Here’s my first post back at the VC: The Hart-Fuller Debate and Student-Edited Law Reviews.

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.

* 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. ]]> http://www.orinkerr.com/2006/08/09/ninth-circuit-mostly-eliminates-private-sector-workplace-privacy-rights-in-computers/feed/ http://www.orinkerr.com/2006/08/08/im-looking-for-a-word/ http://www.orinkerr.com/2006/08/08/im-looking-for-a-word/#comments Tue, 08 Aug 2006 21:00:21 +0000 Orin Kerr Uncategorized http://www.orinkerr.com/2006/08/08/im-looking-for-a-word/ 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.

Fair use, I assume? I would imagine this would be an easy case under the four factors of Section 107.

An image of the pamphlet is here; a story about the lawsuit is here.

Hat tip: the VC.

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.

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.