Eugene Volokh's Blog, page 2615
February 14, 2012
Does Fourth Amendment Standing Work Differently for Jones Trespass Searches, Traditional Katz Searches, and Long-term Katz Searches?
Over the last forty years, the Supreme Court has worked out a series of principles for when a defendant has standing to object to the Fourth Amendment search of someone else's property. According to the those cases, the key issue is whether the government violated the defendant's own reasonable expectation of privacy under the framework introduced by Justice Harlan's concurring opinion in Katz v. United States. The owner, legitimate renter, or legitimate repeated borrower of a car generally has standing to object to a search of it. A person who steals a car or drives it in violation of a rental contract does not.
In the recent GPS decision of United States v. Jones, however, the Supreme Court introduced — or, depending on how you look at it, reintroduced — two new kinds of Fourth Amendment searches. First, the majority opinion introduced a trespass test for what is a search that supplements the Katz expectation-of-privacy test. Second, to the extent you think it proper to combine the votes of the concurring opinions and consider that an alternative holding, five Justices thought that the cumulative effect of 30 days of monitoring of the car also amounted to a search of the car because it revealed such invasive information about its public location over time.
So here's the question: Does the standing inquiry developed over the last forty years for Katz expectation–of-privacy searches apply in the same way for Jones trespass searches and Jones long-term expectation of privacy searches? Or is the standing test different?
That isssue arose in a case handed down just a week after Jones: United States v. Hanna, 2012 WL 279435, *1+ (S.D.Fla. Jan 30, 2012) (NO. 11-20678-CR). The police suspected that four men — Hanna, Ransfer, Middleton, and Davis — were involved in a conspiracy to commmit a series of robberies. Hanna was known to often drive the car of his co-conspirator Middleton. The police installed a GPS device without a warrant and monitored the location of the car. The combination of GPS and visual monitoring showed that Hanna and Ransfer drove together in Middleton's car (with the GPS on it) to meet up with Middleton and Davis. This particular case involves a prosecution against Hanna and Ransfer. The government wants to admit the GPS evidence at trial to help show the meeting occurred.
Defendants Hanna and Ransfer moved to suppress that evidence, but Magistrate Judge Edwin Torres denied the motion for lack of standing:
In United States v. Jones, the Supreme Court concluded that a "search" under the Fourth Amendment is triggered when law enforcement attaches a GPS tracking device to a vehicle and uses that device to track the vehicle's movements. 565 U.S. ––––, No. 10–2159, 2012 WL 171117 (Jan. 23, 2012). The Government invaded a person's effects when "[t]he Government physically occupied private property for the purpose of obtaining information." Slip Op. at 4. Justice Scalia's majority opinion expressly noted that Jones "was 'the exclusive driver' " of the vehicle, and that if he "was not the owner he had at least the property rights of a bailee." Id. at 3 n. 2. Jones—as the effective property owner or bailee of the vehicle—had standing to challenge an infringement on his property. Indeed, Justice Scalia emphasized that Jones "possessed the Jeep at the time the Government trespassorily inserted the information-gathering device," id. at 9, contrasting Jones's situation from earlier cases in which the Court had blessed the use of electronic beepers that had been placed inside packages before they were transferred to the defendant challenging their use. Id. at 9 (distinguishing Karo v. United States, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), because "Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper's presence, even though it was used to monitor the container's location").
Indeed, the point of disagreement with the concurring opinion in Jones was the re-emergence of a trespass theory for Fourth Amendment searches rather than application of existing reasonable expectation of privacy doctrine. Id. at 4–6 (Alito, J., concurring). But the result of the case under the concurring opinion would have been that surreptitious long-term monitoring of the Defendant through the GPS device constituted a search because it "impinges on expectations of privacy." Id. at 13. In that case, the driver of the vehicle had an expectation of privacy that he would not be monitored for four weeks with agents "track[ing] every movement that respondent made in the vehicle he was driving." Id.
Under either approach recognized by Jones, an essential component of the Fourth Amendment claim requires that one's own personal "effects" have been trespassed (e.g., one's automobile when a GPS tracking device was secretly installed), or that one's own expectation of privacy was impinged (e.g., one's own movements were continuously monitored and tracked for a material period of time). That is principally where these Defendants' attempt to benefit from the Supreme Court's decision in Jones fails. Neither Ransfer nor Hanna was either the owner or exclusive user of the Ford Expedition. To the contrary, the record shows that members of the robbery crew consistently referred to the Expedition as co-Defendant Middleton's truck. It is undisputed, and the Court has found, that neither Ransfer nor Hanna was in possession of the Expedition at the time that the alleged trespass (the installation and subsequent use of the tracker) occurred. It is also undisputed that Middleton owned that vehicle at all relevant times. Thus, to the extent that Jones relies upon a theory of trespass upon private property, neither Ransfer nor Hanna has standing to challenge a trespass upon property as to which they had no rights.
Moreover, Defendants Ransfer and Hanna also lack standing to challenge the installation and use of the GPS device on the Ford Expedition because—under a traditional Katz analysis—they had no reasonable expectation of privacy in the vehicle. In Jones, five members of the Court concluded that Justice Scalia's trespass theory did not form a sufficiently comprehensive analysis of the Fourth Amendment implications of GPS monitoring and argued that GPS monitoring should also (in the case of Justice Sotomayor) or only (in the case of Justice Alito) be analyzed to determine whether it has invaded a reasonable expectation of privacy. Under this traditional test as well, neither defendant Ransfer nor Hanna had a reasonable expectation of privacy in the Ford Expedition or its movements, and thus neither has standing to challenge the installation and use of the GPS device.
Under traditional Katz analysis, the Fourth Amendment prohibits unreasonable searches and seizures, but only individuals bearing a legitimate expectation of privacy in the area invaded may invoke its protections. E.g., Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). A defendant seeking to suppress evidence bears the burden of establishing a legitimate expectation of privacy in the area searched. See, e.g., United States v. Harris, 526 F.3d 1334 (11th Cir.2008). A legitimate expectation of privacy cannot arise from mere possession, but instead exists only if both the person has a subjective expectation of privacy, and society is prepared to recognize that privacy as reasonable. See, e.g., United States v. Segura–Balthazar, 448 F.3d 1281, 1286 (11th Cir.2006).
For purposes of this analysis under Jones, one must have an expectation of privacy as to the particular vehicle tracked, either from an ownership or possessory interest. One must either possess the vehicle when the tracker is installed, which did not occur here, or at least one must be inside the vehicle at the time the tracker is being used to monitor the vehicle. But it is undisputed that at the time this vehicle was being tracked on that day neither Hanna nor Ransfer were in possession of the vehicle. It was in fact not in possession of anyone. And by the time Hanna and Ransfer met up with the vehicle, traditional surveillance techniques were already in use—an officer's visual observations of the vehicle—rather than the GPS tracking device. The Court found credible the officer's testimony that he ceased using the tracking device software on his computer once Det. Thomas reached the vehicle and began following it himself.
Consequently, neither at the time of the installation of the device, nor at the relevant time it was being used, did Hanna or Ransfer own or possess the vehicle sufficient to claim that their own expectation of privacy was impinged. Jones, therefore, has no application here.
The Defendants' contrary argument, that the overarching unlawful activity through use of the warrantless GPS tracking device constitutes an "umbrella" of protection over any one or anything directly or indirectly obtained from the tracking of this vehicle, is highly unpersuasive. It is universally accepted that Fourth Amendment rights are "personal rights" that cannot be asserted vicariously. See Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) ("[I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable, i.e., one which has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society."); United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980) ("Our Fourth Amendment decisions have established beyond any doubt that the interest in deterring illegal searches does not justify the exclusion of tainted evidence at the instance of a party who was not the victim of the challenged practices. [A] court may not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendant's own constitutional rights."); Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) ("A person who is aggrieved by an illegal search and seizure only through introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. And it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the [exclusionary] rule's protections."); Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) ("Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.").
*5 That principle clearly applies to searches of automobiles. See, e.g., United States v. Ramos–Soto, 304 Fed. Appx. 578 (9th Cir.2008) ("Defendant lacked standing to challenge search of vehicle … where defendant fled vehicle that he neither owned nor leased, and that he had been in only once."); United States v. Shareef, 100 F.3d 1491, 1499–1500 (10th Cir.1996) ("we have held that a defendant in sole possession and control of a car rented by a third party has no standing to challenge a search or seizure of the car."); United States v. Padilla, 111 F.3d 685, 688 (9th Cir.1997) ("conspirators must show that they personally have a property interest protected by the Fourth Amendment that was interfered with or a reasonable expectation of privacy that was invaded by the search.").
Defendants do not convincingly show why the type of search recognized by Jones should be treated differently. Standing principles have always been applied for even greater intrusions into Fourth Amendment zones of privacy, so it naturally follows that the same principles apply to the intrusion created when law enforcement uses a GPS monitor to conduct a search. See, e.g., ACLU v. National Sec. Agency, 493 F.3d 644 (6th Cir.2007) (rejecting challenge to warrantless wiretap program to monitor terrorists where no personal rights were asserted; "it would be unprecedented for this court to find standing for plaintiffs to litigate a Fourth Amendment cause of action without any evidence that the plaintiffs themselves have been subjected to an illegal search or seizure."); United States v. SDI Future Health, Inc., 553 F.3d 1246 (9th Cir.2009) ("Absent such a personal connection or exclusive use, a defendant cannot establish standing for Fourth Amendment purposes to challenge the search of a workplace beyond his internal office."); Ferguson v. City of Charleston, 308 F.3d 380 (4th Cir.2002) ("Fourth Amendment rights are personal rights which, like other constitutional rights, may not be vicariously asserted. We are aware of no decision holding, or even suggesting, that a mother has a reasonable expectation of privacy in her newborn child's bodily fluids.").
We also need not speculate as to that because all of the Justices' opinions in Jones recognized the application of possessory or privacy interests that persons could invoke to claim protection GPS monitoring. Thus, we find that it is an essential element for a Fourth Amendment claim under Jones that personal property rights or personal zones of privacy must be infringed before GPS surveillance can be deemed to infringe on that person's Fourth Amendment rights.
Here, the undisputed facts show otherwise. These Defendants did not own or control the vehicle in question when the tracker was installed, and they did not control or possess the vehicle at the time that it was being tracked that led to their seizure. Therefore, no personal rights have been asserted in this case. Fourth Amendment standing is lacking. That dooms Defendants' arguments and we need not go any further.
Given the facts here, it sounds like Judge Torres is right on the Jones trespass standing issue. But I think the Katz expectation–of-privacy standing issue is a lot more complicated than Judge Torres suggests. When an owner of a car regularly lets a friend use it, the caselaw I'm familiar with concludes that the friend has standing to object to a Katz search of the car. See, e.g., United States v. Martinez, 808 F.2d 1050 (5th Cir. 1987). Under that approach, I would think that at least Hanna has Katz rights in the car he borrowed from Middleton (apparently with Middleton's full consent, unless I'm missing something).
Then there's the question of how the Katz expectation of privacy test applies to public monitoring under the Alito concurring long-term rationale. If the theory is about privacy rights in one's public physical location, not what is inside the car, I'm not sure that the standing analysis still focuses on rights to the inside of the car (as it traditionally does). Under the logic of the Alito rationale, shouldn't everyone inside the car — everyone whose location becomes known — have standing? Why should rights in the inside of the car matter under the long-term search inquiry?
Finally, it's worth noting the history of the standing inquiry pre- and post-Katz. In a pre-Katz standing case, Jones v. United States, 362 U. S. 257 (1960), Justice Frankfurter introduced the "legitimately on the premise" test for standing. In a post-Katz standing case, Rakas v. Illinois, 439 U.S. 128 (1978), Justice Rehnquist concluded that this language was too broad, but that the basic approach of Jones (the 1960 case, not the 2012 case) was co-extensive with standing under the Katz test.
It's possible to reconcile the Jones (1960), Jones (2012), and Rakas (1978) approaches in a number of ways, but one would be that they all have the same basic inquiry — with the catch that the Jones trespass standing is assessed at the time of the installation, while Karo-Katz short term monitoring standing would be assessed at the time of the short-term monitoring (if any monitoring records locations inside a Fourth Amendment protected space), and standing under a Jones-Alito-concurrence-lont-term monitoring test — the extent one reads Jones as adopting it — would be assessed over the time of the monitoring. But that last point raises some interesting sub-puzzles: What if the driver's relationship to the car changes over the time of the long-term monitoring? Do you evaluate standing at the beginning, or the end, or some sort of time-average? I suppose this could be dealt more easily by making standing solely about presence in the car, and you could just say that standing for a long-term-Alito serarch challenge would exist for any GPS monitoring when that particular person was in the car.
Either way, cool issues. And if any one is looking for a student note topic, this would make a terrific subject.
What Milton Friedman Means to Me
Co-blogger Eugene Volokh links to the Free to Choose Foundation's "What Milton Friedman Means to Me" video competition. The contest marks the occasion of the 100th anniversary of Friedman's birth. I'm not very good at making videos, but Friedman did mean a great deal to me, as I explained in this 2006 post on the occasion of his passing:
Milton Friedman, who just passed away, was probably one of the two most influential economists of the last century, along with Keynes. Along with F.A. Hayek, Friedman also played a key role in rescuing libertarian and classical liberal political thought from the intellectual oblivion that threatened to engulf it in the period from roughly 1932 to the late 60s. Without Friedman and the scholars he influenced, it is possible that big government conservatism would have become the only intellectually respectable alternative to the left in the wake of the Great Depression and World War II.
In addition to his more technical scholarship in economics, Friedman also invented an impressive range of public policy proposals, many of which remain relevant today. For example, his 1955 essay "The Role of Government in Education" introduced the idea of school vouchers, which recent studies show provide far greater benefits to poor and minority students than any other potential education policy reforms. Friedman was also a longtime proponent of the volunteer military on both economic and individual rights grounds. The abolition of the draft in 1971 was partially a result of his advocacy and its influence on political conservatives (most of whom previously were inclined to support conscription). Other influential Friedman policy ideas include the negative income tax (on which today's earned income tax credit is partly based), and – of course -the monetary rule…..
On a more personal note, reading Friedman's book Capitalism and Freedom when I was 14 (recommended by my father) was one of the key influences that led me to become a libertarian. Along with Friedman's later book Free to Choose, it remains the best introduction to libertarianism written for a general audience. Even 45 years [now 50 years] after initial publication, it is still highly relevant, with very few sections that today seem dated.
In this post, I commented on Friedman's interesting explanation for the historically disproportionate level Jewish support for socialism. I also commented much more critically on Friedman's much-quoted statement that "[y]ou cannot simultaneously have free immigration and a welfare state," which I think is false. In fairness, as I noted in that post, Friedman was not an expert on immigration and does not appear to have studied the literature on that issue systematically.
"Federal Prosecutors … Should Not Be Able to Hide Behind the Shield of Anonymity When They Make Serious Mistakes"
From United States v. Lopez-Avila (9th Cir. amended Feb. 14):
On the second day of trial in this drug trafficking prosecution, during the cross-examination of Defendant–Appellant Aurora Lopez–Avila, the prosecutor read back supposed testimony of Lopez–Avila from her earlier change of plea hearing. What he read back seemed to contradict Lopez–Avila's earlier statements on direct examination. Using this supposed prior testimony, the prosecutor—Assistant U.S. Attorney (AUSA) Jerry R. Albert, of the U.S. Attorney's Office for the District of Arizona—accused Lopez–Avila of having lied to the federal magistrate presiding at an earlier hearing.
But the prosecutor's quotation was only part of what he represented was a question asked the defendant under oath by the magistrate judge. It was a half-truth. Without telling the court or defense counsel, the prosecutor presented to court and counsel an altered version of the prior hearing's question and answer, and the altered version of such dialogue made it appear as though Lopez–Avila had contradicted herself on a material point, when she plainly had not. The district court naturally assumed the prosecutor had read the question and answer whole, and allowed the questioning to proceed. When the prosecutor's misrepresentation was discovered by defense counsel, he moved for a mistrial, which the court swiftly granted. The defense then moved to dismiss the indictment with prejudice, on double jeopardy grounds, but the district court denied that motion. Lopez–Avila's appeal from the denial of that motion is the legal issue before us.
We affirm the district court's denial of the motion to dismiss the indictment on double jeopardy grounds. In addition, we take several steps to ensure that AUSA Jerry Albert's actions are properly investigated, and that he is disciplined if the relevant authorities deem it proper. In so doing, we bear in mind that AUSA Albert's conduct is not directly before us, and we express no judgment as to what sanctions, if any, are proper.
And here's an excerpt from today's amendment:
[U]pon initial release of this opinion, the government filed a motion requesting that we remove Albert's name and replace it with references to "the prosecutor." The motion contended that naming Albert publicly is inappropriate given that we do not yet know the outcome of any potential investigations or disciplinary proceedings. We declined to adopt the government's suggestion and denied its motion. We have noticed that the U.S. Attorney's Office in Arizona regularly makes public the names of prosecutors who do good work and win important victories. E.g., Press Release, U.S. Attorney's Office for the District of Arizona, "Northern Arizona Man Sentenced to Federal Prison for Arson," (January 31, 2012) ("The prosecution was handled by Christina J. Reid-Moore, Assistant U.S. Attorney, District of Arizona, Phoenix"), available at http://www.justice.gov/usao/az/press_.... If federal prosecutors receive public credit for their good works — as they should — they should not be able to hide behind the shield of anonymity when they make serious mistakes.
For whatever it's worth, the opinion was written by a Bush, Jr. appointee (Judge Carlos Bea) and joined by two Reagan appointees (Judge John Noonan and District Judge Donald E. Walter).
9/11 Didn't Strip Non-Citizens of Their State Law Rights to Change Their Names
From In re Zhan (N.J. Super. Ct. App. Div. Feb. 14, 2012):
Appellant and his minor daughter are lawful permanent resident aliens. Appellant filed a verified complaint seeking to change his daughter's first name from "Honghong" to "Michelle." See R. 4:72–2 (authorizing parents to commence name change actions for their minor children without appointment of a guardian ad litem). The trial court dismissed the complaint because the minor was "not a U.S. citizen." Distinguishing Application of Pirlamarla, 208 N.J.Super. 112 (Law Div.1985), which held that the name change statute applied to permanent residents as well as citizens, the judge reasoned that Pirlamarla was a "pre–9/11 case." Without citing any specific statutory provision or case law, the judge opined that the federal "Immigration and Naturalization Control Act" pre-empted state law on the issue of name changes, and stated his view that for security reasons, "[t]he Country needs to identify who [is] here under the names that they have." …
Considering the language of the New Jersey name change statute, as well as precedent from our own state and other jurisdictions, we conclude that relief under the name change statute is not limited to citizens…. We also find no basis to conclude that federal law has preempted state law in this area or that allowing permanent resident aliens to change their names would present a risk to national security. To the contrary, using the statutory process, as opposed to the informal common law process, ensures that there will be a public record of the name change. And, as discussed below, federal law requires a permanent resident alien to report a name change to the Department of Homeland Security….
Seems quite right to me, even independently of the fact that non-citizens often have more reason than citizens to change their names in order to Americanize them. I'm glad I'm Eugene Volokh now rather than Yevgeniy Volokh, which is what my entry visa said, though if I recall correctly the name change was done at citizenship rather than before; I suspect Honghong Zhan will likely be glad to be Michelle Zhan instead (though she can always change it back later if she'd like).
The Animal Enterprise Terrorism Act
Some people have been arguing that the Animal Enterprise Terrorism Act, 18 U.S.C. § 43 violates the First Amendment. (See, for instance, this column and the Complaint it links to.) I doubt that this is so, and I thought I'd briefly explain why.
In relevant part (and with some minor oversimplifications), the statute outlaws "(A) intentionally damag[ing] or caus[ing] the loss of any real or personal property (including animals or records) used by an animal enterprise, or any real or personal property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise" or "(B) intentionally plac[ing] a person in reasonable fear of the death of, or serious bodily injury to that person [or a family member] … by a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation," "in connection" with a "purpose of damaging or interfering with the operations of an animal enterprise."
"Animal enterprise" is defined to include "a commercial or academic enterprise that uses or sells animals or animal products for profit, food or fiber production, agriculture, education, research, or testing," as well as "a zoo, aquarium, animal shelter, pet store, breeder, furrier, circus, or rodeo, or other lawful competitive animal event," and "any fair or similar event intended to advance agricultural arts and sciences." A "rule of construction" provides that "[n]othing in this section shall be construed (1) to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment … [or] (2) to create new remedies for interference with activities protected by the free speech or free exercise clauses of the First Amendment to the Constitution, regardless of the point of view expressed, or to limit any existing legal remedies for such interference." And "economic damage" is defined to "not include any lawful economic disruption (including a lawful boycott) that results from lawful public, governmental, or business reaction to the disclosure of information about an animal enterprise."
This strikes me as basically punishing vandalism of property, attacks on people, and speech that falls within the "true threats" exception to the First Amendment. Some have argued that it could be broader because it could punish boycotts and other constitutionally protected speech that causes financial loss to a business or academic institution because customers or suppliers decide to stop dealing with that entity, on the theory that lost profits would qualify as "loss of … personal property." But I don't think that the statute is fairly interpreted to cover that.
First, "loss of property" generally means destruction of property, and not loss of business income. And, second, even if there is some situation in which speech does cause destruction of property — e.g., causing perishable property to perish because shippers are persuaded (through means other than violence or true threats) not to ship it — the statute seems designed to exclude that. To be sure, one could read the "economic damage" limitation as applying only to "damage" (or only to the penalties section of the statute, which expressly refers to "economic damage"), and not "caus[ing] loss." But between the definition of "damage," the express provision protecting "expressive conduct (including peaceful picketing or other peaceful demonstration)," and the availability of an interpretation of "caus[ing] loss" that is limited to causing loss through means other than protected speech, the sensible interpretation of the statute is one that protects speech and focuses only on nonspeech conduct or on true threats.
At most, it seems to me that the First Amendment challenge would lead a court to interpret the statute narrowly, to apply to violence, vandalism, and true threats, as I described above — an interpretation that's entirely consistent with the language, and that seems likely to be precisely what the statute has been generally understood as covering. I don't think a court should or would interpret the statute more broadly, and strike it down as overbroad. And indeed United States v. Fullmer (3d Cir. 2009) seemed to take a similarly narrow view of the statute, though it dealt with a vagueness challenge rather than an overbreadth challenge. So the statute, as properly read and as likely to be read by courts, is constitutional.
Disclosure: Some of my colleagues in other departments at UCLA have been the targets of criminal attacks because of their research on animals.
Saudi Writer Extradited from Malaysia to Saudi Arabia Over Tweets About Mohammed
Here is the offending speech, framed as statements to Mohammed on his birthday:
On your birthday, I will say that I have loved the rebel in you, that you've always been a source of inspiration to me, and that I do not like the halos of divinity around you. I shall not pray for you.
On your birthday, I find you wherever I turn. I will say that I have loved aspects of you, hated others, and could not understand many more," he wrote in a second.
On your birthday, I shall not bow to you. I shall not kiss your hand. Rather, I shall shake it as equals do, and smile at you as you smile at me. I shall speak to you as a friend, no more.
The New York Times reports, as do Andrew McCarthy (National Review Online) and Nina Shea (National Review Online). The writer, Hamza Kashgari, is facing a possible death sentence for apostasy or blasphemy, though as I understand this in practice ends up becoming a substantial prison sentence.
"What Milton Means to Me"
"Malt does more than Milton can to justify God's ways to man." No, sorry, wrong Milton: "What Milton means to me" is the name of a video contest put on by the Free to Choose Network about Milton Friedman (who died even older than Mithridates). Check it out.
Yale Kamisar on the Rise and Fall of Miranda
My co-author Yale Kamisar helped found the field of constitutional criminal procedure in the 1960s, and his articles have been cited in dozens of Supreme Court cases as early as 1960 and as recently as 2009. He's now in his 80s and remains active. Yale lectured on the law of police interrogations at the University of Washington Law School back in October in a lecture titled "The Rise Fall and Decline of Miranda." You can watch the video of the event via Quick Time here; watch it via Windows Media Player here; download the mp3 here; or read the transcript here.
More "For the Moment Final"** Thoughts on SOPA
[** from Wallace Stevens, NY Law School Class of '03, The Man With the Blue Guitar -- though the original reads "for a moment final", a nice example of how much meaning can change when substituting the definite for the indefinite article]
The folks over at Justia's Verdict asked me to give them a piece summarizing the whole SOPA debate and for some reflections of a "now that the dust has settled a bit, what was that all about?" variety. So I did. The original is published here: http://verdict.justia.com/2012/02/13/.... By virtue of Justia's rather enlightened publication agreement, I can reprint/republish/reuse my piece to my heart's content, provided I acknowledge and link to their initial posting – which I've done. So here it is. Those of you who have read my earlier postings on the subject will see familiar things in here – but I think I keep finding more reasons to be alarmed by what the Congress was about to do, and that they speak to some very large issues in connection with our ability, going forward, to bring "law" to the Net.
SOPA and the Future of Internet Governance
So what was all that fuss about? SOPA, PIPA, Internet Blackout Day, front page stories in newspapers all across the country, 8 million or so emails pouring into the White House, 2 million #sopa tweets, 10 million signatures added to online petitions opposing the bills, . . . followed, of course, by the announcement that these various legislative proposals for combating online infringement1 had been taken off the table "for further study."
1. Although SOPA (the "Stop Online Piracy Act") was only one of the bills advancing through Congress to deal with online infringement – others include PIPA ("Protect IP Act"), COICA ("Combating Online Infringement and Counterfeits Act"), and the incredibly-acronymed E-Parasite Act – " Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation" – I will use "SOPA" as the generic descriptor of the class throughout this article.
As Larry Downes noted in Forbes, "Internet users have revolted before in the face of earlier efforts to regulate their activities, but never on this scale or with this kind of momentum."
What happened? How did it happen? And does it matter?
I'm not sure anyone can say – yet – exactly what happened or how it happened. But whatever it was – a spontaneous, grassroots outpouring of opposition to an attack on Internet freedom of expression? A bunch of information junkies who've gotten hooked on free music and free movies sticking it to the Man? A plot by the giant technology companies to show Washington who's the boss? – I'm here to tell you: It matters, and it matters a great deal.
It matters because the Internet matters – if the events of the Arab Spring didn't finally persuade everyone of that, I can't imagine what would or will – and because SOPA would have done serious damage to the technical infrastructure that allows the Internet to do the remarkable things that it does. [More on that in a moment]
And it matters – even more — because the law enforcement regime that SOPA would have put into place reflects an approach to the problems of "Internet law" and "Internet governance" that is outmoded, unworkable, and unjust.
SOPA's objective was straightforward: to reduce or eliminate access to websites operating outside of U.S. borders and "dedicated to infringing activities" – e.g., offshore websites offering copyrighted music or movies for download, or selling counterfeit Omega watches, all without authorization from the rights holders. It's a worthwhile objective; nobody can deny that there are an enormous number of such sites, that many of them make a great deal of money by trampling on the legitimate rights of copyright and trademark owners, and that the consequent damage to those rights holders is substantial.
This problem of offshore infringement arises from two very basic characteristics of the global network. First and most obviously, digital information can be reproduced at nearly zero cost, and with nearly 100% accuracy, making it a simple matter to do something that was for all intents and purposes impossible a mere twenty or thirty years ago: producing, say, 100,000 copies of the motion picture "Avatar" while on coffee break, and with a lower outlay of funds than is required for your cappuccino.
Second, physical location in realspace no longer bears any relationship whatsoever to accessibility or to proximity. In realspace – the world of atoms and tangible matter – it's harder to do business in London if you're in Lima than it is if you're in Liverpool, and it's harder to cause harm in Seattle from Seoul than from Spokane. But in the world of bits, that's just not true anymore; web servers in all of those cities are effectively "equidistant" from one another, as "close to," and as accessible to, a user anywhere on the global network as the server down the street.
That's the good news. The bad news is that our realspace legal infrastructure is, just as one would expect it to be, built for the world of atoms. (How could it have been otherwise?) Our realspace legal system reflects this fundamental feature of the world within which it was designed to operate: physical location and physical proximity are indispensable components of many inquiries central to the way law operates, e.g., determining "jurisdiction," or "citizenship," or the "locus" of a contract or a tort, or dozens of other questions. The "distance" between actors matters, in that realspace legal world; the more physically distant the relevant actors the more difficult it is, generally speaking, to enforce one's law on them.
The disconnect between these two worlds – one in which physically distant actors can have a very substantial impact (good or bad) upon you or your property, and one in which it is difficult to bring law to bear upon them – is at the heart of the problem on which SOPA trains its sights.
It's a profoundly difficult problem. Some of us saw it coming, twenty years ago. An enormous amount of creative and innovative thinking is going to be required if we are to solve it in a sensible way. SOPA does reflect some creative and innovative thinking; indeed, it embodies a radical new plan for the way that law enforcement will proceed on the Net. But the new plan is deeply flawed, and would set us on precisely the wrong course for dealing with this difficult challenge.
A few words, first, about how SOPA works. SOPA targets the activities of "foreign infringing websites," but it doesn't impose any sanctions on the offending websites, on the servers on which those websites are hosted, or even on the operators of those websites. Instead, SOPA imposes its sanctions on the domain names used by those websites. It authorizes courts to "seize" the domain names used by the offending sites via actions in rem, actions against "property" (i.e., the domain name) and not the persons owning or using the property, thereby avoiding the messy problem of trying to assert personal jurisdiction over the foreign actors or the foreign servers. Judges could then issue orders to any U.S. Internet Service Provider – a category that includes hundreds of thousands of entities, from giants like Comcast, Verizon, and AT&T to any business or educational institution that offers Internet access to users – requiring the removal of the offending websites' domain names from the ISP's "routing tables," the databases of Internet domain names and Internet addresses used by all ISPs to get messages from one place to another over the Net.
This is not the place, nor do I have the time or space, to explain how those routing tables, or Internet message routing more generally, work.2 Every day, the Internet accomplishes an astonishing feat, many hundreds of billions of times over: it takes an address on a message (like the URL that you type into your web browser, or the email address you put into the appropriate field of an email message), and, from among the seven or eight hundred million machines out on there on the Internet, it finds the right one to deliver it to. All in about a second or two. It is a truly incredible (and largely invisible and unappreciated) feat of engineering, a finely-tuned system (to put it mildly) comprising, among other things, hundreds of thousands of copies of these routing table databases circulating around the Internet from ISP to ISP at all times.
2. If you're interested, see chapter 10 ("Governing Cyberspace II: Names") of my book In Search of Jefferson's Moose: Notes on the State of Cyberspace for a detailed account.
All of that complicated engineering is premised on one fundamental principle: universal addressing. The routing tables are the same wherever you are; that's why there's only one Internet, and it looks the same whether you access it from Brazil or from Boston or from Belarus.
The consequences of court intervention ordering the selective removal of entries from these routing databases are potentially severe and possibly catastrophic. Don't take my word for it; people who know a great deal more about these engineering matters than I do have warned about this in no uncertain terms. In their words, SOPA's manipulation of the domain name system (DNS) would:
(a) be "evaded easily" and would "likely prove ineffective at reducing online infringement";
(b) "threaten the security and stability" of the Internet, "harming efforts that rely on DNS data to detect and mitigate security threats and improve network performance" and "posing significant risk of collateral damage"; and
(c) "weaken important efforts now underway to improve Internet security [by] enshrining and institutionalizing the very network manipulation that [such security measures] must fight in order to prevent cyberattacks and other malevolent behavior on the global Internet, thereby exposing networks and users to increased security and privacy risks."3
3. Crocker, Dagon, Kaminsky, McPherson, and Vixie, "Security and Other Technical Concerns Raised by the DNS Filtering Requirements in the PROTECT IP Bill." Several of the authors were instrumental in the current design of the DNS, and continue to operate critical portions of the DNS infrastructure.
The Obama Administration, finally, got this message. As Internet Blackout Day approached, the White House announced that it was reconsidering its support for SOPA, in part because . . .
. . . proposed laws must not tamper with the technical architecture of the Internet through manipulation of the Domain Name System (DNS), a foundation of Internet security. Our analysis of the DNS filtering provisions in some proposed legislation suggests that they pose a real risk to cybersecurity and yet leave contraband goods and services accessible online. We must avoid legislation that drives users to dangerous, unreliable DNS servers and puts next-generation security policies, such as the deployment of DNSSEC, at risk."
But the damage SOPA would impose on the Internet goes beyond this (though this is serious enough), extending beyond the Internet's technical infrastructure and deep into its legal infrastructure.
Two of its provisions are especially troubling. First, SOPA authorizes issuance of these domain-name-removal orders after nothing more than summary ex parte proceedings, proceedings in which only the prosecutor and the judge, and not the individual(s) responsible for the websites' activities, are present.
What this means is that some Korean, or Brazilian, or Russian website operator wakes up one morning to discover that her domain has been "seized" by the US government, and that ISPs are now removing it from the routing tables and making it, literally, invisible across the Net. Her website is still up and running – it's just that fewer and fewer people can reach it. She can challenge the seizure (once she finds out what happened) — perhaps on the grounds that her website is not "dedicated to infringing activities" at all, perhaps on the grounds that under Korean, or Brazilian, or Russian law her actions are entirely lawful, or perhaps on the grounds that the prosecutor just got it wrong, as prosecutors sometimes do – but she'll have to come to the United States, and get legal representation, to do so. (And if she does that, in a little added bit of nastiness, SOPA provides that she will then be deemed to have subjected herself to the personal jurisdiction of the US courts).
Second, SOPA authorizes a kind of "vigilante enforcement": copyright or trademark holders, acting entirely on their own without the intervention even of a prosecutor or a judge, would be able simply to provide written notice to banks, credit card companies, Internet search engines, or Internet advertisers regarding the allegedly infringing conduct of the foreign websites, and the recipients of the notice will then have five days to cease doing any business with the offending website or risk losing an immunity from suit for damages caused by the website's continuing operation.
"A guy walks into a bank. He asks to see the branch manager. He says: "You know Farmer Jones, whose place is just down the road from mine? He's been dumping pig shit in my pond, and spoiling it for my livestock. He's a nasty SOB. STOP DOING BUSINESS WITH HIM. FREEZE HIS ACCOUNT."
In our realspace legal world, the bank will (and should) refuse. "We're sorry, but we can't just take your word for it," it will say; "Bring us a court order and we'll comply, but we're not just going to deny Farmer Jones access to our services just because you think he's acting illegally."
More to the point, in our realspace legal world, the law surely does not and cannot compel the bank to comply with the demand, or offer it a reward for doing so – precisely what SOPA would do. One of the very small number of truly fundamental principles undergirding our legal system, and the Rule of Law itself, enshrined (twice!) in our Constitution, is that you may not deprive anyone (like Farmer Jones) of life, liberty, or property without due process of law: a meaningful opportunity to be heard, before a neutral magistrate, in an adversarial proceeding in which he gets to present his side of the story, in a forum that can lawfully assert jurisdiction over him and/or his property.
What is most disturbing about SOPA is not just that it would run roughshod over this principle, though it would, and that is disturbing enough; what is most disturbing about SOPA are the justifications proffered by its proponents for doing so. I'm not aware of any SOPA supporter who argues that SOPA actually does provide foreign website operators with a meaningful opportunity to be heard, before a neutral magistrate, in an adversarial proceeding and in a forum that can lawfully assert jurisdiction over him and/or his property before depriving them of their ability to communicate with millions of Internet users in the United States. Instead, they argue that the full panoply of procedures comporting with due process isn't required when courts "seize property" (like a domain name) that is located "inside" the United States borders. And they argue that, in any event, SOPA doesn't violate the due process rights of foreign website owners because as foreign nationals standing outside of U.S. borders, they don't have due process rights.
To be fair, it's not an entirely indefensible position; indeed, there's precedent to the effect that, as the Supreme Court put it, "[a]liens receive constitutional protections [only] when they have come within the territory of the United States and developed substantial connections with this country."4 To SOPA proponents, the proper analogy here is to the Customs Service. SOPA, they say, simply prevents persons operating outside the United States from entering into our territory and bringing unlawful material – contraband movies and handbags – with them. Customs agents board and search ships at the U.S. borders all the time, and if they find 100,000 copies of the Avatar DVD in the hold, they seize those copies and bring them before a magistrate, who orders their disposal and destruction (with or without the ship owner present). Nobody complains about due process (or, for that matter, about the ship owner's First Amendment rights) when this happens. "Why, then," they ask, "is everyone so exercised about SOPA?"
4. United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990).
To which the answer is: we're exercised about SOPA because, as I said earlier, it is outmoded, unworkable, and unjust. The Customs Service analogy doesn't work; there are no ships, and there are no borders, no "French" or "Brazilian" or "American" parts of the Internet, but a single global network. We can, if we wish, impose borders onto the network, through legislative enactments like SOPA, thereby creating an "American" portion of the Internet, and we can let the Brazilians create a "Brazilian" portion of the Internet, and the Australians an Australian portion, and so on; but why would we want to do that? Why would we want the Internet to look like the map of the world in 1950 or 1975, when its power derives precisely from the fact that it is a single global network, accessible to, and allowing communication among, all of the world's peoples?
It is unworkable, because the network architecture virtually guarantees that evasion will be widespread and rather simple to accomplish; tools that allow websites to instantaneously alter their domain names and redirect traffic to the new sites without any special action on a user's part are already widely available, and will surely become more so if this approach becomes commonplace. SOPA will not stamp out copyright infringement on the Internet; it probably won't even make much of a dent in copyright infringement. If there are 50,000 pirate websites out there and SOPA somehow managed to close half of them down, that still leaves you with 25,000 badguys. And in the world of bits – where information is infinitely reproducible at virtually no cost – 25,000 bad guys can do just as much damage to your intellectual property as 50,000 bad guys.
And it is unjust. Perhaps we are not required to provide due process to those residing outside our borders, but that hardly means that we shouldn't do so. The Constitution of the United States, remember, doesn't bestow the right to due process upon us; it says that the government won't take away the due process rights we all already have by virtue of the fact that we are human beings. That, I suggest, is the principle on which we should begin building a truly just legal regime for our new global place.
Copyrighted works are important, culturally and economically, and they are worth protecting. They are not, however, sacred objects that we should protect at any cost. The damage SOPA would do is immense, and its benefits would be negligible. RIP, and may it not, as I suspect it will, rise from its grave to haunt us any time soon.
Responding to Online Outlines
Many law professors are distressed by the proliferation of online course outlines and case briefs. Commercial outlines have been available for years. Now those students inclined to rely on such study tools have access to lower-cost alternatives. That's not the problem. Rather it's the existence of outlines that purport to represent how specific professors teach specific classes and (worse) that such outlines are often riddled with errors. I've looked at a few outlines from my classes on various websites and was astounded at the number of mistakes. If these outlines are representative of what's out there, students rely on them at their own risk (and some have — which could explain how every year I find a set of exams making the same set of off-the-wall mistakes).
Some professors have sought to squelch the distribution of notes and outlines from their courses. Professor Bainbridge has come up with a better idea — one I may have to emulate.
I'm going to buy some of these note sets and outlines being sold for my classes. I'll go through them and find all the mistakes. And then I'll write exam questions testing on those very same mistakes. If we all did that, the market would dry up pretty quick.
UPDATE: Some of the comments below reflect an odd view of legal education. A law school exam should test the extent to which a student has mastered the assigned materials. A student who has mastered the assigned materials will not reflexively regurgitate mistakes found in an outline, whether purchased in a book store or downloaded from the web. Indeed, uncritically copying or repeating what one finds in an outline is no way to learn the law. Fortunately, in my classes, this problem appears to be confined to a handful of students each year.
An exam should fairly represent the material covered, not focus on picayune details or play gotcha. My own exams reflect this approach. They are difficult (or so my students say), but are a fair reflection of what we covered in class. Most of my former students say my exams were "tough but fair" — and that's what I want them to be. Reviewing attendance records, I've also found that those students with the poorest attendance records tend to have among the lowest scoring exams, suggesting that paying attention in class pays dividends — and, again, that is what I would hope for.
I have no problem with outlines or other supplemental material if used properly. Every year I make a point of recommending supplemental material that I believe students will find helpful and of explaining how such material (including commercial outlines) can be used most productively. I referred to outlines in some of my classes as a student. Yet as I explain to my students every year, I don't believe commercial or web-based outlines are a substitute for reading and digesting the material or preparing one's own outline of a course. If all that were necessary to achieve a good grade were finding the right outline, there would not be much value in taking the course — indeed, there would not be much value in law school beyond the credential.
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