Category: Criminal Procedure


The Path to Carpenter v. United States and Possible Paths Forward

Thanks to Matt Tokson for posting his thoughtful and smart reactions to the Carpenter case. I offered some less thoughtful and less smart thoughts about Carpenter earlier on Friday. After reflecting on the case over the weekend, I thought I’d offer a little bit more analysis of how the Court got here and where things are going from here.

1. The Forgotten but Major Role of Douglas Ginsburg and the DC Circuit. Casebooks generally focus on Supreme Court cases rather than lower court opinions in cases where the Supreme Court ultimately weighed in, and that’s understandable. But the intellectual heavy lifting in the case that would ultimately become known as Jones was done by the lower courts, and in particular by Judge Ginsburg’s masterful and at-the-time radical 2010 opinion in United States v. Maynard. (The case’s name changed by the time it made it to SCOTUS, but it’s the same dispute.) Here’s a post from Orin Kerr in the immediate aftermath of  the Maynard decision, which he described as “potentially revolutionary” but unpersuasive. To be sure, not everything that Judge Ginsburg wrote in Maynard eight years ago has come to pass, and the Carpenter Court is conspicuously less enthusiastic about the mosaic theory than the Jones concurrences were. But the idea that a comprehensive record of someone’s movements over time is deeply sensitive information got its most articulate defense by the DC Circuit, the DC Circuit opinion focused on the reasonable expectations of privacy analysis that was echoed in Carpenter rather than the narrower property theory that the Court ultimately adopted in Jones, and the fact that the opinion was the product of three of the country’s most widely respected appellate jurists (Ginsburg, Tatel, and Griffith) must have gotten the attention of Chief Justice Roberts, who served on the circuit court alongside all three (albeit briefly in the case of Judge Griffith.) With the benefit of hindsight I think we can now conclude that Maynard turned out to be “revolutionary” rather than “potentially revolutionary.” Maybe the Supreme Court would have eventually gotten to the same result in Carpenter anyway, but it’s entirely possible that the recent history would have played out very differently. And in remembering the role of the DC Circuit we should also note the contributions of Maynard’s court-appointed counsel (Sicilia Englert and Stephen Leckar) as well as the amici (the ACLU and EFF) in shaping the DC Circuit’s thinking. Maynard is worth a read or re-read for those seeking to understand how we got to Carpenter. 6/27 Update: Upon further reflection it’s worth noting that Judge Ginsburg’s opinion also anticipates the positive law model moves that Justice Gorsuch would later make in Carpenter, using several privacy tort law precedents (such as Nader and Galella) to develop the case for the idea that the Fourth Amendment protects geolocation privacy.

2. Where we go from here? I was curious about a hypothetical scenario after Carpenter and ran a very unscientific Twitter poll with the following scenario.

Here’s a hypothetical: Witness sees Uber black car speeding away from hit & run accident scene in NYC but doesn’t see plate or driver. Govt wants Uber to give it names of Uber drivers who were near scene at the time. After Carpenter does the government now need a search warrant?

The 41 people who responded split 20-21. I don’t want to make much of this kind of survey, but it’s a fun result. And I think there are very strong arguments in either direction. Uber drivers almost certainly have more situational awareness of their location being tracked by Uber than ordinary Americans do of their locations being tracked via cell towers. Matt’s research provides us with great data on the latter question. On the other hand, for an Uber driver sharing this information with Uber feels a little bit more free-choicey than the “choice” to use a cell phone, as nobody has to be an Uber driver, and for some of the drivers Uber presumably is only getting geolocation information while the drivers are using the app / on-the-clock, so the information collected isn’t quite as comprehensive. (I’m not an Uber driver so I don’t know for sure that drivers can turn off location services while they aren’t using the app. Consumers can do so.) And here the government just wants geolocation information at one moment in time, not over a long period of time.

If the government wants to figure out which Uber drivers were near the hit and run in question it is not at all clear that it can get a search warrant – there must be (at least) hundreds of black cars in New York and the car in question could be driven by any of their drivers. This hypothetical is essentially a slightly narrower version of the tower dump hypothetical about which the Court explicitly reserved judgment in Carpenter. It wouldn’t surprise me if the Court ultimately determines that cell tower dumps fall on the “search” side of the Fourth Amendment and these kind of “Uber dumps” fall on the non-search side under Miller and Smith.

Speaking of tower dumps, it will be interesting to see where Justice Gorsuch goes in those kinds of cases. From his opinion, it seems like he is still working these sorts of scenarios through and wants the benefit of briefing. From the positive law perspective, is using cell tower dumps to identify all the phones that were turned on within a half-mile radius of a tower a violation of one’s property rights? Probably, but the task of deciding is made harder by the lack of precedents. In the founding era, it would have been impossible for law enforcement to identify all the people within a half mile radius of a spot in Manhattan, especially when many of those people were indoors. So from the Gorsuch perspective, the government is turning peoples’ phones into an instrumentality for revealing their location, in some cases against their expectations and their wishes. Maybe that’s equivalent to a trespass to chattels? Justice Thomas, by contrast, would say that there’s no Fourth Amendment search of an individual here because cell phone carriers are collecting the information for business purposes and any property rights in the information belong to the companies rather than the cell phone users.

3. Hard issues for Gorsuch to work through. One of the things to admire about Justice Gorsuch’s dissent in Carpenter is that he is candid about what he has and hasn’t concluded. It is pretty clear that he is rejecting the third party doctrine, although not so much on originalist grounds as on the grounds that it does not comport with ordinary Americans’ actual intuitions. His discussion of Florida v. Riley (“Try that one out on your neighbors.”) and California v. Greenwood (“I doubt, too, that most people spotting a neighbor rummaging through their garbage would think they lacked reasonable grounds to confront the rummager.”) imply as much. Yet elsewhere in the opinion (page 7 of the slip op.) he also suggests that legislatures, not courts, are likely to have the best intuitions about peoples’ expectations. (He might be right about that if search-and-seizure law was written on a blank slate. But legislatures know that the courts have made themselves responsible for the bulk of criminal procedure law fine-tuning, and legislatures have devoted less attention to these issues than they otherwise would as a result. There are obviously some exceptions.)  That’s not hypocrisy. It’s just an indication of what Matt said earlier – criticizing Katz is easier that developing a better alternative.

An even bigger challenge for Justice Gorsuch will be to decide what kind of positive law matters. Baude and Stern are very clear that they would include not only property law but also tort law and general purpose statutes as legal content that informs the Fourth Amendment’s scope. Justice Thomas embraces the narrower conception (property law only) and it seems that Justice Gorsuch is inclined to go broader. But how much broader? As broad as Baude and Stern? He doesn’t resolve that question in his opinion. And what if a statute bars some actors but not the government from engaging in conduct? For Baude and Stern, such a statute still brings conduct within the scope of the Fourth Amendment. But does it for Gorsuch? With the Court’s present composition, there are presumably going to be some cases where the Chief Justice parts company with the more liberal justices, and Gorsuch’s determination of how much positive law to include could prove decisive in a number of cases. Scholars like Baude, Stern, Richard Re, and others have made significant progress on those questions, but Gorsuch is someone who pays attention to what’s happening in legal academia, so this is a spot where contemporary scholars with big ideas can have a major impact.

— Lior Strahilevitz



8 Takeaways From Carpenter

Thanks to Lior for his excellent overview and thoughts on Carpenter.  I gave some initial reactions on Twitter (@mtokson) and what follows are some still-preliminary thoughts.  It will take a few days to fully process Carpenter, one of the most important Fourth Amendment cases of the past several decades.  Here are some of my takeaways:

  1. Riley-esque. In general, the majority opinion reminded me of Riley v. California.  It recognized the unique privacy issues posed by cell phones and acknowledged the need to update Fourth Amendment law to address new surveillance technologies.  Ultimately, as Lior pointed out, the majority gave little in the way of concrete doctrine to guide future courts in determining when the third party doctrine should apply.  In some ways it also reminded me of the Katz majority – a largely normative opinion reaching what is generally acknowledged as the correct outcome but not really giving a rationale that can be traced to existing doctrine.  It is certainly a step in the direction of more overt normativity (in this case, a focus on how intimate cell phone data can be).  But it largely affirms existing doctrine, including Katz, Smith, and Miller, creating an exception to the third party doctrine rather than abandoning it.  Of course, that exception may ultimately swallow the doctrine.
  2. What is the Test? To the extent there is a test or legal standard to be discerned from Carpenter, I would state it something like: the third party doctrine does not extend to especially revealing or invasive forms of information, such as information that can reveal a citizen’s whereabouts for the past 5 years.  Perhaps the key doctrinal line is, “In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection.”  This is a very fact-dependent and in some ways unique exception to the third party doctrine.  Most information disclosed to third parties is disclosed more voluntarily and less automatically than CSLI.  Nonetheless, this standard suggests that many forms of digital information will ultimately be protected by the Fourth Amendment, because they are especially revealing and/or especially comprehensive.  License plate or facial recognition monitoring seem to fit this description nicely, as Lior and others have suggested.  Web surfing data and speech recorded by a home speaker like Alexa are likely revealing and comprehensive enough to fit as well.  And every Justice with the possible exception of Thomas seems ready to protect email content via one theory or another.  This is why Carpenter is a huge victory for privacy despite its relatively vague and narrow holding.
  3. Roberts Gets It. Again as in Riley, Chief Justice Roberts seemed to grasp the threats to privacy that a new technology poses.  He understands that any suspect, indeed any person, “has effectively been tailed every moment of every day for five years, and the police may—in the Government’s view—call upon the results of that surveillance without regard to the constraints of the Fourth Amendment.”  This long-term, total surveillance is precisely why historical CSLI is so dangerous to privacy.  Roberts’s recognition of this also makes me less concerned about the Court’s failure to hold that historical CSLI tracking for less than 7 days is a search.  I expect they would so hold, if the appropriate case arises.
  4. Justice Thomas Is Not a Katz Person. Justice Thomas shocked me with his attack on both Katz’s test and its holding.  These days, very few people defend Olmstead or argue that the Fourth Amendment does not prohibit warrantless wiretapping.  Yet that appeared to be the thrust of Thomas’s argument.  I ultimately find it hard to disagree with Thomas that a strict originalist/textualist interpretation of the Fourth Amendment supports Olmstead and unfettered government wiretapping.  (I discuss this issue in detail in my recent paper on legal indeterminacy).  But I think the prevailing interpretation of “persons, houses, papers, and effects” as illustrative is a reasonable one.  And Thomas and I have very different views about precedent and constitutional interpretation in general.
  5. The Power of the Jones Concurrence. I counted at least 5 mentions of the Alito-plus-4 Jones concurrence in the Carpenter majority opinion, and even that understates the degree to which Carpenter leans on that concurrence.  Many thought that the Jones concurrence placed the cornerstone of a new Fourth Amendment approach, and I think that prediction is being borne out.  For one thing, holding that the government cannot track its citizens via GPS beeper but can track them via cell phone signal would be an arbitrary, bordering on absurd, result.  Although there is a colorable doctrinal argument for it, as Justice Alito’s dissent demonstrates.
  6. Echoes of Kyllo. I was struck by the echoes of the Kyllo case throughout the majority opinion.  The opinion glosses over the fact that the CSLI in Carpenter’s case wasn’t especially revealing or precise because, like Kyllo, it is concerned with future applications of the technology as well as past ones.  It assesses cell phone tracking in general, as a technique, rather than limiting its analysis to Carpenter alone.  The Court should be applauded for doing so, as it was largely applauded after Kyllo.  Too often, the Court focuses exclusively on the transaction at issue, even though the implications of its decisions reach virtually every application of a given surveillance technique.  If the government can search Greenwood’s trash, it can search everyone’s trash.
  7. Subpoenas. Justice Alito correctly points out the potentially massive importance of the majority’s conclusion that subpoenas are still searches if they implicate a suspect’s reasonable expectations of privacy.  The ‘subpoena exception’ has been a concern of Fourth Amendment scholars for many years.  As Alito points out, however, the Court still needs to reconcile its holding here with the general rule that subpoenas in civil and criminal cases alike require neither a warrant nor probable cause.  There is a potentially large mess here yet to be cleaned up.  Still, the majority (and Justice Gorsuch) are surely correct that subpoenas cannot be allowed to wholly circumvent Fourth Amendment protections for “papers.”
  8. 34 Questions. Justice Gorsuch’s well-written and sharp dissent raised more questions than it answered.  In fact, I counted 34 questions in the 21-page dissent.  Gorsuch gestured towards a positive law approach, a property-based approach, and an analogical approach, but in general the lack of concrete guidance in the dissent points to a universal truth of Fourth Amendment law – it’s far easier to critique the Katz test than to develop a workable alternative.  In the end, I can’t see any way to say that Carpenter has a genuine property right in his CSLI or in any records that Sprint made containing such information.  A meaningful concept of property simply doesn’t extend that far.  I also worry that a rigorous property-based approach ultimately leads to Thomas’s position, and from there to unfettered government surveillance in all sorts of areas.


-Matt Tokson


Ten Thoughts on Today’s Blockbuster Fourth Amendment Decision – Carpenter v. United States

Today the Supreme Court decided that the government generally needs a search warrant to obtain historic cell-site geolocation information. You can see Orin Kerr’s post — no doubt the first of many — for a helpful breakdown of the votes and holding, plus thoughtful analysis. In this post I am going to flag ten quick and initial reactions to the Court’s landmark ruling. Matt Tokson will follow-up with thoughts of his own, so you should stay tuned for those.

  1. From a pedagogy perspective, this case is loads of fun, and an editing challenge. If I were in charge of a casebook I’d want to assign most of the Kennedy, Thomas, and Gorsuch dissents, along with the majority opinion, and excerpts from the Alito dissent. Every Criminal Procedure or Privacy professor can look forward to “I can’t believe how much reading you assigned for the Carpenter class” on teaching evaluations.
  2. It’s good to be the Chief. At many points the majority opinions echoes Justice Sotomayor’s concurrence in Jones (and the Chief Justice’s opinion in Riley). I think had Justice Sotomayor written the majority opinion she would have written something that was a lot more intellectually satisfying by tackling some of the hard questions that the dissents raised and by pointing to the scholarship and theory that built the intellectual case for the majority’s bottom line. The dissents, especially the Thomas and Gorsuch opinions, use Fourth Amendment scholarship to explain exactly where they are coming from, whereas the majority opinion very conspicuously avoids that kind of engagement. The result is a majority opinion that’s cryptic, by design. The majority text and approach are consistent with the Chief’s dim views about legal scholarship generally and with his stated preference for minimalist decisions. My suspicion is that none of the other four justices in the majority would have written the opinion like the Chief Justice did, but they were happy to get a hugely consequential win and avoided writing separately for that reason.
  3. Nate Wessler’s time machine metaphor worked beautifully. Wessler, arguing the case for Carpenter, in I think his first ever SCOTUS oral argument, put on a virtuoso performance. His strongest moment was his invocation of the “time machine” idea – it’s one thing for the government to know where you are now, but quite another for it to go back in time and determine all the places you’ve been during the past few weeks or months. What’s interesting is that this argument is in tension with the structure of electronic surveillance law. Under the federal Stored Communications Act, email communications that have been stored for more than 180 days may be obtained by the government with only a subpoena or court order (with notice), whereas a warrant is required for the government to access stored communications that have been in storage for 180 or fewer days. The idea embedded in the statute is that it’s more intrusive for the government to know what’s happening now or recently than what happened long ago. Wessler’s time machine metaphor flipped this idea around and Chief Justice Roberts and the majority bought it. See, e.g., page 13 of the slip opinion (“With access to CSLI, the Government can now travel back in time to retrace a person’s whereabouts.”). Lawyers everywhere should start echoing the same theme, and the Wessler / Carpenter time-machine metaphor could influence Congress going forward as it legislates with respect to electronic surveillance. UpdateAs Kiel helpfully points out in the comment below, and as I failed to realize, the time-machine argument originated with my law school classmate, Professor Stephen Henderson, in this paper: Kudos to Stephen! Let’s call it the Henderson / Wessler / Carpenter metaphor going forward.
  4. Two Models of Fourth Amendment Protection. There are basically two theories of what constitutes a search operating in the majority opinion, with the key language on page 15. Collecting cell site location information is a search because it’s unexpected and it’s a search because it’s sensitive. The key language for the former, what Orin Kerr calls the “probabilistic model” is this: “Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible.” The sentence that follows immediately articulates Kerr’s “private facts model” — “There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.” The application of the probabilistic model would have been strongly supported by extensive survey research on what people actually expect, and given that the scholarship was brought up twice at oral argument (including a Matt Tokson shout-out) it’s plausible that the scholarship influenced the Chief Justice and the majority, but no one should be surprised that the Chief Justice didn’t want to rely on actual data and preferred to rely on a folksy intuition instead. The intuition is consistent with all the survey research, and not citing the data lets the Chief be noncommital on the methodological question of how to apply the Katz test. (Contrast Justice Gorsuch’s approach, in bullet point 8 below.) The majority’s application of the private facts model is the weakest part of the majority opinion. Justice Kennedy skewers the majority for failing to explain why cell site location information is more sensitive and revealing than pen registry information. As does Justice Gorsuch (pg. 3 – “Why is someone’s location when using a phone so much more sensitive than who he was talking to (Smith) or what financial transactions he engage in (Miller)? I do not know and the Court does not say.”) All the majority says (on page 16) is that “telephone logs reveal little in the way of ‘identifying information.’ … In mechanically applying the third-party doctrine to this case, the Government fails to appreciate that there are no comparable limitations on the revealing nature of CSLI.” This distinction is wafer thin. As Justice Kennedy suggests on pages 17-18 of his dissent, a comprehensive record of everyone you’ve called and how long you’ve spoken with them reveals a great deal about who your intimates are, often allows inferences about what was said, can identify associations that people are taking steps to keep secret, and reveals information sensitive information about other people (the recipients of those calls). The line the Court is drawing becomes an indelible part of the Constitution’s meaning, but we shouldn’t kid ourselves in thinking that it’s grounded in any hard evidence or strong theory. And that should make us think it’s a line that could get erased before too long.
  5. The Missing Two Models of Fourth Amendment Protection. What of the Positive Law Model of Fourth Amendment Protection and the Policy Model? The Positive Law Model (the idea that property rights and other aspects of state law determine what is protected against Fourth Amendment searches) is treated as largely irrelevant here, with a quick brush-off in footnote 1 on page 5 of the majority opinion. Justices Thomas and Gorsuch are much more enthusiastic about the positive law model and would make it the only test or the primary test for determining the scope of the Fourth Amendment, respectively. The Policy Model, involving a tradeoff between costs and benefits of government surveillance, is nowhere to be seen in the majority opinion. The result of Carpenter is that law enforcement investigations will get much more difficult, and the police will have to curtail their use of particular surveillance techniques after this decision. This consequence is something the dissenters bemoan, but the majority basically shrugs and says what the Court said in Riley – “get a warrant.”
  6. Is Katz a Dog? Justice Thomas says we should get rid of the Katz test. His is a very lively opinion. Neither Gorsuch nor Alito join him, though Gorsuch expresses some sympathy. Justice Thomas was very generous to cite an article that Matthew Kugler and I wrote on page 17. Then on page 19 he embraces a view of Fourth Amendment circularity that is called into doubt by the same article he cited and mostly refuted by its subsequent companion piece. Maybe this is why the Chief Justice is reluctant to cite legal scholarship. Look, any reliance on scholarship is going to be selective – that’s the difference between opinions and scholarship, and even strategic selectivity is less concerning in a dissent than in a majority opinion. So my quibbles notwithstanding, Justices Thomas and Gorsuch deserve credit for engaging with some of the key pertinent scholarship and taking important ideas seriously.
  7. Which Alito? With Justice Alito, the big question heading into this case was always which part of his Jones concurrence would control – the part viewing the installation of a GPS tracking device as a clear search, or the part calling out for legislative rather than judicial resolution of these kinds of questions. The answer seemed very clear after oral argument and it’s manifest in his opinion. Legislatures, not judges, should be making these judgments. Congress did that here through the statute and the justices should stay out of the way.
  8.  Gorsuch is asking the big questions. I think the majority reached the right result in Carpenter for many of the right reasons. That said, I’m a fan of the Gorsuch dissent, and it’s certainly my favorite of the five opinions. A lot of law students are going to really love it and find the candid analysis clarifying and tantalizing. Justice Gorsuch is doing what a lot of Fourth Amendment scholars have wanted the Court as a whole to do for a long time — examine in a clear-headed way the meta question of how the Court decides whether something is a search. Here too, though, we can quibble with Justice Gorsuch in some respects — he spends some time talking about the foundational piece of empirical Fourth Amendment search scholarship – Slobogin and Schumacher’s fabulous Duke Law Journal paper and uses its data to note that “judicial judgments often fail to reflect public views.” It is true that Slobogin and Schumacher point to some divergences, but to me the main take-away of their piece is that the public largely agrees with much of the search hierarchy that the Court has built, with a few exceptions like the government’s use of undercover agents. If you think that judge – citizen divergences are the rule rather than the exception it is a lot more tempting to toss overboard the probabilistic approach to the Fourth Amendment’s scope. But the data from Slobogin and Schumacher and subsequent work by others strongly suggests that those divergences are more the exception than the rule. In any event, the influence of Baude and Stern’s Positive Law Model on Justice Gorsuch is obvious, and he gets bonus points for even staying current with the SSRN draft of a forthcoming Stephen Sachs piece.   
  9. Wither the third party doctrine? The most important sentence in Justice Gorsuch’s opinion appears at page 20: “Nor can I fault the Court today for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed, I agree with that.” Justice Gorsuch is going to be on the Court for a very long time and he is signaling that in a properly presented case he will reject the third-party doctrine. That’s huge. What is less certain is whether his characterization of the majority opinion is apt. I suspect his description applies to some but not all of the justices in the Carpenter majority.
  10. A New Fourth Amendment. At the end of the day, it’s that last point about the third-party doctrine that is the real show-stopper. Carpenter upsets the apple cart of Fourth Amendment jurisprudence in a fundamental way. In some previous cases the lower courts had pushed back against the third party doctrine (think of Warshak – the 6th Circuit’s email case, to which the DOJ acquiesced) or individual justices had done so in concurrences (Justice Sotomayor in Jones, most famously), but presumably many scholars are going to regard Carpenter as the beginning of the end for the third-party doctrine. Verizon and AT&T and Apple and Google and Amazon are collecting an enormous quantity of sensitive information about all of us, and the Supreme Court is now saying explicitly that our sharing of that information with these companies is not tantamount to consent that it be shared with the government. We are moving towards a world of the Internet of Things, automated license plate readers, proliferating facial recognition software, drone delivery, connected self-driving cars, and rapid further technological change. The lengthy Carpenter opinions are a treat to read. But they will be the gift that keeps on giving — Today the Court just made Fourth Amendment law a lot more interesting for the next decade or three.

— Lior Strahilevitz


Calling All SCOTUS Clerks: Illuminating New Book on the Fourth Amendment and Its Original Meaning as a Guide for Carpenter

On June 5, 2017, the Supreme Court announced that it will review United States v. Carpenter, a case involving long-term, retrospective tracking of a person’s movements using information generated by his cell phone. As EFF’s Andrew Crocker and Jennifer Lynch write, “This is very exciting news in the world of digital privacy. With Carpenter, the Court has an opportunity to continue its recent pattern of applying Fourth Amendment protections to sensitive digital data. It may also limit or even reevaluate the so-called ‘Third Party Doctrine,’ which the government relies on to justify warrantless tracking and surveillance in a variety of contexts.”

SCOTUS clerks will surely be reading much Fourth Amendment literature and caselaw in preparation for their work on the Carpenter case. I’d like to nominate David Gray’s brilliant addition to the canon The Fourth Amendment in an Age of Surveillance (Cambridge University Press 2017).

From the book jacket:

The Fourth Amendment is facing a crisis. New and emerging surveillance technologies allow government agents to track us wherever we go, to monitor our activities online and offline, and to gather massive amounts of information relating to our financial transactions, communications, and social contacts. In addition, traditional police methods like stop-and-frisk have grown out of control, subjecting hundreds of thousands of innocent citizens to routine searches and seizures. In this work, David Gray uncovers the original meaning of the Fourth Amendment to reveal how its historical guarantees of collective security against threats of ‘unreasonable searches and seizures’ can provide concrete solutions to the current crisis. This important work should be read by anyone concerned with the ongoing viability of one of the most important constitutional rights in an age of increasing government surveillance.

Here is a video of Prof. Gray talking about the book:



UCLA Law Review Vol. 63, Issue 3

Volume 63, Issue 3 (March 2016)

The System of Equitable Remedies Samuel L. Bray 530
Challenging the “Criminal Alien” Paradigm Angélica Cházaro 594
Plenary Power, Political Questions, and Sovereignty in Indian Affairs Michalyn Steele 666



Calibrating the Eighth Amendment: Graham, Miller, and the Right to Mental Healthcare in Juvenile Prison Sara McDermott 712
Mute and Moot: How Class Action Mootness Procedure Silences Inmates Michele C. Nielsen 760

Journal of Legal Ed Symposium: Ferguson & Its Impact on Legal Education


The latest issue of the Journal of Legal Education (vol. 65, #2) is out. And here is the table of contents. (Go to this link for PDF files of each article). Beyond the Ferguson symposium, there is an essay on modern criminal procedure along with three book reviews.

* * * *

Reverse Broken Windows by  Christopher R. Green

At the Lectern

A Reader’s Guide to Pre-Modern Procedure by David L. Noll

Book Reviews


MLAT – Not a Muscle Group Nonetheless Potentially Powerful

MLAT. I encountered this somewhat obscure thing (Mutual Legal Assistance Treaty) when I was in practice and needed to serve someone in Europe. I recall it was a cumbersome process and thinking that I was happy we did not seem to have to use it often (in fact the one time). Today, however, as my colleagues Peter Swire and Justin Hemmings argue in their paper, Stakeholders in Reform of the Global System for Mutual Legal Assistance, the MLAT process is quite important.

In simplest terms, if a criminal investigation in say France needs an email and it is stored in the U.S.A., the French authorities ask the U.S. ones for aid. If the U.S. agency that processes the request agrees there is a legal basis for the request, it and other groups seek a court order. If that is granted, the order would be presented to the company. Once records are obtained, there is further review to ensure “compliance U.S. law.” Then the records would go to France. As Swire and Hemmings note, the process averages 10 months. For a civil case that is long, but for criminal cases that is not workable. And as the authors put it, “the once-unusual need for an MLAT request becomes routine for records that are stored in the cloud and are encrypted in transit.”

Believe it or not, this issue touches on major Internet governance issues. The slowness and the new needs are fueling calls for having the ITU govern the Internet and access to evidence issues (a model according to the paper favored by Russia and others). Simpler but important ideas such as increased calls for data localization also flow from the difficulties the paper identifies. As the paper details, the players–non-U.S. governments, the U.S. government, tech companies, and civil society groups–each have goals and perspectives on the issue.

So for those interested in Internet governance, privacy, law enforcement, and multi-stakeholder processes, the MLAT process and this paper on it offer a great high-level view of the many factors at play in those issues for both a specific topic and larger, related ones as well.


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.

Read More


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.