4 th Amendment

1. 4th Amendment Richard Warner Chicago-Kent College of Law rwarner@kentlaw.edu

2. Drone Over Elgin

3. Domestic Drone Authorizations

4. The Map • In the basement of a newly renovated building in Colorado, an army of people is working on a map of North America. It is a multidimensional, multimedia, top secret compendium of very specific data accumulating at a dizzying rate. The ultimate dream of to be able to point to any block in any city in the United States and gain instant access to digitized information for that location, from speed cameras to wireless network signals, street level photography and video, property records, electricity consumption, floor plans and security layouts, even traffic light sequences. Also incoming would be ultra-high-resolution imagery that can peer into backyards, and pinpoint activity inside the walls of an office building, power station, or, with proper approval, a private home, from the living room to the bathroom to the children’s bedrooms. • Dana Priest and William Arkin, Top Secret America: The Rise of the New American Security State

5. Another Reason to Look at the 4th Amendment • It focuses on reasonable expectations of privacy. • “Laws and regulations rarely specify the security measures . . Most simply obligate companies to establish and maintain ‘reasonable’ or ‘appropriate’ security measures . . but give no further direction or guidance.” • Thomas J. Smedinghoff, “Defining the Legal Standard for Information Security: What Does ‘Reasonable’ Security Really Mean?” • Same problem in private data collection.

6. 4th Amendment • “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

7. The Warrant Requirement • A warrant is a written order signed by a court authorizing a law-enforcement officer to conduct a search, seizure, or arrest. • Probable cause exists when the facts and circumstances within the police officer's knowledge provide a reasonably trustworthy basis for a man of reasonable caution to believe that a criminal offense has been committed or is about to take place • See Carroll v. United States, 267 U.S. 132 [1925].

8. The Warrant Requirement • Particularly describing: Warrants must provide enough detail so that an officer with the warrant can ascertain with reasonable effort the persons and places identified in the warrant.  • Neutrality; The magistrate before whom an officer applies for a warrant must be neutral and detached.

9. What The 4th Amendment Protects • Hoffa: The 4th Am. “protects the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile.” • But: “The petitioner . . . was not relying on the security of the hotel room; he was relying upon his misplaced confidence that Partin would not reveal his wrongdoing.”

10. The Risk of Disclosure to Others • “The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak.” • The Court means “assume the risk” in a sense that implies that the government was not at fault for using Partin as an informant.

11. An Analogy • Ralph trusts Roger, so he confides in him that he is being unfaithful to his wife. • Did Ralph “assume that risk” the Roger would tell his wife? • There circumstances in which Roger would tell—if Roger fell in love with the wife and told her. It would be unreasonable to think this was not possible. • Roger assumes this risk.

12. Ralph and Hoffa • Suppose Roger is Ralph’s closest friend in whom Ralph confides after Roger promises he will not tell anyone what Ralph is about to tell him. • If Ralph tells Roger’s wife, is Roger at fault? • Hoffa trusted Partin. It was precisely that trust that the government exploited. So why is the government not at fault? • Katz v. United States bears on this question.

13. Katz v. United States • Katz transmitted “wagering information by telephone from Los Angeles to Miami and Boston in violation of a federal statute.” • The police collected evidence by attaching a listening device to the outside of a phone booth. • The police argued that a phone both was not a place protected by the 4th Amendment. • Katz argued it was.

14. People, Not Places • “The Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” • The court holds a warrant was required.

15. Harlan’s Concurrence • 4th Amendment protection requires • a subjective expectation of privacy • that is objectively reasonable. • Neither the majority nor Harlan explain why Katz’s expectation of privacy was objectively reasonable. • So we don’t know whether Hoffa’s was or not.

16. Possible combinations of subjective and objectively reasonable expectations Expectation of privacy Expectation of lack of privacy No expectation Objectively reasonable Objectively reasonable Not objectively reasonable Not objectively reasonable Objectively reasonable Not objectively reasonable

17. 4th Amendment after Katz Expectation of lack of privacy No expectation Expectation of privacy Objectively reasonable Objectively reasonable Not objectively reasonable Not objectively reasonable Objectively reasonable Not objectively reasonable Nonexistent case? Irrelevant under Katz?

18. 4th Amendment after Katz Created by Disclosure to 3rd parties? Created by Disclosure to 3rd parties? Expectation of lack of privacy No expectation Expectation of privacy Objectively reasonable Objectively reasonable Not objectively reasonable Not objectively reasonable Objectively reasonable Not objectively reasonable Nonexistent case? Irrelevant under Katz?

19. What Is A Search? • 4th Am.: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonablesearches and seizures . . .” • Hoffa did not involve a search, but Katz did. • After Katz: An unreasonable search for 4th amendment purposes is a search for things or data that (1) one expected would remain private, (2) which expectation was reasonable. • Or so it would seem.

20. Kyllo v. United States • A Fourth Amendment search does not occur—even when the explicitly protected location of a house is concerned—unless (1) “the individual manifested a subjective expectation of privacyin the object of the challenged search,” and (2) “society [is] willing to recognize that expectation as reasonable.” • So: if (1) and (2), then 4th Am. unreasonable search. • But: If 4th Am. unreasonable search, then (1) and (2)?

21. Evidently Not • The majority: “Obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area” constitutes a search—at least where the technology in question is not in general public use.” • So: If 4th Am. unreasonable search, then (1) and (2), or certain cases involving constitutionally protected areas?

22. Scalia’s Attitude Toward Katz • Fifteen years ago [1998], Justice Scalia dismissed the Katz framework as a “fuzzy standard” and a “self-indulgent test” that was based on a “catchy slogan” that had “no plausible foundation in the text of the Fourth Amendment.” • Orin Kerr, “The Curious History of Fourth Amendment Searches,” Supreme Court Review 2013 citing Minnesota v. Carter, 525 US 83, 91 (1998) (Scalia, J, concurring).

23. The Dissent: Two Principles • (1) “The homeowner has a reasonable expectation of privacy concerning what takes place within the home.” • (2) “ ‘What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.’ ” • Katz provides a rationale for both principles. • The dissent thinks the second principle applies. Either way, no need to appeal to “constitutionally protected areas.”

24. Smith v. Maryland • A good way to approach these issues is through the older decision of Maryland v. Smith, the pen register case. • A pen register records numbers dialed on a telephone. It does not record conversations (or even if calls are completed). • Patricia McDonough was receiving threatening and obscene phone calls a man who said he was the one who had robbed her.

25. The Use of the Pen Register • One phone call asked McDonough to step out on her porch, and she saw a man in a car and got the license plate number, which the police used to get Smith’s phone number. • The police—without a warrant—used a pen register to record numbers dialed from Smith’s phone. A call was placed to McDonough, and, on the basis, the police got a warrant to search Smith’s home.

26. Smith’s Defense • Smith claimed that the use of the pen register was a 4th Amendment search and hence required a warrant (and hence that all the evidence collected as a result of the pen register use was inadmissible).

27. The Majority: No Subjective Expectation • Smith’s claim that the “installation and use constituted a “search” necessarily rests upon a claim that he had a “legitimate expectation of privacy” regarding the numbers he dialed on his phone.” • The majority claims first: no subjective expectation. • People do not actually expect dialed numbers to be private because they realize that phone companies record dialed numbers.

28. Second: Not Objectively Reasonable • “This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” • “When he used his phone, petitioner . . . petitioner assumed the risk that the company would reveal to police the numbers he dialed.” • Compare Hoffa.

29. Marshall: Subjective Expectation • There is a subjective expectation of privacy. • “Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes.” • Compare Hoffa and Ralph.

30. Marshall: Objectively Reasonable • The expectation is reasonable. • There has to be choice: “Implicit in the concept of assumption of risk is some notion of choice.” • “It is idle to speak of “assuming” risks in contexts where, as a practical matter, individuals have no realistic alternative.”

31. Marshall: Objectively Reasonable • In addition “To make risk analysis dispositive in assessing the reasonableness of privacy expectations would allow the government to define the scope of Fourth Amendment protections.” • “Law enforcement officials, simply by announcing their intent to monitor the content of random samples of first-class mail or private phone conversations, could put the public on notice of the risks they would thereafter assume in such communications.”

32. Marshall’s Conclusion • “Whether privacy expectations are legitimate within the meaning of Katz depends • not on the risks an individual can be presumed to accept when imparting information to third parties, • but on the risks he should be forced to assume in a free and open society. • By its terms, the constitutional prohibition of unreasonable searches and seizures assigns to the judiciary some prescriptive responsibility.”

33. United States v. Jones (Scalia Again) • The police attached a GPS tracking device to a car without a warrant. • Scalia, writing for the majority claims that there is a 4th Am. search if and only if • the search violates are reasonable expectation of privacy, or • the search is of a “constitutionally protected area.”

34. The Alleged Tie to Trespass • “Our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century.” • This ties the application of the 4th Amendment to a body of more or less well articulated legal doctrine. • So less “prescriptive responsibility.”

35. The Jones Holding • The majority holds the use of the GPS device was a search, but it does not hold it was unreasonable. • The government’s main argument was that no search occurred because there was no reasonable expectation of privacy. • “The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment . . . We have no occasion to consider this argument. The Government did not raise it below, and the D.C. Circuit therefore did not address it.”

36. Wisconsin v. Brereton (804 N.W.2d 243 (2013)) • The Supreme Court of Wisconsin recently held that GPS surveillance required a warrant, quoting with approval Mayor: "even in the absence of a trespass, [because] a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable." Id. at 954–55 (Sotomayor, J., concurring) (quoting Kyllo v. United States, 533 U.S. 27, 33 (2001))”.

37. Alito’s Dissent • “The Court's reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) • and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car's operation). ”

38. If Tracking Use Is the Key, Then . . ? • Surveillance drones • Surveillance cameras • The map • Big Data analysis • Is all of this is permissible under the third party disclosure doctrine?

39. Mayor on Third Party Disclosure • “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties . . . This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

40. In The Matter Of An Application Of The United States Of America For An Order Authorizing The Release Of Historical Cell-site Information • “A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another" because "he voluntarily conveyed to anyone who wanted to look the fact that he was travelling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property."  • United States v. Knotts, 460 U.S. 276, 281- 82 (1981)

41. Prolonged Surveillance • “The whole of one's movements over the course of a month is not constructively exposed to the public because, like a rap sheet, that whole reveals far more than the individual movements it comprises. The difference is not one of degree but of kind. . .” • United States v. Maynard, 615 F.3d 544 (D.C Cir. 2010) .

42. Aggregated Cell Phone Data • “Cell-site-location records present even greater constitutional concerns than the tracking at issue in Maynard. Even United States Courts of Appeals that have approved the form of electronic tracking at issue in Maynard, have noted that mass electronic surveillance presents greater constitutional concerns.” • In The Matter Of An Application Of The United States Of America For An Order Authorizing The Release Of Historical Cell-site Information

43. Wholesale Surveillance • “For example, in United States v. Marquez, 605 F.3d 604, 610 (8th Cir. 2010) the court noted, “It is imaginable that a police unit could undertake "wholesale surveillance" by attaching such devices to thousands of random cars and then analyzing the volumes of data produced for suspicious patterns of activity. Such an effort, if it ever occurred, would raise different concerns than the ones present here. In this case, there was nothing random or arbitrary about the installation and use of the device.”” • In The Matter Of An Application Of The United States Of America For An Order Authorizing The Release Of Historical Cell-site Information

44. Wholesale Surveillance?

45. 3rd Party Disclosure Doctrine • The court creates an exception to the doctrine for “cases involving disclosure to service-provider intermediaries,” where disclosure would amount to prolonged surveillance.

46. Public Disclosure and Facebook • If you post on Facebook, to you disclose the posted information to the public? • The issue comes up in R.S. v. Minnewaska Area School District .

47. Minnewaska on Public Disclosure • “Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection.” • United States v. Warshak, 631 F.3d 266, 285–86 (6th Cir.2010). • Numerous courts have similarly concluded that individuals maintain a reasonable expectation of privacy with respect to their private email accounts and that such accounts are entitled to the same Fourth Amendment protections as conventional letters.

48. Minnewaska on Public Disclosure • One court recently concluded that private Facebook messages are, like email, “inherently private” because such messages “are not readily accessible to the general public.” Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965, 991 (C.D.Cal.2010). The Court agrees that one cannot distinguish a password-protected private Facebook message from other forms of private electronic correspondence.

49. Marshall Was Right • “Whether privacy expectations are legitimate. . . on the risks he should be forced to assume in a free and open society.” • We will see a very similar point in private data collection.

50. Overview Reasonable expectations Private data collection Economic incentives Role of norms in markets Non-market norms required Governmental data collection What risks does a citizen assume?