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The Fourth Amendment stands for the principle that the government generally may not search its people or seize their belongings without appropriate process and oversight. Today, we are at a jurisprudential inflection point as courts grapple with when and how the Fourth Amendment should apply to the data generated by technologies like cell phones, smart cars, and wearable devices. These technologies which we rely on for enhanced communication, transportation, and entertainment create detailed records about our private lives, potentially revealing not only where we have been but also our political viewpoints, consumer preferences, people with whom we have interacted, and more. The resulting trove of information is immensely valuable to law enforcement for use in investigations and prosecutions, and much of it is currently available without a warrant.

This paper describes how the U.S. Supreme Courts 2018 decision inCarpenter v. United Stateshas the potential to usher in a new era of Fourth Amendment law. InCarpenter, the Court considered how the Fourth Amendment applies to location data generated when cell phones connect to nearby cell towers. The Court ultimately held that when the government demanded seven days of location information from defendant Timothy Carpenters cell phone provider without a warrant, it violated the Fourth Amendment. The decision sits at the intersection of two lines of cases: those that examine location tracking technologies, like beepers or the Global Positioning System (GPS), and those that discuss what expectation of privacy is reasonable for information disclosed to third parties, like banks or phone companies. In reaching its conclusion that a warrant was required, the Court upended existing precedent, ruling for the first time that location information maintained by a third party was protected by the Fourth Amendment.

In exploring the Courts decision inCarpenterand its application to data from a variety of technologies such as GPS, automated license plate readers (ALPRs), and wearables this paper argues that it is incumbent on courts to preserve the balance of power between the people and the government as enshrined in the Fourth Amendment, which was intended to place obstacles in the way of a too permeating police surveillance. Moreover, in determining the scope of the Constitutions protections for data generated by digital technologies, courts should weigh the five factors considered inCarpenter: the intimacy and comprehensiveness of the data, the expense of obtaining it, the retrospective window that it offers to law enforcement, and whether it was truly shared voluntarily with a third party. Section I is an overview of Fourth Amendment jurisprudence. Section II discusses theCarpenterdecision and its takeaways. Section III appliesCarpenterto various surveillance technologies and looks ahead at how Fourth Amendment jurisprudence might continue to develop in the digital age.

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The Fourth Amendment in the Digital Age - brennancenter.org

The Standing Committee of the 13th National Peoples Congress, Chinas top legislature, adopted the Fourth Amendment to the 1984 Chinese Patent Law on October 17, 2020. The Fourth Amendment follows a series of amendments that were last adopted in 2008 and will become effective on June 1, 2021. Among the provisions is Article 76, establishing a new pharmaceutical patent linkage system modeled after the U.S. Hatch-Waxman Act. Article 76 of the Fourth Amendment was implemented in accordance with Article 1.11 of the Economic and Trade Agreement Between the Government of the United States of America and the Government of the Peoples Republic of China.[1]

Key provisions of Article 76 of the Fourth Amendment include:

There are several key differences between the U.S. Hatch-Waxman system and the new Chinese law. Chinas patent linkage system is not limited to small molecules and also includes biologics and traditional Chinese medicine. Further, China provides a much shorter stay period of only 9 months. This 9-month stay period only applies to small molecules and excludes biologics or traditional Chinese medicine. The market exclusivity period for first generic entrants (12 months), however, is far longer than that of the United States (180 days).

The patent linkage system for pharmaceutical patents in China is just developing, and the resolution mechanism for patent disputes under Article 76 of the Fourth Amendment currently lacks detail for both generic market entrants and patentees. One notable piece of information missing in the current legislation is whether there is an obligation for the generic market entrants to notify the patentee of the non-infringement statement. In this regard, stay tuned for updates on finalized draft rules, which are expected to provide further guidance on Chinas new patent linkage system.

[1]The text of the Phase One Trade Agreement with China (2020) is available at: https://ustr.gov/sites/default/files/files/agreements/phase%20one%20agreement/Economic_And_Trade_Agreement_Between_The_United_States_And_China_Text.pdf. Article 1.11 begins on page 1-6 on Chapter 1 (page 7 of the PDF).

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Chinas Hatch-Waxman Act: Patent Linkage System Implemented in the 4th Amendment to the Chinese Patent Law - JD Supra

In a federal lawsuit filed earlier this week, Kenneth Walkerthe boyfriend of 26-year-old EMT Breonna Taylor, who was fatally shot by police in her apartment last Marchalleges that Louisville police flagrantly violated his and Taylors Fourth Amendment rights during the violent raid. To help him make that case, he has retained two Washington constitutional law experts: former US solicitor general Donald Verrilli Jr. and Georgetown Law professor Cliff Sloan.

Its very important for him to get vindicationto get justice and accountability, says Sloan of his client. Its also a way to honor the memory and life of Breonna Taylor, and of trying to ensure that nothing like this happens again.

Taylors death, along with the killing of George Floyd, marked a turning point for the Black Lives Matter movement, and became a primary motivator of last summers racial justice demonstrations. According to Walkers complaint, he and Taylor thought her apartment was being broken into when they were disturbed by loud banging on the door after midnight on March 13, 2020. Walker alleges that Taylor repeatedly called out to the intruders to identify themselves but the officers outside never did. The lawsuit describes how the intruders burst in, and how Walker, a licensed gun-owner who believed armed assailants were in the home, fired a round. The officers, according to the complaint, responded with a fusillade, killing Taylor.

So-called no knock search warrants, says Sloan, are plainly illegal. Its a constitutional requirement that police knock and announce themselves, unless there are special circumstances, like its very dangerous. Not only were there no such circumstances in this case, says Sloan, but police got their warrant for Taylors apartment based on fraudulent information. The lawsuit alleges that a detective obtained the warrant by falsely stating hed verified that packages for a suspected drug-dealer had been sent to the address. (No drugs were found in Taylors apartment.)

Walker has several Louisville attorneys on his team, too. One of them is an old family friend of Sloans, which is how Sloan got involved. Sloan, in turn, recruited his longtime friend, Verrilli. Both DC lawyers are experienced Supreme Court advocates, which could potentially come in handy. We think that the law is clear and settled about the violation of [Walkers] constitutional rights, but were prepared to litigate this vigorously at every stage, including going to the Supreme Court if necessary, says Sloan. He points out that in past Supreme Court cases involving Fourth Amendment protections against unreasonable searches and seizures, the thing the justices have emphasized including justices like Justice Scaliais that the point of a knock-and-announce is exactly to avoid danger, and this exact situation.

Beyond Walkers specific claims, the lawsuit also alleges a pattern of problematic search warrants within the Louisville Metropolitan Police Department, and a failure to train officers in using reasonable force. Walker does not specify a damages amount.

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Marisa M. Kashino joined Washingtonian in 2009 as a staff writer, and became a senior editor in 2014. She oversees the magazines real estate and home design coverage, and writes long-form feature stories. She was a 2020 Livingston Award finalist for her two-part investigation into a possible wrongful conviction stemming from a murder in rural Virginia. Kashino lives in Northeast DC.

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Two High-Powered DC Lawyers Have Jumped into the Breonna Taylor Case - Washingtonian

A Congress MP in the Lok Sabha on Friday suggested that the government form a joint committee for reconsideration and discussion on the Mines and Minerals Development (Amendment) Bill, 2021.

The Bill seeks to amend the Mines and Minerals (Development and Regulation) Act, 1957 to bring in mega reforms in mines sector with resolution in legacy issues, thereby making a large number of mines available for auctions.

Participating in the discussion on the Bill, S S Ulaka (INC) said: " We are not against mining operations but we are against the way the hasty auctions which you are doing".

He alleged that after auction, "you will" bring big players in the sector and they would not look into the well-being of people.

"I will request the government to reconsider this particular Bill...You form a joint committee and let us discuss this," Ulaka said.

He suggested inclusion of tribal MPs and Members of Parliament from mining affected areas, besides tribal affairs ministry, environment and forest ministry and mines ministry in that committee.

Mines Minister Pralhad Joshi on Friday said the amendments in the mines and minerals Act will help create employment opportunities and allow private sector with enhanced technology in mining activities.

Vinayak Raut (Shiv Sena) said this would be the fourth amendment in this law since 2015.

He alleged that the sector has witnessed lot of irregularities and theft and there is a need to bring proper control in the mines sector.

Supporting the Bill, Pinaki Misra (BJD) said the mines, environment and forest ministries should work in synergy to promote the growth of the sector as still there are lot of environment related hurdles impacting the segment.

NN Rao (TRS) said the provision regarding the Centre directing states about utilisation of district mineral foundation fund needs to be changed and should be left on states.

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Congress MP suggests formation of panel to discuss mines amendment bill - Economic Times

By Andrew Silverman and Marc Shapiro

Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our weekly newsletters. Signing up for any of our section newsletters will opt you in to the weekly Coronavirus briefing.

Law360 (March 18, 2021, 5:23 PM EDT) --

The first two dozen of what may be tens of thousands of cases have already been filed by the families of long-term care residents who contracted COVID-19. The plaintiffs typically allege that the facilities were negligent or otherwise violated various state law duties of care in their response to the COVID-19 pandemic. And the plaintiffs almost universally file suit in state court.

The initial battle in these cases is now clear: whether the cases will be litigated in state or federal courts.

Long-term care facilitieshave wisely been attempting to remove these cases to federal court. They've faced mixed success.

The U.S. District Court for the Central District of California recently found one suit,Compare Garcia v. Welltower OpCo Group LLC,entirely preempted by federal law and the facility entitled to immunity, whereas other district courts have remanded cases back to state court.[1] The issue is now heading to the federal courts of appeals, which will begin to settle the law in their respective circuits.

They should find in favor of federal jurisdiction.Long-term care facilities were at the center of an all-hands-on-deck federal response to the COVID-19 threat, and their conduct cannot be judged independent of the federal direction they received. That makes a federal forum the proper forum under two different doctrines: federal officer removal and complete preemption.

Federal Officer Removal

Congress established a broad standard for federal officer removal to ensure a federal forum not just for federal officials, but for those who assist them.

To successfully invoke federal officer removal, a defendant must be (1) acting under a federal officer and (2) the suit must be one relating to any act under color of such federal office. The defendant also must have a colorable federal defense.

Suits against long-term care facilities participating in Medicare and Medicaid programs that raise claims related to the COVID-19 mitigation and prevention precautions undertaken by those facilities are such suits and therefore belong in federal court.

Long-term care facilities participating in Medicare or Medicaid acted under federal officials because officials at the Centers for Medicare and Medicaid Services, working to ensure that the Centers for Disease Control and Prevention's public health guidance was being implemented, conscribed thosefacilities into the federal response to COVID-19.[2]

Because they house the most vulnerable population in the country, long-term care facilities were at the very front lines of the government's efforts to prevent COVID-19 deaths.

From day one, CMS directed a response that, to use the words of the U.S. Supreme Court in Watson v. Philip Morris Cos. in 2007, went "beyond simple compliance with the law" but rather required long-term care facilities to help "officers fulfill [the] basic governmental task" of protecting a vulnerable population during a pandemic.[3]

CMS dictated the standards for infection prevention and control believed necessary to provide safe, high-quality care.[4] CMS issued, and then continuously modified, guidance on visitor access, personal protective equipment use, testing frequency, monitoring of staff and dealing with residents with COVID-19.[5]

CMS also ordered compliance checks to ensure long-term care facilities complied with the federal direction.[6] CMS' frequent and pervasive direction to achieve the federal function of protecting a vulnerable population means long-term care facilitiesacted under those federal officials.

The suits also relate to such acts. To qualify for removal, only the circumstances that gave rise to the suit need relate to the federally directed acts.[7]

Given the pervasiveness of CMS' direction, in all but the rarest case, a suit challenging a long-term care facility'sCOVID-19 response will relate to the acts directed by federal officials.

And, as discussed next, many of these cases will turn on whether long-term care facilities are immune under the federal Public Readiness and Emergency Preparedness Act, which establishes a federal immunity defense in times of public health emergencies that should be resolved in federal court.

Complete Preemption

The second basis for removal is complete preemption based on the PREP Act. When a federal statute "displace[s] entirely any state cause of action," federal jurisdiction is proper because the only possible claim is a federal one.[8]

The PREP Act is such a statute. When the secretary of the U.S. Department of Health and Human Services declares a public health emergency, the PREP Act confers immunity "from suit and liability under Federal and State law" for any "covered person with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure."[9]

The sole exception to a covered person's immunity is in cases of willfulness and, even there, the remedy is an exclusive federal cause of action before a three-judge court in the U.S. District Court for the District of Columbia. This structure pairing preemption with a sole federal cause of action is the defining feature of statutory schemes that completely preempt state causes of action.[10]

Many claims against long-term care facilities will fall within the PREP Act's preemptive scope. The secretary has designated masks, respirators and COVID-19 tests as covered countermeasures, meaning the PREP Act applies to any claims against covered persons relating to the administration or use of those countermeasures.[11]

The secretary has also made explicit that this immunity broadly applies to claims concerning both the use and the failure to provide countermeasures, such as when limited supplies lead to prioritizing certain uses at the expense of others.[12]

Because Congress afforded the secretary unreviewable discretion to designate such countermeasures, this determination should receive significant judicial deference. And it is beyond dispute that long-term care facilities are covered persons entitled to the act's protection they administer and dispense such countermeasures, and provide a facility where countermeasures are administered or used.[13]

Indeed, the office of the secretary has taken the position that the PREP Act completely preempts claims in this area.[14]

Federal jurisdiction makes good sense. Federal officer removal exists in part to protect those who work with the federal government from anti-federal government bias in state courts. It ensures those with colorable federal defenses will receive fair treatment of those federal defenses by ensuring they are adjudicated in federal court.

Long-term care facilitieswarrant that protection for actions they took in conjunction with the federal government's national response to the COVID-19 public health emergency.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Compare Garcia v. Welltower OpCo Grp. LLC , 2021 WL 492581 (C.D. Cal. Feb. 10, 2021), with Lyons v. Cucumber Holdings, LLC , 2021 WL 364640 (C.D. Cal. Feb. 3, 2021), and Dupervil v. All. Health Operations, LCC , 2021 WL 355137 (E.D.N.Y. Feb. 2, 2021).

[2] See Watson v. Philip Morris Cos ., 551 U.S. 142, 152 (2007) (private party is "acting under" a federal officer when it is "involve[d in] an effort to assist, or to help carry out, the duties or tasks of the federal superior"); Jacks v. Meridian Res. Co., 701 F.3d 1224, 1232-33 (8th Cir. 2012) (Congress's decision to "establish a health benefits program for federal employees" by "set[ting] up a partnership between [the federal government] and private carriers" meant private carriers rendering services were "acting under" federal officers for removal purposes).

[3] Watson, 551 U.S. at 153.

[4] Ctrs. for Medicare & Medicaid Servs., CMS Prepares Nation's Healthcare Facilities for Coronavirus Threat (Feb. 6, 2020), https://www.cms.gov/newsroom/press-releases/cms-prepares-nations-healthcare-facilities-coronavirus-threat.

[5] Id.; Ctrs. for Medicare & Medicaid Servs., Mem. from Director, Quality, Safety & Oversight Grp. to State Survey Agency Directors, Guidance for Use of Certain Industrial Respirators by Health Care Personnel, No. QSO-20-17-ALL (Mar. 10, 2020), https://www.cms.gov/files/document/qso-20-17-all.pdf; 42 C.F.R. 483.80.

[6] Ctrs. for Medicare & Medicaid Servs., Mem. from Director, Quality, Safety & Oversight Grp. to State Survey Agency Directors, Prioritization of Survey Activities, No. QSO-20-20-All (Mar. 20, 2020), https://www.cms.gov/files/document/qso-20-20-allpdf.pdf.

[7] See Maryland v. Soper , 270 U.S. 9, 33 (1926) (suit need not "be for the very acts which the [defendant] admits to have been done under federal authority"); Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 292 (5th Cir. 2020) ("a civil action relating to an act under color of federal office may be removed").

[8] Metro. Life Ins. Co. v. Taylor , 481 U.S. 58, 64 (1987).

[9] 42 U.S.C. 247d-6d(a)(1).

[10] See Avco Corp. v. Aero Lodge No. 735, Int'l Ass'n of Machinists & Aerospace Workers , 390 U.S. 557, 559 (1968) (NLRA); Metro. Life Ins. Co. v. Taylor, 481 U.S. 58 (1987) (ERISA); In re WTC Disaster Site, 414 F.3d 352, 375 (2d Cir. 2005) (Air Transportation Safety and System Stability Act).

[11] Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15,198, 15,202 (Mar. 17, 2020); Dep't of Health & Human Servs., Fourth Amendment to the Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19 and Republication of the Declaration (Dec. 3, 2020), https://www.phe.gov/Preparedness/legal/prepact/Pages/4-PREP-Act.aspx; see also 247d-6d(i)(1)(D), as amended by Coronavirus Aid, Relief, and Economic Security (CARES) Act, Pub. L. No. 116-136, 3103, 134 Stat. 281, 361 (2020).

[12] Dep't of Health & Human Servs., Fourth Amendment to the Declaration Under the Public Readiness and Emergency Preparedness Act, supra.

[13] 42 U.S.C. 247d-6d(d)(1), (i)(6).

[14] Dep't of Health & Human Servs., Office of the Secretary, General Counsel, Advisory Opinion 21-01 on the Public Readiness and Emergency Preparedness Act and the Scope of Preemption Provision (Jan, 8, 2021), https://www.hhs.gov/guidance/sites/default/files/hhs-guidance-documents/2101081078-jo-advisory-opinion-prep-act-complete-preemption-01-08-2021-final-hhs-web.pdf.

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COVID Suits Against Nursing Homes Belong In Federal Court - Law360