Are Paranoid People Protected by the Fourth Amendment?

To get at why I would ask this question in the first place, some background on the Fourth Amendment may be helpful.

Katz v. United States is the decision at the foundation of most modern Fourth Amendment doctrine.  There, the Supreme Court held that FBI agents carried out a search under the Fourth Amendment when they used a listening device to record a conversation that the defendant was having in a glass phone booth.  Noting that "the Fourth Amendment protects people, not places," the Court held that Fourth Amendment protection from unreasonable searches was not defined by whether a person was in a constitutionally-protected location.

Justice Harlan concurred, and enunciated a test for determining whether the government engages in a "search" under the Fourth Amendment:

[T]here is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable."

This test has become the foundation for determining whether government agents engage in a search in most situations (although United States v. Jones reminds us that common-law trespass on property specified in the Fourth Amendment is still an important inquiry).  

Typically, the question courts must answer is whether an individual has a "reasonable" expectation of privacy.  While individuals may think that they are deserving of privacy, their expectation may not be one society is prepared to recognize as reasonable.  For instance, two people engaging in a loud conversation in a coffee shop may think that their conversation is private, but this may not be a reasonable expectation if everybody sitting around them can hear what is being said.

But what of the first prong of the test -- whether a person exhibits an actual or subjective expectation of privacy?  Say that somebody (incorrectly) believes that the government is always listening to and recording his telephone conversations.  So one day when the government actually does record one of his conversations, that person subjectively believes that the government is listening, even though Katz indicates that it is reasonable to expect one's telephone conversations to be private.  Would this paranoid person's conversation be protected by the Fourth Amendment?

I asked myself this question last year while I was studying for my final exam in criminal procedure, and had always meant to look up the answer.  As it turns out, the answer is that the unreasonably paranoid person would be protected by the Fourth Amendment.

Contractions May Be More Acceptable Than I Once Thought

Brian Garner tweets:

This just in: a majority of Supreme Court justices have used contractions in opinions: Roberts, C.J.; Thomas; Breyer, Alito & Kagan JJ.
— Bryan A. Garner (@BryanAGarner) December 30, 2013

And he follows up with:

Justice Scalia himself: "[W]hat the Commission hath given, the Commission may well take away—unless it doesn't."
— Bryan A. Garner (@BryanAGarner) December 30, 2013

I have avoided contractions in my papers for school and publication since undergrad.  I am a bit more liberal with them in the blog.  But maybe I will be a bit more liberal with them in my papers from now on -- though I hope Garner follows up with some citations that I can put in footnotes to appease those who review my work.

But for those interested in citing the Scalia quote (who wouldn't be?), that is from his dissent in National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005).  I note, with some dismay, that it is a dissenting opinion and therefore may not have the authoritative strength of a majority opinion, but it is at least a place to start.

If You Live in Any of These States, Keep an Eye on the Sky

The BBC reports that the FAA has announced which six states will have test sites for the "testing commercial use of drones."  Those states are: Alaska, Nevada, New York, North Dakota, Texas and Virginia.

Describing the purpose of these test sites, the BBC reports:

The biggest chunk of the expected growth in the commercial drone industry is currently expected to be for agriculture and law enforcement.

Police and other emergency services could use them for crowd control, taking crime scene photos or for search and rescue missions.

It can cost a police department hundreds of dollars an hour to deploy a helicopter, while an unmanned aerial vehicle (UAV) can be sent into the skies for as little as $25 an hour.

Farmers, meanwhile, might find it easier to spray crops or survey livestock with the pilotless aircraft.

I have a few of my own remarks on this.

Notably absent from this list is the state of Colorado.  As I noted in this previous post, Colorado was one of the states applying to have a drone testing site.  This application was not without backlash, with the town of Deer Trail, Colorado proposing an ordinance that would grant drone hunting licenses to residences, and reward residents for shooting down federal drones.

It also looks like the Alaska test site actually consists of several sites, identified by the University of Alaska, with different climates "from Hawaii to Oregon," so people outside of the six states identified in this article may not be entirely free from drone activity.

Finally, I am not sure why Iowa is not on the list.  If the government seriously is considering agriculture as a use for drones, then Iowa would be an excellent place to test this out.  Moreover, Iowa would offer an excellent setting to test drones' abilities to operate in weather that changes drastically over the course of a year.  For these reasons, I think that Iowa could fulfill all of the roles of North Dakota's test site (reportedly to test the "human impact" of drones, and how drones function in "temperate climates").

And while some Iowa cities (like Iowa City) may ban the use of drones, there are still plenty of people that these drones could bother the "human impact" of drones could be tested in other towns like Ames.

Legislature Will Probably Deal With Phone Surveillance Before the Courts

From Politico:

Judge William Pauley III’s Friday decision to dismiss an American Civil Liberties Union request for an injunction against Director of National Intelligence James Clapper buttresses the government’s contention that sweeping up data associated with nearly every call to, from, and within the United States is legal under Section 215 of the post-Sept. 11 PATRIOT Act.

. . . 

The provision in question is due to expire at the end of 2014, and supporters of the NSA’s surveillance powers will have to make arguments to fellow lawmakers — and constituents — who have more information about the program because of Edward Snowden’s national security leaks. 

. . . 

The provision is almost certain to be debated by Congress again before these cases make their way up the chain, through U.S. circuit courts, to the Supreme Court. Another major challenge to the program is pending before a federal court in San Francisco. While the high court can short-circuit the process to take up an issue more quickly, it rarely does.

I think that this is a good point that people should remember when wondering whether the split decisions on the constitutionality of section 215 will lead to a review of the law by the Supreme Court.  And as I mentioned here, it is most likely that split will need to survive appellate review before the Supreme Court decides to review it, and I have my doubts over whether Judge Leon's decision will be upheld on appeal.

Privacy advocates may criticize Judge Pauley's decision as upholding a system of mass surveillance that many think is unconstitutional.  But this decision may be what the legislature needs to push it to act.  If Judge Leon's decision that the program was unconstitutional were the only decision on the subject, then lawmakers might want to avoid changing the surveillance program, arguing that the courts will end up determining whether it is truly unconstitutional.  With Pauley's decision that the program is constitutional added to the mix, the unconstitutionality of telephonic metadata is a much less certain conclusion.

I think that legislative reform is an effective way for the law to better accommodate privacy concerns.  Legislative changes can be specifically targeted, and are not governed by the facts of a specific party's case.  Finally, I think that one of the biggest obstacles to this type of reform is an inflated expectation that the courts (and especially the Supreme Court) will determine the constitutionality of section 215.

Wu and Posner on Review Articles in Law Journals

Tim Wu proposes that law journals should publish more "review" articles, that is, "papers which tried to objectively summarize the state of understanding surrounding a given topic, as opposed to presenting any new empirical findings, theories, observations, or insights."

Wu believes that this would make areas of the law easier to understand to readers of law journals.  He notes that the "review" portions of many articles that law journals publish tend to be short and directed toward the argument of the article, rather than a general survey of that area of law.

Eric Posner disagrees, noting that those review sections of articles fulfill the role of reviewing the law.  He argues that:

Scholars in other fields do not write articles in this way because they do not need to explain to editors–who are experienced scholars and also rely on referees who are experts on the topic–why their article is a contribution. Because law students screen law review articles, and law students do not know any legal scholarship, every author must start anew with yet another redundant survey that sets the stage for his contribution.

I would expect that Wu would disagree with Posner because the background sections of law articles tend to be directed towards the argument of each article, which is usually presented as a (possibly exaggerated) novel take on some area of law, rather than a neutral review.  An article that presents itself from the beginning as summarizing, in detail, some area of law might be more readily cited for that purpose than the review section of an article that is advocating a particular argument.

A stronger argument against review articles would be that lawyers, judges, and students who are trying to learn the law do not look to articles in law journals, but instead look to specialized treatises.  Review articles will likely be redundant, or denser than treatises that quickly summarize points of law in certain areas.

On the other hand, review articles may go into more depth in certain areas of law than a treatise can practically cover.  And with more articles becoming available on law journals' websites and on SSRN, the summaries of law in these articles may be easier (and cheaper) for practitioners to access.

From the journals' perspective, there is a practical reason to publish review articles: these articles are more likely to be cited by courts.  As I noted in this previous post, the Supreme Court does not cite law review articles that often.  When it does, the Court generally cites those articles (or those portions of articles) that review the law, rather than present novel arguments.

Posner's criticism seemed to be directed more toward student editors than Wu, but in making this criticism, Posner may be illustrating the usefulness of review articles.  It is a little harsh to say that law students "do not know any legal scholarship," but it is fair to say that students need a review of the law in order to quickly familiarize themselves with subject matter they may not have yet encountered in their studies.

The same is true of lawyers and judges who are handling cases in an area of law they have not practiced before, or have not practiced for a while.  And while scholarship that reviews the law may not end up being cited in a brief or a published opinion, that scholarship may still end up educating and informing lawyers and judges who are in unfamiliar territory.

Southern District of New York Holds That NSA Telephone Metadata Collection Does Not Violate Fourth Amendment

The case is ACLU v. Clapper, and the text of the opinion is available here. The New York Times reports:

A federal judge in New York on Friday ruled that the National Security Agency’s program that is systematically keeping phone records of all Americans is lawful, creating a conflict among lower courts and increasing the likelihood that the issue will be resolved by the Supreme Court.

. . .

Judge Pauley said that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies. 

“This blunt tool only works because it collects everything,” Judge Pauley said in the ruling.
“While robust discussions are underway across the nation, in Congress and at the White House, the question for this court is whether the government’s bulk telephony metadata program is lawful. This court finds it is,” he added.

The BBC's coverage of the ruling is available here.

Judge Pauley's ruling reaches a different conclusion from the District of Columbia District Court, which, in Klayman v. Obama, ruled that while the Fourth Amendment does not typically apply to information handed over to third parties, the breadth of the NSA's program is a significant enough development that this rule should be reconsidered in this case.

The opinion here specifically rejects the reasoning of Klayman, noting that information about phone numbers that customers dial can be accessed by the government without a Fourth Amendment search taking place under Smith v. Maryland.  There, the Supreme Court held that under the third-party doctrine, people lose a reasonable expectation of privacy in  information that is voluntarily handed over to third parties.  Judge Pauley writes that Smith controls this case:

Some ponder the ubiquity of cellular telephones and how subscribers' relationships with their telephones have evolved since Smith.  While people may "have an entirely different relationship with telephones than they did thirty-four years ago," Klayman, 2013 WL 6571596, at *21, this Court observes that their relationship with their telecommunications providers has not changed and is just as frustrating.  Telephones have far more versatility now than when Smith was decided, but this case only concerns their use as telephones.  The fact that there are more calls placed does not undermine the Supreme Court's finding that a person has no subjective expectation of privacy in telephony metadata.  See Smith, 442 U.S. at 745. ("The fortuity of whether or not the [tele]phone company in fact elects to make a quasi-permanent record of a particular number dialed does not . . . make any constitutional difference.  Regardless of the [tele]phone company's election, petitioner voluntarily conveyed to it information that it had facilities for recording and that it was free to record.")  Importantly, "what metadata is has not changed over time," and "[a]s in Smith, the types of information at issue in this case are relatively limited: [tele]phone numbers dialed, date, time, and the like."  Klayman, 2013 WL 6571596, at *21 (emphasis in original).  Because Smith controls, the NSA's bulk telephony metadata collection program does not violate the Fourth Amendment.

Some commentators have argued that this type of argument is flawed because it relies on an overly "aggressive" interpretation of the third-party doctrine.  Those commentators note that in United States v. Jones, five out of nine justices seemed to support a "mosaic" theory of Fourth Amendment searches, where government actions that would not typically be deemed a "search" under the Fourth Amendment may rise to the level of being a search because.  Technological advances may permit the government to obtain so much surveillance information about people that people would not reasonably expect the government to know what it knows about them.

Judge Pauley acknowledges this theory of the Fourth Amendment, but concludes that it does not control this case.  Referring to Jones, he writes:

In two separate concurring opinions, five justices appeared to be grappling with how the Fourth Amendment applies to technological advances. 

But the Supreme Court did not overrule Smith.  And the Supreme Court has instructed lower courts not to predict whether it would overrule a precedent even if its reasoning has been supplanted by later cases.  Clear precedent applies because Smith held that a subscriber has no legitimate expectation of privacy in telephony metadata created by third parties.  Inferior courts are bound by that precedent. [citations omitted]

I have previously written that the third-party doctrine as stated in Smith poses a significant obstacle to Fourth Amendment challenges of surveillance programs such as the telephone metadata program, as well as for online surveillance practices.  While the reasoning of the majority of justices in Jones indicates that Smith may stand on shaky ground, no official holding of the Supreme Court has stated this, and I think that Judge Pauley was correct in his application of Smith.

As a final note, these cases are exciting because now there is a split in authority on the constitutionality of the NSA's collection of telephone metadata.  It is early to wonder about whether the Supreme Court will take these cases (as the New York Times seems to hint).  This split in authority will need to survive to the federal appellate level before that question can seriously be considered, and I have my doubts over whether Klayman's bold approach to Smith will be upheld.

But courts that are considering the constitutionality of telephonic metadata collection now have two different types of analysis that they can cite to support differing conclusions.  It will be interesting to see how Klayman and ACLU v. Clapper proceed on appeal, and how other courts end up interpreting these rulings.

Strandburg on the "Aggressive Third Party Doctrine"

I posted a while ago about standing and the third party doctrine in the digital context.  One of the points I made in that post was that the government can probably access information about Internet users from websites that the user accesses because, in these instances, the user's information is turned over to third parties.  Under the third-party doctrine, courts generally hold that the knowing submission of information to a third party removes one's expectation of privacy in that information.

In the chaos of coming back to Iowa for the holiday and grading finals, I missed this post at Concurring Opinions by Katherine Strandburg.  She writes:

The aggressive version of the third party doctrine, which states that sharing with anyone removes reasonable expectations of privacy as to all, is deeply inconsistent with Supreme Court precedent that clearly establishes that sharing “houses, papers, [or] effects” with particular individuals undermines legitimate expectations of privacy only with respect to those individuals. 

Georgia v. Randolph, decided in 2006, explained that “assumption of risk” must be evaluated in light of “widely shared social expectations.” Thus, a tenant or hotel guest does not “assume the risk” that a landlord or hotel manager with access to the premises will admit visitors. Nor do parents “assume the risk” that an eight-year-old child will authorize guests to “rummage through her parents’ bedroom.” In fact the majority held that in the case of a home an individual standing at the door does not even assume the risk that a co-tenant will authorize a warrantless search over his or her objection. Chief Justice Roberts and Justice Scalia dissented in Randolph, advocating a more bright line approach to assumption of risk. They argued that “just as an individual who has shared illegal plans or incriminating documents with another cannot interpose an objection when that other person turns the information over to the government … someone who shares a place with another cannot interpose an objection when that person decides to grant access to the police.” 

Both majority and dissenters in Randolph agreed, however, that sharing does not eviscerate privacy in the absolute manner presumed by the aggressive version of the third party doctrine. Thus, after the majority accused the dissenters of the “easy assumption that privacy shared with another individual is privacy waived for all purposes including warrantless searches by the police,” the dissent emphasized that the point “is not that a person waives his privacy by sharing space with others such that police may enter at will, but that sharing space necessarily entails a limited yielding of privacy to the person with whom the space is shared, such that the other person shares authority to consent to a search of the shared space.”

Strandburg goes on to argue that there should be more Fourth Amendment protection of information disclosed to third parties, especially in light of U.S. v. Jones, where a majority of the Justices indicated that Fourth Amendment violations may occur when a large number of lawful searches, in conjunction, rises to the level of a violation of reasonable expectations of privacy.

I still think that existing interpretations of Smith v. Maryland and the third-party doctrine raise serious obstacles for Fourth Amendment challenges to online surveillance.  But Strandburg's perspective, along with the Supreme Court's decision in Jones and Judge Leon's recent opinion that mass collection of phone records likely violates the Fourth Amendment, adds an interesting counterargument to the discussion.

Reasonable Expectations of Privacy in Sent Emails: Analyzing U.S. v. Young

At The Volokh Conspiracy, Orin Kerr analyzes United States v. Young, a case in the Federal District Court for the state of Utah where the defendants challenged the government's downloading of emails.  The defendants had sent email messages to other defendants in the case, and the government downloaded these sent messages from the other defendants' email accounts.

Kerr frames the question the case raises like this:

Assuming that e-mail account-holders generally have Fourth Amendment rights in the contents of their e-mails, as courts have so far held, when does a person’s Fourth Amendment rights in copies of sent e-mails lose Fourth Amendment protection?

The court held that there was no reasonable expectation of privacy.  The answer to the question in this case turned on the similarities of email to physical letters -- and analogizing the reasonable expectations of privacy that parties have in physical letters:

A sender of an e-mail loses his or her reasonable expectation of privacy in an e-mail that has actually reached the intended recipient. Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001); see also United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (An individual may not “enjoy [] an expectation of privacy in transmissions over the Internet or e-mail that have already arrived at the recipient”). “The e-mailer would be analogous to a letter-writer, whose `expectation of privacy ordinarily terminates upon delivery’ of the letter.” Guest, 255 F.3d at 333 (quoting United States v. King, 55 F.3d 1193, 1196 (6th Cir. 1995). In Warshak v. United States, the United States Court of Appeals for the Sixth Circuit analogized a search and seizure of e-mails through an ISP to the interception of a letter at a post office. 631 F.3d 266, 286 (6th Cir. 2010). Here, transmission of all the e-mails and texts was complete before seizure, that is, the e-mails had already arrived at the intended recipient account. Any reasonable expectation of privacy Mr. Lustyik and Mr. Thaler may have had in their e-mails ended when Mr. Taylor received the messages in his and AISC’s e-mail accounts.

Kerr asks whether this reasoning indicates that the sender's expectation of privacy terminates when the email reaches the email account's Internet service provider (ISP), rather than when it is accessed by the recipient.  He concludes that this is the conclusion that the court's reasoning supports.

While some of the opinion's language supports this reading ("Any reasonable expectation of privacy Mr. Lustyik and Mr. Thaler may have had in their e-mails ended when Mr. Taylor received the messages in his and AISC's e-mail accounts"), I am inclined to read the opinion as indicating that some sort of access by the recipient is required before a reasonable expectation of privacy is lost.

Greenpeace Activists Will Likely Receive Amnesty From Russia

The New York Times reports:

A sweeping amnesty that is underway in Russia was extended on Tuesday to a member of the crew of the Arctic Sunrise, the Greenpeace International ship seized on the open seas three months ago.

If the amnesty covers the rest, as expected, it will draw to a close one of the more contentious chapters in Greenpeace’s history, in which Russian commandos boarded a ship, imprisoned the crew members and charged them, for a time, with piracy.

I discussed the original charges against the Greenpeace activists here and here.  The piracy charges were downgraded to "hooliganism," which qualifies for amnesty.   Several other prisoners who have already been released, including members of the band, Pussy Riot, have condemned Russia's amnesty approach.  The Times continues:

One member of Pussy Riot, Maria Alyokhina, stepped out of the penitentiary to say she would have preferred to stay than to accept an amnesty from President Vladimir V. Putin. The amnesty, she said, had been intended only to bolster the image of Mr. Putin and Russia before the Winter Olympics in Sochi, which start in February.

While all of the Greenpeace activists have not yet been guaranteed amnesty, it is likely that they soon will be, and will probably be able to leave the country soon.

"When the Right to Bear Arms Includes the Mentally Ill"

So reads of the title of this article in the New York Times.  The Times notes that many states follow federal guidelines when it comes to restricting access to firearms to the mentally ill.  This means that in order for somebody to be barred from a firearms license, they need to be involuntarily committed or pronounced legally incompetent by a court.  This is a rare occurrence, which means:

As a result, the police often find themselves grappling with legal ambiguities when they encounter mentally unstable people with guns, unsure how far they can go in searching for and seizing firearms and then, in particular, how they should respond when the owners want them back.

The entire article goes into detail about specific cases of firearm confiscation and state laws that deviate from the federal approach to firearms and mental illness.  One thing that I felt the article did not go into very much detail about was how risk of suicide factored into policy discussions on firearm restrictions.  The article was overshadowed by themes of avoiding harm to others by mentally ill people, but I think that more attention should have been paid to any increased risk of suicide for those who are mentally ill who have firearms.  While the article noted that people with severe mental illnesses may be more likely to cause harm to others, there was very little discussion about harm to themselves.

What the article does do well is capture the difficult issues that firearm restriction policies for the mentally ill raise.  The Times notes that the issue is a "political quagmire":

Gun rights advocates worry that seizure laws will ensnare law-abiding citizens who pose no threat. In Connecticut, with its imminent-risk standard for seizure, the law sometimes “reaches pretty normal people,” said Rachel Baird, a lawyer who has sued police departments over gun confiscations. 

. . .

At the same time, mental health professionals worry that new seizure laws might stigmatize many people who have no greater propensity for violence than the broader population. They also fear that the laws will discourage people who need help from seeking treatment, while doing little to deter gun violence. 

Research has shown, however, that people with serious mental illnesses, like schizophrenia, major depression or bipolar disorder, do pose an increased risk of violence. In one widely cited study, Jeffrey W. Swanson, now a psychiatry professor at Duke University, found that when substance abusers were excluded, 33 percent of people with a serious mental illness reported past violent behavior, compared with 15 percent of people without such a disorder. The study, based on epidemiological survey data from the 1980s, defined violent behavior as everything from taking part in more than one fistfight as an adult to using a weapon in a fight.

Questions of politics that surround these firearm laws are difficult.  Defining how severe a mental illness must be to warrant restriction on firearm possession is a difficult question to ask, and one that involves far more expert input than lawmakers may be willing to carefully consider.

Moreover, the constitutional questions that this issue raises may be difficult -- at least if legislatures end up extending restrictions on firearm possession by the mentally ill.

Existing restrictions on firearm possession by the mentally ill would probably pass Second Amendment scrutiny under the Supreme Court's holding in District of Columbia v. Heller.  In striking down the District of Columbia's firearm regulation as a violation of the Second Amendment, the Court noted that its holding should not be read to threaten existing "longstanding prohibitions on the possession of firearms by . . . the mentally ill."

But this phrasing indicates that the Supreme Court is likely only considering "longstanding" provisions when making this statement, meaning that further restrictions could raise Second Amendment concerns.  Moreover, implementation of these restrictions may be so broad or poorly-defined that a regulation could be enforced in a manner that violates the Second Amendment.  See, for example, the case of In Re Hahn, where the Appellate Division of the New York Superior affirmed a denial of the petitioner's application for a firearm license due to bizarre behavior the petitioner had exhibited -- a result that I argued was based on an erroneous interpretation of Heller's exceptions to Second Amendment scrutiny.

While courts may correctly note that Heller leaves open restrictions on firearm possession for the mentally ill, problems will arise if the exceptions that Heller lists are defined in a vague or overly broad manner.

Essay: Search Engine Liability for Autocomplete Defamation

I mentioned back in September that I had written an essay that was forthcoming in the Illinois Journal of Law, Technology & Policy.  The essay was recently published, and I have put the final version on SSRN.  Here is the abstract:

Several online search engines use autocomplete features that display search suggestions as users type search queries. This Essay investigates the potential for search engine liability for defamatory statements that are displayed through their autocomplete search suggestions. This Essay describes the technology involved, outlines potential defamation claims against search engines, and notes the obstacle presented by the Communications Decency Act (CDA). Recent legal developments limit the immunity that the CDA would typically provide to search engines and this Essay explores how prospective plaintiffs may take advantage of these developments. This Essay first discusses a potential argument from Fair Housing Council v. Roommates.com, LLC, but concludes that policy implications of this argument ultimately undermine its credibility. This Essay then turns to the less-explored case of Batzel v. Smith and concludes that Batzel provides a narrower, more direct argument against search engine immunity. This Essay concludes that prospective plaintiffs have a strong argument against search engine immunity. This removes a critical obstacle in the path of defamation claims.

Mitigating Damage to Digital Reputations

The BBC reports that Steps singer, Ian "H" Watkins is "furious" after Google's links to news stories apparently placed his photograph next to stories about a different Ian Watkins -- who is a convicted pedophile:

Google's algorithm appeared to be unable to differentiate between the two cases, taking a picture - from a BBC News article about the E! apology - and pairing it with a separate article by CBS News about the abuse. 

A Google spokesman added: "For some specific searches Ian H Watkins' picture is appearing in our results because he is relevant to the story, having received a court apology.

Watkins (I use this name to refer to Ian "H" Watkins unless I specify otherwise) reacted angrily to the news, posting this image of the offending search results on Twitter, and telling CBS News to "SORT THIS OUT":

Watkins received a court apology from E! Entertainment Television, who apparently ran his image with the story about the convicted pedophile, but it sounds like Watkins is still seeking some sort of remedy from Google.

In the United States, this type of claim against Google would probably be barred by section 230 of the Communications Decency Act.  If Watkins's photo appeared on a Google search result because the result linked to a news story that ran his photo with the story of the convicted pedophile, Google would not be treated as having published that photo because it was a third party who shared that photo online.  Under section 230, websites are typically immune from lawsuits arising from content that is posted on websites by third parties.  Google could argue that it is simply linking to a third-party's content, and the image posted by the author of that content.  Watkins may well have a successful claim against the news agency, though, and it sounds like he has already succeeded on some level with E!  But Watkins would probably not succeed against Google.

But even if Watkins were doomed to fail, he would do well to file the lawsuit anyway.  Today, in the aftermath of Watkins's lawyers approaching Google, a Google search of "Ian H Watkins" reveals these results:

Pretty much every result has to do with Watkins's complaint against Google (with the exception of the bearded man on the right -- who is the similarly-named convicted pedophile).  The overwhelming impression one gets from these results is that Google messed up and Watkins is calling them out.  Quite the opposite of an impression of Watkins being convicted of anything.

Even if Watkins takes no official legal action against Google, simply having his lawyers approach Google and claim damage is enough to focus the news on Google's mistake, rather than on news stories' mistaken identifications.

Franks on Section 230 of the Communications Decency Act

Mary Anne Franks writes a very interesting, approachable, and informative article on section 230 of the Communications Decency Act (CDA) over at HuffPost Tech reacting to Kevin Christopher Bollaert's (founder of the gossip website, The Dirty).  I wrote about the lower court's decision against Bollaert and his appeal earlier in this post.

As I have also mentioned previously, section 230 of the CDA is typically used to immunize websites from civil liability for posts made on these websites by third parties.

Some of Franks' most interesting discussion comes after the end of her post:

Stepping back, it is also important to consider Congress's goals in passing CDA §230. Popular rhetoric is selective on this point as well. It is true, as so often proclaimed, that the policy goals of §230 include the promotion and protection of free speech principles. Such principles are not self-evident, however. The law states that it is the policy of the Unites States to "preserve the vibrant and competitive free market that presently exists for the Internet... unfettered by Federal or State regulation." As an initial matter, whether the Internet really offers a "free market" for the exchange of ideas is a matter of considerable dispute, and the claim that the Internet is "unfettered by regulation" is demonstrably false (see above re: the thousands of laws that currently govern Internet activity). 

Moreover, free speech is not the only value protected by §230. The other, often overlooked goals of §230 include the development of technologies that "maximize user control over what information is received" by Internet users, as well as the "vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking and harassment by means of computer." In other words, the law is intended to promote and protect the values of privacy, security and liberty alongside the values of open discourse. Section 230 is an important and complex law, and it is both dangerous and inaccurate to treat it as a blanket license for online abuse.

I am not sure if I agree with all of Franks' final points -- but my views on section 230 have shifted before (I think the Michael Smith who wrote this paper would be much faster to agree with Franks), and they may shift again as I continue to think and learn more about these issues.  But whatever views one might hold on section 230, Franks' perspective is worth paying attention to.

More Perils and Prospects for Bitcoin Investment

It has been an interesting and informative day for people interested in Bitcoins.

Fausto Sanchez writes at JD Supra that "Bitcoins Mean Business," and notes that even though Bitcoins are a new currency, their increase in value and the increasing attention that businesses have continued to pay to Bitcoins means that the currency may become a significant force in the market.  The article does a good job of summarizing what Bitcoins are and why they have become so popular.

Nathalie Beauregard writes, also at JD Supra, in a more measured manner.  She points out the uncertainties in Canadian law when it comes to investing in Bitcoins and highlights numerous areas of the law that will need to be clarified for those interested in investing Bitcoins in Canada.  Ultimately, she recommends holding off on Bitcoin investment in Canada until investors get clarification of the issues she highlights through prior approval or guidelines from regulators.

Meanwhile, however, The Guardian reports:

The price of bitcoin has plummeted following an announcement from China's largest bitcoin exchange that it would no longer be accepting new yuan deposits. 

BTC China said that due to action by a third-party payment provider, YeePay, it could no longer accept deposits in the Chinese currency, although it would still be able to process withdrawals. BTC's chief executive, Bobby Lee, said that YeePay gave notice on Wednesday morning Shanghai time that it would no longer provide services. 

Lee blamed government regulation for the decision. China's central bank warned in early December that bitcoin was not legally protected and had no "real meaning", and barred financial institutions from using the currency.

Further coverage on this incident from Ars Technica is available here.  Also, Dan Harris of the China Law Blog thinks that "this is the end of Bitcoin in China."  The previously-mentioned concerns arising from the regulatory uncertainty of Bitcoins in other countries and from the nature of the currency may end up being overshadowed by this incident if Harris' assessment is correct.

Can Dating Websites be Sued for Alienation of Affections?

Via Overlawyered, I learned about this story from North Carolina. The Charlotte Observer reports:

A Charlotte man blames the breakup of his marriage not only on the other guy, but also on the online infidelity service that he says made it happen. 

“Life is short,” the Ashley Madison website coos. “Have an affair.” 

Robert Schindler of Charlotte says his ex-wife did just that 

So, Schindler is suing her alleged partner in the tryst, along with Ashley Madison and its Canadian corporate parent, Avid Dating Life Inc. 

At play here is a legal clash between the old and the new. North Carolina remains one of only a half-dozen states that still awards punitive damages when a marriage fails and someone other than the husband and wife is to blame. 

The so-called alienation of affection/criminal conversation laws have survived numerous efforts by judges, lawyers and some legislators to repeal them, and in recent years they have led to million-dollar judgments for wronged spouses. 

The Schindler case attempts to apply the centuries-old marriage statutes to a company marketing the new-age phenomenon of online cheating. Ashley Madison, which claims clients worldwide in the tens of millions, bills itself as “the most recognized name in infidelity.” 

Schindler’s 2012 complaint, which was back in Mecklenburg Superior Court last week for a preliminary hearing, accuses the company and Eleazar “Chay” Montemayor of Charlotte with working together to seduce Schindler’s wife, ruining his 13-year marriage.

Here is an earlier post where I explain the tort of alienation of affections in the context of Illinois.  The North Carolina approach to the tort is a bit different though.  Here is one statement of the tort from Chappell v. Redding, 313 S.E.2d 239 (N.C. App. 1984).  There, the court says that an alienation of affections plaintiff must prove three elements:

(1) plaintiff and his wife were happily married and a genuine love and affection existed between them; (2) the love and affection was alienated and destroyed; and (3) the wrongful and malicious acts of defendant produced the alienation of affections.

The most important and complicated element of these is the third element.  In further defining "malicious," the court wrote in Sebastian v. Kluttz, 170 S.E.2d 104 (N.C. App. 1969):

Malice as used in an action for alienation of affections means ‘injustifiable conduct causing the injury complained of.’ Malice also means ‘a disposition to do wrong without legal excuse, or as a reckless indifference to the rights of others.’ (citations omitted).

In the case of general dating websites, I doubt that the websites would be found liable for "maliciously" producing the alienation of affections.  The Ashley Madison attorney in the current case analogizes the dating website to a hotel or vehicle that might be used in an affair in an effort to argue that the website is a neutral third party that happens to be involved.

But the Ashley Madison case specifically raises some interesting questions about the definition of malice.  The website seems to be geared towards attracting a clientele that is interested in having affairs, as its advertisements indicate.  While dating websites in general might not be liable for maliciously alienating spouses' affections, websites like Ashley Madison that specialize in members who are interested in having affairs might cross the line.

If Ashley Madison can indeed be sued for alienation of affections, this could be a pretty big problem for the website.  While only five or so states recognize the tort, numerous plaintiffs in those states may want to sue the website as well as the individual who "produces" the alienation affections.  Websites like Ashley Madison will probably provide a clear trail of electronic communications that details the affair, and if the website is successful, it would be a more attractive defendant from a monetary perspective.

District Court Rules That NSA's Collection of Telephone Records is Likely Unconstitutional

In Klayman v. Obama, Judge Richard Leon of the District of Columbia Federal District Court ruled that the plaintiffs' claim that the NSA's collection of telephone records likely violates the Fourth Amendment.  This ruling has gotten wide coverage ranging from the New York Times, Washington Post, NPR, and SCOTUSBlog.  A pdf version of the district court's opinion is available here.

I do not have the time to analyze this opinion in detail because I have a tax exam tomorrow and grading that I need to complete.  But I want to highlight one portion of the opinion that distinguishes this case from Smith v. Maryland -- the foundation of modern third-party doctrine.

As I mentioned previously in the context of internet metadata collection, one of the most difficult obstacles for people making Fourth Amendment arguments over the NSA's collection of data from phone and internet companies is the third-party doctrine.  Under the third-party doctrine, if somebody knowingly discloses information to a third party, they no longer have a reasonable expectation of privacy in that information.  The logic here is that these parties have assumed the risk that the third party may turn this information over to the authorities.

In Smith v. Maryland, the Supreme Court applied this logic to the police's gathering of phone call records using a pen register.  The police installed a pen register at the telephone company, which recorded the phone numbers that the defendant dialed over a period of time.  The Court ruled that the defendant did not have a reasonable expectation of privacy in these numbers because the defendant's dialing these numbers disclosed that information to the third party -- the telephone company -- meaning that the defendant no longer had a reasonable expectation of privacy in that information.

This would normally present a problem for those trying to argue that the NSA's collection of phone number information is unconstitutional because, like the numbers dialed in Smith, the numbers the NSA collects are essentially "shared" with the phone companies.

On pages 47-56 of the opinion, the district court presents a number of arguments distinguishing the NSA's collection of information from the pen register in Smith.  The court notes the permanence of the stored information under the NSA's practices.  It also notes that the structure of the program leads to much more information being collected under the NSA's approach, and argues that the wide range of people affected by the search practices and the vast number of people and parties with phones make the NSA's practices much more of a government intrusion than the pen register in the Smith case.

Orin Kerr discusses the case here, and notes that he sees several substantial problems with the case and that he will post more on the flaws later.  I am not surprised to see Kerr taking a critical stance, since the court's ruling is based largely on statements by various justices in United States v. Jones that indicate that there is a point where searches that are typically lawful under the Fourth Amendment may, in aggregate, rise to a level where they violate the Fourth Amendment.  This is the "Mosaic Theory" of the Fourth Amendment, which Kerr describes and criticizes in this 2012 article in the Michigan Law Review.

I share some of Kerr's concerns about the mosaic theory of when a search occurs.  Like Kerr, I think that this sort of test is quite vague.  Search aggregations that are "Orwellian" -- to use the district court's terminology -- may be unconstitutional, but that leaves open the question of when a series of searches becomes "Orwellian."  Moreover, Kerr points out that adopting a vague approach to limiting the government's power to search could preempt more specific and effective statutory limitations on search powers.

I hope to look more into this case once I have finished taking and grading exams, but whatever commentator's end up concluding on the case's merits, there is no denying that this is a very significant development.

UPDATE

Orin Kerr provides further feedback on the ruling here, concluding that the Smith v. Maryland argument seemed particularly weak and that existing DC Circuit precedent applying the mosaic theory makes the jurisdiction of this decision particularly interesting.

And Jameel Jaffer, Deputy Legal Director at the ACLU says:

This is a strongly worded and carefully reasoned decision that ultimately concludes, absolutely correctly, that the NSA’s call-tracking program can’t be squared with the Constitution.

Automated Surveillance and Police Discretion

Cyrus Farivar of Ars Technica writes that the Boston Police Department has suspended their use of license plate readers.  They note that an investigation by the Boston Globe revealed a number of holes in the program, and some strange practices.  For example, the Globe pointed out that there were instances where license plate scanners would send reports of stolen vehicles, but the police would fail to follow up on these reports:

Beyond providing snapshots of where thousands of vehicles were spotted at given moments, the data indicate that Boston police routinely failed to follow up on repeat alarms. 

Nearly 1,700 plates registered five or more scanner hits over the six-month period, most for insurance violations or unpaid traffic fines. The most-scanned plate came back as a hit for lapsed insurance more than 90 times. 

But some repeat alarms were for serious violations. One Harley Davidson motorcycle that had been reported stolen passed license plate scanners a total of 59 times between Oct. 19, 2012, and March 13, 2013. It was often recorded on sequential days or multiple times in a single day, all by the same scanner and almost always within the same half-hour span in the early evening. 

Boston police chief technical officer John Daley indicated that each of these scans prompted an e-mail alert to the department’s Stolen Car Unit, but there is no indication that the motorcycle was ever apprehended or even stopped.

Privacy advocates generally do not favor the use of automated surveillance technologies like automatic license plate scanners.  This technology, they argue, can be used to collect massive amounts of information on large numbers of people that can be stored indefinitely and used to track people's movements.

A possible silver lining to automatic surveillance practices is that evenly distributed surveillance devices could reduce police abuse of discretion in deciding whether to investigate a vehicle as stolen or in violation of the law.  Police can generally enter in any license plate information they see to their database to determine whether the vehicle they are scanning is stolen or if the registration on the vehicle is expired.

When police make these entries themselves, there is a possibility that they will enter these number in an imbalanced way.  For example, officers may, consciously or unconsciously, run license plate checks on vehicles driven by racial minorities more than they do for vehicles driven by non-minorities.  While these checks minimally intrude on those whose plates are entered into the system, it could result in disproportionate stops and enforcement of criminal laws against racial minorities, since a higher proportion of license plate checks against a certain group will likely lead to a higher proportion of that group being found in violation of the law.

Automatic scanners could partially solve this problem.  By setting up devices that automatically collect license plate information or other information, the decision of whether that information should be collected in the first place is not up to the discretion of a police officer.  While more information on more people will be collected, that information will at least be collected in a consistent manner.  One would hope that the information would be used in a consistent manner -- with uniform practices for following up on violations that are discovered.  This would seem to reduce some of the disproportionate enforcement of laws that could result from police abuse of discretion.

The flaws with the Boston surveillance program that the Globe's investigation revealed show that this hope may be misguided, or at least not guaranteed.  If police choose not to follow up on certain results, then the potential for abuse of police discretion is re-introduced into the system at a higher level.

Boston's program has been suspended for now, but it is likely that automatic surveillance will continue to be employed by more cities and law enforcement agencies.  Going forward, this story should serve as a reminder of the importance of established, consistent practices for investigating and following up on automatic surveillance reports.  And future surveillance programs will hopefully have established investigation procedures in place that will minimize the potential for abuse of discretion.

"Bah Humbug!" or: Another Paper on the Third Amendment in Cyberspace

Via Frank Pasquale's Twitter, I learned about a paper by Steven Friedland on applying the Third Amendment to government practices of mass surveillance. The title of the paper is, The Third Amendment, Privacy and Mass Surveillance. Here is the abstract:

We live in an era of mass surveillance. Advertisers, corporations and the government engage in widespread data collection and analysis, using such avenues as cell phone location information, the Internet, camera observations, and drones. As technology and analytics advance, mass surveillance opportunities continue to grow.

The growing surveillance society is not necessarily harmful or unconstitutional. The United States must track people and gather data to defend against enemies and malevolent actors. Defenses range from stopping attempts to breach government computers and software programs, to identifying and thwarting potential terroristic conduct and threats at an embryonic stage.

Yet, without lines drawn to limit mass data gathering, especially in secret, unchecked government snooping likely will continue to expand. A sitting Secretary of State even recently acknowledged that the government has “sometimes reached too far” with its surveillance. The stakes for drawing lines demarcating privacy rights and the government’s security efforts have never been higher or more uncertain.

This paper argues that the forgotten Third Amendment, long in desuetude, should be considered to harmonize and intersect with the Fourth Amendment to potentially limit at least some mass government surveillance. While the Fourth Amendment has been the sole source of search and seizure limitations, the Third Amendment should be added to the privacy calculus because it provides a clear allocation of power between military and civil authorities and creates a realm of privacy governed by civil law.

Consequently, in today’s digital world it would be improper to read the words of the Third Amendment literally, merely as surplusage. Instead, the Amendment’s check on government tyranny should be viewed as restricting cybersoldiers from focusing surveillance instrumentalities on and around private residences or businesses in an intrusive way – or using proxies to do so -- that would serve as the functional equivalent of military quartering in the civil community.

The Third Amendment states:

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

I blogged a while back about another article that attempted to apply the Third Amendment to the government's digital actions. That article was Alan Butler's, When Cyberweapons End Up on Private Networks: Third Amendment Implications for Cybersecurity Policy, 62 Am. U. L. Rev.. 1203 (2013).

In my post on Butler's paper, and in my following post questioning whether law journals should publish scholarship on the Third Amendment, I was very critical about attempts to apply the Third Amendment to the digital world because of the Third Amendment's specific terminology of "soldier," "quartered," and "house."  I am of the opinion that attempts to apply the Third Amendment to digital surveillance stretches the meaning of the amendment far beyond what its text allows.

After reading Friedland's paper, I am confident that all of my criticism of Butler's paper applies to Friedland's attempt to apply the Third Amendment to the NSA's surveillance practices.  I think that Friedland's notably shorter paper makes even less of an effort to justify the overly broad interpretations of the Third Amendment than Butler's article.  And Butler's article was at least innovative in applying the Third Amendment to the government's digital actions -- Friedland's paper is not, because it is entirely pre-empted by Butler's article-- something that Friedland seems to belatedly acknowledge in his penultimate footnote:

A recent commentator has provided the Amendment with a similar construction. See Alan Butler, When Cyberweapons End Up on Private Networks: Third Amendment Implications for Cybersecurity Policy, 62 AM. U. L. REV. 1203 (2013).

The only novel contribution Friedland's paper seems to make is to note that Butler's arguments may apply to NSA practices that have been leaked since Butler's article was published.  If this paper is sent out for publication, I hope that articles editors pay attention to the footnotes, and note that Friedland's (questionable) argument has already been made in much more depth.

NSA Reportedly Infiltrated World of Warcraft and Second Life

I am a bit late to the game on this story, but my conflict of laws exam on Wednesday was a bigger priority for me.  But now that the exam is out of the way, I thought I would make a few remarks on points that I have not yet heard emphasized in the coverage I have read.

Earlier this week, a trio of news outlets broke the story that agents from the CIA, FBI, the Pentagon, and Great Britain had "infiltrated" the worlds of World of Warcraft and Second Life in an effort to gather intelligence on possible security threats.  The Guardian retrieved leaked NSA documents on this program from Edward Snowden, and shared these documents with ProPublica and the New York Times.  All of these outlets have reported on the story, and the names of each of the outlets link to their coverage.

The Times reports:

Fearing that terrorist or criminal networks could use the games to communicate secretly, move money or plot attacks, the documents show, intelligence operatives have entered terrain populated by digital avatars that include elves, gnomes and supermodels. 

The spies have created make-believe characters to snoop and to try to recruit informers, while also collecting data and contents of communications between players, according to the documents, disclosed by the former National Security Agency contractor Edward J. Snowden. Because militants often rely on features common to video games — fake identities, voice and text chats, a way to conduct financial transactions — American and British intelligence agencies worried that they might be operating there, according to the papers.

I posted earlier about why I thought that online information can generally be collected without Fourth Amendment problems.  The opinions I voiced in that post apply to the tactics the agents used here, although the characteristics of the fantasy worlds infiltrated in this case raise a few more interesting, and amusing, Fourth Amendment questions.

Upon reading this story, my first thought was whether government agents could "seize" an individual in an online game like World of Warcraft, or if every encounter in the game would be a consensual encounter.  In the real world, police are permitted to ask people various questions, such as their names and whether people are concealing contraband, without implicating the Fourth Amendment.  These are "consensual encounters" -- interactions where the individuals being asked questions by the officers feel reasonably free to terminate the encounter.  These consensual encounters may escalate to a "stop" or a full on arrest -- with the stop requiring reasonable suspicion that the suspect has committed a crime, and the arrest requiring the officer to have probable cause that the suspect has committed a crime.

Could a government agent "stop" another player in World of Warcraft or Second Life?  The players are not physically present next to one another, so the player would not have to worry about the agent following the player or using physical force on the player.  The government agent may tell a player that the agent is, in fact, working for the government and that failure to cooperate or terminating the encounter will result in legal repercussions.  While this might typically constitute a stop, or a full seizure, the online environment in which the encounter is taking place may lead the player to think that the agent is just another player who is lying, so the question of whether that player would feel reasonably able to terminate the encounter is a bit more complicated than an encounter that occurs in the real world.

Also, scholars like Devon Carbado have raised concerns that police tend to focus on racial minorities such as blacks and Latinos, and that this over-focus of law enforcement on racial minorities has led to the main Supreme Court cases that allow police to carry out consensual encounters (see, e.g., this excerpt from Carbado's (e)Racing the Fourth Amendment, 100 Mich. L. Rev. 946 (2002)).  Would an over-focus on specific groups in fantasy world encounters raise equal protection concerns?

Police officers' subjective intents in conducting consensual encounters are typically not relevant to whether any seizure is reasonable because courts have held that no seizure takes place in a consensual encounter.  This means that if agents' encounters in the World of Warcraft focus specifically on, say, Orcs (or, in the most recent version of the game, Pandas), there will not be any equal protection concerns (at least, none that the law would recognize).

The government may be right to infiltrate the World of Warcraft.  While the previously-mentioned reports note that the government has not found any terrorists as a result of this approach, it is good to know that the government has an eye on the fantasy world as well as the real world.  Terrorism and tragedies occur in fantasy worlds -- it has been just over a year since hackers figured out a way to kill players' characters and characters in the game and used this exploit to massacre entire virtual cities.

Lots of people are reacting smugly about the NSA's concern with these games.  But as somebody who has seen the harrowing photos of the skeleton-filled streets of Orgrimmar, I am happy that our virtual worlds are going to be a lot safer.

Rumblings About Klass and Zeiler's Critique of the Endowment Effect

The UCLA Law Review recently published its first issue of Volume 61, which contains an article by Gregory Klass and Kathryn Zeiler entitled, Against Endowment Theory: Experimental Economics and Legal Scholarship.  Here is the abstract:

Endowment theory holds the mere ownership of a thing causes people to assign greater value to it than they otherwise would. The theory entered legal scholarship in the early 1990s and quickly eclipsed other accounts of how ownership affects valuation.  Today, one finds appeals to a generic “endowment effect” throughout the legal literature. Recent experimental results, however, suggest that the empirical evidence for endowment theory is weak at best. When the procedures used in laboratory experiments are altered to rule out alternative explanations, the “endowment effect” disappears. This and other recent evidence suggest that mere ownership does not affect willingness to trade or exchange. Many experimental economists no longer ascribe to endowment theory. Legal scholars, however, continue to rely on endowment theory to predict legal entitlements’ probable effects on expressed valuations. That reliance is no longer warranted. Endowment theory’s influence in legal scholarship provides important lessons about how legal scholars and policymakers should, and should not, use results from experimental economics.

Miriam Baer of PrawfsBlawg points out that the article "encapsulates quite succinctly the problems with relying on behavioral theories that have been successfully challenged or revised since their first introduction to legal scholars."  The Economist covers the earlier experiments by Charles Plott and Kathryn Zeiler that led to the conclusions discussed in the UCLA Law Review article.

In the PrawfsBlawg comments, Matt Bodie contends that the endowment theory has not been disproven and that Zeiler has a "conflict of interest" in speaking about social science research because she is one of the co-authors of the studies that the Klass and Zeiler article cites as disproving the endowment effect.

While it is difficult to know exactly what goes on in the minds of articles editors (I should know, since I am one -- and for the UCLA Law Review, no less!) I suspect that the articles editors of the UCLA Law Review were aware of Zeiler's co-authorship of the previous research, and did not find that a "conflict of interest" existed when she was stating a conclusion supported by previous studies that she had done.  Baer responds to Bodie's comment by pointing out that Zeiler is a law professor, and that it makes sense for her to re-iterate her social science findings in the context of legal scholarship.

I think that Baer makes a good point, and I will speculate that the UCLA Law Review's articles editors likely had the same consideration in mind.  They probably also thought that Klass and Zeiler's discussion of the endowment effect made a larger point about the danger of legal scholarship's tendency to miss developments in other disciplines -- and that these developments might have a substantial impact on foundational assumptions of legal theories.

For more criticism of Klass and Zeiler's argument, see Russell Korobkin's chapter, Wrestling with the Endowment Effect, or How to Do Law and Economics Without the Coase Theorem, which will appear in the Oxford Handbook of Behavioral Economics and the Law.

An Exciting Discovered "Opinion" on the Eventual Triumph of Arbitration

Adam Steinman posts at the Civil Procedure and Federal Courts Blog about this paper by Charles Sullivan and Timothy Glynn, The FAA Triumphal: A Modest Opinion.

The paper begins on a dramatic note:

The opinion reproduced below was delivered to us anonymously, with a cover note stating that it had been found on a photocopy machine in the Supreme Court of the United States.  Efforts to identify the source of the note have been unsuccessful; further, we have been unable to confirm that a case denominated Pasquinade v. Quillet Enterprises, Inc., was ever filed in that Court or in any other federal court.

The rest of the paper consists of the Pasquinade opinion, the beginning of which indicates that exciting things are to follow:

We hold both that the failure to refer to arbitration in haec verba does not bar a finding of an agreement to arbitrate under the Federal Arbitration Act, and that arbitration is so much the preferred method of dispute resolution under the FAA that, for all contracts within its ambit, arbitration should be presumptively the sole method of resolving disputes that arise under that contract. Only when the parties have expressly and unmistakably negated arbitration, and insisted on judicial resolution, should a court refuse to order arbitration.

I recommend that you read the entire opinion.  For example, take this passage from the beginning of the opinion:

The dissent’s position that this matter is not an “important question of federal law” is truly jawdropping.  After all, with only mild hyperbole, our decision today will oust both federal and state courts of jurisdiction to decide almost all contract claims. What could be more important?

Another Brief from the UCLA Amicus Brief Clinic Filed

The second amicus brief I worked on with the UCLA amicus brief clinic has just been filed in the Ninth Circuit.  The case is Oyama v. University of Hawaii and the brief was filed on behalf of the Foundation for Individual Rights in Education (FIRE) and the Student Press Law Center (SPLC).  Eugene Volokh posts about the filing here, and a pdf version of the brief is available here.  Volokh also directs readers to FIRE's post on the brief here, and the SPLC's post here.  Here is the summary of argument from the brief:

The University of Hawaii dismissed Oyama from its teaching credential program, in part because “the views [he had] expressed regarding students with disabilities and the appropriateness of sexual relations with minors were deemed not in alignment with standards set by the Hawaii Department of Education” and other entities. Oyama v. Univ. of Hawaii, 2013 WL 1767710, *13 (D. Haw. April 23, 2013). Oyama was never accused or even suspected of any sort of sexual misconduct or disability discrimination. He never stated he would engage in any such misconduct or discrimination. Yet he was dismissed from a public university program partly because of his “views,” and his “unwillingness to change his views.” Id. 

If the district court’s decision is affirmed, universities will be similarly empowered to dismiss students from a wide range of programs for holding views that the administration dislikes or otherwise sees as “not in alignment with standards set by” the government or the administrators. All that administrators would have to do is frame their speech restrictions under the guise of upholding “standards” for the student’s prospective profession or course of study. 

University speech codes, though struck down by many court decisions in recent decades, could thus be revived, and, indeed, made much broader. After all, the rationale below is not limited to, for instance, speech that is “so severe, pervasive, and objectively offensive” that it “rises to the level of actionable ‘harassment’” (“harassment” being a common test in recent campus speech codes). [Footnote: Davis ex rel. LaShonda D. v. Monroe County Bd. of Educ., 526 U.S. 629, 651-52 (1999).] Rather, as this case shows, the rationale could easily apply to normal, reasoned, substantive discussion of contested policy issues. Students who value their prospective future degrees will know to simply shut up when it comes to views that the administration, faculty, or professional licensing bodies consider unsuitable. 

This would be the very sort of viewpoint discrimination that the Supreme Court has roundly condemned, and it would cast the “pall of orthodoxy” that the Court has said the First Amendment precludes. The decision below should therefore be reversed, and Oyama’s termination should be reevaluated without regard to his “views,” his views’ lack of “alignment” with orthodox views, or his unwillingness to change his views.

Florida Court of Appeal Rules That Universities Cannot Prohibit Guns in Cars on Campus

From the court of appeal's en banc majority opinion in Florida Carry, Inc. v. University of North Florida:

At issue in this case is whether a state university may prohibit the carrying of a securely encased firearm within a motor vehicle that is parked in a university campus parking lot. We hold that the legislature has not delegated its authority under the Florida Constitution to regulate the manner of bearing arms to the state universities and reverse the orders on appeal.  

. . .  

UNF maintained that the regulation was authorized under section 790.115(2)(a)3., Florida Statutes (2011), which provides that firearms may not be possessed on school property except when securely encased in a vehicle, but that “school districts” may adopt policies to waive the secure encasement exception. The appellants countered that UNF was not a “school district;” therefore, it was not authorized to waive the exception and prohibit firearms in vehicles on its campus.  

After hearings on the motions, the trial court denied the appellants’ motion for temporary injunction and granted the appellees’ motion to dismiss. The trial court reasoned that applying the appellants’ definition of “school district” to section 790.115 would permit only public schools to regulate firearms on their property and frustrate the clearly expressed intent of the legislature to cover all schools as the term “school” was broadly defined in section 790.115(2)(a). 

The case turns on the distinction between the terms "school" and "school district."  While "school" is defined broadly in the statute, "school district" is a narrower term.  The court noted that "school district" is a term in the Florida state constitution, and that the constitution specifies that "school districts" are public schools governed by school boards -- and separate from the state university system.

Based on the last paper that I read on the subject, 19 states give universities the discretion to ban firearms on their campuses, and nearly all universities elect to do so.  Here, it looks like the Florida state legislature never purported to grant full discretion to universities -- the state statute banned firearms on school property, but had an exception for firearms kept in vehicles, and the question was whether Florida universities could enact policies holding that this exception would not apply to their campuses.  Under this ruling, the power to determine that the vehicle exception does not apply to school property is reserved only for school districts, and not state universities.

(H/T Howard Bashman - How Appealing)

500 Writers Call for Limits on Surveillance

The petition appears here in The Guardian.  It begins:

In recent months, the extent of mass surveillance has become common knowledge. With a few clicks of the mouse the state can access your mobile device, your email, your social networking and internet searches. It can follow your political leanings and activities and, in partnership with internet corporations, it collects and stores your data, and thus can predict your consumption and behaviour.

One thing I am not entirely clear on is whether the petition here would apply to the government only, or also to private actors like advertisers.  This opening paragraph addresses corporations, but only insofar as they cooperate with the government's surveillance practices.  The rest of the petition mentions corporations several times, but it is always part of the conjunction, "States and corporations" making it unclear whether the petition applies to corporations as well as states, or to corporations only when they are participating with states.

Advertising corporations have come under some fire for their in-depth tracking of personal information for purposes of targeting advertisements.  And many websites sell information on their users to advertisers in order to obtain revenue.  Privacy advocates tend to criticize overbroad private information gathering in addition to information gathering by the government, and the petition strikes me as vague regarding its position on collection of user information for private gain.

There may be some clarification in the portion of the petition that I find most interesting.  It reads:

* Surveillance is theft. This data is not public property: it belongs to us. When it is used to predict our behaviour, we are robbed of something else: the principle of free will crucial to democratic liberty. 

WE DEMAND THE RIGHT for all people to determine, as democratic citizens, to what extent their personal data may be legally collected, stored and processed, and by whom; to obtain information on where their data is stored and how it is being used; to obtain the deletion of their data if it has been illegally collected and stored.

If personal data is personal property, then there would be problems if private websites took that information and used it for their profit without their users' knowledge or consent.  Websites may argue that users agree to this through their acceptance of website terms of service, but users often protest that people who visit websites don't read the terms of service, and often are not aware that those terms even exist.

I find this portion of the petition because it is broaching the subject of online profiles as personal property, which is a subject I am exploring in one of my current projects and which I mention here in the context of Fourth Amendment standing.  I am particularly interested in whether there is a trend towards online profiles being viewed as personal property, and that is something I will likely blog about after my exam tomorrow.

California Arrest for Running a Revenge Pornography Website

From the website of the California Attorney General:

Attorney General Kamala D. Harris today announced the arrest of the alleged owner and operator of a revenge porn website who facilitated the posting of more than 10,000 sexually explicit photos and extorted victims for as much as $350 each to remove the illicit content. 

. . . 

Court documents allege that, in December 2012, [Kevin Christopher] Bollaert created the website ugotposted.com, which allows the anonymous, public posting of private photographs containing nude and explicit images of individuals without their permission. Commonly knows as revenge porn, the photos are typically obtained consensually by the poster during a prior relationship or are stolen or hacked. Unlike many other revenge porn websites where the subject of the photos is anonymous, ugotposted.com required that the poster include the subject’s full name, location, age and facebook profile link. 

California Penal Code sections 530.5 and 653m (b) make it illegal to willfully obtain someone’s personal identifying information, including name, age and address, for any unlawful purpose, including with the intent to annoy or harass.

A pdf of the complaint is available here.  For more background and various perspectives on the push to criminalize revenge pornography, see this article from the New York Times.  I found Eugene Volokh's point in that article that laws criminalizing this type of content would not violate the First Amendment because the law typically prohibits invasions of privacy without any constitutional problems.

Dog on Death Row in Australia Gets Temporary Reprieve

The Age reports:

The owner of a dog held on death row for more than a year has won a Supreme Court appeal which could save the animal's life.

Kerser was 10 months old when he was seized by Monash Council officers in December last year after being identified as an unregistered American pit bull, a restricted breed dog banned under dangerous dog laws, and was scheduled to be put down.

Under the Dangerous Animals Act 2004, a "restricted breed dog" is one of five specified breeds including "American pit bull terrier (or pit bull terrier)".
. . .

In June, the council gave Kerser a last-minute reprieve when Ms Applebee indicated that she would appeal her dog's case to the Supreme Court's common law division, judicial review and appeals list.

The case was heard before Justice Michael Croucher who then overturned the decision by Supreme Court associate judge Rita Zammit not to allow Ms Applebee to appeal the tribunal's original finding.

In his judgment handed down on Tuesday, Justice Croucher said Kerser had been seized by council officers on December 4 last year. The council gave notice to Ms Applebee a week later that Kerser had been declared an American pit bull terrier and had to be destroyed.

He said Justice Zammit erred in saying there were no grounds for appeal because the deputy president of the tribunal had decided Kerser was an American pit bull on the basis of "an overall impression" after viewing the dog.

The article goes through some of the details of Croucher's decision, noting that a general impression of the dog fell short because it did not involve "precise measurements."  Meanwhile, the Monash City Council, steamed at its legal costs, is calling for reform in dog laws, describing the existing laws as "sloppy and unworkable."  One proposed fix will put the burden of proof on the dog owner to show that the dog is not a restricted dog breed, and will limit the time for the owner to appeal a ruling that the dog is of an illegal breed.

The Third Party Doctrine, Promises not to Disclose, and Standing to Challenge Digital Searches

In this post, I am asking two questions that have been inspired by some research I have been doing into privacy concerns in the digital world.  This post is partially inspired by a report from the Electronic Frontier Foundation regarding websites' policies for disclosure of private information to the government (the full text of the report is available here).  Moreover, I recently finished the first draft of a paper that addresses issues of online surveillance and its Fourth Amendment implications.  I hope to have finalized for the next law journal submissions cycle, but there are a couple of unanswered questions that I have not yet included in the paper that I thought I would mention here.

The first question: does the third party doctrine apply if the third party promises that information will be kept secret?

Under the third party doctrine, if somebody knowingly submits information to a third party, then the person submitting the information no longer has a reasonable expectation that the information will remain private.  A typical justification for this is that the person submitting the information accepts the risk that the third party will disclose that information to the police.

I am inclined to say that the information can still be obtained by the government without a warrant, and the person who submitted that information will be barred from raising a Fourth Amendment claim by the third party doctrine.  Even if you give information to a third party who promises that the information will remain secret, that third party can back out on his or her word.

My intuition here arises from the third party doctrine's origins in organized crime cases, where the Court held that statements to informants who were in defendants' homes or rooms without warrants were admissible.  The defendants who made statements to the informants assumed the risk that the informants would disclose that information to the police.  This held true in organized crime situations where snitching to the police would be a surefire way to get killed.  It seems, in these cases, that the informant had implicitly agreed to keep silent -- with the penalty for disclosure being death.

This seems to relate to websites' claims of security in an environment of government surveillance.  Several websites pride themselves in being beacons of privacy because they only allow the government to access their information with a warrant and go through other procedural steps before user information is released.

But if the government were to obtain this information without a warrant -- or to take an extreme case -- if the government were to hack into the website without the website's knowledge and collect user information directly, I am not sure if the website's users would be able to make a successful Fourth Amendment argument against this tactic.  After all, the users have given their information over to a third party, who may have ended up giving away that information.  Despite the website's contract not to do so, the website could choose to violate this contract.  And even though the website did not voluntarily give up this information, that does not change the fact that the individuals had no expectation of privacy in that information to begin with by giving it away to the website.

While a lot of discussion about the Fourth Amendment in a digital context begin and end with the third party doctrine, I think that a dimension that has been under-addressed is the issue of standing.


This leads me to my second question: how do questions of Fourth Amendment standing apply to situations where the government obtains personal information from websites by getting this information without a warrant and without the permission of the website?