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On June 25, the Supreme Court issued its much-anticipated holding in Department of Homeland Security v. Thuraissigiam, rejecting Suspension Clause and due process challenges to restrictions on the ability of asylum-seekers to obtain review of expedited administrative removal proceedings. As explored below, the potential ramifications of the decision are significant for a number of reasons, not the least of which is that it calls into question several aspects of the Supreme Courts earlier decision in Boumediene v. Bush and more generally signals a more limited vision of the Suspension Clause than Boumediene embraced.

The Decision

Thuraissigiam crossed into the United States clandestinely, and a Border Patrol agent apprehended him within 25 yards of the border. Once in government custody, he sought asylum in the administrative proceedings prescribed in various immigration provisions by Congress, but he failed to convince immigration officials that he had a credible fear of persecution upon return to his native country of Sri Lanka. Had he succeeded in demonstrating a credible fear, Thuraissigiam would have been spared expedited removal under 8 U.S.C. 1252(e)(2) and afforded additional procedural opportunities to seek asylum in the United States. Instead, an immigration judge approved his removalwhich, under the statutory scheme, normally would have concluded the matter. Thuraissigiam next sought a writ of habeas corpus in federal court, contending that he satisfied the credible fear test and that he had been denied a full and fair opportunity in the prescribed proceedings to demonstrate that he satisfied the relevant standard. Challenging the immigration provisions that purported to restrict federal court review of his case (including one that specifically precluded any and all judicial review of a credible fear determination), Thuraissigiams habeas petition sought a new opportunity to present his asylum claim before administrative officials.

Justice Samuel Alitos opinion for the Supreme Court (joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh) addressed Thuraissigiams claims sequentially. As discussed below, however, much of the analysis worked in tandem. First, in addressing Thuraissigiams argument that the federal court should exercise jurisdiction and grant him relief in the form of a new hearing by reason of the Suspension Clause, Alito posited that the inquiry should ask how the Founding generation understood that clause in 1789. The court framed its inquiry this way in reliance on a footnote in Thuraissigiams brief, which maintained that there is no reason for the court to decide whether the scope of the Clause has expanded since 1789. (It is far from clear that Thuraissigiams counsel intended to disclaim reliance on an argument that the writ of habeas corpus may have expanded since 1789.)

Thuraissigiams claim failed because, in the Supreme Courts view, habeas at the time of the Founding was a means to secure release from unlawful detention and did not extend to an invocation of the writ to achieve an entirely different end, namely, to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country. Neither the Supreme Courts earlier immigration decision in INS v. St. Cyr (2001), nor its blockbuster decision in Boumediene (2008), counseled otherwise. This was because, as the court explained, the principle embraced by St. Cyrnamely, that the writ could be invoked by aliens already in the country who were held in custody pending deportationcould not help Thuraissigiam, who by contrast sought entry into the United States. Boumediene, in turn, was inapposite because it involved individuals who had been apprehended on the battlefield in Afghanistan and elsewhere, not while crossing the border and who sought only to be released from Guantanamo, not to enter this country.

As for petitioners due process argument, the Supreme Court noted that [w]hile aliens who have established connections in this country have due process rights in deportation proceedings, the Court long ago held that Congress is entitled to set the conditions for an aliens lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the Due Process Clause. That Thuraissigiam was taken into custody on U.S. soil did not matter in light of Congresss plenary authority to decide which aliens to admit and precedents providing that even those paroled elsewhere in the country for years pending removal ... are treated for due process purposes as if stopped at the border[.] Thuraissigiam, accordingly, had no entitlement to procedural rights other than those afforded by statute. In sum, Thuraissigiam was not entitled to any further review of his removal order. All the same, the majority opinion dropped a final footnote in which it observed that Department officials and immigration judges may reopen cases or reconsider decisions ... , and the Executive always has discretion not to remove[.]

Thomas wrote a concurring opinion exploring the original meaning of the Suspension Clause, concluding that the expedited removal procedures here at issue bore little resemblance to a suspension as that term was understood at the founding. This followed because they did not allow the executive to detain based on mere suspicion of a crime or dangerousness, the purpose regularly animating suspensions during and before the Founding period.

Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, concurred in the judgment. He believed that the statutory scheme was constitutional as applied to Thuraissigiam but reserved judgment in a host of hypothetical situations that could come before the Supreme Court in the future. Breyer emphasized Thuraissigiams status as akin to one stopped at the border and opined that [t]o interpret the Suspension Clause as insisting upon habeas review of these claims would require, by constitutional command, that the habeas court make indeterminate and highly record-intensive judgments on matters of degree. In his view, Thuraissigiams claims failed because there existed no precedent suggesting that the Suspension Clause demands parsing procedural compliance at so granular a level.

Justice Sonia Sotomayor, joined by Justice Elena Kagan, dissented. Sotomayor maintained that the Supreme Court had long heard claims indistinguishable from those raised by Thuraissigiam, which, in her view, encompassed both mixed questions of law and fact and legal challenges to procedural defects in the removal procedures that Congress had prescribed. She also took issue with the majoritys originalist approach to the case, pointing out (as the majority opinion acknowledged) that no analogous immigration restrictions were in existence at the Founding. Finally, in analyzing Thuraissigiams claims under the Due Process Clause, Sotomayor emphasized that he was actually within the territorial limits of the United States when captureda fact that, in her view, raised a host of questions as to just how far the majoritys holding would sweep in future cases.

Methodology

There is a great deal that must be unpacked in order to understand Thuraissigiams potential ramifications. To start, consider the constitutional interpretive methodology employed by the majority opinion.

Alito started and ended his inquiry with 1789 as the key benchmark for the Suspension Clause inquiry. His decision to do so implicates some interesting issues. To begin, the justification he offered for this approach was an apparent concession in a footnote in Thuraissigiams brief. This explanation should mean that Thuraissigiam has no precedential value in terms of its methodology for a future case where a petitioner makes a Suspension Clause claim based on post-1789 developments with respect to the writ of habeas corpusa possibility that the Supreme Court has held open in other cases. For example, Justice Anthony Kennedys majority opinion in Boumediene stated that the Supreme Court has been careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments.

Further, the majority apparently deemed it irrelevant that during the Founding period and for decades thereafter, federal policy provided (as the majority acknowledged) an open door to the immigrant. In other words, a challenge to a limitation on review of immigration determinations could never have arisen during that period, because there were no such limitations. How does one reconstruct an originalist answer to a question that was never asked at the Founding?

As noted, Thomass concurrence also analyzed the case from an originalist perspective. He last wrote about the Suspension Clause case in his separate opinion in Hamdi v. Rumsfeld (2004), arguing there that the clause does not constrain the executives ability to detain a citizen outside the criminal process and in the absence of a suspension. This followed, he argued, from recognition of a broad understanding of the governments power to wage war successfully along with more general concerns that the limited opportunities in which the Suspension Clause might permit a suspension (specifically, in times of Rebellion or Invasion) might not encompass many ... emergencies during which this detention authority might be necessary. In this respect, Thomas joined camp with the Hamdi pluralitys bottom line, namely that [t]here is no bar to this Nations holding one of its own citizens as an enemy combatant.

Dissenting in Hamdi, Justice Antonin Scalia, joined by Justice John Paul Stevens, relied on extensive historical evidence to explain that the entire point of the Suspension Clause was to prohibit the government from detaining someone who fell within the Constitutions protections in the absence of a criminal trial unless and until Congress enacted a suspension. The dissent also underscored the influence of the 1679 English Habeas Corpus Actwhat Blackstone once described as nothing short of a second magna cartaon the Suspension Clause.

Notably, Thomass opinion in Thuraissigiam set forth a view of the Suspension Clause very much in line with Scalias Hamdi dissent. Citing a host of suspensions predating and during the Founding period (including those adopted in Britain and several states during the Revolutionary War), Thomas concluded that the original meaning of a suspension likely [encompassed] a statute granting the executive the power to detain without bail or trial based on mere suspicion of a crime or dangerousness. It followed, in his view, that the Suspension Clause enshrined a substantive rightspecifically, freedom from discretionary detention at the hands of the executive.

I have previously criticized Thomass opinion in Hamdi for being out-of-step with his avowed originalist methodology. His Thuraissigiam opinion suggests that he now recognizes the error of his earlier ways. I hope so.

The Appropriate Remedy

Another interesting aspect of Thuraissigiam is the majority opinions emphasis on the appropriate remedy in Suspension Clause cases. The majority found problematic Thuraissigiams desire for additional procedures to make out his asylum claim and ultimate release into this country because, in Alitos view, the traditional remedy in habeas proceedings was discharge, not additional process. As the Supreme Court explained things, historically, [t]he writ simply provided a means of contesting the lawfulness of restraint and securing release. In the courts view, the problem was that Thuraissigiam did not ask to be released. Instead, he sought entirely different relief: vacatur of his removal order and an order directing [the Department] to provide him with a new ... opportunity to apply for asylum and other relief from removal[] (quoting Thuraissigiams habeas petition).

My book Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay chronicles the role of habeas cases tethered to the English Habeas Corpus Act and its suspension model. As the book details, this model heavily influenced the development of early American habeas jurisprudence and specifically the drafting of the Suspension Clause. As this history reveals, Alito is correct that the classic remedy in such habeas cases was discharge, not additional process. (No less than Chief Justice John Marshall said as much, moreover, in Ex parte Bollman.)

All the same, as a matter of precedent, two recent Supreme Court Suspension Clause decisions remanded petitions for additional judicial process as opposed to awarding outright discharge. They are, of course, Hamdi and Boumediene. In both cases, the court ordered additional hearings for the habeas petitioners to challenge their classification by the government as enemy combatants in the war on terrorism. I have been critical of this aspect of both decisions because, among other reasons, this approach led to a holding in Hamdi that is at odds with the core purpose that drove ratification of the Suspension Clause and established what some might call a constitutional floor. Regardless of whether my position is right on this score, the decision in Thuraissigiam is noteworthy for charting a different course from Hamdi and Boumediene and potentially scaling back the range of remedies now available under the Suspension Clause to habeas petitioners going forward.

An additional note is warranted here. In Thuraissigiam, the majority opinion (at note 12), as well as Sotomayors dissent (at note 1), both state that the Supreme Court has left open the question whether the Suspension Clause creates an affirmative right to review. But Boumediene squarely held that the clause does precisely this. (In the Courts words, [t]he Clause ... ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the delicate balance of governance that is itself the surest safeguard of liberty.) I argue in my book that Boumediene was correct on this score in light of the extensive [historical] evidence ... demonstrating that the Founding generation simply took for granted that a constitutional privilege born out of the protections of the Habeas Corpus Act would be available unless suspended. That the Thuraissigiam majority apparently reopens this issue begs the question of just what, if any, of the Boumediene majority opinion remains good law. (More on this below.)

The Intersection of the Suspension Clause With Due Process

Next is the question of how Suspension Clause and due process jurisprudence intersect. The courts decisions in St. Cyr and Boumediene were grounded in the Suspension Clause. The due process case law in the immigration context, moreover, is not exactly friendly to the would-be immigranteven though the Fifth Amendment Due Process Clause applies to persons as opposed to citizens. This likely explains why Thuraissigiams counsel primarily pushed a Suspension Clause argument as opposed to a due process one.

But it is worth thinking about the relationship between the two kinds of claims and asking whether they should stand or fall together. For the majority in Thuraissigiam, the due process and Suspension Clause inquiries seemed interrelated, with geographic and citizenship status both weighing heavily in the balance. (More on that below.)

This distinction between the due process and Suspension Clause inquiries, muddied in Thuraissigiam, could matter a great deal in future cases because of the Thuraissigiam courts diminished view of the range of remedies available under the Suspension Clause as well as its seemingly formalist approach to elements of Thuraissigiams case. (More on that below.)

Take the example of someone who is picked up after years of living in this country as an undocumented alien or the example of an immigration hearing officer who either does not conduct any actual review of a credible fear claim or applies an absurd standard. (Breyer here offered the example of a hearing officer who denies a refugee asylum based on the dead-wrong legal interpretation that Judaism does not qualify as a religion under governing law[.]) Breyer observed that he would view a Suspension Clause claim differently in such cases, and one can presume from Sotomayors dissent that she would too.

In Breyers view, the Suspension Clause is well equipped to address such cases because habeas corpus is, as Boumediene said, an adaptable remedy, whose guarantees may change depending upon the circumstances. But the Thuraissigiam courts emphasis on discharge as the appropriate remedy under the Suspension Clause renders uncertain whether a Suspension Clause argument could prevail in such cases under the majoritys approach and therefore more generally calls into question whether Boumedienes vision of habeas fully survives.

Thus, in the wake of Thuraissigiam, it might warrant consideration whether the Suspension Clause and due process inquiries should be disconnected to permit a different approachnamely, analyzing cases akin to the above hypotheticals instead through a due process lens. Indeed, one might think that the modern due process doctrine with its balancing test is better equipped to take into account how different factors might alter the balance in determining whether the government must afford certain individuals greater procedural protections before turning them away at the proverbial gates and removing them once already in the country. On this point, recall that Justice Sandra Day OConnors plurality opinion in Hamdiinstead of looking to history or any Suspension Clause precedentsrelied on the modern due process decision in Mathews v. Eldridge to set forth the parameters of the hearing that Hamdi was to receive on remand.

To see why the distinction might matter, consider a hypothetical that Daniel Meltzer raised in a 1998 Georgetown Law Journal article. In that hypothetical, a resident alien is removed from the United States before being afforded an opportunity to get into court. It would be hard to mount a habeas case under existing law if the individual is not in government custody, but the individual might still have important legal claims to present challenging the removal and/or the process by which it occurredmaybe even claims identical to those that the Supreme Court held in St. Cyr must receive the benefit of judicial review. One would hope that any preclusion of judicial review in such a case would be viewed as constitutionally problematic, but the question then implicated is on what basis if not the Suspension Clause? The answer could be very important for future cases.

The Importance of Geography

Finally, Thuraissigiam implicates the larger question of how the Constitution functions abroad and, more specifically, what qualifies as abroad in the first instance. The Supreme Court held that Thuraissigiams case was categorically different from that of one who is already in the country [and] held in custody pending deportation. Giving deference to Congresss plenary authority to decide which aliens to admit, it was of no relevance to the majority that he had crossed the border and been apprehended some 25 yards inside the United States. (On this point, Sotomayor disagreed.) Such a conclusion was important, the majority opined, lest the rule reward those who cross the border illegally.

Just days after deciding Thuraissigiam, the Supreme Court reaffirmed the importance of the border to constitutional analysis. In Agency for International Development v. Alliance for Open Society International, Inc, a five-justice majority rejected the proposition that foreign affiliates of American organizations could bring a First Amendment challenge to conditions that Congress attached to funding grants made to combat HIV/AIDS abroad. Kavanaughs opinion for the court posited that it is long settled as a matter of American constitutional law that foreign citizens outside U. S. territory do not possess rights under the U. S. Constitution. He further warned that [i]f the rule were otherwise, actions by American military, intelligence, and law enforcement personnel against foreign organizations or foreign citizens in foreign countries would be constrained by the foreign citizens purported rights under the U. S. Constitution. He distinguished the situation of foreign citizens inside the United States, who may enjoy certain constitutional rights[,] such as the right to due process in a criminal trial. Finally, the court set apart those cases in which under some circumstances, foreign citizens in the U. S. Territoriesor in a territory under the indefinite and complete and total control and within the constant jurisdiction of the United Statesmay possess certain constitutional rights (citing and quoting Boumediene). (Writing for three dissenters, Breyer maintained that this Court has studiously avoided establishing an absolute rule governing the application of the Constitution to foreign citizens abroad, relying on not one, but two, Kennedy opinionshis Boumediene majority opinion and his decisive but narrow concurrence in United States v. Verdugo-Urquidez.)

The decisions in Thuraissigiam and Alliance for Open Society International highlight that for at least five members of the current Supreme Court, the border and ones formal connection to the United States play an outsized role in constitutional analysis. On this score, consider that Thuraissigiam distinguished the situation of a citizen who is detained in the United States for deportation, clarifying that todays opinion would not prevent the citizen from petitioning for release.

Notably, moreover, Alliance for Open Society International seems to have relegated Boumediene to a small role in future casessuggesting that its application is limited to cases arising in territories under the full (even if not formal) control of the U.S. government. (To be sure, Boumediene may have done this by its own terms, highlighting as it did the unique status of Guantanamo Bay[.]) Even in such places, moreover, Kavanaugh said only that a foreign citizen may possess certain constitutional rights, not that they necessarily would (emphasis added). Again, one is left to wonder how much influence Boumediene will have in future cases.

Going forward, this development could be quite significant. Consider anew the example of one who enters the United States without legal authorization and who is apprehended years later and put into removal proceedings. Taken to their extremes, the majority opinions in Thuraissigiam and Alliance for Open Society International could be read to suggest that the Constitution does not impose any constraints on how the government goes about removing the individual from the United States because such a person may be treated as a foreigner who stands functionally outside the border even if that individual is physically within the country. Needless to say, a large number of persons living inside the United States right now might fall into this category. As Breyer noted in his Thuraissigiam concurrence, moreover, the fact that under current federal law, noncitizens who have lived in the United States for up to two years may be placed in expedited-removal proceedingsthat is, the same abbreviated proceedings upheld in Thuraissigiamthe potential for such a case to arise is hardly trivial.

The courts decision in Thuraissigiam is a big deal. How big remains to be seen.

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Thuraissigiam and the Future of the Suspension Clause - Lawfare

Back in the 14th century through to the 18th century, people went to court for eavesdropping and for opening and reading personal letters[1] and from the end of the 19th century, this shifted to personal information being controlled in order to protect ones privacy.

It has been mooted for decades and extends outside what we may deem as our privacy rights today. When we mention privacy, we may be taken to early 2018, to the Facebook Cambridge Analytica data scandal, or to the EUs GDPR regulation which was implemented, again, in 2018. But privacy extends further than that, to issues involving contraception, interracial marriages and abortion (think Roe v. Wade). And it is such cases that have shaped our society and law around privacy today[2].

A brief history into privacy

A major article written by Samuel Warren and his legal partner Louis Brandeis advocating privacy rights was published in 1890 in the Harvard Law Review. The Right to Privacy argued that privacy is inherent in common law and generates various privacy torts, such as the disclosure of private facts (such as the aforementioned examples). Where some counter-argued that such rights can offer protection for the privileged, Warren and Brandeis still managed to pave the way for future legal cases regarding privacy.

And while the US Constitution, to this day, does not specifically mention a right to privacy, the Supreme Court has noted that it believes this right exists in the penumbra of several other, enumerated rights

William O. Douglas an American jurist and politician who served as an Associate Justice of the Supreme Court quoted Brandeis in thePublic Utilities Commission v. Pollak case in 1952, regarding whether the radio broadcasts on public transport was a violation of freedom and privacy: The beginning of all freedom is the right to be let alone thus the right to privacy. The right to be let alone, Brandeis who was an Associate Judge at the time- quoted this in the Olmstead v. United States case in 1928, where Roy Olmsteads conviction was in part based on evidence gathered through government wiretaps, is the most comprehensive of rights, and the right most valued by civilized men. Even though the Court originally held that neither the Fourth Amendment nor the Fifth Amendment rights of the defendant were violated, the decision was later overturned by Katz v. United States in 1967[3]. This case somewhat altered privacy rights in America, as the decision expanded the Fourth Amendments protections from the right of search and seizures of an individuals persons, houses, papers, and effects, as defined in the Constitution, to include what [a person] seeks to preserve as private, even in an area accessible to the public as a constitutionally protected area[4].

And while the US Constitution, to this day, does not specifically mention a right to privacy, the Supreme Court has noted that it believes this right exists in the penumbra of several other, enumerated rights, such as the Third, Fourth, Fifth, and Fourteenth Amendments, and as such, citizens are entitled to it under the catch-all provision of the Ninth Amendment. This has shaped privacy, in the US, to this day.

How much risk is posed here if we mindlessly click agree, or how much of our lives are now actually private?

What is privacy today?

So, the right to privacy has been a much-debated issue for a very long time and it seems as society develops, so does our concern for privacy. Once upon a time, postcards were seen as a threat to our privacy and now, we dont give them a passing thought as we have bigger qualms at hand: should we accept cookies, allow our phones to track our movement, or download the latest craze, such as TikTok and risk our precious data being shared amongst strangers? How much risk is posed here if we mindlessly click agree, or how much of our lives are now actually private?

If I take myself, as an example: I dont post a vast amount on social media I could be abroad and my Facebook friends would be none the wiser as I like to exercise my right to privacy. But, simultaneously, my phone will sift through my emails and recognise I booked a flight and it needs to notify me when I ought to leave the house so I make my flight on time; it will recommend sights for me to see, hotels to stay at, it will keep track of where I visited, how long for, how many steps I did that day, what restaurants I visited, what photos I took at that specific location, so when I land back home, it can collate all this information and email me a mini 21st-century scrapbook on my adventure. My tiny phone is more aware of what I did on my holiday than my own mother. Does it bother me? Not so much, because all of these features are convenient and I am actively deciding what I share and what I keep private which seems to be the centre of many debates and legal cases (such as the aforementioned Katz v. United States case). If my phone was hacked, however, and all my information was leaked, even though I lead a very boring life, I would be concerned to how my privacy was violated and who now has all that information at hand, yet I would have to still acknowledge that I allowed my phone to track my every move and that information was always available and at risk of being available to somebody else. It is not until external parties, such as the government, want to access that data that everything becomes a little too 1984 and we feel like our privacy rights are being breached.

The global pandemic is the perfect example of this constant battle we have with privacy and our control over it.

As written more succinctly in The New Yorker, people tend to invoke their right to privacy when it serves their best interests: People are inconsistent about the kind of exposure theyll tolerate. We dont like to be fingerprinted by government agencies, a practice we associate with mug shots and state surveillance, but we happily hand our thumbprints over to Apple, which does God knows what with them.

Freedom vs. privacy: What do we want more?

The global pandemic is the perfect example of this constant battle we have with privacy and our control over it. When governments across the world began to consider or release contact-tracing apps, many very apprehensive for obvious reasons: it screams a movement towards an Orwellian era. The app, which works by recognising when two phones are close together for longer than a set period of time (and if one user is later diagnosed with the coronavirus, an alert can be sent to the other), would enable the government to potentially track where you were and who you were with. The idea that the government would have a mass amount of data in their hands, didnt sit right with people, including many people close to me. But as soon as I questioned their reasoning and asked but do you care what cookies you accept or what information apps can access? they soon came to realise that they are not as concerned with their right to privacy as they thought, as they all simply dont take any notice to what Instagram is tracking.

There is clearly a societal need and purpose for utilising location-based data for the greater good.

Nonetheless, it was understandable why they were apprehensive. Norways health authority had to delete all data gathered via its COVID-19 contact-tracing app and suspend further use of the tool as the Smittestopp app represented a disproportionate intrusion into users privacy. The UK government was also forced to abandon a centralised coronavirus contact-tracing app after spending three months and millions of pounds on its development and switched to an alternative designed by the US tech companies Apple and Google after being promoted as more privacy-focussed, leaving epidemiologists with access to less data.

Speaking to Mike Ingrassia, President and General Counsel at Truata, he explains that the COVID-19 pandemic seems likely to enhance this sense of unease among consumers regarding the use of their data. On the one hand, consumers digital footprints are being expanded at a record-breaking pace as their lives move ever more from the physical to the digital realm. This is quickly increasing the amount of personal data that companies hold regarding their customers and incentivising those companies to monetise that data more aggressively in order to thrive during the pandemic-induced recession, he shares.

On the other hand, Mike expands, The response from governments to the COVID-19 pandemic has already raised many concerns when it comes to contact tracing apps, mobile location data tracking and increased surveillance. However, as the world continues its fight against the spread of COVID-19, it has become vital for governments to assess how they can use data for social good.

But why do we mindlessly allow Zuckerberg to store our data, but panic when the government wants access?

There is clearly a societal need and purpose for utilising location-based data for the greater good. But only if it is used responsibly. Governments must ask themselves whether appropriate safeguards and technologies are being applied so that they are not, in using that data to benefit society, failing to protect the rights of the individuals behind that data. Questions that need to be considered include what type of personal data is being shared, for what purposes and for how long?, says Mike.

There is no doubt that consumers have a growing awareness of the value of their personal information, and they are increasingly concerned with how its being used, both by public and private entities. It is not yet clear whether the introduction of GDPR and other more stringent global privacy laws has moved the dial on customer trust, as there still appears to be widespread confusion and distrust amongst consumers on how their data is being collected and who it is being shared with.

At the end of the day, the government is trying to do what it has always done: conduct surveillance of individuals and groups if they suspect they are presenting a danger to society. But why do we mindlessly allow Zuckerberg to store our data, but panic when the government wants access? Is our data in better hands when Facebook is using it, or with the government?

But in this day and age, when privacy almost correlates with data and our online activity, we lack full control over how private everything is.

And as Mike explains to us, even though most governments will in good faith want to use data responsibly, they will likely lack the tools and expertise to do so on their own. Private sector assistance, such as the provision of cutting edge, privacy-enhancing data analytics technologies so governments can responsibly get powerful insights from their data, will be needed. One of the most effective ways for governments to obtain such powerful insights from unique, large data sets responsibly will be to fully anonymise those data sets first, better enabling them to extract value from their citizens data without compromising the privacy of the individuals behind that data, Mike tells us.

Taking an approach such as this, leveraging the best privacy-enhanced data analytics technologies available from the private sector, such as powerful anonymisation solutions and related analytics tools, will allow governments to unlock life-saving insights from data, without sacrificing the privacy rights of its citizens.

In the aftermath of the COVID-19 pandemic, this might be one of the greatest opportunities for responsible coordination among the public sector and the private sector. If they can both embrace this opportunity if governments have the courage to use their data innovatively, and the self-restraint to do so responsibly, and if technology companies have the creativity to offer governments the tools to do so we will all benefit.

It is a fickle scale, where our need for control lies on one scale, and our trust in the technology lies in another. Perhaps we are more concerned with our right to freedom and liberty, as that is what shaped Roe v. Wade and Public Utilities Commission v. Pollak. And if we really think about privacy in this day and age (data, data and more data), we do somewhat lack full control of who has it and where it goes.

Do we care about privacy or are we actually aiming for liberty and freedom?

Rethinking what privacy actually means

Lets think about one of the most discussed laws of 2018: GDPR. Privacy was at the heart of this EU regulation, but in reality, the new measures were partially rolled out to help people better understand the way in which information is collected and used and was designed to harmonise data privacy laws, providing greater protection and rights to individuals. It gave the average citizens more control and freedom over what they choose to share and left organisations with more liability if they breached privacy rights. It wasnt to restrict companies access to our data per se (although companies were given less mobility in this area), it was to allow us to decide what we wanted to remain private. It is the same point that was mooted when postcards were invented if you felt threatened that your mail was going to be read and thus breach your privacy rights, you had the option to use an alternative method; if you dont trust a website with your cookies, you now have the option to refuse access. We have some control over our data and what we keep private but if we want to fully enjoy the world of Siri, we have to trust in the technology and be aware that our device is constantly listening and waiting for you to call its name.

The government is aware of our right to privacy. The Fourth Amendment in the US acknowledges that. The UKs Data Protection Act acknowledges that. The right to be let alone is the most comprehensive of rights, and authorities will recognise that if we feel like our privacy is being violated, we will speak about it. But in this day and age, when privacy almost correlates with data and our online activity, we lack full control over how private everything is. In a survey conducted by EY, they found that nearly half (46%) of survey respondents number one or two concern is not having a clear picture of where personal information is stored or processed outside of their main systems and servers[5]. Once data enters the internet, it will be accessed and logged and stored and analysed and compared with a billion other pieces of data, it is almost impossible to legislate data access away[6]. So, is any of our data truly private anymore? Do we care about privacy or are we actually aiming for liberty and freedom? Is it time for us to rethink what privacy means to us now and what it truly is in the current age?

[1] https://link.springer.com/content/pdf/10.1007/978-3-642-03315-5_2.pdf

[2] https://www.newyorker.com/magazine/2018/06/18/why-do-we-care-so-much-about-privacy

[3] https://en.wikipedia.org/wiki/Olmstead_v._United_States

[4] https://en.wikipedia.org/wiki/Katz_v._United_States

[5] https://www.ey.com/Publication/vwLUAssets/ey-can-privacy-really-be-protected-anymore/$FILE/ey-can-privacy-really-be-protected-anymore.pdf

[6] https://www.computerworld.com/article/3135026/does-privacy-exist-anymore-just-barely.html

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Do We Have Privacy Rights Anymore? - Lawyer Monthly Magazine

Black and white pictures cover a large poster board thats coated with red paint and handprints, as if illustrated in blood. Its so big that two protesters have to hold it. On a recent Saturday, theyre standing outside the Salt Lake County District Attorneys Office, demonstrating against police brutality and chanting for accountability from cops.

Sim Gill, it reads, their blood is on your hands.

Valencia was killed March 21, after police were called to investigate a report of shots fired. He was driving a car, and police tried to stop it, but he kept going. He crashed soon after, got out of the car and tried to run. Police have released few details about what happened next, but he was killed by Unified police during some kind of confrontation in a vacant homes backyard.

Palacios-Carbajal was killed May 23, when police investigating a gun threat saw him in the area, chased him and shot him in the back as he ran away, believing he had a gun. His death has sparked numerous protests in Salt Lake City, including demonstrations held each night in front of the district attorneys office, where protesters vow to rally until the release of the investigative report into his death, which prosecutors have said could come in the next two weeks.

If historys a guide, the officers involved in both of these shootings will avoid any felony or misdemeanor counts. In the past decade, only three police officers in Utah have been charged after shooting at someone while on duty and none has been convicted. Gills office has been involved in charging police in those three cases, which is a statistic that draws criticism: Activists argue three isnt enough. Police advocates counter that its three too many.

Gill faces a decision in a highly charged time, after weeks of protests in Salt Lake City and throughout the nation. He says hell set all of that aside and simply follow the law. Here is a look at what that legal standard is, what it takes to charge officers, and why it so rarely happens.

Utah law says officers can legally kill someone if they reasonably believe they must do so to prevent death or serious bodily injury to an officer or someone else.

Its hardly a unique standard. It is used in other states rooted in a unanimous U.S. Supreme Court ruling from 1989 that found reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

When a police officer kills someone in Utah, it prompts an investigation from a county attorney or review board to determine whether an officers use of deadly force was justified or whether it violated the law.

The Salt Lake Tribune has tracked 185 cases in which police in Utah have shot at someone since 2010, and 92% of those cases were determined to be legally justified. Nearly a dozen cases are still pending.

In six cases, prosecutors determined that while an officer wasnt legally justified in using deadly force, they opted to not charge him or her with a crime deciding that it was unlikely that a jury would convict an officer based on the available evidence.

That happened in 2013, when Davis County Attorney Troy Rawlings ruled that an officer wasnt justified when he shot a woman in the eye who led police on a drunken car chase, and again a few years later when the Iron County Critical Incident Task Force found in 2018 that a shooting wasnt justified when an officer injured a burglary suspect who was neither fleeing nor threatening anyone.

But in those rare instances when an officer is charged thats happened in 0.01% of cases prosecutors havent netted a conviction. Twice Gills office has filed charges against an officer only to later drop the case.

In a third case, Gill in 2014 charged former West Valley City Officer Shaun Cowley with second-degree felony manslaughter for shooting and killing 21-year-old Danielle Willard during an undercover drug operation as she backed out of a parking spot. Cowley had asserted that he feared for his life as her car backed toward him.

A judge dismissed the case after a preliminary hearing, finding that prosecutors did not have enough evidence to show that Cowley committed a crime. Thats a rare ruling at that stage, when all testimony must be considered in the states favor.

The prosecution had a small, low bar to get over, Fraternal Order of Police Executive Director Ian Adams said then. And they tripped.

Gill said if Utahns want police officers to be charged more often, itll require changing the states law. There have been no recent proposals for such legislation in Utah.

Federal lawmakers have debated two recent police bills, including the Justice in Policing Act. The House passed this Democratic-led bill Thursday, which proposes sweeping reform to how officers do their jobs and how they are held accountable. The bill changes the reasonable standard, so instead of prosecutors determining whether the officers force was reasonable, theyd have to determine if it was necessary. A Senate Republican bill that was blocked from consideration doesnt include this proposal.

In light of the nightly protests against police brutality many focused on the fatal police shooting of Palacios-Carbajal Salt Lake City Mayor Erin Mendenhall has said shed support changes to define what reasonable means. In a tweet, she listed changes Salt Lake City officials were considering and one of them was support changes to state code on the use of deadly force and the legal standard for what is reasonable.

Gill said he, too, would support a change in the law. Other prosecutors in the state werent eager to speak out several did not respond to a request for comment. Utahs Statewide Association of Prosecutors did not want to weigh in.

Many of Utahs cops oppose changing the law.

Orem Police Chief Gary Giles said he hasnt seen issues with how the law has been applied through the years. He worries about adding more processes in which people who might not fully understand policing are weighing in on whether an officer did the right thing.

If an officer does something egregious, they need to be charged, he said. But the problem is, who do we want to have out protecting us? We want the best of the best. If, 28 years ago, I was told there was a really good chance I go to work and Im going to be forced into a situation to decide whether Im going to go home tonight or I go to prison, I dont know if I would want to be a police officer.

Adams, with Utahs Fraternal Order of Police, said he believes the statute is appropriate as is, and warned that changing it could create a law that doesnt understand the chaotic and fluid and very dynamic situations officers encounter.

This kind of tweak could create a situation where youre expecting a police officer to get shot before they can take any action, he said, and thats not reasonable.

Adams said that while the FOP wouldnt support changing the reasonable standard, there is room for reform in policing. For instance, he said, the group is lobbying to add more voices to the Peace Officer Standards and Training board, which handles officer discipline, including reserving a seat for the NAACP.

We think increasing representativeness in that body makes a lot of sense, Adams said.

Complicated investigations

Gill said that even when prosecutors believe charging an officer is appropriate, they face another barrier: collecting evidence.

Sometimes officers involved in the investigation dont give clear statements about what theyve seen, he said. In many cases, the officer who shot the person has chosen not to speak with Gills team at all.

Its that officers constitutional right, Gill conceded, but added that it makes it hard for prosecutors to do their jobs and sows distrust between law enforcement and those they police.

Adams sees it differently. He said he hasnt yet seen a Utah case where the officer deserved to be charged. When it happens, Adams said it seems to be because its politically motivated.

Recently, when a FOP attorney takes on an officers police shooting case, he has advised the officers not to speak to Gills prosecutors. Its not policy, Adams said, but he understands why an officer might choose to invoke the Fifth Amendment in those interviews.

If an officer or their attorney believes theres political bias on behalf of a prosecutor to disadvantage them, he said, then I dont blame them.

At this time, as anger at the Floyd killing has spread nationwide, state legislators and city leaders are feeling pressure to take funding from police departments and implement other reforms.

Sen. Daniel Thatcher, R-West Valley City, said he is also getting input from police and the NAACP for some reform bills.

Hes not looking at the reasonableness standard in Utahs use of force law, but he said creating a statewide standard for use of force like lawmakers have done for police pursuits is on the table.

Thatcher said theres also some talk about adding punishments for instances when a police officers use of force involves the pure and deliberate, ad hoc infliction of pain for no reasonable purpose like is seen in the Floyd video. Hes also looking at a way to make use-of-force complaint findings more transparent.

Currently, theres no standard. Gills office routinely posts its findings online. No other county attorney in the state does this.

So far, protesters demonstrating for Palacios-Carbajal have called these incremental changes and reforms scraps, lip service to the movement without any teeth.

As theyve marched downtown streets each night for more than a week, theyve made their demands clear: They want murder charges filed against the officers who shot Palacios-Carbajal. They want an overhaul of a system that they feel favors the cops. They want a revolution or, at least, a paradigm shift.

D.A. whats your play? they chant. Put these killer cops away!

Correction: 12:20 p.m., June 28, 2020: An earlier version of this story misstated the number of officers charged after killing someone.

The rest is here:
Only 3 Utah cops faced charges for shooting at people in the past decade. None was convicted. Here's why. - Salt Lake Tribune

In courts across the country, EFF has been arguing that the police cannot constitutionally require you to unlock your phone or give them your password, and today the Indiana Supreme Court issued a strong opinion agreeing with us. In the case, Seo v. State, the court found that the Fifth Amendment privilege against self-incrimination protected a woman against unlocking her phone because complying with the order was a form of testimony under the Fifth Amendment. Indiana joins Pennsylvania, which ruled strongly in favor of the Fifth Amendment privilege in a compelled decryption case last year. Meanwhile, state supreme courts in New Jersey and Oregon are also considering this issue.

In Seo, the defendant reported to law enforcement outside of Indianapolis that she had been the victim of a rape and allowed a detective to examine her iPhone for evidence. But the state never filed charges against Seos alleged rapist, identified as D.S. Instead, the detective suspected that Seo was harassing D.S. with spoofed calls and texts, and she was ultimately arrested and charged with felony stalking.The state not only sought a search warrant to go through Seos phone, but a court order to force her to unlock it.Seo refused, invoking her Fifth Amendment rights. The trial court held her in contempt, but an intermediate appeals court reversed.

In an amicus brief on behalf of EFF and ACLU and at oral argument in the Indiana Supreme Court, we explained that the compelled recollection and use of passwords to encrypted devices should be viewed as a modern form of testimonial communications, which are protected by the Fifth Amendment privilege. Although some courts have struggled with the concept of testimony in the context of compelled decryption, a 1957 U.S. Supreme Court case defines it as anything that requires a person to disclose the contents of his own mind. Its also clear that nonverbal acts can be testimonial, such as being forced to respond truthfully to police questioning with a nod or headshake, or toproduce a gunthat police believe was used in a crime. And in a 1990 case, the U.S. Supreme Court found that a motorist suspected of drunk driving couldnt be forced to tell police the date of his sixth birthday, even though officers clearly knew the answer and were simply trying to obtain evidence of his intoxication.

The Indiana Supreme Court agreed, writing that unlocking a phone communicates a breadth of factual information, since it allows the government to infer that the suspect knows the password to the device and thus possessed the files on the phone. This gives the State information it did not previously knowprecisely what the privilege against self-incrimination is designed to prevent.

In addition to the question of testimony, however, courts in compelled decryption cases have struggled with Fisher v. United States, a 1976 U.S. Supreme Court case that introduced the concept of a foregone conclusion. Fisher involved a subpoena for an individuals tax documents, where the government could demonstrate that it already knew all of the information it would otherwise learn from a response to the subpoena. In other words, it was a foregone conclusion that the specific documents the government sought existed, were authentic, and belonged to the individual. Although the Supreme Court has never again relied on this foregone conclusion rationale, the government has built it into a full-blowndoctrine.State and federal prosecutors have invoked it in nearly every forced decryption case to date. InSeo, the State argued that all thatcompelling the defendant to unlock her phone would reveal is that she knows her own passcode, which would be a foregone conclusion once it has proven that the phone belongs to her.

In our amicus brief, we argued that this would be a dangerous rule for the Indiana Supreme Court to adopt. If all the government has to do to get you to unlock your phone is to show you know the password, it would have immense leverage to do so in any case where it encounters encryption. The Fifth Amendment is intended to avoid putting people to a cruel trilemma: self-incriminate, lie about knowing the password, or risk being held in contempt for refusing to cooperate. Instead, its clear fromFisherand later Supreme Court cases that the foregone conclusion rationale is very narrow. The Court has applied it in Fisher, a case involving business records, and only where the testimonial communication at issue was the act of providing specified documents. The Court has made clear there is no foregone conclusion exception where a person is required to use the contents of their mind, even inresponding to a more open-ended document subpoena. So there should be no exception to the Fifth Amendment when the government compels disclosure or use of a passcode to unlock and decrypt a digital device.

In its opinion, the Indiana Supreme Court largely agreed. It rejected the states argument that it could invoke the foregone conclusion rationale if it could show that the defendant knew her password. Instead, it held that the state was fishing for incriminating evidence without any knowledge of what was on her phone, and that forcing her to unlock her phone under these circumstances would sound the death knell for a constitutional protection against compelled self-incrimination in the digital age.

Although that resolved the case, the court also included a lengthy discussion of why the foregone conclusion rationale should probably never apply to compelled decryption cases. It noted that smartphones contain far more private information than a personal diary or an individual tax return ever could, a fact that has led the U.S. Supreme Court to reject the application of pre-digital caselaw to government searches of phones. The Indiana court wrote that applying Fishers foregone conclusion rationale would mean expanding a decades-old and narrowly defined legal exception to dynamically developing technology that was in its infancy just a decade ago. Finally, the court noted that police have many tools to investigate users of encrypted devices without compromising users constitutional rights. In light of these tools, compelling a user to unlock a phone would tip the scales too far in the States favor, resulting in a seismic erosion of the Fifth Amendments privilege against self-incrimination.

Were gratified by the ruling, and were watching for courts in New Jersey, Oregon and elsewhere to continue the trend of protecting against compelled decryption.

Excerpt from:
Victory: Indiana Supreme Court Rules that Police Can't Force Smartphone User to Unlock Her Phone - EFF

In 2015, an armed shoplifter fleeing the police broke into the Lech familys home in Greenwood Village, Colorado. The shoplifter, who chose the Lechs house at random, refused to come out and opened fire on the cops outside. In response, local police used explosives, high-caliber ammunition and a battering ram mounted on a tank-like vehicle to force his apprehension.

The Lechs home was essentially destroyed by the police response, which raises a critical legal question: Who pays for damage inflicted on private property as a result of a law enforcement action? Is it the responsibility of the police who intentionally caused the damage while playing with military equipment, or the innocent victim whose home is left in shambles?

This week, the U.S. Supreme Court is considering that question in Lech v. City of Greenwood Village, a case brought by the Institute for Justice, in which PLF filed an amicus brief. How the court rules will have significant legal implications, both in terms of clarifying property rights law and restoring a sense of accountability to law enforcement agencies that have grown increasingly aggressive in their tactics.

The damage to the Lechs property was estimated at $450,000. Yet the Greenwood Village Police Department offered the family a paltry $5,000 to help with temporary living expenses. The family sued, arguing they were entitled to Just Compensation under the Fifth Amendment for the intentional destruction of their house. The Tenth Circuit, however, held no compensation was due because the home was destroyed pursuant to the police power rather than the power of eminent domain. That decision was wrong.

To be sure, the Just Compensation Clause is more commonly understood to apply in the context of eminent domain, or regulatory takings, where the government takes private property for public use. This situationin which police destroyed the property while performing their dutiesis different. But in both circumstances, the property owner is left with private property he can no longer use.

Why didnt property insurance cover the Lechs loss? Because homeowners policies typically carry an exclusion for damages caused pursuant to government orders, which caused the destruction to the Lech home. Or perhaps the criminal should be held liable, but of course, he did not decide to drive the tank into the Lech home the police made the strategic decision to deploy military-style tactics and weapons against a residential home.

The use of such tactics and equipment has increased in recent years, as a result of federal grant programs that have placed powerful military-grade equipment into the hands of local police departments. In one recent three year period alone, the Pentagon sent $727 million of gear to local and state law enforcement authorities, including UH-60 Blackhawk and UH-1 Huey helicopters, M-16 assault rifles, and grenade launchers.

In response, those departments have likewise changed their tactics, as scholars like Radley Balko have explained. That is, once they have the military-grade equipment, they put it to work in ordinary law enforcement activity, even when less aggressive methods may be just as, or more, effective. Law enforcement agencies increasingly rely on so-called dynamic-entry, using SWAT teams, battering rams, assault rifles, armored personnel carriers and flash-bang grenades, ostensibly to protect the public.

It appears then, right or wrong, the deployment of military-grade equipment and tactics to enforce local laws is here to stay, as is the property and personal damage they cause. Thus, the Supreme Court needs to educate law enforcement about the Fifth Amendment. Innocent victims of the militarized approach to law enforcement will continue to suffer losses unless this Court confirms that intentional government action that occupies and destroys private property for a public use triggers the Just Compensation Clause.

And keep in mind that the Lechs are, in fact, innocent victims in this casethey did nothing wrong. However, even if they had been suspected of criminal offenses, the same protections for their property and rights would have applied, as even criminal suspects are presumed innocent, according to the Constitution. Theres simply no justification for the level of destruction that law enforcement routinely unleashes against private property owners, which is why the Supreme Court needs to clarify accountability in these cases.

There is no police power exception to the Fifth Amendment. The justices should grant the Lech case for review and recognize that the Fifth Amendment requires law enforcement to pay full compensation for all losses incurred when it destroys property while exercising its police powers.

The question here is not whether this government conduct is legitimate; the question is who should pay for the damages. And the Fifth Amendment answers that question: the government should, because the police, like the rest of us, are not above the law.

Daniel Woislaw is an attorney at Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitutions guarantee of individual liberty.

The rest is here:
Supreme Court must remind law enforcement that not even the police are above the law - Pacific Legal Foundation (PLF)