In Carpenter v. United States, the Supreme Court will soon consider whether there is a reasonable expectation of privacy in “cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days.” Some courts have found guidance in the Wireless Communication and Public Safety Act of 1999, which provides statutory privacy protections for customers’ call location records. Because this issue is one of the less commented-on aspects of the case, I’d like to explore and draw attention to it.
Category Archives: Fourth Amendment
With governmental surveillance becoming ever more ubiquitous, detailed, and automated, it’s become possible to imagine a regime of perfect surveillance, or an essentially boundless ability to detect crimes. Of course, perfect surveillance is now and may always remain hypothetical. But the prospect of digital panopticism is salient enough to appear in debates about real-life problems, and thinking about the extreme case of surveillance perfection might be a useful way of illuminating features of our more mundane reality. So the question arises: How might perfect surveillance alter our world?
In recent years, the Supreme Court has shown increased interest in the connection between the law of property and the Fourth Amendment. In a terrific new article, Will Baude and James Stern have explored that connection to defend “the positive law model of the Fourth Amendment.”
Will and James’s article is very illuminating, but I disagree with their use of the positive law to set a ceiling on what the Fourth Amendment can do. I explain my disagreements in a response piece that proposes an alternative approach, which I call “the positive law floor.”
A couple of weeks ago, I wrote a post arguing that the Fourth Amendment should be part of the Apple iPhone litigation. My basic point was to criticize current Fourth Amendment doctrine, which focuses so extensively on individual privacy that it seems to exclude power- and security-based arguments that are central to the litigation. This post renews my argument in light of the government’s recent filing in the San Bernardino case.
The Apple iPhone case is the latest example of the classic tension between law enforcement and personal security, as Apple’s recent court filing has pointed out. Yet the constitutional provision whose text and history most clearly speak to that tension—the Fourth Amendment—is nowhere to be found in the litigation. This omission illustrates the need for a shift in the focus of Fourth Amendment law: from individual privacy to governmental power.
Today, a divided Court resolved Kingsley v. Hendrickson, an important case about excessive force, in the plaintiff’s favor. The precise question in the case had to do with the legal standard for excessive force in the context of pre-trial detention – a significant issue, to be sure, but also a relatively limited one. But the Court’s reasoning appears to extend significantly further and may undermine established standards for excessive force in the much broader context of prison detention. Notably, the United States supported the Court’s legal holding, marking an important instance in which the federal government sided with plaintiffs against prison officers.
Yesterday, the Court decided Heien v. North Carolina by an 8-1 vote. Both the holding–that police act constitutionally when they make certain mistakes of law–and the lopsided outcome in Heien call to mind Davis v. United States, which involved the good-faith exception to the exclusionary rule and was resolved 7-2. Heien provides the most recent example of the “other” rule of lenity–that is, the newly ascendant principle that police should get the benefit of the doubt when it comes to ambiguous laws. Heien also shrinks the gap between Fourth Amendment rights and remedies, which now both include consideration of the police’s “good faith.” And then there’s the historical dimension of Heien. So, as expected, Heien is a big decision.
For now, I’d like to focus on how lower courts will construe Heien in light of Justices Kagan’s concurrence, which was joined by Justice Ginsburg. Because she asked the government several skeptical (and characteristically insightful) questions at argument, Justice Kagan’s decision to join the majority may seem somewhat surprising. But the content of Justice Kagan’s concurrence, along with the fact that her vote was unnecessary for the creation of a majority, suggests that she might have been motivated to concur to put her own spin on the decision for the Court. In other words, Justice Kagan’s concurrence might be an example of “aspirational narrowing.” It’s less clear that Justice Kagan’s efforts will be successful.
My new paper, “Narrowing Precedent in the Supreme Court,” is now posted online. (Thanks to LTB for publicizing it!) The basic idea is that the Supreme Court frequently narrows its precedents, including in “liberal” directions, and that doing so is often both legitimate and desirable. In this post, I’d like to make a prediction: in the near future, we are going to see a lot of narrowing in the area of digital surveillance and the Fourth Amendment.
This week, I’ve been posting on the evolving connection between circuit precedent and “clearly established law” in both qualified–immunity and AEDPA cases. To round out the discussion, this post discusses related issues posed by a third doctrine: the good-faith exception to the exclusionary rule. Appropriately enough, the circuit courts themselves have recently had interesting things to say about circuit precedent in this area. The upshot is a remarkable convergence between qualified immunity and a rapidly growing exception to the exclusionary rule.
Could a middle-of-the road solution prevail in Heien v. North Carolina, the fascinating and important Fourth Amendment case being argued on Monday? The parties and most commentators have understandably focused on the more absolutist positions in the case, but alternative dispositions are available. In particular, the Court could rule that mistakes of substantive law are reasonable for Fourth Amendment purposes only when the police have relied on clear guidance from authoritative sources, like courts or legislatures. That middle-ground approach would give the government a partial victory on the legal standard applicable in future cases, while affording the defendant a victory in the case at hand.