executed in flagrant disgregard of its terms. This creates a puzzle, though: if the standard for reviewing the failure to explain the issue in the affidavit is only the usual flagrant disregard standard, is this essentially a right without a remedy? The cite to Hudson suggests this might be so; perhaps the court is essentially saying that this is a requirement now, but not one that leads to suppression if he government fails to comply with it (much like the knock and announce rule).
If so, the court is essentially creating an amendment to the Federal Rules of Criminal Procedure in the case of computer searches; the rule is that seize-first, search-second warrants require an explanation, although suppression generally isn’t available as a remedy if the magistrate approves a warrant without that explanation. I suspect this will have a ripple effect in the pending cases out there: every defendant in a computer search case is going to litigate this, and courts are going to have a lot of opportunities to explore the issue.
Finally, it’s interesting to note that the Court concluded with this suggestion of more interesting developments ahead:
We realize that judicial decisions regarding the application of the Fourth Amendment to computer-related searches may be of limited longevity. Technology is rapidly evolving and the concept of what is reasonable for Fourth Amendment purposes will likewise have to evolve. See Kyllo v. United States, 533 U.S. 27, 33-34 (2001) (“It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.”); cf. id. at 41, 51 (Stevens, J., dissenting) (expressing concern with “the supposedly ‘bright-line rule’ the Court has created in response to its concerns about future technological developments” as it “is unnecessary, unwise, and inconsistent with the Fourth Amendment” and commenting that “[i]t would be far wiser to give legislators an unimpeded opportunity to grapple with these emerging issues [of technology] rather than to shackle them with prematurely devised constitutional constraints”). New technology may become readily accessible, for example, to enable more efficient or pinpointed searches of computer data, or to facilitate onsite searches. If so, we may be called upon to reexamine the technological rationales that underpin our Fourth Amendment jurisprudence in this technology-sensitive area of the law.
Changing Fourth Amendment rules? Reexamining rationales? Letting legislators get the first crack at these issues? Sounds like an interesting area for legal scholarship.
Thanks to How Appealing for the link.
Brian Lamb of C-SPAN interviewed Chief Justice Roberts recently; you can see the interview here, followed by the Chief’s remarks to the Ninth Circuit judicial conference. A few tidbits:
* When asked to identfy particularly interesting parts of the Constitution, Roberts responded that he is probably most interested in constitutional structure and separation-of-powers questions.
* When asked when was the last time he had read the Constitution (from end-to-end, one assumes), Roberts responded that he re-read the Constitution at the end of the Term to see how close the Court was to the original written document.
* When asked which Framer Roberts would most like to have been, Roberts responded that he liked to think that he would have been a Framer that “brokered the great compromises.”
* When asked if he was particularly influenced by any books on the Constitution, Roberts singled out Alexander Bickel’s The Least Dangerous Branch. According to Roberts, it “really made an impression on me.”
Good stuff. Thanks to Howard for the link.
First, some background. One of the tricky aspects of Fourth Amendment law is the distinction between the Fourth Amendment protection of government employees and private sector employees. The basic rule for the private sector is that employees have privacy rights at work unless their work space is completely open to the public, with the caveat that their employer can consent to a search of spaces that are not open to the public.
The rules for government employment are totally different, thanks to the Supreme Court’s somewhat odd decision in O’Connor v. Ortega. In that case, the Supreme Court created a sui generis, split-the-baby-in-half regime for government employee Fourth Amendment rights (announced in a plurality opinion by, you guessed it, Justice O’Connor). Under the O’Connor framework for government employee privacy, Fourth Amendment protections in the government workplace hinge on whether the workspace is shared with other employees, or whether the employer has enacted legitimate workplace policies that define privacy rights. The result is that government employees have much less Fourth Amendment protection than private sector employees, with the caveat that government employers cannot consent to a search while private sector employers can. (For more on this, and all the relevant case citations, see the chapter on it in the Justice Department manual on Searching and Seizing Computers that I wrote in ’99-’01.)
With that background in mind, it’s a little painful to read yesterday’s opinion by the Ninth Circuit in United States v. Ziegler. Ziegler was an employee of a company called Frontline Processing, described in the opinion as “a company that services Internet merchants by processing on-line electronic payments” in Bozeman, Montana. Ziegler downloaded some child pornography to his computer at work, and his employer, in an effort to help out the FBI, went into Ziegler’s office and copied his computer to give to the FBI. The computer contained child pornography, leading to charrges. Ziegler then filed a motion to suppress, arguing that he had a reasonable expectation of privacy on his workplace computer that was violated by the government-directed search.
The correct way to resolve this case would have been to say that of course Ziegler had a reasonable expectation of privacy in the contents of his private-sector office, see Mancusi v. DeForte, 392 U.S. 364 (1968), including the computer in his office. Then the court should have turned to whether the search was either a private search or else a reasonable warrantless search pursuant to the employer’s valid third-party consent. Unfortunately, however, it seems that no one realized that private-sector Fourth Amendment privacy rights are so different from public-sector Fourth Amendment privacy rights. The defense attorney apparently didn’t notice the difference, and it seems that the AUSA didn’t either. (I couln’t find the briefs on Westlaw, but the opinions summarize the parties’ positions.) And the failure to understand this basic distinction in Fourth Amendment law then worked its way up the line, with apparently no one stepping back and noticing that you couldn’t rely on the public sector Fourth Amendment cases to analyze whether a private-sector employee has a reasonbable expectation of privacy at work.
The unfortunate result is an opinion that makes a quite clearly incorrect conclusion that private-sector employees do not have a reasonable expectation of privacy in the workplace computers in their offices when the employer has access rights to the machine. The Court based its holding primarily by analogy to United States v. Simons, a Fourth Circuit case imvolving a federal government agency search:
In United States v. Simons, the case upon which the district court relied, the Fourth Circuit reasoned that an employer’s Internet-usage policy—which required that employees use the Internet only for official business and informed employees that the employer would “conduct electronic audits to ensure compliance,” including the use of a firewall— defeated any expectation of privacy in “the record or fruits of [one’s] Internet use.” 206 F.3d at 395, 398. A supervisor had reviewed “hits” originating from Simons’s computer via the firewall, had viewed one of the websites listed, and copied all of the files from the hard drive. Id. at 396. Despite that the computer was located in Simons’s office, the court held that the “policy placed employees on notice that they could not reasonably expect that their Internet activity would be private.” Id. at 398.
As the government suggests, similar circumstances inform our decision in this case. Though each Frontline computer required its employee to use an individual log-in, Schneider and other IT-department employees “had complete administrative access to anybody’s machine.” As noted, the company had also installed a firewall, which, according to Schneider, is “a program that monitors Internet traffic . . . from within the organization to make sure nobody is visiting any sites that might be unprofessional.” Monitoring was therefore routine, and the IT department reviewed the log created by the firewall “[o]n a regular basis,” sometimes daily if Internet traffic was high enough to warrant it. Upon their hiring, Frontline employees were apprised of the company’s monitoring efforts through training and an employment manual, and they were told that the computers were company-owned and not to be used for activities of a personal nature. Ziegler, who has the burden of establishing a reasonable expectation of privacy, presented no evidence in contradiction of any of these practices. Like Simons, he “does not assert that he was unaware of, or that he had not consented to, the Internet [and computer] policy.” Simons, 206 F.3d at 398 n.8.
There are a bunch of problems in this section. To begin with, this is a very unpersuasive reading of Simons. The court conveniently doesn’t mention this, but in Simons the Fourth Circuit held that the employee did have a reasonable expectation of privacy that was violated by physical entry to the office to get the physical machine. The court only permitted the search of the computer after holding that it was a reasonable search under the “special needs” exception as adopted by O’Connor v. Ortega. The part mentioned above was only about remote monitoring that preceded the physical entry. Here’s what the Simons court said about the phsyical entry to Simons’ office:
Here, Simons has shown that he had an office that he did not share. As noted above, the operational realities of Simons’ workplace may have diminished his legitimate privacy expectations. However, there is no evidence in the record of any workplace practices, procedures, or regulations that had such an effect. [FN: The Internet policy did not render Simons' expectation of privacy in his office unreasonable. * * * ] We therefore conclude that, on this record, Simons possessed a legitimate expectation of privacy in his office.
Simons, 206 F.3d at 399.
The Ziegler court seems to say in a footnote that this case is different because it involved a computer. In footnote 9, the court suggests that entering the office to search a computer is a search of the computer but not a search of the office. (“Although an employee may have a legitimate expectation of privacy in his office, here the Frontline employees did not actually search Ziegler’s office.”) This makes no sense, as everything in an office is an item separate from the office; if this rationale were valid, then you could never search an office, just stuff in an office.
But I digress, so let me get back to the really important stuff. The Ziegler court seems unconcerned that Simons was a government search decided under O’Connor v. Ortega, rather than a private sector search that should be analyzed under Mancusi v. DeForte. So the Court makes its (unpersuasive) analogy to a decision that rested on the framework of government employee rights, apparently applying the low-protection government framework to what used to be the higher-protection private-sector framework. The end-result: the relatively high level of protection that private sector employees have in their computer hard drives are dropped to the low level of protection that government employees have. Not good.
There is one paragraph in the Zeigler opinion that at least suggests an awareness that there might be some difference between public and private employee Fourth Amendment rights. Here it is:
Other courts have scrutinized searches of workplace computers in both the public and private context, and they have consistently held that an employer’s policy of routine monitoring is among the factors that may preclude an objectively reasonable expectation of privacy. See Biby v. Bd. of Regents, 419 F.3d 845, 850-51 (8th Cir. 2005) (holding that no reasonable expectation of privacy existed where a policy reserved the employer’s right to search an employee’s computer for a legitimate reason); United States v. Thorn, 375 F.3d 679, 683 (8th Cir. 2004), cert. granted and judgment vacated on other grounds by 543 U.S. 1112 (2005) (holding that a public agency’s computer-use policy, which prohibited accessing sexual images, expressly denied employees any personal privacy rights in the use of the computer systems, and provided the employer the right to access any computer in order to audit its use, precluded any reasonable expectation of privacy); United States v. Angevine, 281 F.3d 1130, 1133-35 (10th Cir. 2002) (holding that the employer’s computer-use policy, which included monitoring and claimed a right of access to equipment, and the employer’s ownership of the computers defeated any reasonable expectation of privacy); Muick v. Glenayre Electronics, 280 F.3d 741, 743 (7th Cir. 2002) (“Glenayre had announced that it could inspect the laptops that it furnished for the use of its employees, and this destroyed any reasonable expectation of privacy . . . .”); Wasson v. Sonoma County Jr. Coll. Dist., 4 F. Supp. 2d 893, 905-06 (N.D. Cal. 1997) (holding that a policy giving the employer “the right to access all information stored on [the employer’s] computers” defeated an expectation of privacy).
Notably, however, almost all of the cases in this strong cite are public sector cases, not private sector cases. The one private sector case on the list is Judge Posner’s opinion in Muick v. Glenayre Electronics. But Muick is a bit of an analytical disaster. Here is an excerpt from a case summary I wrote on the case soon after it came out:
With all due repect to Judge Posner, his breezy opinion largely ignores the applicable law on several fronts, and although he reaches the right result, he does so for the wrong reasons. First, Posner gets the agency inquiry pretty clearly wrong. The FBI’s request for the store to hold the computer on its behalf almost certainly makes the store a state actor for 4th Amendment purposes: the fact that the employer was acting “selfishly” doesn’t mean it wasn’t acting at the FBI’s behest.
Second, Posner ignores the fact that all of the cases he relies on for his third rationale are government employment cases, and that the store was not a government employer. The Supreme Court in O’Connor v. Ortega created a special 4th Amendment standard for the government workplace, and under that standard notice alone can eliminate a “reasonable expectation of privacy.” However, these cases aren’t applicable to private employers such as the store, so notice alone should not be enough to eliminate privacy rights there.
* * * [T]he court should have stopped after the first rationale and not offered confusing and misleading alternative holdings on the Fourth Amendment when it didn’t need to do so to resolve the case.
Finally, just to add to the confusion here, the Ziegler court has a long discussion analyzing and ultimately endorsing a California appellate court decision, TBG Ins. Services Corp. v. Superior Court, 117 Cal. Rptr.2d 155, 96 Cal.App. 4th 443 (Cal. Ct. App.2002), which had a long involved discussion of expectations of privacy and social norms in computers. But the Ziegler opinion once again seems not to notice a doctrinal category error: the TBG Ins. Services Corp. case is not a Fourth Amendment opinion. Rather, it is a decision under Article I, section I, of the California Constitution, which provides: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” It turns out that the California courts use the “reasonable expectation of privacy” framework in that context, too, but it seems to have a different meaning than the same phrase has in the Fourth Amendment context. (This is not uncommon, actually. The phrase “reasonable expectation of privacy” is used in the context of privacy torts, as well as in the legal ethics area in the context of attorney-client privilege, and it has a different meaning in each context. As a result, you can’t lift the interpretation of “reasonable expectation of priuvacy” from one context and use it in another context.)
Okay, so by now you’re wondering, what difference does it make? If you analyze this case under the private-sector framework, you still will reach the same result because the employer had “common authority” to search the computer, right? Off the top of my head, yes, I think that’s right. But the framework announced in Ziegler will still make an enormous difference in lots of other cases. Under the Fourth Amendment, private-sector employees have traditionally enjoyed Fourth Amendment protection in the contents of their offices, including in their office computers. The police can’t just barge in to your office and rifle through your desktop computer. Instead, the police need either to get a warrant or to go your employer and ask for the employer’s permission to conduct the search. But if private-sector employees have no reasonable expectation of privacy in the hard drives of their office computers, it means that the police don’t need to get the boss’s permission first. The police can pick an office known to have a computer access policy and simply barge in and grab any computers they want. And they can do this even over the objection of all the employees and the boss. The boss might have a civil claim against the government, but the employee won’t have any rights at all; under the Ziegler opinion, the employee has no reasonable expectation of privacy in the contents of his computer.
The Supreme Court created a special framework for public-sector searches because in that context there’s no Fourth Amendment difference between the boss and the police: they’re all “the government” for Fourth Amendment purposes. But I think it’s important not to let that different framework created for the specific needs of public-sector workplaces bleed over into the private sector. As tricky as these doctrinal distinctions are (and they really are pretty tricky, I think), a great deal of privacy protection hinges on keeping them straight.
I’ve been working on my draft article Four Models of Fourth Amendment Protection today, and I need your help finding the right word for one of the models.
First, a little bit of background. Part I of the article argues that there are four basic types of arguments that are used in debates of the scope of a “reasonable expectation of privacy.” The idea is that there are four relatively distinct types of claims that are recognized within Fourth Amendment law as legitimate types of arguments on when an expectation of privacy is reasonable. I’m trying to get the four basic arguments down as completely as I can, and for each model I’m trying to find a good descriptive label for it. (The labels are needed to make it much easier to refer to and distinguish the basic arguments.)
Here’s where I need your help. I’m trying to come up with a good label for the line of Fourth Amendment argument that looks at the likelihood that information will be exposed to others. You see this argument often in Fourth Amendment debates. It runs like this: If the chances are pretty low that information might be exposed to others, given prevailing social practices, you might say that this makes an expectation of privacy in that information “reasonable.” It’s reasonable in the sense that a person of good judgment would expect it to remain private. Conversely, if it’s pretty obvious that the information will be exposed to others, you might say that this makes the expectation of privacy unreasonable. I think of this as a sort of actuarial model: it looks at whether someone with an accurate sense of prevailing social practices would think it very likely or less likely that the item would remain private. In other words, it involves a descriptive assessment of the likelihood that something will be exposed to others or the police. The higher the likelihood, the lower the chances of Fourth Amendment protection. (Or at least so the argument goes; sometimes the Supreme Court accepts this line of thinking, and sometimes it doesn’t.)
The question is, what’s the best label for this line of argument? In my initial draft I called it a norms model, on the theory that it was based on prevailing social practices and social norms. But that’s not exactly accurate: the real issue is the likelihood of privacy. Norms can strongly influence that, but they’re not exactly the same. I could call it the actuarial model, but that seems too technical and a little bit dismissive. The chances-that-it-will-stay-hidden model is, um, well, not workable. Any better ideas?
UDPATE: Other ideas I have thought of include the risk assessment model (too easily confused with the assumption of risk rationale in Fourth Amendment law, which is different) and the odds model (too informal).
ANOTHERUPDATE: RIght now I think the winner is the probabilistic model.
Facts: Conservative activist puts together a pamphlet alleging that a group of liberal professors at a particular university are “supporters of terrorism,” and puts a copyrighted picture of one of the professors on the cover. The professor sues the activist for copyright infringement for the use of his copyrighted picture.
Fair use, I assume? I would imagine this would be an easy case under the four factors of Section 107.
Hat tip: the VC.
From the Los Angeles Times:
Oklahoma’s Lethal Injections Called Fatally Flawed
By Henry Weinstein, Times Staff Writer
August 8, 2006
Death by lethal injection faces a significant challenge in federal court today in Oklahoma City, with doctors contending that the state’s method creates an unnecessary risk that a condemned inmate will suffer excruciating pain, in violation of the constitutional prohibition of cruel and unusual punishment.
Nearly 30 years ago, Oklahoma became the first state to develop a procedure for lethal injection — leading three dozen other states to develop similar methods.
Like challenges to lethal injection in several other states — including California — the one in Oklahoma contends that although lethal injection is supposed to be more humane than earlier execution methods, it often masks a painful death.
The Senate finally ratified the Council of Europe Cybercrime Convention last Thursday. The convention was held up in the Senate for years, mostly because of unfounded fears that there must be something sneaky hidden inside it. In truth, ratification by the U.S. was entirely symbolic: the convention is a basic outline of existing United States computer crime law, and doesn’t require any changes to domestic law. Still, it was a little embarrassing that the U.S. hadn’t ratified the convention until now: It’s a little tricky to convince other countries to adopt the basic contours of U.S. law when you can’t get the U.S. Senate to ratify the same.
Thanks to Deven Desai for the link.
Basic run-down of the case: A allegedly hires B, C, and D to kill V. C and D plead guilty and get life. A and B are tried separately before different juries. B is convicted and is sentenced to death when the jury finds that he was part of the murder-for-hire scheme. The jury that hears A‘s case finds that A was involved in the murder, but isn’t sufficiently persuaded that A actually hired B. The jury therefore finds A guilty of murder, but not capital murder, and A is sentenced to life in prison. In an opinion by Judge Merritt joined by Judge Moore, the Sixth Circuit agreed with B‘s argument that it was unconstitutionally arbitrary for B to get the death penalty unless A got the death penalty, too. If I’m not mistaken, the thinking is that the jury that heard A‘s case violated B‘s constitutional rights by not sentencing A to death.** Because A wasn’t sentenced to death, B‘s death sentence is unconstitutional.
This seeems pretty clearly incorrect to me, at least based on the decisions of the U.S. Supreme Court and AEDPA’s standard of review, for essentially the reasons pointed out in Judge Gilman’s dissent. If I had to guess, I would guess that this case will be a strong candidate for a summary reversal by the Supreme Court — if it’s not revisted first by the Sixth Circuit en banc.
Hat tip: Eric Muller, who also has his own thoughts on the case.
**Some might say that this rationale underlies Furman, but I don’t think that’s right. In Furman, the Court concluded that the death penalty was imposed in such an unreliable and arbitrary way that it was unconstitutional absent procedural protections. Uneven results in a range of cases demonstrated the unreliability of Furman’s conviction. But here the Sixth Circuit isn’t saying that either or both of the two different juries were acting irrationally or arbitrarily, or that the relevant legal standard was too arbitrary. Rather, the court seems to be saying that the fact that the two different juries did not reach the same result – for whatever reason, whether rationally or not — makes the more severe sentence unconstitutional. This seems quite different from Furman.
Brannon Denning is offering advice for entering first-year law students over at Instapundit, so I thought I would weigh in with a few thoughts as well. Here are two tidbits of my own:
1. Understand that it is normal to feel lost. The first year of law school uses an immersion approach; professors start treating you like you’re in the legal profession from day one. It takes a while to get the hang of it, and in the meantime it’s only normal to feel a bit lost. I know I felt pretty much at sea for much of the first semester; I felt like I was working really hard but I didn’t really understand what was going on. (Which, come to think of it, was basically true.) If you feel this way, too, don’t think you’re weird. Most people have that same reaction. Fortunately, your first exams are pretty far off; you’ll have a good chunk of time to get the hang of things.
2. Go to your professors’ office hours and ask lots of questions. This is related to point one. You’re going to be confused, and the best way to figure things out is to go to your professor’s office hours and pelt your professor with questions. Don’t worry about asking a dumb question: if there is ever a time in your life to ask a dumb question, it is during your first semester of law school during a professor’s office hours when no one else is around. Your professor can probably set you straight on something that will avoid lots of headaches down the road.
First, some background. The basic idea of FISA is that it requires the Executive Branch to get a warrant to conduct “electronic surveillance,” and permits the government to get a long-term, lower-threshold monitoring order when it is monitoring “an agent of a foreign power” (such as a foreign spy). So the most basic questions under FISA are what is “electronic surveillance,” and who is an “agent of a foreign power”? These definitions are found in Section 101 of FISA, codified at 50 U.S.C. 1801.
Under the current version of FISA, “electronic surveillance” is quite broad, and “agent of a foriegn power” is relatively narrow. As a result, FISA imposes a fairly comprehensive regulatory scheme over national security surveillance.
It’s kind of hard to explain this without some details, so here are the details. (If you want to skip to the punchline, scroll down a bit.) Here is the statutory definition of electronic surveillance:
“Electronic surveillance” means—
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under [the Wiretap Act]
(3)the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or (4)the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
“Contents” are in turn defined as “any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.”
An “agent of a foreign power” is defined as follows:
“Agent of a foreign power” means—
(1) any person other than a United States person, who— (a) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4) of this section; (B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person’s presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; or
(2) any person who— (A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States ;
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).
So what does this all mean, in plain English? Well, the basic idea is that the government can’t monitor content or non-content information about people in the U.S. without a court order, and it can only get a long-term monitoring order to monitor people if there’s probable cause to beliebve they are spies or members of terrorist groups.
That’s the current law, at least, which is pretty much what we’ve had for the last 30 years or so. But check out what the Specter bill would do to the basic definitions of FISA. The changes appear at page 25, the beginning of Section 9 of the latest draft. First, the existing 4-part definition of “electronic surveillance” is eliminated, and replaced with this shorter and also narrower definition:
(f) electronic surveillance means –
(1) the installation or use of an electronic, mechanical, or other surveillance device for the intentional collection of information concerning a particular known person who is reasonably believed to be in the United States by intentionally targeting that person under circumstances in which that person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; or
(2) the intentional acquisition of the contents of any communication under circumstances in which that person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States.
The definition of contents is changed, as well: instead of “any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication,” the Specter bill would borrow the Wiretap Act’s definition, “any information concerning the substance, purport, or meaning of that communication,” excluding information that merely contains the identity of the parties and the existence of the communication.
Finally, the definition of “agent of a foreign power” is amended, too, so that it includes a non-U.S. person — that is, someone other than a U.S. citizen or permanent resident alien — who “otherwise possesses or is expected to transmit or receive foreign intelligence information inside the United States.”
So what does this all mean? Well, to me it says that these are some pretty important changes. Start with the change in the definition of “agent of a foreign power.” That used to mean a spy or terrorist, and the government needed probable cause to believe that the bad guy was in cahoots with a foreign government or terrorist organization to get the monitoring order. The Specter bill would bring a much broader approach: as long as the person is not a U.S. citizen or permanent resident alien, the fact that some one is expected to receive foreign intelligence info — that is, info about national security threats or about foreign governments — would be enough to treat them as agents of a foreign power. You can see why this would make an enormous difference in an era of easily-forwarded Internet communications: the government could follow the trail of data, and could start monitoring the folks who were along the trail so long as they were not U.S. citizens or permanent resident aliens. Maybe this is a good idea, and maybe it’s a bad idea. Either way, it strikes me as a pretty important change.
The changes to the definition of “electronic surveillance” are even more important. Part of the changes are presumably needed to authorize the NSA program; much of the program would seem to be excluded from the definition of “electronic surveillance.” But more broadly, note that under the new definition, monitoring does not constitute electronic surveillance if a) the person monitored has no Fourth Amendment “reasonable expectation of privacy” or b) no warrant would be required to conduct that monitoring in the criminal context.
This explicit incorporation of Fourth Amendment law as the sole test of the statute is troubling, I think, because the Fourth Amendment standards for electronic surveillance are tremendously murky right now. For example, courts have held that you don’t have a reasonable expectation of privacy in calls to or from cordless phones, and they have used reasoning that would also appear to apply as well to cell phone calls. (You have statutory privacy protection, which is much stronger than constitutional protection, but not constitutional protections.) If you don’t have a reasonable expectation of privacy in your cell phone calls, which those cases suggest is the case, Specter’s bill would mean that the NSA can tap every cell phone in the country of every US citizen, for entirely domestic calls, all without a warrant. This monitoring wouldn’t be “electronic surveillance” because (based on the cordless phone cases) the Fourth Amendment doesn’t apply.
Similarly, right now it’s really uncertain whether one can have a reasonable expectation of privacy in your e-mail, and if so, when such protection exists. (Again, there is statutory protection, but constitutional protection is really uncertain.) Some scholars suggest that there is such protection, others suggest there isn’t; as a matter of doctrine, the answer is essentially unknown. But if the statutory standard hinges on constitutional protection, and it may be that there isn’t any constitutional protection at all, then it may be that there is no statutory protection either. And since the government’s applications are secret, we wouldn’t know it.
What would happen, I would assume, is that DOJ and the FISA court judges would reach some kind of understanding about how the Fourth Amendment applies to these new technologies. But no one else would get to know what that understanding is, and as a result no one else would know how the law actually would apply. (Some of this presumably happens now, as parts 1, 3, and 4 of the current definition incorporate this approach: but under current law, part 2 is the broader definition, and does not incorporate the Fourth Amendment standard.)
In sum, my sense is that the Specter bill would make some pretty significant changes to some of the basic principles of FISA. Some of the changes may be good, others bad, and some are just quite uncertain (a constant problem with FISA, as it’s hard for outsiders to get an accurate feel for the impact of specific legislative reforms on secret monitoring). But however you look at it, it’s pretty clear that the Specter bill does a lot more than just subject the NSA program to constitutional review. That’s my sense of it, at least; if you think my analysis is off, please let me know.
With the beginning of law school just a few weeks away, I thought this might be a good time mention my essay, How to Read a Judicial Opinion: A Guide for New Law Students, which I wrote last year to help incoming students with reading for class.
I am happy to report that a number of legal writing programs assign the essay to incoming students; if you’re a professor or instructor and want to assign it, please feel free. Also, if you’re a law student and you have ideas for how to impove the essay, please consider leaving a comment with your suggestions.
I just returned to DC after a 9-hour flight back from Munich, where for the last two weeks I was teaching a 1-credit version of my computer crime law class as part of GW’s Munich Intellectual Property Law Summer Program. I hope to have something new up tonight, but I’m not entirely positive about that.
Orly Lobel has more thoughts over at PrawfsBlawg on the question of banning laptops in law school classrooms.
We discussed this issue here a few months ago, so I’ll just add one relatively recent data point to the empirical picture. The Harvard Bloggership conference in April was held in the Ropes-Gray moot court room at the law school, and had wifi enabled. Lots of the professors had their laptops with them, and one or two professors used the wifi to liveblog the conference. But by the middle of the day-long conference, it seemed to me that a large chunk (around half) of the professors in the audience were online checking e-mail, reading blogs, and surfing around to see what was up in Boston that weekend. Most were paying partial attention to the symposium, but they had a lot more going on than just the symposium.
If I had to guess, I would guess that the most common resolution to this issue (at least over the next 10 or 20 years) will be disabling wireless in classrooms but allowing laptops. That’s not so easy to do these days, but then the folks who designed the networks weren’t making that option a priority. But my guess is that this will change.
The Center for Democracy and Technology, one of the leading public interest organizations that covers electronic privacy and civil liberties issues, has started a new blog: PolicyBeta. The contributors are a top-notch group, and this blog looks like it will be very much worth reading. Check it out.
The text of the Specter bill to amend FISA to allow the NSA surveillance programs has been morphing over the last few days. I have posted the latest version here.
I always find it a bit puzzling when district court judges — who decide cases themselves, without a panel of colleagues– refer to themselves as “we” in an opinion. I can understand the universal “we” in the context of an appellate panel; the “we” refers to the multiple judges in the majority. But who is the “we” in the context of a single-judge opinion? Is that supposed to be the judge and his judge friends? The judge and his law clerk? I suppose “we” sounds more oracular than just “I,” but it still seems odd to see it in an opinion by a single judge.
UPDATE: In the comment thread, some readers suggest that district court judges properly use “we” because their rulings are understood to be rulings of the entire Court as an institution. This is a possibility, but I’m not sure the argument works. First, individual judges who are members of the same Court can disagree on an issue, so one judge’s ruling isn’t necessarily the view of other judges. Second, I don’t think I have ever heard a single trial judge use “we” when making a ruling from the bench in open court. In my experience, at least, judges in court usually are comfortable with using “I” when making oral rulings; it’s the switch from oral to written decisions that seems to trigger the occasional switch from “I” to “we.”
I think it’s also worth noting that a lot of legal scholars try to avoid the first-person altogether on the ground that it seems less authoritative. So where you might write “In this article, I argue that the moon is made of green cheese,” some authors (and lots and lots of law review editors) will want to change that to “This article argues that the moon is made of green cheese.” I usually try to resist this, as I prefer my writing to be as direct and honest as possible. The truth is, my articles are not entities that make arguments on their own; it’s always me pulling the strings behind the scenes. So I would rather just say “I.” But I’m probably in the minority. Er, rather, the view stated in the preceding sentences is probably in the minority.
A series of very interesting posts at PrawfsBlawg, carried over to Concurring Opinions, is considering whether first-year law school courses in criminal law should focus on the Model Penal Code. I think the answer depends on what kind of class the professor wants to teach, which in turn depends on what the professor’s goals are in teaching the class. There’s no right answer to this – just different approaches – and I think the different approaches nicely explain the different views of teaching the MPC.
If you’ll allow me to paint with a very broad brush, it seems to me that there are four of five traditional types of criminal law professors. Each type brings its own set of interests to the class. For example, some crim law professors have a great deal of practical experience, and want to give students a feel for the real-world of criminal law practice that they experienced. Other criminal law professors see themselves as specialists in law and philosophy, and want to show students how legal doctrines follow from philosophical commitments and arguments. Some see themselves as legal reformers, and focus on the injustice of the legal system and the need for change. Some are interested in criminology, and want to focus on criminal law as a response to the social problem of criminal activity. Others teach the class as case study of how to learn about law, and focus more on the basic skills such as statutory interpretation and policy arguments. (To be clear, most profs are a mix of these types, but I think it’s helpful to see the different strands.)
Returning to the question of whether to teach the Model Penal Code, I think it depends largely on the “camp” to which a particular professor belongs. For example, I tend to teach criminal law as a basic skills course; the point is not so much to teach students the categories of homicide liability, or to master the works of a particular criminal law theorist, but rather to learn the basic tools of studying law (and in particular, statutory law). I take this approach for a few reasons, among them that I teach crim to students in their 1st semester of law school, and most students don’t go into criminal law. In that environment, I find that criminal law is ideal as a basic tools class because the facts of cases are usually very simple, which makes it easier to jump into the two key questions of the course: 1) generating policy arguments in favor of or against a given legal rule, and 2) understanding a statutory code and applying it to a set of facts.
For my purposes, then, the MPC is ideal. The MPC becomes a law student’s first statutory code, and learning the code teaches them how to master a complex statutory scheme. It’s a perfect beginner’s code because its so well thought out; the pieces fit together nicely, with very few loose ends.
Of course, if a professor comes from another camp, the MPC can come up short. Russell Covey’s initial post on why he doesn’t like the MPC provides a good illustration. If I’m reading his post correctly, his frustrations with the MPC seem to be that they draw attention away from criminology and the realities of criminal law practice. I think those are fair points, but they ultimately go to the broader question of goals for crim law professors more than intrinsic problems of the MPC as a statutory code.