Illinois Supreme Court Rejects First Amendment Challenge to "Revenge Porn" Restriction

In Illinois v. Austin, the Illinois Supreme Court addressed a challenge to the State's prohibition on the non-consensual dissemination of private sexual images (also known as "revenge porn"). The law at issue, 720 ILCS 5/11-23.5(b), states:

A person commits non-consensual dissemination of private sexual images when he or she:
(1) intentionally disseminates an image of another person:
(A) who is at least 18 years of age; and
(B) who is identifiable from the image itself or information displayed in connection with the image; and
(C) who is engaged in a sexual act or whose intimate parts are exposed, in whole or in part; and
(2) obtains the image under circumstances in which a reasonable person would know or understand that the image was to remain private; and
(3) knows or should have known that the person in the image has not consented to the dissemination.

The Court's opinion has resulted in criticism from some commentators, and praise from others. While some of the criticism is correct, the Austin Court's recognition that the Illinois law targeted lesser-protected speech and therefore warranted an intermediate level of scrutiny appears to be a correct basis for its conclusion. Critics of the Austin opinion have failed to fully recognize this aspect of the decision by either mischaracterizing it or downplaying its basis in Supreme Court precedent. 

I. Summary of the Opinion

In Austin, the defendant and her fiancé shared an iCloud account, which meant that all text messages that the fiancé sent or received were visible on the defendant's iPad. ¶3. The fiancé and a neighbor exchanged several text messages, some of which included nude photographs of the neighbor. ¶4. The defendant and her fiancé then cancelled their wedding plans and broke up. The fiancé began telling people that the relationship ended because the defendant "was crazy and no longer cooked or did household chores." ¶5. The defendant, in turn, wrote a letter that included several nude photos of the neighbor and sent this letter to the fiancé's cousin. ¶6. The fiancé called the police, who interviewed the neighbor. The neighbor told them that while she was aware that the fiance and the defendant shared an iCloud account, she thought the account had been deactivated when she sent the nude photos and had intended that only the fiancé see the photos. ¶7.

The defendant was charged with one count of non consensual dissemination of private sexual images and moved to dismiss the charge, arguing that the statute was a content-based restriction on speech that violated the First Amendment. The lower court agreed with the defendant and held that the law was unconstitutional on its face. ¶10.

The Illinois Supreme Court disagreed with the lower court and held that the statute did not violate the First Amendment. The Court first stated that it rejected the State's request that it recognize that the dissemination of private sexual images as an unprotected category of speech.  ¶¶33-36. While some categories of speech, such as incitement, obscenity, defamation, and fighting words are recognized as falling outside of the category of protected speech, the Court stated that it would not add the dissemination of private sexual images to this list absent the Supreme Court addressing the issue.

While the Court refused to recognize the speech as entirely unprotected, it ended up reaching the significant conclusion that the dissemination of private sexual images was subject to a lesser amount of protection than other speech. The Court recognized that content-based restrictions on speech typically require court's to apply strict scrutiny to the restriction, which, in First Amendment cases, almost always results in the restriction being overturned. Here, however, the Court held that only an intermediate level of scrutiny was required, which meant that the law needed to serve "an important or substantial government interest unrelated to the suppression of free speech" and that the law "not burden substantially more speech than necessary to further that interest."  ¶59.

The Court advanced two justifications for its use of intermediate scrutiny. First, the Court claimed that the restriction was not a content-based restriction. While acknowledging that the law only applied to the dissemination of sexual images, the Court noted that the dissemination of this content was only unlawful if it was done so in a situation where the person sharing the content obtains the image under circumstances where a reasonable person knows or should know that the image is to remain private and that the person has not consented to the image's dissemination. The Court therefore concluded that the illegality of the dissemination was not premised on the content of the image, but rather on the manner of the dissemination. The law was therefore a time, place, or manner restriction, which warrants only intermediate scrutiny.  ¶49.

Separately, the Court noted that the law only restricted the dissemination of information that is of purely private concern.  The Austin Court noted that the Supreme Court in Snyder v. Phelps and Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. has recognized that restrictions on speech involving "purely private" matters does not threaten "free and robuse debate of public issues" and is less likely to "pose the risk of 'a reaction of self-censorship' on matters of public import." ¶54. The Court concluded that the defendant's sharing of sexual images did not involve an issue of public concern as they were privately-sent sexual images that did not "relate to any broad issue of interest to society at large." ¶56. The restriction on the dissemination of these issues therefore warranted intermediate, rather than strict, scrutiny.

The Court concluded that the restriction survived intermediate scrutiny, noting that it served a substantial government interest of protecting individual privacy rights and acknowledging that the dissemination of private sexual images causes "unique and significant harm to victims in several respects." ¶66. The Court then concluded that the restriction was tailored narrowly enough to survive a First Amendment challenge, as it defined what body parts or activities needed to be included in the prohibited images, required that the person in the image be identifiable from the image or information displayed with the image, required that the image be obtained under circumstances where a reasonable person would know or understand that it was to remain private, required that the person disseminating the image know that there was no consent to share the image, and also required that the person disseminating the images do so intentionally. ¶¶79-83. The law also included exemptions to the prohibition that included the dissemination of images for purposes of reporting a crime or for a "lawful public purpose."

II. The Court's First, Mistaken Rationale for Applying Intermediate Scrutiny

The Austin Court's first basis for concluding that the Illinois law was not subject to strict scrutiny was that it was a "time, place, or manner" restriction, rather than a content-based restriction on speech. The Court got to this conclusion by stating that the illegality of the dissemination of the sexual images is premised on the manner of how the images are shared. While sharing sexual images with the consent of the person pictured or in circumstances where the image was not expected to be private is permissible, doing so when there is no consent or where a reasonable person would recognize that the image was intended to remain private is prohibited. 

While this is correct, the fact remains that the illegality of sharing the sexual image is also premised on the content of the image. The law is a time, place, and manner restriction on speech, but it also only applies to certain content. Mark Bennett correctly notes that when restrictions have "both content-based and content-neutral elements," they are content-based restrictions that are subject to strict scrutiny. He cites R.A.V. v. City of St. Paul, where the Court addressed a law that prohibited "fighting words" that "insult[ed] or provok[ed] violence on the basis of race, color, creed, religion or gender." R.A.V., at p. 391. While fighting words are an unprotected category of speech, the Supreme Court held that it was unconstitutional to prohibited a content-based subset of that category. Id. at pp. 392, 396.

The approach used in R.A.V. undermines the Austin Court's reasoning. While some elements of the law involve the manner in which sexual images are shared, the law only applies to the sharing of sexual images or images of sexual content -- which is a content-based limitation. The law therefore is content-based, and the Court's attempt to sidestep this is a mistake.

III. The Second Rationale: Lesser Protection for Speech of Purely Private Matters

While the Austin Court's analysis on time, place, or manner restrictions is incorrect, it gave a second, stronger basis for its use of intermediate scrutiny by concluding that the speech at issue was "purely private" speech that was subject to a lower level of scrutiny.

In Dun & Bradstreet, the U.S. Supreme Court upheld a lower court's ruling affirming a jury's award of punitive damages after the defendant credit reporting agency shared a credit report for the plaintiff construction contractor that included false information. Dun & Bradstreet, at pp. 752-53. The Supreme Court noted that while it had previously recognized strong protections for speech on matters of public concern, speech of "purely private concern" warrants "less stringent" protection under the First Amendment. Id. at p. 760. The Court concluded that the credit report was speech of purely private concern, as it was made "solely in the individual interest of the speaker and its specific business audience." Id. at 762. The Court therefore held that permitting recovery of presumed and punitive damages was permitted, even absent a showing of actual malice.  Id. at 762.

The Austin Court uses Dun & Bradstreet and similar language from Snyder v. Phelps to support its conclusion that laws against disseminating private, sexual content are subject to intermediate scrutiny. Scott Greenfield criticizes this move by referring to "purely private speech" as a "non-category category" and accuses the Austin Court of relying solely on dicta from Snyder.  While this criticism is warranted to the extent that Snyder's invocation of lesser protection for purely private speech is dicta, it overlooks the basis for this doctrine in Dun & Bradstreet, which applied that lesser level of protection in upholding presumptive and punitive damages in a defamation case. Admittedly, the context of Dun & Bradstreet was different--as the Supreme Court was not evaluating the constitutionality of a criminal law restricting speech. But the rule set forth in Dun & Bradstreet was broad, and the Court applied that rule favorably in upholding an award of damages in a defamation case. It is neither surprising nor incorrect for a state court to apply this broadly-stated rule to a different set of circumstances, particularly one involving a law that requires the disseminated content to have been initially shared or kept in private circumstances. 

Bennett's criticism is less substantive, as he claims that the Austin Court identifies "speech on purely private matters" as a category of speech that is not subject to the same protection as other speech and that the Supreme Court has never recognized such a category. This misses the mark, as the Supreme Court in both Snyder and Dun & Bradstreet has recognized that speech on matters of purely private concern warrants a lesser level of First Amendment protection. It may not be a category of unprotected speech like defamation, fighting words, or obscenity, but as the Austin opinion demonstrates, the Supreme Court's First Amendment doctrine recognizes that purely private speech is subject to lesser protection, and this reasoning is certain to appear in future cases that involve similar laws against revenge porn. 

Bennett raised this same criticism back in 2014 when Danielle Citron set out proposed language for revenge porn restrictions. At that time, I argued that Bennett's critique of Citron's proposed law was misguided, as it ignored Supreme Court case law on lesser-protected speech of purely private concerns. Bennett dismissed that argument, claiming that the Supreme Court had not considered the "purely private concern" issues in recent cases involving First Amendment challenges to criminal statutes. In light of Austin, it seems that simply dismissing this aspect of First Amendment law is an unwise approach for those who wish to argue that revenge porn laws are unconstitutional. It is also unsurprising that Courts would look to this area of First Amendment law, as revenge porn prohibitions are often drafted to apply only to sexual images and content taken in a private setting and shared in a context where there is an expectation that the images will remain private. (For much more on how technology facilitates invasions of privacy and proposals to address these issues through legal and market efforts, see Citron's article, Sexual Privacy).

As the Cyber Civil Rights Initiative notes, the Illinois law is one of the strongest laws against non-consensual sharing of sexual imagery to survive a First Amendment challenge. Other states are likely to use the reasoning from this case in addressing challenges to their own laws. As other courts address these challenges, they will hopefully use the correct components of Austin's reasoning on lesser-protected speech rather than perpetuate the incorrect analysis on time, place, or manner restrictions.

UPDATE - 10/23/2019

In a measured response here, Bennett takes me to task for not reading extensive briefing that he filed in a separate case in Texas. His post on the Austin case was, after all, simply a "copy-and-paste" version of a brief he filed in the Texas case. My failure to review the briefing on that separate case--which was neither linked to nor referenced in his post on Austin--apparently "annoyed" him.

Bennett's brief from the Texas case, Ex Parte Jones, is included in his response. A link to the Court of Criminal Appeals page for that case where all the briefs can be downloaded is here. I have looked over the brief in Bennett's response and, to his credit, it addresses the private speech issue in far more detail than his original post. Heck, I might even write a separate post in response to those arguments one of these days now that it has been brought to my attention.

Fish, the Fourth Amendment, and the Scope of Consent

It's always a pleasant surprise to see legal disputes that involve fish for nonsensical reasons, particularly fish-related disputes that may be heard by the United States Supreme Court. Cases involving salmon are of particular interest (see, e.g. here and here). 

I was therefore thrilled to see this report by James Gill of the New Orleans Advocate on the case of Jacson Moore, who thought he could successfully smuggle marijuana inside of frozen salmon. Moore thought wrong:

Baton Rouge police were staking out the UPS depot in Port Allen in 2012 when they noticed a package from Oakland, California, which is evidently the source of many illegal drug shipments. The package was addressed to Moore, who has a police record that would heighten suspicions that drugs were inside. 

The police department, of course, has sniffer dogs that could have settled the issue, but K-9 was not called in. Neither was a search warrant applied for. The cops just kept tabs.
Moore retrieved the package from his doorstep, re-emerging a little later with a Styrofoam container he put in the trunk of his car. He then drove off on an erratic path that indicated he was “heat checking” — trying to make sure the cops weren't on his tail. But they were, and, after 15 zigzagging minutes, he was pulled over. 

A rule of thumb might be that an offender with contraband in his car is best advised not to consent to a search, but Moore did so after being told that the police who stopped him were investigating an armed robbery. He evidently figured that nobody seeking the fruits of a heist would look twice at a few frozen members of the finny tribe. 

When the cops did, he said the fish were a present from his aunt. Officers cut them open and found the dope. Moore also gave them permission to search his apartment, where they found more cannabis and a gun.

Moore argued that the search was unconstitutional, and while the trial court agreed, its decision was overturned on appeal. The Louisiana Supreme Court declined to hear the case although Justice Crichton and Justice Weimar dissented. Joe Gyan Jr. of The Advocate reports that Moore is now trying to appeal to the United States Supreme Court:

In a legal brief filed at the Supreme Court, Messina claims the officers did not have probable cause to believe contraband was in the car, and he says Moore's consent to search the car was not freely and voluntarily given because officers lied about investigating a robbery. 

Messina acknowledges that officers can use deception during interrogations, but he stresses that such interrogations must be preceded by police informing the suspect of certain constitutional rights, such as the right to remain silent. 

"There is a distinction between misleading a defendant once he has relinquished a Constitutional right versus misleading a defendant in order to cause him to relinquish a Constitutional right," he argues in the Supreme Court documents.

There had better be a bit more to Messina's argument, since police can lie in order to gain consent for searches or entry onto property. No less a Fourth Amendment stickler than Justice Warren held that officers can lie about their identity to gain access to property in order to find evidence of drugs.

This is not to say that officers' ability to deceive is unlimited, nor is it to say that Moore does not have a decent Fourth Amendment argument. Indeed, the officers' lie about what they were searching for (evidence of an armed robbery), and the scope of their ultimate search raises significant constitutional concerns. But this case is not so much one of deceit as it is a test of the scope of consent in the Fourth Amendment context.

Police officers can ask for consent to search a suspect's home, vehicle, or person. If officers obtain consent to conduct a search, incriminating evidence that they discover can be admitted at trial. There are limits to the consent exception to Fourth Amendment protection. For one, the consent must be voluntary. Additionally, officers cannot exceed the scope of the authority they are granted by the subject's consent. As Justice Stevens wrote in Walter v. United States:

When an official search is properly authorized—whether by consent or by the issuance of a valid warrant—the scope of the search is limited by the terms of its authorization. Consent to search a garage would not implicitly authorize a search of an adjoining house; a warrant to search for a stolen refrigerator would not authorize the opening of desk drawers.

Moore consenting to a search of his vehicle puts him in a tough position, as the Court held in Florida v. Jimeno that giving officers consent to search a vehicle permits officers to search containers within the body of the car. A search of the trunk is a bit more complicated, though. From the Jimeno decision:

The facts of this case are therefore different from those in State v. Wells, supra, on which the Supreme Court of Florida relied in affirming the supression order in this case. There the Supreme Court of Florida held that consent to search the trunk of a car did not include authorization to pry open a locked briefcase found inside the trunk. It is very likely unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk, but it is otherwise with respect to a closed paper bag.

So under Fourth Amendment law officers can search a closed paper bag in a trunk, but (as the Court noted in some very strong dicta) not a locked briefcase in the trunk. What about the interior of vacuum sealed salmon that are inside a Styrofoam container in the trunk of a car?

The fish in Moore's case are far more analogous to a closed, locked container than a closed paper bag. Officers had to open a Styrofoam container, cut through vacuum sealed wrapping, and open up the fish before they found the drugs. Moore therefore has a strong argument that the officers went beyond the scope permitted by his consent to a search of the vehicle when they searched the fish in the trunk.

Moore's argument is strengthened by the fact that the officers said that they were looking for evidence of an armed robbery when they obtained Moore's consent. In granting the officers consent to search his vehicle for evidence of an armed robbery, Moore likely did not expect that officers would extend their search to the interiors of vacuum sealed fish in the trunk of his car, and has a strong argument that the officers' search went beyond the scope of the consent he granted.

Based on the facts that have been reported, the ideal outcome would be for the United States Supreme Court to grant certiorari and reverse the Louisiana Court of Appeals' decision. Based on the percentage of cases that the Supreme Court agrees to hear, however, I think that such an outcome is unlikely. Accordingly, Moore is most likely out of luck.

As a final note, while this post may be a bit last-minute for law students this semester, this case is a fantastic basis for a criminal procedure exam. Students studying for exams now (and next semester) should take note of this case and the many issues it raises. There may just be a few professors out there who think that this story would make a solid issue-spotter.

Forget Stop-and-Frisk: The Trump Supreme Court's True Threat to Fourth Amendment Protections

When discussing the Fourth Amendment under Trump's upcoming presidency, commentators tend to remain fixated on Trump's remarks in which he calls for a universal stop-and-frisk program. (See, e.g., coverage here and here). I have already blogged that Trump's apparent proposal for a national stop-and-frisk program would be unconstitutional and it is unclear how Trump would implement such a program. Indeed, to do so would almost certainly require the commandeering of state authorities, which would violate the Tenth Amendment -- which Trump vowed to protect in a statement released earlier today.

If Trump appoints judges who adopt Justice Scalia's approach to the Fourth Amendment, this will likely lead to lower Fourth Amendment protections through limits on the exclusionary rule. The Roberts Court has steadily eroded this rule, which prohibits the introduction of evidence that is discovered as a result of a Fourth Amendment violation. Scalia was a notable opponent of the rule, and commentators noted that his death and eventual replacement could represent a possible turning point for the exclusionary rule.

Indeed, even without Justice Scalia, the Court in Utah v. Strieff held 5-3 that an officer's admittedly wrongful detention of a suspect did not warrant the exclusion of evidence discovered after the officer called in the suspect's name and found that there an outstanding warrant for the suspect. The Court held that the search incident to the arrest on the warrant was far enough attenuated from the initial, wrongful stop that the drugs found on the defendant's person were admissible.

If Trump appoints Justices like Justice Scalia who are hostile to the exclusionary rule, I expect that Strieff's logic will soon be extended to other common law enforcement scenarios. For instance, a Court with Trump appointees would likely uphold as constitutional a search in a case in which an officer stops a suspect in a "high drug area" without any other basis for suspicion, calls in the suspect's identity, finds an outstanding warrant, and discovers drugs during a search incident to arrest on the warrant.

Evidence of flagrant or systemic police misconduct -- which was absent in Strieff -- will also likely be absent from the case described above. Overworked defense attorneys who do not explore an officer's history of searches and seizures combined with carefully crafted police reports will reduce the chances of finding flagrant violations of the Fourth Amendment on a case-by-case basis. And I do not suspect that conducting studies on departments to determine the existence of systemic search-and-seizure misconduct will be high on Trump's list of priorities for the Department of Justice.

Those who are concerned about the future of Fourth Amendment protections should avoid getting too caught up in Trump's stop-and-frisk rhetoric. While Trump's flippant disregard for the Constitution warrants criticism and concern, Trump's Supreme Court is most likely to erode Fourth Amendment protections by following trends established long before Trump's presidency was on anybody's radar.

Oakland's Resistance to Mass Surveillance: Would it Play Out the Same Way Today?

The BBC has this interesting article on an attempt by the City of Oakland, California to adopt a wide-ranging surveillance system, and the resistance to the city's efforts. From the article:

Most cities, including Oakland, have cameras monitoring traffic intersections and public areas. But a Domain Awareness Centre, or DAC, is far more sophisticated. It is still based around a bank of screens, but the camera feeds are augmented by data from weather reports, shipping movements, social media chatter, email records, emergency calls and other data sources. 

The port of Oakland had been given federal funds in 2008 to build a DAC as part of a post-9/11 push to protect critical infrastructure from terrorist attack. 

At some point, the city council decided to extend the system to cover the whole of Oakland and its population of 400,000 people. 

. . .

Hundreds of new cameras would be installed across the city and data would be incorporated from from licence plate readers, gunshot-detection microphones, social media, and, in later phases, facial recognition software and programmes that can recognise people from the way they walk. 

The city said it needed an early warning system to give "first responders" a head start when dealing with emergencies like chemical spills and earthquakes, as well as major crime and terrorist incidents. 

But privacy campaigners in the city were alarmed at the thought of the Oakland Police Department having access to an all-pervasive real-time surveillance network. Particularly one that did not have a policy on what data would be stored and for how long. 

The article goes on to report that the Oakland City Counsel hosted a "marathon" meeting on March 4, 2014 to debate the scope of the DAC. At the meeting, privacy advocates, former "Occupy" protesters, and members of Oakland's African American and Muslim communities spoke out against the DAC, and the proposed surveillance program was ultimately scaled back "dramatically."

I blogged about the federal grant Oakland received back in 2013. In that post, I shared the concern of many of the privacy advocates cited by the article that the widespread surveillance system would be implemented or employed in a manner that would lead to disproportionate surveillance of racial minorities and less-wealthy citizens.

Oakland's attempt at surveillance, and the resistance the attempt inspired, is an interesting case study for the implementation of widespread, automated security measures in urban settings. The BBC suggests that the timing of the Snowden leaks gave momentum to the protest against the proposed surveillance -- as both the content of the Snowden revelations and Oakland's proposals involved the issue of technologically enabled mass surveillance.

I am curious as to whether the same level of resistance would arise in today's political climate, in which most attention seems focused on instances of excessive force employed by police officers and fear of excessive force in personal encounters with officers. These issues seem far-removed from questions of systematic surveillance practices their broader impact on privacy. Indeed, as I discuss at length in this post, today's discussions of policing practices often include calls for body cameras despite warnings from groups like the ACLU that these cameras may lead to systematic privacy violations.

Moreover, those concerned with police excessive force may be tempted to advocate for wider, automated surveillance systems. These systems may appear to enforce the law in a manner that avoids officer discretion, which may arguably reduce the incidence, or opportunities for instances, of excessive force. But as commentators like Elizabeth Joh point out, officers can still exercise discretion with widespread, automatic surveillance systems by focusing those systems on particular people or groups of people.

More cities will likely attempt to adopt wider, more technologically sophisticated surveillance systems as time goes on and as the technology becomes more accessible. I suspect that resistance to these proposals will be less pronounced than in 2014 as notions of mass surveillance become more normalized and as long as protests against law enforcement remain focused on the actions of individual officers rather than on the policies and procedures adopted by departments and municipalities as a whole.

In Washington, Your Trash is Private, But Not Your Abandoned DNA

So reports the Seattle Times:

Seattle’s ordinance allowing garbage collectors to look through people’s trash — to make sure food scraps aren’t going into the garbage — was declared “unconstitutional and void” Wednesday afternoon by King County Superior Court Judge Beth Andrus.

The Court's order is here.  The Court held that looking through people's garbage was an unconstitutional search in violation of resident's reasonable expectation of privacy.

"But wait!" one may say, "What about California v. Greenwood, in which the United States Supreme Court held that there was no Fourth Amendment violation when officers searched the trash bags a suspect left to be picked up on the curb in front of his house?"

To answer the inquisitive Fourth Amendment enthusiast: Washington law governing searches and seizures provides a heightened level of protection. Here is the relevant language from the Court's order:

The Washington Supreme Court diverged from California v. Greenwood when analyzing the issue under Art. I, §7. In State v. Boland, 115 Wash.2d 571, 800, 800 P.2d 1112 (1990), the Supreme Court held that under our state constitution, a defendant's private affairs were unreasonably intruded on by law enforcement officers when they removed garbage from his trash can and transported it to a police station to be searched by state and federal narcotics agents. The Supreme Court held that any resident who places garbage in a can and puts it on the curb for collection reasonably believes the garbage will not be subjected to a warrantless governmental search. 115 Wash.2d at 578. "While a person must reasonably expect a licensed trash collector will remove the contents of his trash can, this expectation does not also infer an expectation of governmental intrusion." Id. at 581. In other words, we expect the collector to pick up our garbage and remove it for proper disposal; we do not expect that the government will search the contents of our garbage bags to identify evidence of wrong-doing.

On the one hand, the court's reliance on Washington's unique constitutional privacy protections and case law limits the scope of this ruling.  But on the other hand, this ruling highlights how state constitutions may provide more protection than the federal constitution.

The logic behind Washington's protection of privacy in trash has its limits. Elizabeth Joh noted the potential for the court's order to effect the law governing expectations of privacy in abandoned DNA (which is what interested me in this case in the first place). After some digging, however, I found that defendants would be hard pressed to extend State v. Boland or the logic of this more recent trash ordinance injunction case to the government's collection and testing of abandoned DNA.

In State v. Athan, the Washington Supreme Court found no violation of Article I, section 7 of the Washington State Constitution when the police employed a creative scheme to obtain a suspect's DNA:

The detectives invented a ruse to obtain Athan's DNA without making Athan aware they had resumed investigating Sumstad's murder. Posing as a fictitious law firm, the detectives sent Athan a letter inviting him to join a fictitious class action lawsuit concerning parking tickets. The letterhead contained the names of the "attorneys," all of whom were employed by the SPD. Believing the ruse to be true, Athan signed, dated, and returned the enclosed class action authorization form and attached a hand-written note stating, "if I am billed for any of your services disregard my signature and my participation completely." Ex. 53.

 ¶ 6 Athan's reply was received by Detective Diaz, one of the "attorneys" listed on the letterhead. Without opening it, Diaz gave the letter to another detective who forwarded it to the crime lab. A lab technician opened the letter, removed and photographed the contents, cut off part of the envelope flap, and obtained a DNA profile from saliva located on the flap. The DNA profile from the envelope matched the DNA profile from the semen found on Sumstad's body. Based primarily on the results of the DNA testing, the prosecuting attorney filed an information and probable cause statement to secure an arrest warrant for Athan.

This, the Washington Supreme Court held, did not violate Washington's constitutional equivalent of the Fourth Amendment.  Here is the relevant analysis:

We find there is no inherent privacy interest in saliva. Certainly the nonconsensual collection of blood or urine samples in some circumstances, such as under the facts of Robinson, invokes privacy concerns; however, obtaining the saliva sample in this case did not involve an invasive or involuntary procedure. The relevant question in this case is whether, when a person licks an envelope and places it in the mail, that person retains any privacy interest in his saliva at all. Unlike a nonconsensual sampling situation, there was no force involved in obtaining Athan's saliva sample here. The facts of this situation are analogous to a person spitting on the sidewalk or leaving a cigarette butt in an ashtray. We hold under these circumstances, any privacy interest is lost. The envelope, and any saliva contained on it, becomes the property of the recipient.

The Court goes on to consider and dismiss concerns that DNA may reveal a great deal of information about a suspect, noting that in this case, the testing done on the DNA was restricted to the defendant's identity.

Under Article I, Section 7 of the Washington State Constitution, you can reasonably expect that the government will not search through trash that is placed on the curb for collection. It is not reasonable, however, to expect that the government will not test the DNA in your saliva on an envelope you mail to what you think is a law firm. While states may protect rights beyond protections found in the United States Constitution, Washington teaches us that these extended protections may end up being quite limited in scope.

Criminal Charges Against Man Who Shot Down Drone Dismissed

So reports the Wall Street Journal Law Blog, taking note of this story from Wave 3 News about a Kentucky man who shot down a drone that he claims was hovering over his property.  From the Wave 3 News report:

The man who calls himself the "Drone Slayer" called a judge's decision a victory. 

Bullitt County Judge Rebecca Ward on Monday dismissed the case against William H. Merideth, who admitted to shooting down a drone he said was hovering over his home last July. 

"I think it’s credible testimony that his drone was hovering from anywhere, for two or three times over these people’s property, that it was an invasion of their privacy and that they had the right to shoot this drone," Ward told the courtroom. "And I’m going to dismiss his charge."

John David Boggs, the owner of the drone "appeared stunned."

Boggs had posted this video of the drone's last flight, making clever use of the soundtrack and less-than-clever use of emojis:




Based on the video, the drone seemed to be so high that Meredith's claim that the drone was hovering over his property is a bit strained. While the drone did indeed appear to be flying and hovering over multiple people's properties, it seems high enough that Meredith's claim that his property was being violated is weak.

There are several gems in this story. First, there is this intriguing point:

Merideth also was facing a charge for firing his gun in a residential neighborhood. That charge was dismissed as well.

The WSJ Law Blog reports that this gun was a "12-gauge, short-barreled shotgun loaded with birdshot." This birdshot was fired high into the air over what appears to be a fairly well-populated suburban area. And yet the charge was dismissed.

Finally, on a completely unrelated note, all of this took place in a county called "Bullitt."

Aerial Surveillance, Intrusiveness, and the Fourth Amendment

Eugene Volokh has this post at the Volokh Conspiracy highlighting the recent case of State v. Davis in the New Mexico Supreme Court. In that case, police officers observed property by flying over it at a height of fifty feet in a helicopter. The Court held that the intrusiveness of this surveillance, which apparently included broken beams and solar panels, rendered the flyover a Fourth Amendment search.

The Court also criticized the New Mexico Court of Appeals ruling on the case, which noted that intrusiveness should not be the metric for determining whether a search has occurred because officers may use drones to conduct equally low flyovers without the noise, dust, and damage of a helicopter flyover. The New Mexico Supreme Court pointed out that the Court of Appeals' discussion was unnecessary speculation.

This approach is consistent with the United States Supreme Court's approach in United States v. Jones, in which the majority held that officers had conducted a Fourth Amendment search when they attached a GPS device to a car and tracked it for a prolonged period of time. Rather than hold that the prolonged gathering of information rose to the level of a search, the majority concluded that the act of attaching the GPS device was a physical trespass and therefore violated the Fourth Amendment.

While the Davis court only makes a passing reference to Jones, the Court is correct to conclude its analysis with its discussion of intrusion, as such an intrusion is sufficient to establish a Fourth Amendment violation. Going beyond the intrusiveness discussion is therefore unnecessary to resolve the question presented.

But one day, the question will be presented as to whether a low-flying police drone constitutes a Fourth Amendment search. When that question arises, the drones involved likely will not kick up the dust, incite the panic, or cause the damage that is the central focus of the Davis Court's decision. When that day comes, courts may find themselves constrained by the precedents cited in Davis which uphold the constitutionality of aerial observations. This will be especially true if state and federal laws are drafted in a manner that gives ordinary drone users a wide range of freedom in flying their drones, as common drone use will form the foundation of people's reasonable expectations of privacy.

Courts can be rescued from these difficult decisions, however, if states draft rules regulating the use of evidence obtained by police drones. State legislation can be drafted in a manner that balances law enforcement interests with privacy interests -- and this balance can be reached through debate and public input, rather than through speculation and generalizations that may arise from a single case before a deliberating court.

For those readers interested in hearing more on what I have to say on state drone laws, check out my article on the subject which was just published by the Harvard Journal on Legislation. You can find that updated version on SSRN as well.

California Governor Vetoes Drone Trespass Bill

So reports the LA Times:

Gov. Jerry Brown on Wednesday vetoed legislation to restrict the use of drones over private property.

The legislation would have made flying a drone lower than 350 feet above private property without consent a trespass violation.

"Drone technology certainly raises novel issues that merit careful examination," Brown wrote in his veto message. "This bill, however, while well-intentioned, could expose the occasional hobbyist and the FAA-approved commercial user alike to burdensome litigation and new causes of action.

Additional reporting on the bill (SB 142) and the veto is available here, here, and here.

The California bill was proposed in light of privacy concerns raised by low-flying drones. Supporters argue that drones may be equipped with cameras and by flying low over private property, they may capture invasive images or video of people on that property. Opponents of the bill note that the bill is difficult to enforce and may curtail people's freedom to operate drone technology.

A notable impact of this bill's veto is that law enforcement agencies will not be curtailed in their use of drones. As I blogged previously, Governor Brown vetoed a bill that would have required warrants for law enforcement drone use back in 2014. In vetoing that bill, Governor Brown noted that the bill's protections went beyond Fourth Amendment restrictions on government searches and surveillance -- a justification that does not really mean much, since if the bill had not gone beyond Fourth Amendment protections, the bill would not have added anything to the legal landscape of government drone use.

The most recent drone trespass bill would have effectively limited government drone use had it been passed. Under United States v. Jones, the government carries out a Fourth Amendment search when it trespasses on somebody's property. Had SB 142 passed, it would have been trespass for drones to fly less than 350 feet above private property without the consent of the property owner. Law enforcement agencies would therefore be restricted from flying drones in such a manner, because the resulting trespass would constitute a Fourth Amendment search. Gregory McNeal advocates a similar approach for restricting law enforcement drone use in this paper.

Governor Brown's veto message noted his wish to avoid unnecessary causes of action against hobbyists. While the focus of much of the debate over this bill has been on private actors, it is worth noting that a significant restriction on government drone use has just been vetoed as well.

UPDATE: 9/11/2015: Title of post edited to correct misspelling.

Google to Remove Revenge Porn Images from Search Results

From the BBC:

Victims of revenge porn will be able to put in requests to Google to take down content from search results. 

The images will still exist but won't come up on a list when people look for them.
In a blog post the company's Vice President Amit Singhal said it will apply to "nude or sexually explicit images". 

Google has, in the past, resisted attempts for it to take down online content from those search results. 

The update is expected to come in over the next couple of weeks.

Google's announcement regarding these requests can be found here.

Revenge porn occurs when people post nude photos of somebody else online without the pictured person's consent. It is one of many ways the Internet can be used to harass and attack people. Danielle Citron goes into great deal about revenge porn and other forms of online harassment in her excellent book, Hate Crimes in Cyberspace. And just yesterday, John Oliver's "Last Week Tonight" had this segment on online harassment and revenge porn:



I have blogged several times about state laws that prohibit revenge porn and whether they are constitutional. For example, I think that properly tailored laws can prohibit revenge porn without violating the First Amendment. But while laws prohibiting revenge porn may help combat the problem of revenge porn, laws alone are not enough without the involvement of companies like Google.

While images of revenge porn may still exist online, Google's promise to exclude them from search results upon request is a significant step towards lessening the impact of these images on victims' lives.

XKCD on Drone Regulation

Regular readers of this blog should know that I am interested in state and federal regulation of drones. It therefore shouldn't be a surprise that I am particularly amused by XKCD's take on drone regulation, which a friend shared with me earlier today:

This proposal is notable because it has the potential to please both those who are concerned about the privacy implications of widespread drone use and those who oppose increased government regulation of drones.

New Florida Law Restricting Private Drone Use

Florida's governor recently signed S.B. 766, a bill that expands and clarifies restrictions on drone use listed in section 934.50, Florida Statutes. The full text of the bill is available here. Reports on the passage of the bill are available here, here, and here. 

Prior to the passage of this bill, section 934.50 contained a wide restriction on government drone use. 934.50 prohibited the use of drones by law enforcement agencies to collect evidence except in cases where a warrant was first obtained, there was a high risk of a terrorist attack, or there was a risk of imminent harm to somebody. Those exceptions still exist after the passage of S.B. 766.

S.B. 766 is notable because of the restrictions it places on private drone use. The bill adds subsection 934.50(3)(b), which states:

(b) A person, a state agency, or a political subdivision as defined in s. 11.45 may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent. For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.

The scope of this restriction is clarified by the new subsection 934.40(2)(e), which defines "surveillance" as:

1. With respect to an owner, tenant, occupant, invitee, or licensee of privately owned real property, the observation of such persons with sufficient visual clarity to be able to obtain information about their identity, habits, conduct, movements, or whereabouts; or

2. With respect to privately owned real property, the observation of such property’s physical improvements with sufficient visual clarity to be able to determine unique identifying features or its occupancy by one or more persons.

A person using a drone violates this law if he or she uses a drone to collect images that are clear enough to identify unique identifying features about a piece of property or people on that property. The incidental collection of such images by a drone that is used for different purposes would not appear to violate the restrictions on private drone use. Additionally, this law does not apply to property that is not fenced-in or vast, since features of this property would likely be observable by somebody on the ground, meaning that the property owner would not have a reasonable expectation of privacy.

The law does not criminalize the use of drones for this sort of surveillance, but it does contain a provision permitting civil lawsuits for those who are subject to drone surveillance that violates the provisions of section 934.50. The prevailing party in such a lawsuit would have the right to obtain attorney's fees, and a person subject to surveillance in violation of this law would have the right to seek punitive damages and/or injunctive relief.

The new provisions in S.B. 766 seem fairly reasonable to me. By requiring an intent to conduct a surveillance and a violation of a reasonable expectation of privacy, Florida's new law permits quite a bit of drone use -- even use that may incidentally capture images of private property. Additionally, the bill does not criminalize private drone use that violates the law's provisions, and instead only provides a civil remedy.

North Dakota's New Law Restricting Law Enforcement Drones

North Dakota's governor recently signed this bill (H.B. 1328) restricting the government's use of drones, which makes North Dakota the most recent state to restrict law enforcement's use of drone technology to obtain information and evidence. The Tenth Amendment Center and The West Wire News note this development and argue that the law is a positive step that will protect privacy and thwart federal surveillance efforts.

As far as state laws restricting government drone use are concerned, North Dakota's is one of the stricter laws I've seen. North Dakota's new law requires law enforcement agencies to obtain a warrant before using drones to gather information. Beyond satisfying constitutional requirements, applications for drone warrants need to specify how long the drone would be used, the locations where the drone would operate, and how long any information gathered would be retained.

Section Two, subsection two notes that prosecuting agencies may still use drone-obtained information "in accordance with exceptions to the warrant requirement." But notably, this subsection does not permit the use of information obtained in accordance with judicially-recognized exceptions to the warrant requirement. Most activities drones can observe could be viewed by the general public, Accordingly, laws that contain exceptions to warrant requirements based on judicially-created doctrine end up having very little effect on what law enforcement agencies can do, as I have argued at length in this article and in posts here and here. By omitting the qualifier "judicially-recognized," the law presumably limits any exceptions to the warrant requirement to the exceptions listed in the statute.

And the exceptions listed in the statute are quite narrow. Section Four states that warrants are not required when national borders are being patrolled, when there is "reasonable suspicion that absent swift preventative action, there is an imminent danger to life or bodily harm," when responding to natural disasters, or when using drones for research and development purposes. Notably, this law does not contain exceptions permitting law enforcement drones in situations where a suspect or inmate is fleeing police custody or to document traffic collision or crime scenes.

I think that some of these missing exceptions could enhance North Dakota's law enforcement agencies' ability to use new technology without having much of an impact on privacy. But unlike some other states that have passed laws purporting to restrict government drone use, North Dakota's law does indeed impose strict limits on law enforcement agencies' use of drone technology.

Guilty Verdict in San Diego Revenge Porn Case

NBC San Diego has the story here. From the report:

A San Diego man was found guilty Monday of 27 felony counts for creating a so-called revenge porn website, where he posted more than 10,000 sexually explicit photos of women online to extort them for hundreds of dollars each. 

It took a court clerk 20 minutes to read the list of convictions against 28-year-old Kevin Bollaert, guilty of 21 identity theft and 6 extortion counts. A mistrial was declared on one conspiracy count and one identity theft count.

. . .  

The case — the first of its kind, filed by the California attorney general — centered on a now defunct website called YouGotPosted.com, created by Bollaert so ex-husbands and ex-boyfriends could submit embarrassing photos of victims for revenge. The photos also linked to victims’ social media accounts. 

Prosecutors say those who wanted to get the pictures taken down were redirected to another one of Bollaert's sites, ChangeMyReputation.com. There, the victims were charged $300 to $350 to have their photos removed.

I blogged about Bollaert's arrest back in December, 2013.

As the article also notes, California recently passed a law that criminalizes the sharing of sexually explicit photographs taken in the context of a private relationship. The first conviction under that new law was secured in early December.

California's recently-passed revenge porn law is a misdemeanor. But as Bollaert's conviction shows, those who base their businesses on revenge porn may face far more severe penalties from laws that are already on the books. Prosecutions of this nature may not be limited to defendants in California, since most states should have extortion and identity theft prohibitions that may apply to revenge porn websites.

Fourth Amendment Standing and Familial DNA Searches

DNA technology that identifies people based on their genetic profiles is an effective tool for solving crime. DNA can exonerate those who are thought to be guilty and can identify people responsible for crimes when other means of investigation have failed. The United States Department of Justice states that DNA is a "powerful criminal justice tool."

While DNA technology is effective, courts and commentators have noted that the technology raises privacy concerns. In the recent case of People v. Buza, the California Court of Appeal held that a California law mandating the collection of felony arrestees' DNA violated the California Constitution. And commentators' critiques of DNA technology make frequent appearances in law journals (see here, here, and here for some examples of arguments about DNA technology's potential to invade privacy).

One aspect of DNA technology that concerns courts and commentators is "familial searching" of DNA samples. Through familial searching investigators may take one sample of DNA and compare its genetic markers to other samples they have on file in criminal cases. DNA profiles that are extremely similar to unknown DNA samples may indicate a familial relationship, and may prompt investigators to focus on the family members of a person whose DNA sample they have already collected.

For example: investigators may collect a DNA from one person - "Defendant" - as part of an arrest procedure or through an agreement with that person. Defendant's DNA may be extremely similar, but not identical, to a sample of DNA collected from the scene of an unrelated crime. This may mean that Defendant is related in some way to the unknown person who committed that crime - "Suspect" - and investigators may turn to Defendant's family members to determine whether one of them is the Suspect in the outstanding crime. 

For those seeking further clarification, the first several paragraphs of this note by Amanda Pattock provides an engaging anecdote of how familial DNA searches may identify criminals.

In this post, I discuss whether people identified through familial DNA searches have grounds to challenge the DNA search under the Fourth Amendment. I argue that these people do not have a viable Fourth Amendment argument because they lack standing to challenge the search. While recent cases like Riley v. California and United States v. Jones suggest that government investigations obtain large amounts of information about a single person may constitute Fourth Amendment searches, the standing barrier is a significant, independent obstacle to Fourth Amendment claims.

Alaska Law Purports to Restrict Government Drones, But Does it Really?

Earlier this summer, Alaska's governor signed HB 255, a bill regulating the government's use of drones. As of October 26, that bill is now law.

You can find the full text of the bill here. The most noteworthy portion of the bill adds Alaska Statutes sections 18.65.900 - 909, which are the provisions pertaining to government drone use. Last I checked, these statutes are still not up on Westlaw or on any website displaying the Alaska Statutes, but the legislature's website makes it pretty clear that this bill was signed into law and that its effective date was three days ago. I will therefore refer to Alaska's drone law by the numbers of the sections that HB 255 added to the statutes.

Privacy advocates typically argue that restrictions on government drone use protect citizens' privacy, since drones could be used to undertake continuous surveillance of people's public movements and homes. Privacy advocates argue that warrants should be required for law enforcement agencies to use drones.

At first glance, it looks like privacy advocates have gotten what they want with Alaska's drone law. Section 18.65.900 prohibits government drone use unless that use falls under the exceptions specified in the bill. Section 18.65.902(1)(A) states that government agencies may use drones in criminal investigations as long as the drone use takes place "under the express terms of a search warrant issued by a court."

But Section 18.65.902(1)(B) states that government agencies can use drones for criminal investigations as long as the drone use is "in accordance with a judicially recognized exception to the warrant requirement." As I have previously discussed at length in the context of California law, and in other discussions of drone laws here and here, this sort of provision effectively removes any meaningful restriction that this law could have on law enforcement drone use. Under existing Fourth Amendment case law, police do not need a warrant to track somebody's movements from the air, nor do they need a warrant to conduct surveillance of a person's yard as long as the police are flying in commonly used airspace.

Because the Alaska law permits existing judicial exceptions to the warrant requirement, the bill would not meaningfully restrict law enforcement agencies from using drones to track people's public movements or conduct surveillance of people's homes. While law enforcement agencies may feel that this is a favorable outcome, it carries the risk of putting more pressure on judges to restrict exceptions to the warrant requirement in cases of government drone use -- which could cause this law's broad allowance on government drone use to backfire.

This is also not to say that privacy advocates haven't gained anything through this legislation. Section 18.65.901(a)(5)-(6) would require law enforcement agencies to keep records of their drone use, which would include the time, date, and purpose of the flights, and be open to audit. If the fears of privacy advocates were realized, and the government ended up using drones for pervasive surveillance, this use would be reflected by these records, which could prompt policy changes in the future.

Additionally, I think that this law could have been better drafted. Parts of the law are written in such a slipshod manner that they have substantive implications for the law's operation. Consider, for example, section 18.65.901(a)(7), which requires law enforcement agencies to "establish a method for notifying the public of the operation of an unmanned aircraft system, unless notifying the public would endanger the safety of a person."

Does this mean that law enforcement agencies will be required to use this notification method when the method is in place? It doesn't say that. But if the law did require the use of that notification method, would notification be required in all cases where the "safety of a person" was not endangered? This would seem to limit the effectiveness of drone use in, say, drug crime investigations if the notification happened before, rather than after, the use of the drone. And if notifying the public of the government's drone use would endanger the safety of a person, should law enforcement agencies not notify the public, or should they cease establishing a method for notifying the public altogether? The wording of the subsection seems to call for the latter meaning.

Finally, it seems downright inconsiderate to those reading the statute to require a search warrant for law enforcement drone use in criminal cases, but then permit that drone use in non-criminal situations where no "unwarranted" invasion of privacy will occur. While I get the meaning of this subsection, and while I think that this section of the statute can be applied without any serious problems, the inconsistent uses of the term "warrant" in the same subsection of the law lead me to conclude that the drafters should have put a bit more thought into the wording of the statute.

India Bans Drones

India Today reports:

India is one the few places on the planet where civilian drones can be legally used. That said, with many commercial organisations planning to use drones, the Directorate General of Civil Aviation (DGCA) has announced that till proper rules and regulations are formulated use of drones in India is illegal . . . .

India Today and BGR are reporting that this ban extends to "civilian drones." But the ban is far broader, according to this public notice from the Director General of Civil Aviation (DGCA). The notice states:

DGCA is in the process of formulating the regulations (and globally harmonize those) for certification & operation for use of [unmanned aircraft systems, or] UAS in the Indian Civil Airspace. Till such regulations are issued, no non government agency, organization, or an individual will launch a UAS in Indian Civil Airspace for any purpose whatsoever.

This prohibition on drones is notably broad -- it restricts hobbyist drones, commercial drones, and government drones.

This spells problems for Amazon, which had been planning to use India's (formerly) permissive regulatory environment to test drone-based package delivery services. I have not seen any reactions by the company to this sudden, universal prohibition of drone use. But I suspect Amazon will be carrying out its drone testing somewhere else in light of this ban.

Drones raise safety and privacy concerns. To an extent, these concerns are warranted, and governments may be correct to impose regulations that address privacy and safety concerns. But effective regulations should allow for the continued use of this developing technology. India's sudden and complete ban on drones is far too broad, and will hinder the development of drone technology and the economic opportunities that this technology can (and was about to) create.

Sachs on State Drone Regulations

Peter Sachs, a lawyer and notable commentator on drone laws, has posted his testimony (available to download here) where he argues against regulating both government drones and private drones. At this time, I am not sure where he gave this testimony, but based on prior events, I suspect that this may be testimony for the Connecticut state legislature's Judiciary Committee. Sachs has taken a strong position against drone restrictions in prior testimony before that committee.

I do not have much to say about Sachs's points on regulating private drones. I agree that overly restrictive regulation of private drones could hinder the development of this new technology in unpredictable ways. And I think that privacy concerns related to drone use are generally overstated and can be addressed by other laws prohibiting invasion of privacy.

But I take issue with a few of Sachs's arguments against regulating government drones. Sachs argues that there is no logical need for warrants on government drones and points out that high-powered cameras in helicopters can see far more than a government drone can see. I think this fails to address the main concern of privacy advocates, which is that drones can be used for prolonged surveillance of somebody's public movements or of somebody's home.

Drones require less fuel to operate, can be launched more conveniently, and are easier to fly than a helicopter, meaning that law enforcement officers may use this technology for continuous surveillance. The fear is not that drones will necessarily see more detail than helicopters, but that they can observe somebody's home or movements for a much longer time. Sachs needs to address this particular concern in order to meet the arguments of privacy advocates.

Sachs also argues that "there is no legal need" to require law enforcement agencies to obtain warrants before using drones, Sachs is probably (though not certainly) correct that the Fourth Amendment's prohibition on unreasonable searches does not apply to aerial observations of one's property, and cites case law supporting that conclusion.

But just because continuous observation by government drones does not violate the Fourth Amendment doesn't mean that governments should not place regulations that go beyond existing constitutional protections. In fact, the Fourth Amendment's inability to regulate government drones is what motivates privacy advocates to argue for legislative restrictions in the first place. State legislatures are free to enact laws that restrict government searches beyond the restrictions of the federal constitution. And as I argue elsewhere, the interests of both privacy advocates and law enforcement would be best served if legislatures, rather than courts, were tasked with restricting government drone use.

Sachs raises some good points about government regulation of drones. But his arguments fail to address privacy advocates' concerns that government drones may be used for continuous surveillance.

Bennett's Flawed Criticism of Citron's Proposed Revenge Porn Restrictions

Over at Slate, Danielle Citron has this article excerpting her recent book, Hate Crimes in Cyberspace. In the article, Citron argues for laws that would criminalize revenge porn -- the nonconsensual sharing of another person's nude images online. Citron points out that these restrictions should only apply in particular circumstances:

Revenge porn laws should apply only if a defendant disclosed another person’s nude image knowing that person expected the image to be kept private and had not consented to the disclosure. By clarifying the mental state in this way, legislation would punish only knowing betrayals of someone’s privacy. Carelessly or foolishly posting someone’s nude image would not constitute criminal behavior. It would not be a crime, for instance, to repost a stranger’s nude photos having no idea that person intended them to be kept private.

Citron continues, providing language for a revenge porn restriction and confronting objections. One possible objection she notes is that there may be First Amendment challenges to the law. Citron argues that these challenges are unlikely to succeed:

My proposed revenge porn statute would withstand constitutional challenge. Disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection. They involve the narrow set of circumstances when the publication of truthful information can be punished.

Over at his blog, Defending People, Mark Bennett responds to Citron's article, arguing that she is wrong to dismiss the First Amendment challenges. Here is Bennett's unpleasantly dismissive reply to Citron's argument that revenge porn restrictions will survive First Amendment scrutiny:

Laypeople don’t know that Citron is wrong and have no reason to doubt this bald assertions, and fellow academics are afraid of being called names for challenging zealots, so it falls to practicing lawyers to point out that this is the state of First Amendment law: 

               1.      Speech is presumptively protected.

               2.      Content-based restrictions on speech are presumptively void.

               3.      For a content-based restriction on speech to pass muster, the restricted speech must fall (at least mostly) within one of several narrowly defined categories of unprotected speech:

a.       Advocacy intended, and likely, to incite imminent lawless action;

b.      Obscenity;

c.       Defamation;

d.      Speech integral to criminal conduct;

e.       So-called “fighting words”;

f.       Child pornography;

g.      Fraud;

h.      True threats; and

i.        Speech presenting some grave and imminent threat the government has the power to prevent, “although,” says the Supreme Court, “a restriction under the last category is most difficult to sustain.”

Those are the categories of speech that the Supreme Court has recognized as unprotected. So Citron’s assertion that “disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection” is incorrect. It might be her wish, but for it to be so the Supreme Court will have to make it so by recognizing another historically unprotected category. (Footnote omitted)

Bennett's statement of First Amendment doctrine is a concise outline of some of the law, but it is misleadingly incomplete. While Bennett has accurately described categories of speech that the Supreme Court has deemed "unprotected," there are other types of speech that are lesser-protected. The most established example of lesser-protected speech is commercial speech.

The Supreme Court has also recognized that "speech on matters of purely private concern" receives "less stringent" protection from the First Amendment (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759-60 (1985)). That sounds quite a bit like the speech Citron is talking about when she says that revenge porn bans should be limited to private communications between people in a trusting relationship. And footnote 190 of Citron and Mary Anne Franks's article, Criminalizing Revenge Porn, suggests that this is precisely the area of First Amendment doctrine Citron is referencing.

Bennett's criticism misses the mark because he assumes that Citron bears the burden of arguing that revenge porn is unprotected speech. Instead, Citron is arguing is that revenge porn is simply a lesser-protected form of speech. From what I have read in the article (and hope to read in the book), it looks like Citron makes a fairly strong argument that revenge porn fits into the category of speech on matters of purely private concern, and her proposed revenge porn restriction may indeed stand up to First Amendment scrutiny as a result.

North Dakota: Law Enforcement Officers Use Drone to Locate Fleeing Suspect

Fox Business reports that Grand Forks County Sheriff's deputies used a drone to locate suspects who fled the scene of a traffic stop. From the article:

An unmanned aircraft unit led by the Grand Forks County sheriff's department flew its first nighttime mission after four suspects fled during a traffic stop, department officials said Monday. 

Officials said the drone team was contacted after a K-9 unit was unable to locate the occupants of a vehicle that was pulled over about 2:20 a.m. Sunday in rural Larimore, about 30 miles west of Grand Forks. 

The aircraft discovered one of the suspects in a corn field, although he ran away before deputies could find his location, officials said. Two suspects were eventually arrested on the scene, and a third was taken into custody later.

North Dakota has a history of making the news with regards to law enforcement drone use. In 2011, Nelson County Sheriff's deputies used a predator drone for aerial surveillance while investigating and ultimately arresting a suspect. The suspect's Fourth Amendment challenge to the use of the drone did not succeed.

The Fox article includes some commentary concluding that the Grand Forks incident does not raise any legal concerns. I think that is correct. North Dakota has no laws restricting the use of drones by law enforcement. And the drone in this case was used to conduct aerial surveillance of a person's outdoor movements, so there does not appear to be any infringement on a Fourth Amendment reasonable expectation of privacy.

It is also worth noting that this sort of drone use would be permitted in states with warrant requirements for government drone use as long as the states include an exception to the warrant requirement in scenarios that involve fleeing suspects. Illinois, for example, includes an exception to its warrant requirement in Section 167/15(3) of its drone regulations in cases where "swift action is needed to . . . forestall the imminent escape of a suspect."

State legislatures that are considering or debating laws requiring warrants for drone use should give serious thought to including similar exceptions to their warrant requirements. The most recent North Dakota incident shows how drones can be effective at locating fleeing suspects at night. And if police have the technology to easily locate fleeing suspects, there will be less pressure to use heightened, and possibly deadly, force to apprehend the suspect at the scene.

Would Flying a Drone "Outside of Navigable Airspace" be a Fourth Amendment Search?

John Burkoff has recently posted an article to SSRN on whether the Fourth Amendment's protection from unreasonable searches can limit the government's use of drones for law enforcement purposes. After surveying the history and development of Fourth Amendment jurisprudence, he concludes:

[L]aw enforcement officers cannot, in any event, use drones – as a matter of federal constitutional law – when they: (1) are flown outside of navigable airspace; (2) create undue noise, wind, dust, or threat of injury; or (3) obtain any information in an effectively physically intrusive manner from a constitutionally protected area.

I've blogged previously about the extent of Fourth Amendment protection against aerial surveillance of one's home and person. To briefly summarize, the government may use a plane or helicopter to conduct surveillance of one's home or person as long as the government is flying within commonly-navigated airspace. (See Florida v. Riley).

Already, there is a problem with Burkoff's claim that "navigable airspace" limits where law enforcement agencies can conduct aerial surveillance. While the plurality in Riley stated that Federal Aviation Administration (FAA) regulations governed where law enforcement helicopters could fly, Justice O'Connor's concurrence took the narrower approach that police needed to fly their aircraft in locations and at heights where that type of aircraft was commonly used. The test, therefore, is not whether the airspace is "navigable," but rather, whether the airspace is "navigated."

This test is difficult to apply to government drone use. The government may not use planes or helicopters to conduct surveillance at certain heights (say, below the Riley height of 400 feet), because those types of aircraft are not commonly flown below those heights. But drones are not subject to the same limitations as aircraft. In fact, the FAA has stated that drones may be used by hobbyists as long as they are flown below 400 feet. The FAA also states that drones are not to be flown above heavily populated areas, which may be a point in favor of those who argue that the Fourth Amendment limits government drone use. Perhaps these restrictive FAA guidelines can lead to stronger Fourth Amendment restrictions government drone use compared to Fourth Amendment restrictions on the use of planes and helicopters.

Drone advocates, however, argue that these regulations are simply advisements that do not carry the force of law, since the FAA has not yet drafted explicit rules for the use of drones. Hobbyists, after all, frequently use drones for photography and shooting video over populated areas, and this activity has not been prosecuted by FAA officials.

In the absence of clear restrictions, frequent and widespread hobbyist drone use may mean that the Fourth Amendment restricts government drone use even less than it restricts alternate means of aerial surveillance. Regulations governing helicopters and airplanes have the force of law and are consistently followed, which means that there are clear boundaries governing where law enforcement can and cannot fly these aircraft. But the legal uncertainty surrounding regulations of drone flight means that it is not at all clear where and how drones are commonly used.

This uncertainty could lead courts to conclude that drones are not commonly flown above houses or streets, and therefore could allow for greater Fourth Amendment protection against government drone use. But it could also lead courts to find that hobbyist drones are commonly flown at low heights over houses, streets, and parks, meaning that government drones could be flown in the same manner without implicating the Fourth Amendment.

In light of this uncertainty, it may be overly hasty to conclude that the Fourth Amendment prohibits government drone use outside of "navigable" airspace. Even if that conclusion is true, the boundaries of this navigable airspace are not at all clear.

All of this discussion illustrates only one of the difficult issues that courts would need to answer in the event that government drone use is challenged on Fourth Amendment grounds. I argue elsewhere that legislation is a better avenue for addressing these complicated questions. But in states without drone laws, whether it is because of legislatures' resistance or executive vetoes, courts may not have long until they are required to rule on these issues.