Category: Criminal Procedure


How CalECPA Improves on its Federal Namesake

Last week, Governor Brown signed the landmark California Electronic Communications Privacy Act[1] (CalECPA) into law and updated California privacy law for modern communications. Compared to ECPA, CalECPA requires warrants, which are more restricted, for more investigations; provides more notice to targets; and furnishes as a remedy both court-ordered data deletion and statutory suppression.  Moreover, CalECPA’s approach is comprehensive and uniform, eschewing the often irrational distinctions that have made ECPA one of the most confusing and under-protective privacy statutes in the Internet era.

Extended Scope, Enhanced Protections, and Simplified Provisions

CalECPA regulates investigative methods that ECPA did not anticipate. Under CalECPA, government entities in California must obtain a warrant based on probable cause before they may access electronic communications contents and metadata from service providers or from devices.  ECPA makes no mention of device-stored data, even though law enforcement agents increasingly use StingRays to obtain information directly from cell phones. CalECPA subjects such techniques to its warrant requirement. While the Supreme Court’s recent decision in United States v. Riley required that agents either obtain a warrant or rely on an exception to the warrant requirement to search a cell phone incident to arrest, CalECPA requires a warrant for physical access to any device, not just a cell phone, which “stores, generates, or transmits electronic information in electronic form.” CalECPA clearly defines the exceptions to the warrant requirement by specifying what counts as an emergency, who can give consent to the search of a device, and related questions.

ECPA’s 1986-drafted text only arguably covers the compelled disclosure of location data stored by a service provider, and does not clearly require a warrant for such investigations. CalECPA explicitly includes location data in the “electronic communication information” that is subject to the warrant requirement when a government entity accesses it from either a device or a service provider (broadly defined).  ECPA makes no mention of location data gathered in real-time or prospectively, but CalECPA requires a warrant both for those investigations and for stored data investigations. Whenever a government entity compels the “the production of or access to” location information, including GPS data, from a service provider or from a device, CalECPA requires a warrant.

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The Double Jeopardy Clause and Puerto Rico

One of the cases granted by the Court yesterday raises some intriguing issues that I want to discuss.  In Puerto Rico v. Sanchez Valle, the question presented is whether Puerto Rico and the Federal Government are separate sovereigns for purposes of the Double Jeopardy Clause.  Under Bartkus v. Illinois, a 1959 decision written by Justice Frankfurter, the Double Jeopardy Clause does not bar the United States from prosecuting someone who was acquitted in a state criminal trial.  The Court’s theory was that this part of the Fifth Amendment applies only to a specific level of government–federal or state–that is sovereign. Is Puerto Rico analogous to a state because of its unique commonwealth status, or is it more appropriate to view Puerto Rico as a federal territory that is not a separate sovereign in this context?  Because Justice Sotomayor is Puerto Rican and wrote her Note on the legal status of the island, her perspective should be especially interesting

I hope, though, that some amicus or Justice raises the question of whether Bartkus should be overruled.  The decision rests on a very dubious rationale and, I think, applied incorporation incorrectly with respect to this powerful principle that protects unpopular defendants.  Someone should make this point assuming that the Court decides that Puerto Rico is a separate sovereign.


Privacy Security Novels 02

5 Great Novels About Privacy and Security

I am a lover of literature (I teach a class in law and literature), and I also love privacy and security, so I thought I’d list some of my favorite novels about privacy and security.

I’m also trying to compile a more comprehensive list of literary works about privacy and security, and I welcome your suggestions.

Without further ado, my list:

Franz Kafka, The Trial

Kafka’s The Trial begins with a man being arrested but not told why. In typical Kafka fashion, the novel begins badly for the protagonist . . . and then it gets worse! A clandestine court system has compiled a dossier about him and officials are making decisions about him, but he is left in the dark. This is akin to how Big Data can operate today. The Trial captures the sense of helplessness, frustration, and powerlessness when large institutions with inscrutable purposes use personal data and deny people the right to participate. I wrote more extensively about how Kafka is an apt metaphor for privacy in our times in a book called The Digital Person about 10 years ago.

Franz Kafka The Trial


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UCLA Law Review Vol. 62, Issue 3

Volume 62, Issue 3 (March 2015)

Fixing Public Sector Finances: The Accounting and Reporting Lever James Naughton & Holger Spamann 572
Less Enforcement, More Compliance: Rethinking Unauthorized Migration Emily Ryo 622
Decriminalization, Police Authority, and Routine Traffic Stops Jordan Blair Woods 672



Not Whether Machines Think, But Whether Men Do Jane Stack 760
Fighting for a Place Called Home: Litigation Strategies for Challenging Gentrification Hannah Weinstein 794

Prosecuting Prosecutors for Perjury? 9th Circuit panel comes down hard on lying prosecutors issue

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Updated: 1-28-15: 2:10 PM, ET

Writing in the New York Observer, Sidney Powell began her column this way: “What will it take to produce honest and ethical conduct from our state and federal prosecutors? The Ninth Circuit has a suggestion. Perhaps a perjury prosecution will do it. In fact, that is exactly what should happen when prosecutors affirmatively lie. This case, Baca v. Adams, involves a clear violation of the Supreme Court’s decision in Napue, which holds that prosecutors cannot put on perjured testimony, much less lie themselves. Unfortunately, as I’ve documented elsewhere, it happens far too often, when it should never happen at all.” I urge readers to take a look at Sidney Powell’s column, which is both informative and powerful.

Even more so is the video of the exchange between Judges Alex Kozinski, Kim McLane Wardlaw, William Fletcher and  California Supervising Deputy Attorney General Kevin Vienna.

Early on in his opening remarks (16 minutes into video), Mr, Vienna stated: “A number of things happened that should have not happened, and we’re not here to defend them.” But he defend them he did, albeit guardedly. It was downhill from there. Things got even worse when Judge Kozinski and his colleagues weighed on the matter of prosecutorial perjury.

The clip is too extraordinary to quote — you really must see it. So, click on the video and watch how Mr. Vienna attempted to make the case for the State as the Judges dug deeper into the issue of proctorial perjury.

Over at Hercules and the Umpire, Judge Richard G. Kopf adds a few comments.

UPDATE: This from John Roemer writing in the Daily Journal (Jan. 27, 2015):

“Misconduct by Riverside County prosecutors has forced the reversal of a 1998 murder­for­hire conviction in a case that raised the ire of Circuit Judge Alex Kozinski and led to his demand that Attorney General Kamala D. Harris fix the situation.”

“Riverside County’s new district attorney, Mike Hestrin, said Monday in a media statement, ‘While we do not concede the prosecutorial misconduct was intentional or malicious … I am requesting that Mr. Baca’s murder case be returned to Riverside County to allow a retrial unmarred by even the appearance of impropriety or unfairness.'”

“. . . [Judge] Kozinski sought to pressure the state officials to resolve the case without having a federal court decide Baca’s appeal. ‘It will look terrible when we write it up and name names,’ he predicted.”


Police Killing Unarmed Minority Men on Video with Impunity is not New

The grand jury’s decision to not indict a police officer in the death of Eric Garner despite video of the incident, in the wake of the failure to indict Darren Wilson, further illustrates the apparent immunity of police officers in cases where officers have killed ethnic minority Americans. The Garner case is a reminder that the interpretation of (crime) videos is filtered through pre-existing cultural lenses, but it also speaks to a more fundamental problem. The case provides more evidence that video has not been a panacea in addressing lethal violence by police officers, a fact which is relevant in discussing the likely efficacy of cop cams. I have posted other similar disturbing videos of lethal force being used against unarmed ethnic minority men (after the jump) wherein there has been no accountability in the criminal justice system for the officers involved.

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A Plea Bargaining Strike

I am seldom shocked these days, but the article in this week’s New Yorker about Kalief Browder is astonishing.  Browder is arrested for theft.  He does not receive bail.  He is imprisoned for three years on Rikers Island without trial.  Then the prosecutor dismisses the case (because the alleged victim moved to another country).  How this could go on without a successful Sixth Amendment claim is beyond me.  (Browder is now suing for damages).  The New York criminal justice system (at least in the City) should be deeply ashamed.

This leads me to ask a broader question about the constitutional guarantee of a “speedy trial.”  Nobody would be surprised to learn that trials are much less speedy now than they were in 1791 or 1868.  Some of that is unavoidable, but I wonder to what extent this constitutional right is ripe for rediscovery.  Consider that this is a right that protects defendants.  If the state cannot get its case together in a timely way, then the charges must be dismissed.  Moreover, if a state or local criminal justice system is underfunded such that trials cannot happen quickly, then the charges must be dismissed.  At least that could be how the Sixth Amendment is applied.  My sense, though, is that courts rarely find that a defendant’s speedy trial right is violated.  (I can tell a good story about the related right to a “public trial” from my clerking days, but I’ll save that for another post.)  An originalist could have a field day with this subject.

This brings me to my last thought.  People often complain about the use of plea bargaining and its abuses.  Imagine for a moment that there was a plea bargaining strike.  Under any reasonable interpretation of the Sixth Amendment, most of the striking defendants should go free.  Why?  Because the current criminal justice could not handle so many trials–the delays and backlog would be enormous.  That suggests the existence of a significant right/remedy gap.


Cognitive Biases, the Legal Academy, and the Judiciary

It’s a pleasure to be here at Concurring Opinions.  I would like to thank Dan, Sarah, and Ron for inviting me.  During my visit, I hope to talk a bit about my core research areas of land use and local government law (including why you, who are statistically unlikely to be interested in either land use or local government law, should be interested), but also about other issues such as the current state of the legal academy and the legal profession, often using land use or local government law to examine these broader issues.

On Cognitive Biases

On that last note, recently ran a great piece by Katy Waldman regarding how the human brain processes information, observing that people have a predilection to believe factual claims that we find easy to process.  Waldman synthesizes the results of several interesting studies, including one eye-opening study that identifies three persistent cognitive biases that humans possess.  As Waldman summarizes these biases: “First, we reflexively attribute people’s behavior to their character rather than their circumstances.” Second, “we learn more easily when knowledge is arranged hierarchically, so in a pinch we may be inclined to accept fixed status and gender roles.” And third, “we tend to assume that persisting and long-standing states are good and desirable, which stirs our faith in the status quo absent any kind of deep reflection.” The studygreen-lizard-1427838-s attributes these biases to the basic human need, rooted in the primitive recesses of our lizard brain (pictured), to manage uncertainty and risk.

While Waldman argues that there is some relationship between these biases and conservative political beliefs, what struck me about these findings is how well the biases describe judicial behavior.

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The U.S. Supreme Court’s 4th Amendment and Cell Phone Case and Its Implications for the Third Party Doctrine

Today, the U.S. Supreme Court handed down a decision on two cases involving the police searching cell phones incident to arrest. The Court held 9-0 in an opinion written by Chief Justice Roberts that the Fourth Amendment requires a warrant to search a cell phone even after a person is placed under arrest.

The two cases are Riley v. California and United States v. Wurie, and they are decided in the same opinion with the title Riley v. California. The Court must have chosen toname the case after Riley to make things hard for criminal procedure experts, as there is a famous Fourth Amendment case called Florida v. Riley, 488 U,S, 445 (1989), which will now create confusion whenever someone refers to the “Riley case.”

Fourth Amendment Warrants

As a general rule, the government must obtain a warrant before engaging in a search. A warrant is an authorization by an independent judge or magistrate that is given to law enforcement officials after they properly justify their reason for conducting the search. There must be probable cause to search — a reasonable belief that the search will turn up evidence of a crime. The warrant requirement is one of the key protections of privacy because it ensures that the police just can’t search on a whim or a hunch. They must have a justified basis to search, and that must be proven before an independent decisionmaker (the judge or magistrate).

The Search Incident to Arrest Exception

But there are dozens of exceptions where government officials don’t need a warrant to conduct a search. One of these exceptions is a search incident to arrest. This exception allows police officers to search property on or near a person who has been arrested. In Chimel v. California, 395 U.S. 752 (1969), the Supreme Court held that the police could search the area near an arrestee’s immediate control. The rationale was that waiting to get a warrant might put police officers in danger in the event arrestees had hidden dangerous items hidden on them or that arrestees would have time to destroy evidence. In United States v. Robinson, 414 U.S. 218 (1973), the Court held that there doesn’t need to be identifiable danger in any specific case in order to justify searches incident to arrest. Police can just engage in such a search as a categorical rule.

What About Searching Cell Phones Incident to Arrest?

In today’s Riley case, the Court examined whether the police are allowed to search data on a cell phone incident to arrest without first obtaining a warrant. The Court held that cell phone searches should be treated differently from typical searches incident to arrest because cell phones contain so much data and present a greater invasion of privacy than more limited searches for physical objects: “Cell phones, however, place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson.”

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Surveillance, Capture, and the Endless Replay

Global opposition to surveillance may be coalescing around the NSA revelations. But the domestic fusion centers ought to be as big a story here in the US, because they exemplify politicized law enforcement. Consider, for instance, this recent story on the “threat” of “Buy Nothing Day:”

Fusion Centers and their personnel even conflate their anti-terrorism mission with a need for intelligence gathering on a possible consumer boycott during the holiday season. There are multiple documents from across the country referencing concerns about negative impacts on retail sales.

The Executive Director of the Intelligence Fusion Division, also the Joint Terrorism Task Force Director, for the D.C. Metropolitan Police Department circulated a 30-page report tracking the Occupy Movement in towns and cities across the country created by the trade association the International Council of Shopping Centers (ICSC).

Yes, police were briefed on the grave threat of fake shoppers bringing lots of products to the till and then pretending they’d forgotten their wallets. Perhaps the long game here is to detain members of the Church of Stop Shopping to force them to make Elves on the Shelf for $1 an hour.

More seriously: no one should be surprised by the classification of anti-consumerist activists as a threat, given what Danielle Keats Citron & I documented, and what the ACLU continues to report on. But we do need more surprising, more arresting, characterizations of this surveillance. Fortunately, social theory provides numerous models and metaphors to counter the ideology of “nothing to hide.”
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