Mobile Security And The Fourth Amendment
There are a lot of things going on with mobile security that could be used against the American people. Stingray implementation, the FBI being able to spy on...
By: Bill Wynne
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Mobile Security And The Fourth Amendment - Video
Even if proponents of the NSA win over public opinion, their agenda will still be contrary to the Fourth Amendment.
When The Washington Post reported that 63 percent of Americans are "willing to give up personal privacy to let the federal government investigate terror threats," the polling data seemed like bad news for privacy activists and civil libertarians. But Reihan Salam argues that the 32 percent of Americans who oppose giving up privacy in the name of national security are winning. "They dont need a majority of the electorate to embrace their position in order to achieve their goals," he writes. "They merely need a vocal, well-organized minority."
To support that analysis, he points to the experience of gun owners, who've defeated various firearms restrictions even when a majority of Americans favored them. The intensity of their pro-gun views helps them to succeed, he observed, as do their strong social bonds, facilitated by pastimes like hunting and going to gun shows, where they see other gun owners, spread political information, and channel their intense views. Gun control advocates have no equivalent social ties.
Salam believes that surveillance skeptics have a similar edge over surveillance defenders:
No, not all of Snowdens biggest fans in America are affluent, well-educated libertarian technophiles who spend much of their spare time socializing on lesser-known corners of the Web. But these groups certainly overlap. Just as hunting and target shooting are ways that older gun owners cement social bonds, gaming and obsessively following Reddit could serve much the same function among young surveillance skeptics. Libertarian Republicans like Kentucky Rep. Thomas Massie, Michigan Rep. Justin Amash, and Kentucky Sen. Rand Paul have recognized the growing power of this constituency, and they cater to it by regularly addressing libertarian groups and pushing for surveillance reform...
...it gets worse for the defenders of surveillance authority. The Snowden revelations didnt just make working for the NSA less attractive. As Julian Sanchez, a privacy expert at the libertarian Cato Institute has explained, the revelations badly embarrassed major U.S. technology companies, particularly those that have substantial operations outside of the country. Suddenly the notion that Google and Facebook were essentially arms of the U.S. government seemed like more than a paranoid fantasy, particularly to consumers in Europe and Asia already inclined toward anti-Americanism. Before the revelations, these companies could work closely with the U.S. government to facilitate its surveillance efforts without ever being held to account. Even if they objected to getting pushed around by Uncle Sam behind closed doors, they had little incentive to make a stink about it, as doing so could jeopardize their business by raising suspicions. After the revelations, the international reputation of U.S. tech giants took a hit, and they had little choice but to push back forcefully and to ally themselves with civil liberties groups.
While I don't know who will ultimately win the fight over surveillance policy, these are, indeed, among the factors that give privacy advocates a fighting chance. I'd only add that there is an even bigger advantage that civil libertarians can press, and it too is helpfully illuminated by way of analogy to the gun-control debate. The NRA's most significant advantage is the 2nd Amendment. With its adoption, the Framers decided that the right to bear arms should be protected even in a future instance when a majority of the public and the legislature might feel otherwise.
Surveillance policy is comparable: 63 percent of Americans may be willing to sacrifice privacy in the War on Terrorism, but they lack the power to overturn the Fourth Amendment. Many seem to have forgotten its actual text, so here it is in full:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
That is the law of the land. And the NSA is violating its letter and spirit, no matter how many times its defenders use dubious legal reasoning to argue otherwise. The right of the people to be secure in their "persons, houses, papers, and effects" is meaningless if the NSA can seize and later search details about everyone's communications. The requirements for probable cause and particularity cannot be squared with surveillance that implicates practically everyone. The Fourth Amendment's historic attempt to end general warrants cannot be viewed as a success so long as the government is prying into the private affairs of tens of millions of people who are not even suspected of any wrongdoing.
Excerpt from:
The Surveillance State's Greatest Enemy? The U.S. Constitution
Tuesdays argument in City of Los Angeles v. Patel, a Fourth Amendment case, presents a particularly difficult example of a common Supreme Court question: should the Court rule narrowly on the case before it, or answer far broader questions? That question does not always have obvious ideological parameters (although the Fourth Amendment context may color the Justices views in this case), and Tuesdays argument may be most interesting for the perspective it may provide on each Justices jurisprudential approach.
Moreover, both sides in Patel have assembled all-star casts of lawyers and amici. The plaintiffs brief shows Tom Goldstein (founder of this blog) and the Harvard Supreme Court clinic; while Los Angeless merits briefs show Josh Rosenkranz (former director of the Brennan Center) and Orin Kerr (also an occasional writer for this blog). Eighteen amicus briefs have been filed (and I do not pretend to have read them all). Thus, although the bulk of media attention this week will likely focus on Wednesdays argument in the challenge to the Affordable Care Act, this case now looks much harder, and more important, than it first appeared.
The basics of the case
The case presents a Fourth Amendment challenge to a municipal ordinance that authorizes administrative law-enforcement searches of hotel and motel guest registers. Administrative search is a label generally used to describe governmental inspections of commercial premises for health and safety reasons that is, not based on probable cause to believe a crime has been committed, and not looking primarily for evidence of crime. (In recent years the Court has used the label of special needs searches to capture an even broader category of searches that includes administrative).
Here, the Los Angeles ordinance in question provides that records of information about guests that hotel are required by law to keep guest registers shall be made available to any officer of the Los Angeles Police Department for inspection at a time and manner that minimizes any interference with the operation of the business. The ordinance appears to have been enacted to provide a disincentive for the short-term use of hotels and motels for crime. It was stipulated below (that is, agreed to by all parties) that the ordinance authorizes the police to inspect such guest registers without the hotel owners consent and, most significantly, without a warrant. A group of motel owner-operators sued, and once various stipulations were reached, all parties agreed that the sole issue is a facial constitutional challenge to the ordinance under the Fourth Amendment. They sought a declaratory judgment against the ordinance and an injunction prohibiting its enforcement.
The district court upheld the ordinance, ruling that hotels have no reasonable expectation of privacy in their guest information. That issue, however, appears to have dropped out of the case: the Ninth Circuit ruled, and Los Angeles now concedes, that hotels have some privacy interest in their guest registers, even if limited, such that an inspection under the ordinance constitutes a search for Fourth Amendment purposes. (Also, be careful not to confuse the privacy interests of the hotel owners with privacy concerns of guests. Only the former are at issue here; and because guests have already disclosed their personal information to the hotels, precedent would say that they have no further expectation of privacy in the records in any case.)
Not one, but two, questions are presented
In its current appellate posture, the substantive Fourth Amendment issue before the Court seems clear: is a municipal ordinance, which requires hotels to make their hotel registers available for surprise (unannounced) inspections by the police, unconstitutional because the police are not required to obtain a warrant in advance? By a vote of seven to four, the Ninth Circuit ruled en banc that such a warrantless business-information search ordinance is unconstitutional. The circuit relied on cases such as Camara v. Municipal Court of the City and County of San Francisco (1967) and Marshall v. Barlows, Inc. (1978), which hold that under the Fourth Amendment, governmental officials generally must obtain administrative warrants in advance of conducting commercial business searches. The majority rejected the idea that hotels are closely [that is, pervasively] regulated businesses, which prior decisions hold can support an exception to the general advance-warrant rule.
The dissenting Ninth Circuit judges, however, while debating the substantive point, made a procedural argument their main focus. They quoted Sibron v. New York (1968): The constitutional validity of a warrantless search is preeminently the sort of question which can only be decided in the concrete factual context of [an] individual case. Because the hotel-owner plaintiffs here had agreed in the trial court to drop their as applied challenge in favor of a facial attack based on stipulated facts, this case now presents an issue far broader than the specific hotel-register ordinance: may statutes and ordinances ever be challenged under the Fourth Amendment on a facial basis? Substantial party and amicus briefing has now gone into this second, procedural, issue.
Three reasons that this case is harder, and more important, than it may look
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Argument preview: Hotel guest registers and the Fourth Amendment harder than it looks?
The Bill of rights in Action: The Right to Privacy - 1970 Educational Film - S88TV1
An open-ended film designed to instigate discussion on what constitutes an unreasonable invasion of privacy, focusing on the Fourth Amendment, Search and Sei...
By: Tomorrow Always Comes
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The Bill of rights in Action: The Right to Privacy - 1970 Educational Film - S88TV1 - Video
By Andrew P. Napolitano
What if the current massive spying on Americans began with an innocent secret executive order signed by President Ronald Reagan in 1986? What if Reagan contemplated that he was only authorizing American spies to spy on foreign spies unlawfully present in the United States?
What if Reagan knew and respected the history of the Fourth Amendment? What if the essence of that history is the Colonial revulsion at the British use of general warrants?
What if general warrants were issued by a secret court in London and authorized British agents in America to search wherever they wished and to seize whatever they found? What if the revulsion at this British government practice was so overwhelming that it led to the Revolutionary War against the king?
What if the whole purpose of the Fourth Amendment was to outlaw general warrants? What if the Fourth Amendment specifically guarantees the right to privacy to all in America in their persons, houses, papers and effects?
What if, in order to emphasize its condemnation of general warrants, the Fourth Amendment requires the government to obtain a warrant from a judge before invading the persons, houses, papers or effects of anyone and lays down the preconditions for the issuance of such warrants? What if those preconditions are individualized suspicion and articulated evidence of crime called probable cause about the specific person whose privacy the government seeks to invade?
What if these principles of constitutional fidelity, privacy and probable cause and the unlawfulness of general warrants have been regarded universally and publicly as quintessentially American values values that set this nation apart from all others?
What if the administration of President George W. Bush was so embarrassed that 9/11 happened on its watch that it fought a useless public war in Iraq which had nothing to do with 9/11 and a pernicious private war against American values by unleashing American spies on innocent Americans as to whom there was no individualized probable cause so that it could create the impression it was doing something to keep America safe from another 9/11-like attack?
What if the Bush folks took Reagan's idea of spying on foreign spies and twisted it so that they could spy on not just foreign spies but also on foreign persons? What if they took that and leapt to spying on Americans who communicated with foreign persons?
What if they then concluded that it was easier to spy on all Americans rather than just those who communicated with foreign persons? What if they claimed in secret that all this was authorized by Reagan's executive order and two federal statutes, their unique interpretations of which they refused to discuss in public?
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What if the government fears freedom?