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U.S. Court of Appeals for the D.C. CircuitPresident Donald Trump will soon have the opportunity to fill a key vacancy on the federal bench. As The Wall Street Journal and Buzzfeed have reported, Janice Rogers Brown, an outspoken federal judge with strong libertarian tendencies, will retire next month after serving 12 years on the U.S. Court of Appeals for the District of Columbia Circuit.

A former California Supreme Court justice, Brown was first nominated to the federal judiciary in 2003 by President George W. Bush, but Senate Democrats repeatedly blocked her confirmation. She was eventually confirmed in 2005.

During her tenure on the D.C. Circuit, Brown emerged as a powerful voice in defense of civil and economic liberties. In the 2015 case of United States v. Gross, for example, Brown filed a sharp dissent lambasting the pro-police "prevailing orthodoxy" in Fourth Amendment cases. The right to be free from unreasonable search and seizure, Brown maintained, should clearly forbid law enforcement from conducting "a rolling roadblock that sweeps citizens up at random and subjects them to undesired police interactions culminating in a search of their persons and effects." Yet somehow "our case law considers such a policy consistent with the Fourth Amendment." Brown disagreed: "I continue to think this [case law] is error."

Brown has been equally critical of government malfeasance in the economic realm. In the 2012 case of Hettinga v. United States, for instance, Brown came out swinging against the Supreme Court case law that left the D.C. Circuit with no choice but to uphold a federal price-rigging scheme that made it illegal for an upstart family dairy farm to bottle and sell its own milk for 20 cents less than the competition. This case "reveals an ugly truth," Brown wrote. "America's cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s."

Brown also has the distinction of being denounced as a crazy libertarian by Barack Obama. In 2005, then-Sen. Obama voted against Brown's confirmation to the D.C. Circuit because he disliked her views on economic liberty and the Constitution. "One of the things that is most troubling is Justice Brown's approval of the Lochner era of the Supreme Court," Obama said, referring to Lochner v. New York, the 1905 case in which the Supreme Court struck down a state economic regulation because it served no legitimate health or safety purpose and thus violated the 14th Amendment. As it happens, Obama is the one who is wrong about Lochner.

The news of Brown's retirement has already prompted speculation and debate about her possible replacement. At The Volokh Conspiracy, Case Western law professor Jonathan Adler suggests that the Trump administration may want "to use the D.C. Circuit opening to break the apparent logjam over nominations to the U.S. Court of Appeals for the 5th Circuit." That logjam, which has been extensively covered and analyzed by David Lat at Above the Law, boils down to this: There are currently two Texas openings on the 5th Circuit and three real contenders in the running. Each contender has the support of powerful political figures in Texas.

One of the three contenders is Texas Supreme Court Justice Don Willett. Because Willett recently appeared on Donald Trump's Supreme Court shortlist, he would seem to be a natural pick for the 5th Circuit. But Texas politics have so far apparently prevented any 5th Circuit nominees from being named. The solution now proffered by Adler is for Trump to nominate Willett (or one of the other two) to the D.C. Circuit and thus make federal appellate judges out of all three in one swoop.

Hugh Hewitt, the conservative talk radio host and influential political pundit, is now pushing this very plan. "The retirement of Judge Janice Rogers Brown solves 5th logjam problem. @JusticeWillett to D.C. Circuit," Hewitt recently tweeted.

Nominating Willett to the D.C. Circuit does make sense. Besides breaking the "logjam," it would replace the liberty-minded Brown with the liberty-minded Willett. Much like Brown, Willett is famous for his judicial benchslaps against both overreaching law enforcement and against overreaching government regulators.

If the White House is looking for a fitting replacement for Janice Rogers Brown on the D.C. Circuit, Don Willett would appear to be it.

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Janice Rogers Brown, America's Most Libertarian Federal Judge, Is Retiring - Reason (blog)

Back in 1986, Congress viewed communications over six months old to be abandoned and therefore subject to reduced protection, a notion that looks quaint today when emails and texts may be held for years.

Another provision of the statute allows investigators to obtain information from the provider about a subscriber to any electronic service, like cellphones, by seeking a court order based on reasonable grounds to believe that the records are relevant to a criminal investigation. This is a lower standard than probable cause, the usual requirement for a search warrant.

It is this lower threshold for getting information that is at issue in Carpenter v. United States, which the Supreme Court will hear in its next term starting in October.

The defendants were convicted of organizing a string of robberies in the Detroit area where they served as lookouts by parking near the stores. The government obtained orders directing wireless carriers to provide cell site location information showing where different numbers linked to the crew conducting the robberies were at the time of the crimes. Armed with data from various cell towers, prosecutors showed at trial that the defendants phones were a half-mile to two miles from the robberies, helping to link them to the actual perpetrators.

The defendants sought to suppress that information, arguing that it constituted a search of their phones so that the reasonable grounds standard in the Stored Communications Act for the order did not meet the probable cause requirement of the Fourth Amendment.

The United States Court of Appeals for the Sixth Circuit in Cincinnati rejected that claim, finding that although the content of personal communications is private, the information necessary to get those communications from point A to point B is not. Therefore, the defendants had no privacy interest in the information held by the carriers about their location and the constitutional probable cause requirement did not apply.

The Carpenter case raises a fundamental question about how far the privacy protection in the Fourth Amendment, which by its terms applies to persons, houses, papers and effects, should reach in protecting data generated by a persons electronic devices. Chief Justice John G. Roberts Jr. wrote in Riley v. California, a 2014 decision, that cellphones are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.

In Riley, the court found that a warrantless search of an arrestees cellphone was unconstitutional, explaining that what distinguishes the device from other items that might be found on a person that the police could look at is their immense storage capacity. But rummaging through the contents of a phone or computer is not necessarily the same as getting site information that is broadcast to the carrier, especially when a person may enable it by using an app like Find My Phone.

In a 2012 case, United States v. Jones, the Supreme Court found that the use of a GPS tracker attached to a car was a search governed by the Fourth Amendment. Justice Sonia Sotomayor explained in a concurring opinion that the privacy interests in a persons specific location required investigators to get a warrant because gathering that information enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.

In the Carpenter case, the justices will have to weigh whether cell site data is different from a GPS tracker because learning where a person is within about a one-mile radius may not be a sufficient invasion of privacy to come within the Fourth Amendment. Nor does obtaining the location of a cellphone reveal the content of any communication, only that a call was made, so the protection afforded by the Riley decision may not apply.

Another case involving the Stored Communications Act that may come before the justices concerns the territorial reach of a warrant authorizing investigators to obtain emails held by Microsoft. The United States Court of Appeals for the Second Circuit in Manhattan, in Microsoft v. United States, found that the warrant did not apply to emails stored on a server in Dublin because there was no indication in the statute that Congress intended to authorize a search outside the United States.

The Justice Department filed a petition with the Supreme Court on June 22 asking for a review of that decision, arguing that it was wrong, inconsistent with this courts framework for analysis of extraterritoriality issues, and highly detrimental to criminal law enforcement. Those requests are often granted because the justices rely on the solicitor generals office to identify cases that have significant law enforcement implications.

Another factor in favor of granting review is that the Second Circuits decision has not been followed by federal district courts in Philadelphia, San Francisco, Washington and Wisconsin, which have enforced warrants to produce email records that may have been stored abroad. A note in the Harvard Law Review criticized the decision because it did not acknowledge the un-territorial nature of data.

Microsoft is fighting the effort to apply the Stored Communications Act to electronic records held outside the United States, pointing out in a company blog post that the European Unions new General Data Protection Regulation scheduled to go into effect next year will make it illegal to transfer customer data from Europe to the United States. That could put global technology organizations like Google and Microsoft in the difficult position of balancing demands for greater privacy with efforts to investigate crime that could result in large fines for failure to comply.

Determining how digital information fits under a constitutional protection adopted when there were only persons, homes, papers and effects that could be searched requires the Supreme Court to figure out the scope of privacy expectations in a very different world from the 18th century. The problem is that legal challenges take a piecemeal approach to a statute adopted over 30 years ago, and the courts cannot rewrite provisions that may be hopelessly out of date.

The House of Representatives adopted the Email Privacy Act in February to modernize the protections afforded electronic communications that would require obtaining a search warrant in almost every case. That proposal met resistance in the Senate last year when Attorney General Jeff Sessions, then a senator from Alabama, sought to add a provision allowing law enforcement to skip the warrant requirement in emergency situations.

Whether the legislation can get through the current Senate is an open question, and it is not clear whether President Trump would sign off if the Justice Department opposes the bill. That may mean the Supreme Court will have to establish the broad parameters of digital privacy while Congress tries to deal with the intricacies of a world of electronic communication that continues to evolve rapidly.

Devices connected to the internet, from cellphones to watches to personal training trackers that facilitate our personal habits and communications, are a fact of daily life, and the Supreme Court will have to start drawing clear lines around what types of electronic information are and are not protected by the Fourth Amendment. Simply asserting that there is a right to privacy does not provide much help in determining how far that protection should extend in a digital world.

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Digital Privacy to Come Under Supreme Court's Scrutiny - New York Times

MADISON (AP) Wisconsin homeowners don't have to let assessors inside as a condition for challenging their property taxes, the state Supreme Court ruled Friday.

The court said in a 5-2 decision that such visits amount to unreasonable searches and that assessors need to get warrants if they can't obtain the homeowners' consent.

The ruling involves Vincent Milewski and Morganne MacDonald, who own a home in the Town of Dover in Racine County.

According to court documents, they tried to challenge their 2013 property tax assessment in front of a town review board.

The board refused to hear the challenge because Milewski and MacDonald wouldn't let an assessor inside their home. Under state law, people who refuse an assessor's request to view their property can't contest the assessment to local review boards.

Milewski and MacDonald sued. A judge dismissed the lawsuit and a state appellate court upheld his decision. The state Supreme Court reversed that ruling.

Writing for the majority, Justice Dan Kelly said Milewski and MacDonald were faced with a difficult decision: relinquish their constitutional right to be free of unreasonable searches so they could challenge the assessment or exercise their rights and forfeit their ability to contest the assessment.

Kelly said an assessors' visit without consent is a search as defined in the U.S. Constitution's Fourth Amendment, which protects people from unreasonable searches and seizures. The town failed to show how assessing taxes is such a special need that the Fourth Amendment doesn't apply, which means assessors must obtain search warrants to enter without consent, he wrote.

Assessors can use other means to gather information about the property, he said. Milewski and MacDonald can challenge the assessment without an interior inspection, he concluded.

He said the law isn't unconstitutional on its face. But it can't be read to require a property viewing that violates the Fourth Amendment in order to allow a challenge, he wrote.

The town's attorney, Jason Gehring, didn't immediately respond to a voicemail seeking comment.

The court's conservative-leaning majority handed down the decision.

Shirley Abrahamson and Ann Walsh Bradley, the only two liberal-leaning justices, dissented.

Abrahamson wrote in a joint dissent with Bradley that such choices are common in the law and are seen as constitutionally valid. She also complained the majority opinion is overly complex and intricate even though her dissent goes on for 47 pages compared with Kelly's 53 pages and doesn't say what should happen next.

The Wisconsin Institute for Law and Liberty, a conservative law firm that represents Milewski and MacDonald, issued a statement calling the decision "a victory for private property rights."

The Wisconsin Realtors Association, the state Department of Justice and the Institute of Justice, a law firm specializing in constitutional protections, all filed friend-of-the-court briefs urging the Supreme Court to strike down the law.

Excerpt from:
Homeowners don't have to let assessors in to challenge tax - The ... - hngnews.com

Todd Richmond, Associated Press

MADISON, Wis. (AP) A Wisconsin law that requires homeowners to let assessors inside as a condition for challenging their property taxes is unconstitutional as applied to a pair of Racine County property owners, the state Supreme Court ruled Friday.

The court said in a 5-2 decision that such visits amount to unreasonable searches and that assessors need to get warrants if they can't obtain the homeowners' consent.

The ruling involves Vincent Milewski and Morganne MacDonald, who own a home in the Town of Dover in Racine County. According to court documents, they tried to challenge their 2013 property tax assessment in front of a town review board.

The board refused to hear the challenge because Milewski and MacDonald wouldn't let an assessor inside their home. Under state law, people who refuse an assessor's request to view their property can't contest the assessment to local review boards.

Milewski and MacDonald sued. A judge dismissed the lawsuit and a state appellate court upheld his decision. The state Supreme Court reversed that ruling.

Writing for the majority, Justice Dan Kelly said Milewski and MacDonald were faced with a difficult decision: relinquish their constitutional right to be free of unreasonable searches so they could challenge the assessment or exercise their rights and forfeit their ability to contest the assessment.

Kelly said an assessors' visit without consent is a search as defined in the U.S. Constitution's Fourth Amendment, which protects people from unreasonable searches and seizures. The town failed to show how assessing taxes is such a special need that the Fourth Amendment doesn't apply, which means assessors must obtain search warrants to enter without consent, he wrote. Assessors can use other means to gather information about the property, he said. Milewski and MacDonald can challenge the assessment without an interior inspection, he concluded.

He said the law was unconstitutionally applied to Milewski and MacDonald's situation. But he said the law isn't unconstitutional on its face, holding only that it can't be read to require a viewing that violates the Fourth Amendment.

The town's attorney, Jason Gehring, didn't immediately respond to a voicemail seeking comment.

The court's conservative-leaning majority reached the decision. Shirley Abrahamson and Ann Walsh Bradley, the only two liberal-leaning justices, dissented.

Abrahamson wrote in a joint dissent with Bradley that such choices are common in the law and are seen as constitutionally valid. She also complained the majority opinion is overly complex and intricate even though her dissent goes on for 47 pages compared with Kelly's 53 pages and doesn't say what should happen next.

The Wisconsin Institute for Law and Liberty, a conservative law firm that represents Milewski and MacDonald, issued a statement calling the decision "a victory for private property rights."

The Wisconsin Realtors Association, the state Department of Justice and the Institute of Justice, a law firm specializing in constitutional protections, all filed friend-of-the-court briefs urging the Supreme Court to strike down the law.

___

Follow Todd Richmond on Twitter at https://twitter.com/trichmond1

Link:
Homeowners don't have to let assessors in to challenge tax - The Edwardsville Intelligencer

Douglas F. Brent

By Douglas F. Brent and Victoria Allen, Stoll Keenon Ogden PLLC

Editors Note: Victoria Allen is a 2017 Summer Associate with SKO.

The digital age has ushered in a multitude of location mechanisms on a communication device. Anyone who has paid roaming fees knows their phone connects to more networks than just those designated by their wireless provider.

Cellphones work by establishing a connection with cell towers. Each tower projects unique directional signals, so a cellphone picking up a signal from the north has distinct CSLI, or cell site location information, from a signal broadcast from the same towers southern sector. As they manage their networks, carriers record these connections.

With thousands of new microsites with smaller coverage areas, CSLI rivals GPS as a way to nearly pinpoint a devices location.

CSLI and law enforcement

In thousands of cases each year, law enforcement agencies obtain the CSLI associated with suspects phones under the Stored Communications Act, instead of securing a search warrant based on probable cause. This tower dump can reconstruct a suspects location and movements over time, and is effective in crime solving.

Nearly all federal courts have agreed that getting a tower dump from cellular providers does not require a warrant. As recently as 2015, the U.S. Supreme Court declined to review any of those decisions.

But on June 5, the Court granted a defendants request to review his conviction upheld last year by the Sixth Circuit Court of Appeals in USA v. Timothy Carpenter.

The Court will consider whether the warrantless seizure and search of cellphone records revealing Carpenters location and movements over 127 days violated his Constitutional rights, specifically Fourth Amendment protection from unreasonable searches and seizures.

Carpenter was nabbed by the FBI in a string of armed robberies at Radio Shacks and T-Mobile stores around southeastern Michigan and northwestern Ohio. After receiving a judges order to obtain records from wireless carriers, the FBI determined that Carpenter had been less than two miles from each store when the robberies took place.

A Michigan jury convicted Carpenter and co-defendants, and a district judge sentenced him to multiple 25-year terms. The sentence was affirmed last year and Carpenter filed for Supreme Court review, even though two terms ago the Court declined to review a nearly identical decision from the Eleventh Circuit.

Why answer an unasked question?

We have written previously about why courts have generally held a warrant is not required to access cell site location information. The privacy protection provided by the Fourth Amendment guards individuals against unreasonable searches and seizures by law enforcement. Reasonableness is grounded in whether the person asserting the protection has an actual expectation of privacy that society will recognize.

But the Supreme Court has held that parties lack an expectation of privacy in business records created by third parties, like a telephone company that records the numbers dialed to initiate a call. Courts dont treat the review of most third-party transactional records as a search at all.

The resulting third-party doctrine, though developed in a different technology era, remains in use today. Regarding cellphone network data for geo-location, the records of wireless service providers have not triggered the same level of privacy protection as more direct methods of surveillance, like a hidden tracking device.

To fill the gap between Fourth Amendment protection and no protection at all, Congress created the Stored Communications Act (SCA), which requires that the government present reasonable grounds but not probable cause to obtain records like CSLI. Whether such information is also protected by the Fourth Amendment has become a more difficult question as transactional records become more numerous and more capable of revealing seemingly private information.

Some judges have been uncomfortable applying the third-party doctrine to pervasive collections, like thousands of locations recorded over months at a time. Judges have also questioned whether the doctrine applies to data not voluntarily conveyed by cellphone users. In the earliest cases involving phone networks, the information voluntarily conveyed was the number dialed by a suspect. In contrast, cellphone users dont so directly influence which cell tower their phone connects to.

The Supreme Courts decision to review Carpenters claims related to CSLI validates concern that the Fourth Amendment is being browbeaten into retreat by the swell of information that is conveyed to third parties. The Courts decision to hear Carpenter is an indication that the Supreme Court is ready to reconsider that decades old third-party doctrine in light of todays technology.

And it may be time.

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Your vanishing location privacy: Why the Supreme Court is giving wireless networks a look - Insider Louisville