Eugene Volokh's Blog, page 234

[John Ross] Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: The IRS hands out some excessive fines and the Ninth Circuit's dicta-is-law rule.

Are historic restrictions on gunpowder stores "relevantly similar" to the District of Columbia's 10-round cap on gun magazines? D.C. Circuit: "The suggestion . . . is silly." OK, what about bans on trap or spring guns? "This analogy is too generalized." Alright, stretching a bit here, but maybe Bowie knives? "[A]t this interlocutory juncture, the District has met its burden." Dissent: Long, long ago the Stuart kings disarmed Protestants. Allegation: FBI agents violated Religious Freedom Restoration Act when they retaliated against Muslim Americans who declined to be informants by baselessly putting them on the No Fly List. District court (2015): You can't seek damages under RFRA. Supreme Court (2020): There's no atextual exclusion of a damages remedy in RFRA. Second Circuit (2024): How about an atextual qualified immunity bar to these claims instead? Second Circuit (en banc): If a guilty plea could lead to denaturalization and deportation, lawyers must advise their clients of that fact or they're giving unconstitutionally ineffective counsel. New York man uploads a file to his Gmail account containing an image with a "hash value" (a digital footprint assigned by Google) matching content that Google previously identified as child porn. Without inspecting the image, Google passes it along to the National Center for Missing and Exploited Children, which in turn passes it along to NY State Police without inspection. The police open it. It's child porn. Did they need a warrant to visually inspect the image when Google had already conducted a "private search" of its hash value? Second Circuit: Yes. "Human visual examination" of the image went beyond what could be learned by Google's hash-matching algorithm. But the good faith exception applies. Conviction affirmed. Do project labor agreements that require workers be associated with a specific union violate the First Amendment? Third Circuit: We're not gonna tell you this time, but the plaintiff contractors definitely have standing to challenge Philadelphia's recent PLA policy. And they can go forward on their equal protection claims too. This week's remake of Trading Places stars defendant election officials who argue the guys suing them—a couple political party entities—have standing while the guys themselves "sheepishly" suggest maybe they don't. That's because the guys would rather be somewhere else: in North Carolina state court. However, once the film begins you'll learn what an "embedded federal question" is (basically a state-law claim that entirely rests on federal law) and why, as the Fourth Circuit says, it means the case was properly removed and ain't going back. Mississippi passes new law allowing the counting of absentee ballots mailed by election day but arriving in the mail up to 5 days later. Is this in accord with Congress designating a singular "day for the election" of federal candidates? Fifth Circuit: Once an "election" is over all ballots must be in the hands of election officials. In the mail doesn't count. Congress could legislate otherwise but it hasn't. Mississippi's law is preempted. Questioned about unions, Tesla CEO Elon Musk opines in a tweet, "[W]hy pay union dues & give up stock options for nothing?" The National Labor Relations Board sees that as a threat to rescind stock options if employees unionize and orders him to delete the tweet. Fifth Circuit (en banc): "Deleting the speech of private citizens on topics of public concern is not a remedy traditionally countenanced by American law." Dissent: "Musk's coercive tweet was not 'constitutionally protected speech.'" In 2022, a district judge finds Hinds County, Miss. officials in contempt of a federal consent decree after monitors report that a portion of its jail is essentially run by gangs. About 30 cells are used as dumpsters. Lights don't work. The majority of cell doors do not lock. Inmates regularly escape through the roof and return with contraband. Disliked inmates are assaulted, not allowed to eat. (Two such inmates are discovered emaciated and covered in feces and sores.) Hinds County: The real "constitutional abomination" here is the consent decree, which is the cause of all these problems. Fifth Circuit: The district court did not err in declining to terminate the consent decree, but it can't give a receiver control over the jail's budget. Federal prosecutors in San Diego try to use civil forfeiture to seize a $1.2 mil bank account in Liechtenstein, a whole other country. Ninth Circuit: You can't combine the legal fiction of suing a thing with the legal fiction of worldwide jurisdiction. Due process requires more, and that trumps an expansive federal forfeiture statute saying otherwise. Dissent: But that argument was waived by the account owner, and we've always done it this way. California will contract with private schools to provide education under the Individuals with Disabilities Education Act only if those schools are "nonsectarian." Orthodox Jewish schools and families sue, saying the blanket exclusion of religious schools violates the Free Exercise Clause. Ninth Circuit: Categorically excluding religious institutions from this public-benefits program seems pretty unconstitutional. Can a local gov't sue a state gov't for violations of the U.S. Constitution? Huntington Beach, Calif.: Perhaps other places can't, but we are a charter city and not a political subdivision. Thus, we do in fact have standing to challenge a state law that requires us to allow new high-density housing. Ninth Circuit (unpublished): No standing. Allegation: At private area in Tulsa airport, TSA agents require woman to lower her pants and remove what turns out to be a feminine hygiene product. She has a panic attack and is no longer keen on traveling by plane. False arrest? Intentional infliction of emotional distress? Tenth Circuit: The good news is that you can bring suits under the Federal Tort Claims Act for the actions of TSA agents. The bad news is you lose. Partial dissent: You can't sue over TSA agents' actions under the FTCA. It's been said that "we are all textualists now." But how should the Tenth Circuit interpret the text of the U.S. Sentencing Commission's Guidelines Manual after it has "exhausted all sources from which interpretive guidance may be derived," is "convinced that the parties' respective interpretations are in equipoise," and fears that "by accepting either side's interpretation, [it] would be hazarding a mere 'guess as to what [the Sentencing Commission] intended'"? Tenth Circuit: Rule of Lenity to the rescue. And in en banc news, the Fifth Circuit will reconsider its decision that it lacked jurisdiction to consider an appeal in which the appellant—challenging his conviction and sentence for illegal reentry after removal—filed a motion seeking summary disposition and a letter brief conceding that his argument was foreclosed by Supreme Court precedent (while preserving the claim for further review). The original panel held, over a dissent, that this was an "impermissible shortcut" that removed any adversity from the proceedings and thus deprived the court of jurisdiction.

Friend, if you enjoy this humble roundup, it might could be that the right thing to do with your life is to work at the Institute for Justice. We're currently hiring Litigation Attorneys, Litigation Fellows, Bingham Fellows, Experienced Paralegals, and more. You might be right for us. We might be right for you. And together, we'll be alright.

 

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

[Ilya Somin] American Journal of Law and Equality Symposium on the 70th Anniversary of Brown v. Board of Education

Brown v. Board of Education. (NA)

 

The American Journal of Law and Equality has just published a symposium on the 70th anniversary of Brown v. Board of Education, possibly the Supreme Court's most iconic decision.  The symposium includes contributions by many prominent legal scholars, including Mark Tushnet, David Strauss, Geoffrey Stone, Sheryll Cashin, and my Volokh Conspiracy co-blogger David Bernstein, among others.

My own contribution, entitled "Brown, Democracy, and Foot Voting," is available on SSRN and also at the AJLE site. Here is the abstract:

Traditional assessments of Brown's relationship to democracy and popular control of government should be augmented by considering the ways it enhanced citizens' ability to "vote with their feet" as well as at the ballot box. Brown played a valuable role in reinforcing foot voting, and this has important implications for our understanding of the decision and its legacy.

Part I of the article summarizes the relationship between foot voting and ballot box voting, and how the former has important advantages over the latter as a mechanism of political choice. Relative to ballot box voting, foot voting offers individuals and families greater opportunities to make decisive, well-informed choices. It also has special advantages for minority groups, including Blacks.

Part II considers traditional attempts to reconcile Brown and democracy, through arguments that the decision was actually "representation-reinforcing." While each has its merits, they also have significant limitations. Among other flaws, they often do not apply well to the Brown case itself, which famously originated in a challenge to segregation in Topeka, Kansas, a state in which – unlike most of the South – Blacks had long had the right to vote.

Part III explains how expanding our understanding of Brown to include foot voting opportunities plugs the major holes in traditional efforts to reconcile the decision and democratic choice. Among other advantages, the foot-voting rationale for Brown applies regardless of whether racial minorities have voting rights, regardless of whether segregation laws are motivated by benign or malevolent motives, and regardless of whether the targeted ethnic or racial groups can form political coalitions with others, or not.

In Part IV, I discuss the implications of the foot-voting justification of Brown for judicial review of other policies that inhibit foot voting, particularly in cases where those policies have a history of illicit racial motivations. The most significant of these is exclusionary zoning.

As I noted in the article, it is difficult to produce a thesis on Brown that is both original and useful. More has been written about this ruling than almost any other Supreme Court case. Readers will have to judge whether I managed to succeed.

The post American Journal of Law and Equality Symposium on the 70th Anniversary of Brown v. Board of Education appeared first on Reason.com.

[Eugene Volokh] No Judicial Review of Security Clearance Revocation in Discrimination Challenge

From Lee v. Garland, decided Tuesday by the D.C. Circuit (in an opinion by Judge Gregory Katsas, joined by Judges Karen LeCraft Henderson and Douglas Ginsburg)

The Federal Bureau of Investigation revoked Jason Lee's security clearance after he failed three polygraph examinations. It then fired Lee because his job required a clearance. Lee contends that the revocation was based on race, national origin, and protected speech. He brings various claims under the First Amendment, the Fifth Amendment, and Title VII. We hold that Department of Navy v. Egan (1988), bars judicial review of these statutory and constitutional claims….

In 2003, the FBI hired Jason Lee, an American citizen of Chinese ancestry, and granted him a Top Secret security clearance. To ensure that cleared individuals remain trustworthy, the FBI periodically subjects them to polygraph examinations. Lee failed his 2013 exam. The examiner noted problems with Lee's answers to questions about terrorism, unauthorized release of information, and failure to disclose security violations. Lee then failed a follow-up exam in 2014. This time, the examiner noted that Lee's breathing patterns indicated deception. The FBI revoked Lee's clearance.

Lee appealed the revocation to the Access Review Committee (ARC) of the Department of Justice, which reviews clearance revocations by DOJ component agencies. In 2018, the ARC ordered Lee to sit for a third polygraph exam, which was administered by FBI Agent Stacy Smiedala. Before that exam, Lee admitted to serving as a source for media articles exposing what he regarded as inappropriate FBI polygraph testing practices. The exam ended when Lee refused to answer further questions about what information he had divulged to the media.

The ARC affirmed the revocation of Lee's clearance in a memorandum signed by its chairperson, Marie Barr Santangelo. Among other considerations, she cited Lee's deception in the 2018 exam; his possible deception or use of countermeasures in earlier exams; his refusal to answer questions about the articles; and the FBI's obligation under Executive Order No. 12,968 to resolve all doubts in its clearance adjudications in favor of national security. After the ARC's decision, the FBI fired Lee because his job as an intelligence officer required a clearance….

Like this case, [Egan] involved an individual terminated from federal employment after the government denied him a security clearance that was necessary for the job in question. The Civil Service Reform Act (CSRA) authorized the Merit Systems Protection Board (MSPB) to review the termination decision. The question presented was whether this allowed the MSPB "to review the substance of an underlying decision to deny or revoke a security clearance." The Supreme Court held that it did not.

The Court rested its decision on Article II of the Constitution. It explained that Article II, in making the President the head of the Executive Branch and the Commander in Chief, vests him with broad power over military and foreign affairs. And that power includes "authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information." The Court explained that since World War I, the Executive Branch has sought "to protect national security information by means of a classification system graded according to sensitivity." The Court held it was "not reasonably possible for an outside nonexpert body to review" the difficult predictive judgments underlying a decision to afford access to classified information, which "must be made by those with the necessary expertise."

The Court invoked a long line of cases establishing that "courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs." And it stressed that the presumption of reviewability "runs aground when it encounters concerns of national security." For all these reasons, the Court concluded that the decision whether to grant an employee a security clearance, "a sensitive and inherently discretionary judgment call, is committed by law to the appropriate agency of the Executive Branch."

The court also noted that Ryan v. Reno (D.C. Cir. 1999) applied Egan to Title VII discrimination, and it then turned to Lee's constitutional  claims:

On several occasions, this Court has reserved the question whether Egan bars courts from considering constitutional challenges to adverse clearance decisions. The question is difficult. On the one hand, Egan broadly held that the decision to grant security clearances "is committed by law to the appropriate agency of the Executive Branch." And it did so for reasons that seem to "encompass constitutional challenges as well as statutory ones." On the other hand, Egan involved only a statutory claim under the CSRA. And soon after Egan, the Supreme Court stressed that it would present a "serious constitutional question" to deny a plaintiff any judicial forum in which to raise colorable constitutional challenges to agency action. Webster v. Doe (1988).

On the surface, there is tension between these holdings. But Webster concerned only the statutory authority of the Director of Central Intelligence to fire agency employees—which was held not to foreclose judicial review of constitutional claims. Webster did not consider claims that might impinge on the President's core Article II powers as the head of the Executive Branch and as Commander in Chief. And Egan held that the authority to "protect national security information" by denying or revoking security clearances is such a core Article II power. At a minimum, Egan makes clear that generally applicable statutes should not be applied to impinge on that power absent some clear statement by Congress. And where Congress has not restricted the President's exercise of that power, we think Egan also bars judicial review of constitutional claims like Lee's. In that circumstance, the reasoning of Egan triggers application of the political question doctrine, which forecloses review of constitutional claims.

Read the whole opinion for more. Joshua M. Koppel represents the government.

The post No Judicial Review of Security Clearance Revocation in Discrimination Challenge appeared first on Reason.com.

[Ilya Somin] Reflections on Lecturing on Immigration Policy in Switzerland

Swiss Flag. (NA)

 

I spent this week in Switzerland, where I gave two talks on immigration policy: one at Avenir Suisse, a classical liberal/libertarian-leaning think tank, and one at NZZ Real Estate Days (annual convention of the Swiss real estate industry). The experience engendered some reflections, which I cover in this post. But it's important to note some caveats right off the bat: I am not an expert on Swiss politics and society, though I do have some knowledge by virtue of being a federalism and immigration scholar (Switzerland is an important case study for both fields). I only speak one of Switzerland's two main languages (French; the other is German, and German-speaking Swiss outnumber the French-speakers). As described below, my knowledge of French was of little use on this trip. In addition, I should stress that I did not speak to a statistically representative sample of Swiss people. Among other things, because of the nature of the two events, those I met were overwhelmingly highly educated and relatively affluent.

These reflections won't resolve either Swiss or US debates about immigration. But I hope they might be of some small interest, nonetheless.

J.D. Vance recently said that if immigration was the path to prosperity, then "America would be the most prosperous country in the world." Well, we very nearly are! Depending on which data set you look, at the US ranks somewhere between 6th and 10th in per capita GDP. Ahead of us are various small oil-rich states (e.g.  the UAE, Qatar, and Norway), Luxembourg (tiny city state that specializes in banking), Ireland …. and Switzerland! Thus, Vance can still argue that if immigration were economically beneficial, we would be ahead of Switzerland, not behind it. But here's the problem: Switzerland actually has way more immigration relative to population than we do. Over 30% of the Swiss population is foreign-born, compared to about 14% for the US. Ireland also has a higher per capita GDP than the US in most rankings. Their percentage of immigrants in the population is almost 20%, lower than Switzerland, but considerably higher than the US.

Correlation doesn't prove causation. Switzerland and the US could be rich despite immigration, rather than because of it. And much of what's going on is that richer nations attract more immigrants. However, extensive evidence indicates that immigration is a major driver of economic growth and innovation.

The current debate over immigration in Switzerland has many similarities to that in the US and other countries. There is a strong anti-immigrant political movement, spearheaded by the People's Party (which has done relatively well in recent Swiss elections). At both speaking events (particularly the more politically diverse NZZ event), some people were relatively sympathetic to my pro-immigration position, and others much less so. That is to be expected for such a controversial issue.

Most of the objections I heard were very similar to those I encounter in the US and elsewhere. I address these standard objections here and in greater detail in my book Free to Move: Foot Voting, Migration, and Political Freedom. But one argument was much more prevalent in Switzerland than elsewhere: concerns about what I call "swamping"—the possibility that the native population will swiftly be overwhelmed by large numbers of immigrants from widely different cultures.

This is understandable, given the small size of Switzerland. Swamping is a more plausible scenario there than for larger nations. I answered the objection with a number of points adapted from Chapter 6 of Free to Move. But there is a Swiss-specific response that didn't occur to me until afterwards: A large fraction of migrants to Switzerland are actually from countries with very similar languages and cultures. The largest immigrant groups in Switzerland are Italians (14% of the foreign-born population), Germans (13.4%), Portuguese (10.6%), and French (6.8%). Germans, French, and Italians are of course among the traditional native populations of Switzerland.

Switzerland gets a lot of immigration from other European nations because, while not a member of the European Union, it has an agreement with the EU permitting freedom of movement, under which EU citizens are allowed to live and work in Switzerland. As the richest nation in Europe (with the exception of small city-states like Luxembourg and oil-rich Norway), and one with relatively open labor markets (especially by European standards) Switzerland attracts many EU migrants. I in fact met many German immigrants to Switzerland during my stay. They come because Switzerland has better job opportunities than Germany's overregulated labor market.

Given this state of affairs, even with a complete "open borders" policy, immigration to Switzerland from culturally and distant nations is always likely to be in large part  balanced by migration from nearby culturally and linguistically similar ones. This in turn helps increase the incentive for more culturally distant immigrants to assimilate.

At the NZZ event, I made a point of including a section on the impact of immigration on housing, in my talk. Among other things, I noted that immigrants disproportionately work in the construction sector, thus making it easier to build new housing. This effect—along with other aspects of migration—also increases the profitability of the real estate industry (which I pointed out). I thought that might be of special interest to an audience of real estate professionals. Indeed, when I first got the NZZ invitation, I thought they would want me to do a presentation primarily focused on housing issues, a subject I also write about (the organizers made clear they wanted me to speak about immigration more generally).

Interestingly,  none of the many questions I got at NZZ conference were about housing or real estate. This is another example of how, contrary to popular belief, self-interest is not the major determinant of people's views on most political issues.

Almost everyone I met at the two events were either native-born Swiss or immigrants from Germany. But, while in Zurich, I ran into immigrants from a variety of other countries, including Turkey, Ethiopia, Tunisia, Bulgaria, and Ukrainian war refugees (whom I spoke to in Russian). Even more than in the US, most Uber drivers are recent immigrants from relatively poor nations.

These immigrants speak highly of Switzerland, and most seem to work hard to learn German (and in many cases, also English). One Turkish immigrant (an Uber driver) told me he moved to Switzerland because the pay is better, and Switzerland is a "peaceful" and orderly country. Much better—he said—than Germany, where "there is too much disorder" (I stress this is his view, not mine).

While Switzerland seems to be doing a good job of absorbing immigrants, the country's policy of promoting multilingualism seems less successful. Switzerland has four official languages (French, German, Italian, and Romansch), with German (the majority language) and French being by far the most prevalent.

Both of my talks were in German Switzerland (Zurich for the Avenir Suisse event and Davos for NZZ). But I naively thought that my knowledge of French would be useful, because German-speaking Swiss are supposed to learn that language in school, and could use it when traveling to the French-speaking part of the country.

What I actually found is that most of the German Swiss I met either don't speak much French at all (one told me he had studied French in school for six years, but forgotten nearly everything), speak it worse than I do (I am only moderately fluent), or are much more comfortable speaking English. English is, to be fair, easier for German speakers to learn than French, and there is a strong incentive to learn it because it is the language of international business.

As already noted, I did not speak to a representative sample of Swiss. Perhaps those I met were just unusually averse to French. But, as a general rule, I would expect highly educated professionals to be more likely to learn another language than working class people. A 2022 study finds that 38% of Swiss use more than one language at work, but most of that seems to be people using Standard German in addition to the Swiss dialect, or using English. Only a small fraction of German Swiss use French.

While immigrants have strong incentives to learn the dominant language in their new home, learning two languages is a much tougher challenge.  For most adults, learning a foreign language is hard, painful work, and they will only do it if there is a strong incentive. I expect, therefore, that high immigration levels make the multilingualism policy even harder to implement than is already the case. If even many native-born Swiss Germans don't learn much French (or don't remember what they do learn), immigrants to majority-German parts of the country probably learn even less. Given the enormous benefits of migration (including for receiving-country natives), I think this tradeoff is worth it. But it should be acknowledged.

The post Reflections on Lecturing on Immigration Policy in Switzerland appeared first on Reason.com.

[Eugene Volokh] "Hate Crime, Terrorism Charges Filed in Chicago Shooting of Jewish Man Walking to Synagogue"

ABC 7 Chicago (Digital Team and Maher Kawash) reports:

Sidi Mohammed Abdullahi, 22, already faces 14 felony counts, including attempted first-degree murder, aggravated battery, and attempted murder of a police officer, after allegedly shooting a Jewish man walking to synagogue Saturday morning. The victim was wearing a kippah, a traditional Jewish head covering also known as a yarmulke.

Police said Abdullahi shot him without saying a word. Roughly 30 minutes later, the incident escalated when Abdullahi reportedly opened fire on five first responders. Police fired back, shooting him multiple times….

"We will never do things just based on belief. We need proof," [CPD Supt. Larry Snelling] said. "Evidence from the offender's phone indicated he planned the shooting and specifically targeted people of Jewish faith."

Four days ago, NBC Chicago and other outlets reported (though third-hand) that,

According to the Jewish United Fund, police said during a meeting with the group Monday that Abdallahi shouted "Allahu Akbar" while firing at officers, leading some to believe the attack may have been motivated by hate.

By the way, I'm not a fan of hate-crime enhancements, though I agree with the Court that they are constitutional if they apply to crimes where the victim is selected based on race, religion, national origin, sex, sexual orientation, and the like (see Wisconsin v. Mitchell (1993)). Certainly in a case such as this one, ordinary attempted first-degree murder charges would strike me as adequate to the job. Nonetheless, such enhancements have become quite standard; against that background, failing to charge anti-Semitic crimes as hate crimes would itself be discriminatory.

 

The post "Hate Crime, Terrorism Charges Filed in Chicago Shooting of Jewish Man Walking to Synagogue" appeared first on Reason.com.

[Orin S. Kerr] Terms of Service Do Not Eliminate Fourth Amendment Rights in a Google Account

As regular readers may recall, I argued in a recent article that terms of service to an Internet account have little or no effect on Fourth Amendment rights in the account:

Almost everything you do on the Internet is governed by Terms of Service. The language in Terms of Service typically gives Internet providers broad rights to address potential account misuse. But do these Terms alter Fourth Amendment rights, either diminishing or even eliminating constitutional rights in Internet accounts? In the last five years, many courts have ruled that they do. These courts treat Terms of Service like a rights contract: by agreeing to use an Internet account subject to broad Terms of Service, you give up your Fourth Amendment rights.

This Article argues that the courts are wrong. Terms of Service have little or no effect on Fourth Amendment rights. Fourth Amendment rights are rights against the government, not private parties. Terms of Service can define relationships between private parties, but private contracts cannot define Fourth Amendment rights. This is true across the range of Fourth Amendment doctrines, including the "reasonable expectation of privacy" test, consent, abandonment, third-party consent, and the private search doctrine. Courts that have linked Terms of Service and Fourth Amendment rights are mistaken, and their reasoning should be rejected.

I'm pleased to say that the Second Circuit handed down a ruling in United States v. Maher this week rejecting the claim that terms of service waive Fourth Amendment rights, at least in the important context of a Google account.  The decision is written in a somewhat narrow way, but I think it gets the basics correct.  Here's the key passage from Maher:

The government argues that Maher's expectation of privacy in the Maher file that he emailed to his own Google account was extinguished by Google's Terms of Service, which advise users that Google (1) "may review content to determine whether it is illegal or violates our policies," App'x 113, (2) "may" report "illegal content" to "appropriate authorities," id. at 142, and (3) "will share" users' information with law enforcement when necessary to comply with applicable law, id. at 131.

This court has not had occasion to address what effect, if any, a private company's terms of service might have on a defendant's reasonable expectation of privacy. It may well be that such terms, as parts of "[p]rivate contracts[,] have little effect in Fourth Amendment law because the nature of those [constitutional] rights is against the government rather than private parties." Orin S. Kerr, Terms of Service and Fourth Amendment Rights, 172 U. PA. L. REV. 287, 291 (2024) (summarizing case law). We need not here draw any categorical conclusions about how terms of service affect a user's expectation of privacy as against the government. On this appeal, it suffices that we conclude that Google's particular Terms of Service—which advise that Google "may" review users' content, App'x 113—did not extinguish Maher's reasonable expectation of privacy in that content as against the government.

In reaching that conclusion, we adopt the reasoning of the Sixth Circuit in United States v. Warshak, 631 F.3d at 286–87 (holding that government violated Fourth Amendment when, without warrant, it compelled internet service provider to surrender contents of user emails). There too, the government argued that an internet service provider's contractual reservation of the right to access user emails extinguished a defendant's expectation of privacy in his emails. In rejecting the argument—at least with respect to a reservation phrased in terms of what the provider may do, see id. at 287 (quoting Acceptable Use Policy provision stating that provider "may access and use individual Subscriber information in the operation of the Service and as necessary to protect the Service" (emphasis in original))—the Sixth Circuit held that "the mere ability of a third-party intermediary to access the contents of a communication cannot be sufficient to extinguish a reasonable expectation of privacy" as against the government, id. at 286 (emphasis in original). As the court explained, that conclusion finds support in the seminal Fourth Amendment case, Katz v. United States, 389 U.S. 347 (1967), where "the Supreme Court found it reasonable to expect privacy during a telephone call despite the ability of an operator to listen in." United States v. Warshak, 631 F.3d at 287 (noting that telephone companies could then "listen in when reasonably necessary to protect . . . against the improper and illegal use of their facilities" (internal quotation marks omitted)). It also finds support in cases recognizing that hotel guests retain a reasonable expectation of privacy in their rooms, "even though maids routinely enter hotel rooms." Id.; see United States v. Stokes, 733 F.3d 438, 443 n.7 (2d Cir. 2013) ("Hotel guests retain a legitimate expectation of privacy in the hotel room and in any articles located in their hotel room for the duration of their rental period."). We too conclude from these precedents that Google's Terms of Service, advising users of what the company "may review," App'x 113, did not extinguish Maher's reasonable expectation of privacy in his emails as against the government.

Nor is a different conclusion compelled by the fact that Google's Terms of Service also warn users that the company "will share personal information outside of Google if . . . reasonably necessary to[] . . . [m]eet any applicable law." Id. at 131 (emphasis added). As noted supra at 7 n.5, federal law requires electronic service providers such as Google to file a report with the NCMEC when they have "actual knowledge" of child pornography on their platforms. 18 U.S.C. § 2258A(a)(1)(A), (B). But the same law specifically does not require Google "affirmatively [to] search, screen, or scan" for such material. Id. § 2258A(f)(3). Not surprisingly then, Google does not tell users that it will engage in the sort of content review for illegality that could trigger disclosure obligations under § 2258A(a)(1)(A), (B). Rather, it tells users only that it "may" engage in such review. App'x 113. Indeed, in the next sentence, Google emphasizes that it "does not necessarily . . . review content," and tells users, "please don't assume that we do." Id. at 114 (emphasis added). Such qualified language is hardly a per se signal to Google users that they can have no expectation of privacy in their emails, even as against the government. Cf. United States v. Rosenow, 50 F.4th 715, 730 (9th Cir. 2022) (stating, with respect to § 2258A, that "[m]andated reporting is different than mandated searching" (emphasis in original)).

In a different context that is nevertheless instructive here, the Supreme Court declined to construe even unqualified language in a private contract as extinguishing a person's expectation of privacy as against the government. See Byrd v. United States, 584 U.S. 395 (2018). There, a car rental agreement expressly forbade anyone not identified in the contract from operating the leased vehicle. The government argued that this meant any driver not so identified had no reasonable expectation of privacy in the vehicle. The Court, however, declined to derive such a "per se rule" from the contract's identified-operator provision. Id. at 405. Recognizing that "car-rental agreements are filled with long lists of restrictions," id. at 407, the Court adhered to the "general rule" that a person "in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy" against the government in that vehicle even if he is not authorized by the rental agreement to be operating the car, id. at 398–99.

Here, we need not decide whether terms of service pertaining to content review might ever be so broadly and emphatically worded as to categorically extinguish internet service users' reasonable expectations of privacy in the contents of their emails, even as against the government. See United States v. Warshak, 631 F.3d at 287 (declining to foreclose possibility). We conclude only that Google's Terms of Service, repeatedly qualifying the content review that the company "may" conduct, do not effect such a complete extinguishment.

This issue is pending in a bunch of courts right now, and I hope (and expect) that the Second Circuit's ruling will have a significant influence on how other courts view the issue.

The post Terms of Service Do Not Eliminate Fourth Amendment Rights in a Google Account appeared first on Reason.com.

[Eugene Volokh] Thursday Open Thread

The post Thursday Open Thread appeared first on Reason.com.

[Eugene Volokh] "All Non-Parties" "Are Ordered to Destroy All … Copies" of "Defendant's Sentencing Memorandum"

A curious order yesterday, from U.S. v. Teixeira (a case involving Jack Teixeira, a national guard member "who pleaded guilty to leaking highly classified military documents about the war in Ukraine"):

147 Oct 29, 2024 Judge Indira Talwani: ELECTRONIC ORDER entered. All non-parties who accessed or obtained copies of Defendant's sentencing memorandum or attachments thereto are ORDERED to destroy all electronic and print copies of these documents. The filings are sealed documents in accordance with this court's prior order 141. (Talwani, Indira) (Entered: 10/29/2024)

That can't be right, I think. (Disclosure: After seeing this order, I tried to figure out what was going on, and in the process obtained what appears to be a copy, from the CourtListener site, so the order would have technically bound me, alongside anyone else who likewise accessed the order.) Apparently, not long before, the court granted a motion to file defendant's full sentencing memorandum under seal; that motion read,

Counsel for defendant, Jack Teixeira, respectfully moves that this Court, pursuant to Federal Rule of Criminal Procedure 49.1 and Local Rule 7.2, allow the defendant to file its full Sentencing Memorandum, as well as Exhibits A and C thereto, under seal until further order of the Court.

As grounds, counsel states that Exhibit A to the Sentencing Memorandum is a neuropsychological assessment containing protected health information about Mr. Teixeira that should not be publicly available; Exhibit C is a copy of a report of the Inspector General of the Department of the Air Force, which was disclosed under seal as "Sensitive" discovery material pursuant to this Court's Stipulated Protective Order, dated, October 3, 2023 (Dkt. No. 111); and Defendant's Sentencing Memorandum contains quotations from these two exhibits. Counsel has conferred with the Government who assents to this request.

Consistent with the parties' discussion, Mr. Teixeira will thereafter file a redacted version of his Sentencing Memorandum, which will redact any information subject to the protective order except that which is publicly available from other sources. The parties intend to discuss and quote the findings of the neuropsychological assessment and its basis in their submissions but agree that the report itself should remain under seal until further order of the Court.

Somehow, though, the memorandum wasn't filed under seal or with redactions (though Exhibits A and C were apparently filed under seal).

But we won't get to hear more, I expect, about whether the order was permissible, because today the following order was issued:

148 Oct 30, 2024 Judge Indira Talwani: ELECTRONIC ORDER vacating Electronic Order 147 . The clerk shall update the docket text at 142, inserting the bracketed notations 142 [Redacted] SENTENCING MEMORANDUM, [142-1] [Cover Page] Exhibit A (Expert Report) Filed Under Seal, [142-3] Exhibit C [Cover Page] Exhibit C (Unredacted IG Report) Filed Under Seal. Docket entries 142, [142-1], [142-2], and [142-3] may then be unsealed. The remaining attachments to 142 shall remain under seal. (Cook, Savannah) (Entered: 10/30/2024)

I would have loved to know the backstory ….

The post "All Non-Parties" "Are Ordered to Destroy All … Copies" of "Defendant's Sentencing Memorandum" appeared first on Reason.com.

[Eugene Volokh] "We Need Not Apply Newton's First Law of Motion to Legal Precedent"

An interesting turn of phrase from Tuesday's concurrence by Judge Michael Catlett, joined by Judge James Morse Jr., in Hintzen-Gaines v. Adelson. The specific issue the two judges (who actually formed the majority of the three-judge panel, but wrote this in a concurrence):

[W]hen properly raised, this court should set things right in this area of law by making clear that only common law rules apply when a private-figure plaintiff brings a defamation claim based on speech addressing only matters of private concern. Ultimately, however, we agree with the majority decision that plaintiff did enough under existing caselaw to survive a motion to dismiss, and therefore we join the majority decision in full.

The post "We Need Not Apply Newton's First Law of Motion to Legal Precedent" appeared first on Reason.com.

[Ilya Somin] Compendium of Writings About the 2024 Election and Issues at Stake

(NA)

As election day approaches, here are links to all my writings on the 2024 election and the issues at stake. Except where otherwise noted, these are all posts published right here at the Volokh Conspiracy blog, hosted by Reason. I list these items in reverse chronological order—most recent first:

"Kamala Harris is a Far Lesser Evil than Donald Trump," Oct. 24, 2024. My case for voting for Harris on "lesser evil" grounds.

"Trump's Mass Deportation Proposal Ignores a Huge Economic and Social Cost," The Dispatch, Oct. 24, 2024 (symposium on immigration and the 2024 election). This piece explains why Trump's immigration policy plans are particularly dangerous, and much worse than Harris's far from ideal immigration policies.

"Courts Might Not Stop Trump's Illicit Plans for Mass Deportations, " The UnPopulist, Oct. 16, 2024. This article discusses Trump's plan to use the Alien Enemies Act of 1798 as a tool for mass deportation.

"Perils of Broad Presidential Power Over Tariffs," Oct. 10, 2024. Why Trump could implement his dangerous tariff plans without the need for new legislation.

"Harris Scales Back Harmful Price Control Proposal,"Sept. 30, 2024. Harris revised her awful price control proposal in a way that makes it less bad.

"Lessons of the Haitian Migrant Cat Scare," Sept. 12, 2024. What we can learn from an egregious episode of anti-immigrant electoral scaremongering.

"Both Donald Trump and Kamala Harris are Preying on Political Ignorance," The Hill, Sept. 4, 2024. Both candidates have advanced terrible policy proposals that cater to widespread public ignorance.

"What Walz and Vance Get Wrong About Opportunity and Mobility," Aug. 22, 2024. Both VP nominees underrate the value of mobility and "voting with your feet."

"Harris and Trump Offer Terrible Housing Policies," Aug. 18, 2024.

"The Logic of Voting for a Lesser Evil—and Other Writings on the Morality of Voting," Aug. 13, 2024. My explanation of why it's right to vote for a lesser evil, plus pieces on other aspects of the morality of voting.

"Wokeness is Awful. Nationalism is Far Worse," The Dispatch, July 1, 2024. Not directly about the election. But I include it here because it addresses a major ideological tradeoff at stake.  Though both are bad, the nationalism embraced by the Trump-era GOP is worse than the wokeness prevalent among many Democrats.

"Thoughts on Biden's Proposed Supreme Court Reforms," July 29, 2024. Biden has left the race, but Democrats continue to back these proposals.

"J.D. Vance, Taxing the Childless, and the Power of Framing,"July 27, 2024. How people think about imposing higher taxes on childless people depends a lot on framing.

"Kamala Harris's Unduly Narrow View of Bodily Autonomy," July 27, 2024. Kamala Harris should broaden her commitment to "my body, my choice" beyond abortion rights.

"Biden's Withdrawal From the Presidential Race Is Not Anti-Democratic," July 23, 2024.

"Biden's Badly Flawed New Housing Plan," July 16, 2024. The Democrats still advocate many of these ideas.

"GOP VP Nominee J. D. Vance is an Enemy of Free Markets," July 15, 2024. Some of the reasons why Vance is awful.

"Thoughts on the Assassination Attempt Against Trump," July 14, 2024.

"More Evidence that Republicans are Now the Party that Benefits From High Voter Turnout," June 15, 2024.

"Inflation, the Economy, and Political Ignorance," May 23, 2024. How ignorance affects one of the biggest issues influencing voters' decisions.

"Setting Issue Priorities," May 14, 2024. How to decide which policy issues to prioritize. The question has obvious relevance to voting decisions.

"Increased Voter Turnout Now Benefits Republicans," Apr. 11, 2024. This trend could upend traditional divisions about voting rights issues.

The post Compendium of Writings About the 2024 Election and Issues at Stake appeared first on Reason.com.