Daily Archives: December 9, 2014

Super Funny Japanese Parody of TSA Airport Security Hilarious.mp4
http://adf.ly/70849/mcnwithfullapprove Fourth Amendment to the United States Constitution states: The right of the people to be secure in their persons, houses, papers, and effects, against...

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Super Funny Japanese Parody of TSA Airport Security Hilarious.mp4 - Video

Fourth Amendment Commercial

By: Alexandra Hollander

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Fourth Amendment Commercial - Video

On Monday, the Ninth Circuit held oral argument in Smith v. Obama, a Fourth Amendment challenge to the Section 215 telephony metadata program. You can watch a video of the argument here. The panel consisted of Judges Hawkins, McKeown, and Tallman. This was the third argument by a federal circuit involving a challenge to the telephony metadata program. The others are the Second Circuit and the DC Circuit, neither of which has handed down a ruling yet.

To win the case before the Ninth Circuit, the plaintiff needs to win on three basic questions: 1) did the plaintiff have standing; 2) did a search occur; and 3) was the search constitutionally unreasonable. There was significant questioning on standing and a lot on what is a search, but very little on reasonableness. On the whole, I think that emphasis is probably a good sign for the government. With that said, Im not sure which way the case will come out. Judge Tallman seemed pretty likely to vote for the government on either or both of the first two questions. I had less sense where Judges Hawkins and McKeown might come out.

I want to focus on an interesting question that Judge McKeown asked Thomas Byron, counsel for the government defendant: When applying the reasonable expectation of privacy test, how do we know what society expects when it comes to a big surveillance program like Section 215s program? Byron gave what I think is the correct doctrinal answer: Smith v. Maryland tells us as a matter of law that people have no reasonable expectation of privacy in pen register data from their phones, and there is nothing in Smith that suggests that scale or aggregation can make any difference. Although thats a good doctrinal answer, I think theres a historical explanation that is more satisfying. I cover the historical explanation in this forthcoming article, starting at page 11, and I thought I would give a basic outline here.

As I explain in the article, the original design of Justice Harlans two-part Katz test was to summarize the two basic requirements of establishing Fourth Amendment rights: first, that the intrusion was into the kinds of spaces that the Fourth Amendment protects, like homes or cars or (in Katz) telephone booths; and second, that the person had not openly exposed his protected space to outside observation. The first part was labeled the objective test, as it rested on whether the space invaded was the kind of space that merited Fourth Amendment protection in a general sense; and the second test was labeled the subjective test, as it hinged on whether the person took steps to hide the space from outside observation, manifesting an intent to keep it private in those specific circumstances.

The rule that you cant have any Fourth Amendment protection in what you share with a third-party was originally part of the subjective test. By revealing your information to a third party, the thinking ran, you no longer manifested an intent to keep your information private and gave up your rights in that information. The government therefore could get it from the third party without implicating your rights. Although that was the original design of Harlans test, later opinions of the Court misunderstood this point. Later decisions, including Smith v. Maryland, simply assumed that the test labeled subjective was an inquiry into what a person actually expected to happen. Smith had to fit the traditional rule that a person has no Fourth Amendment rights in what they disclose to third-parties somewhere, however, so the rule ended up being squeezed artificially into the reasonable expectation of privacy test instead. The result has confused law students for decades: We get the strange-seeming announcement that theres no reasonable expectation of privacy in circumstances when a lot of people probably think it feels pretty reasonable to them.

Why does all this matter? I think it matters because it shows that Judge McKeowns question is based on the Smith courts accidental rephrasing of the third-party rule. Understanding the accident explains why the question that seems really difficult at first blush ends up having a simple answer. The reason the government does not violate the Fourth Amendment rights of a telephone user when collecting metadata from the phone company should have nothing to do with what society expects. Instead, the reason is that if you knowingly disclose information to a third party, you are not manifesting your subjective expectation of privacy in that information and dont have any way to control it under the Fourth Amendment as a matter of law. From that perspective, we dont need to know what society expects, or what privacy policies say, to apply the third-party doctrine. What society expects is irrelevant, as the doctrine was originally and properly rooted in the subjective test instead of the objective test.

To be clear, the doctrinally correct result Byron offered brings you to the same result in the end. If you say that Smith v. Maryland requires lower courts to say that there is no reasonable expectation of privacy in pen register information as a matter of law, you get to the same result that no search has occurred. But I hope its at least a little bit illuminating to see how we got here, and in particular to see why applying Smith does not call for courts to make first-principles inquiries into societal expectations.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.

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Volokh Conspiracy: Ninth Circuit hears NSA program challenge

TALLAHASSEE, Fla. -

Taxpayers are on the hook for at least $307,000 -- and perhaps much more -- to cover legal expenses in Gov. Rick Scott's repeated failed efforts to convince courts that a onetime campaign pledge to drug-test welfare recipients is constitutional.

A federal appeals court last week ruled that the state's mandatory, suspicion-less drug testing of applicants in the Temporary Assistance for Needy Families, or TANF, program is an unconstitutional violation of Fourth Amendment protections against unreasonable searches and seizures by the government.

It was the fourth court decision against the state since the law -- something Scott campaigned on during his first bid for office the year before -- went into effect in mid-2011. A federal judge put the law on hold less than four months after it passed, siding with the American Civil Liberties Union of Florida and the Florida Justice Institute, which filed the lawsuit on behalf of Luis Lebron, a single father and Navy veteran.

Thus far, the state has racked up $307,883.62 in legal fees and costs in the case, according to Department of Children and Families spokeswoman Michelle Glady. That does not include potentially hefty charges for legal fees from the ACLU.

Scott has not yet said whether he will appeal the unanimous ruling last week by a three-judge panel of the 11th U.S. Circuit Court of Appeals. The governor could seek an "en banc" review by the full appeals court or take the issue directly to the U.S. Supreme Court.

Republican legislative leaders said Monday they support Scott on the drug-testing issue.

"I think it's appropriate to defend the law that was passed by a bipartisan majority of members of the House," House Speaker Steve Crisafulli, R-Merritt Island, said. The law was approved 78-38 in the House and 26-11 in the Senate, with support from two House Democrats and no Senate Democrats.

Senate President Andy Gardiner, R-Orlando, "supports the policy and the governor's defense of the law, which was passed by a democratically elected legislature," Gardiner spokeswoman Katie Betta said.

But ACLU of Florida Executive Director Howard Simon, who blamed the governor and the Legislature for the cost to taxpayers, blasted Scott for refusing to back down.

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How long do you

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TALLAHASSEE (CBSMiami/NSF) Taxpayers are on the hook for at least $307,000 and perhaps much more to cover legal expenses in Gov. Rick Scotts repeated failed efforts to convince courts that a onetime campaign pledge to drug-test welfare recipients is constitutional.

A federal appeals court last week ruled that the states mandatory, suspicion-less drug testing of applicants in the Temporary Assistance for Needy Families, or TANF, program is an unconstitutional violation of Fourth Amendment protections against unreasonable searches and seizures by the government.

It was the fourth court decision against the state since the law something Scott campaigned on during his first bid for office the year before went into effect in mid-2011. A federal judge put the law on hold less than four months after it passed, siding with the American Civil Liberties Union of Florida and the Florida Justice Institute, which filed the lawsuit on behalf of Luis Lebron, a single father and Navy veteran.

Thus far, the state has racked up $307,883.62 in legal fees and costs in the case, according to Department of Children and Families spokeswoman Michelle Glady. That does not include potentially hefty charges for legal fees from the ACLU.

Scott has not yet said whether he will appeal the unanimous ruling last week by a three-judge panel of the 11th U.S. Circuit Court of Appeals. The governor could seek an en banc review by the full appeals court or take the issue directly to the U.S. Supreme Court.

Republican legislative leaders said Monday they support Scott on the drug-testing issue.

I think its appropriate to defend the law that was passed by a bipartisan majority of members of the House, House Speaker Steve Crisafulli, R-Merritt Island, said. The law was approved 78-38 in the House and 26-11 in the Senate, with support from two House Democrats and no Senate Democrats.

Senate President Andy Gardiner, R-Orlando, supports the policy and the governors defense of the law, which was passed by a democratically elected legislature, Gardiner spokeswoman Katie Betta said.

But ACLU of Florida Executive Director Howard Simon, who blamed the governor and the Legislature for the cost to taxpayers, blasted Scott for refusing to back down.

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Taxpayer Tab Mounts In Welfare Drug-Test Legal Fight