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(Eugene Volokh)

I just filed (with a great deal of help from my Mayer Brown LLP colleagues) a petition for certiorari (Herrera v. Oregon) asking the Court to decide whether nonunanimous criminal convictions are unconstitutional. My sense is that it isn’t too legalese, and the issue — and the historical discussion — might be of some interest to people, but of course I’m the wrong person to impartially evaluate that. If you want to read the petition, start on PDF p. 16, so you skip the table of authorities, the jurisdictional items, and the like.

Here’s the basic issue: In Apodaca v. Oregon (1972), the Supreme Court held that the Sixth Amendment requires unanimity for a verdict — but that the Fourteenth Amendment does not carry this rule over to the states, and that even 9–3 verdicts are constitutionally permissible. The Jury Trial Clause is thus the one Bill of Rights clause that is neither completely incorporated against the states via the Fourteenth Amendment, nor completely not incorporated. (Recall that the Bill of Rights originally applied only to the federal government, and has been applied to the states only through the Fourteenth Amendment.) 

This partial incorporation is inconsistent both with prior Supreme Court practice and with this year’s McDonald v. City of Chicago decision. (McDonald calls such an approach “watered-down” incorporation.) In fact, in Apodaca, only one Justice — Justice Powell — concluded that the Jury Trial Clause required unanimity in federal trials but that this provision shouldn’t be incorporated against the states. The other eight would have applied the Jury Trial Clause the same way both to federal and state trials, but four said (incorrectly, in my view) that it didn’t require unanimity in either and four said it required unanimity in both. Justice Powell was the controlling vote, and that’s how the partial incorporation result was reached.

I’d be particularly interested in talking to people whose organizations might be inclined to file amicus briefs on this. (Amicus briefs will be due “30 days after the case is placed on the docket” — Oct. 9 plus a day or two, given the docketing delays.) My view is that amicus briefs are even more helpful at the petition stage than at the merits stage, since the big challenge with any such case is to persuade the Court that this is an issue that deserves the Justices’ attention. So if you might be interested, please drop me an e-mail at volokh@law.ucla.edu.

(Orin Kerr)

I recorded it yesterday for the Legal Talk Network, and it runs about 30 minutes; you can listen here. We start off by discussing Judge Kozinski’s stirring dissent from denial of rehearing en banc in United States v. Pineda-Moreno, which has received a lot of press attention.  Among the questions discussed: Who lives in gated communities?

(Jim Lindgren)

Predicting the stock market is either impossible or extraordinarily difficult, so I generally refrain from doing so — in print. Even apparently successful investors who trade daily or weekly are wrong nearly as often as they are right. So with the caveat that the chances of my being right are at best not appreciably better 50–50, I wanted to share an optimistic scenario for the stock market over the next 2–3 years. 

Typically, a Democratic majority in the House of Representatives has been bad for the stock market and the economy and Republican control has been good (in the past, I have run, but not published, the numbers back to 1854). The reverse is generally true for the presidency. 

There have been two switches from Democratic to Republican control of the House since 1950: in the 1994 election and in the 1952 election. 

Cumulative returns in the S&P 500 over the two years following the 1994 Republican takeover (1995–96) were 69.8%. (The three-year returns for 1995–97 were a staggering 127.0% [+38%,+23%,+33%].) 

Cumulative returns in the S&P 500 over the two years following the 1952 takeover (1953–54) were 54.7%. (The three year returns for 1953–55 were 98.4% [-1%,+56%,+28%], but the Democrats retook the House in the 1954 election.)

Indeed, the best year for the S&P 500 since World War II was 1954 (56.0%), the second year after a Republican takeover of the House. The best year since 1976 was 1995 (38.5%), the year after the last Republican takeover of the House.

So will we get a huge stock market increase this time, as we have the last two times that Republicans have taken the House? Maybe, maybe not. 

If the Republicans take the House, why might we get a strong stock market?

(1) an end to disastrous new government efforts to stimulate the economy (or at least a significant slow down in such wealth-destroying efforts);

(2) a probable reduction in regulatory uncertainty; and

(3) a reduction in the odds for increased taxes (beyond the expiration of the Bush Tax cuts for those making over $250,000).

A strong stock market and a reduction in regulatory uncertainty would likely lead to robust economic growth — and eventually strong job growth. That would make the world a lot better for our students and our children.

I don’t expect that good economic policy will suddenly start coming out of Washington in 2011, but I do hope that the policies will not get increasingly worse, month by month. Though we will never know, I believe that, if the Federal Reserve and the Bush and Obama Administrations had done little else than lower interest rates, provide liquidity, and temporarily guarantee money market funds, we would have had a brief, sharp recession, followed already by robust GDP growth.

So why might this optimistic 2011–2013 scenario not happen? 

(1) the Republicans might not retake the House (the number of pick-ups needed is exceedingly large);

(2) the Republicans might act like the Democrats once they regain control, as they mostly did the last time they held sway;

(3) significant tax rate increases are already scheduled for 2011;

(4) because of tax increases, economic activity may have already been shifted from 2011 to 2010;

(5) a new carbon cap or tax may be imposed either by a lame duck Congress or by the EPA;

(6) regulatory uncertainties persist, especially over health care;

(7) two events (1952, 1994) are not enough to define an effect, especially since if one goes back further in time, this effect is not present. (The two-year returns following prior Republican takeovers of the House averaged just 5.6%.); and

(8) there were special circumstances in the 1953–55 period (end of the Korean War, worldwide post-WW2 boom) and in the 1995–97 period (computer revolution; end of the Cold War and expansion of economic freedom).

Ironically, if the Republicans retake the House and the stock market booms as it did after the 1952 and 1994 takeovers, such a strong recovery would greatly increase President Obama’s chances of being re-elected.

So what do I think about the stock market? At the moment at least, I am fully invested in US and foreign stocks and mutual funds — and I hope to remain so over most of the next two years, at least if the Republicans take the House and there are no major new pieces of economy-destroying legislation or EPA regulations. 

In the US vs. Pineda-Moreno decision, the US Court of Appeals for the Ninth Circuit ruled that Law enforcement agents can legally place a GPS device on an individual’s car without their knowledge and without a warrant from a judge. Attorneys and co-hosts Bob Ambrogi and J. Craig Williams, welcome Orin S. Kerr, contributing blogger to the Volokh Conspiracy and Professor of Law at the George Washington University Law School, to discuss the legality of GPS tracking in light of the Fourth Amendment, privacy rights, the role of technology and the possibility that this case and others like it will reach the Supreme Court.

(Eugene Volokh)

Josh Gerstein (Politico) reports:
Acting on an emergency request from Maryland Attorney General Doug Gansler, Prince George’s County Circuit Court Judge Larnzell Martin Jr. issued an order Tuesday evening barring anyone from disseminating a sample ballot for the Sept. 14 primary that was recently mailed to Democratic voters and distributed at an early voting site in Oxon Hill, Md.

“No materials in the form attached shall be distributed by mail, in person or otherwise under penalty of law,” Martin wrote in the temporary restraining order. “Immediate, substantial and irreparable harm in the form of presentation of false and misleading advocacy information to the electorate will result if such violations were to continue.”

The flier, styled as an “Official Democratic Ballot,” contains at least one error, listing a candidate as running for a county office she isn’t running for. The main objection from some local candidates, however, is that photos of Gov. Martin O’Malley (D-Md.), Rep. Steny Hoyer (D-Md.) and others on the pamphlet suggest the men endorse the candidates marked inside, which in several cases is not true.

Use of another’s name and likeness in a way that strongly suggests that he endorses your speech might well be constitutionally unprotected. It may well constitute, for instance, the tort of “publicity placing person in false light,” as in this illustration from the Restatement (Second) of Torts: “A is a Democrat. B induces him to sign a petition nominating C for office. A discovers that C is a Republican and demands that B remove his name from the petition. B refuses to do so and continues public circulation of the petition, bearing A’s name. B is subject to liability to A for invasion of privacy.” (Note that the label “invasion of privacy” here is a legal term of art; the tort applies even when the information is not generally seen as embarrassing or intimate.) And the Court has held — see Time, Inc. v. Hill and Cantrell v. Forest City Publishing, Inc., cited here — that this tort is constitutionally permissible, if it’s limited to punishing knowing or reckless falsehoods (and perhaps in some circumstances negligent falsehoods, though that wouldn’t be applicable here). 

So such speech might be tortious, and it could also probably be criminally punished and even permanently enjoined as well, following a trial on the merits that establishes that the speech is constitutionally unprotected. But preliminary injunctions, such as the temporary restraining order in this case, are generally unconstitutional “prior restraints.” Here’s a summary of the law, from Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147 (1998):

“The special vice of a prior restraint,” the Court has held, “is that communication will be suppressed ... before an adequate determination that it is unprotected by the First Amendment.” After speech is conclusively judicially determined to be unprotected — because it is obscene, for example — a permanent injunction (such as the ones at issue in Kingsley Books, Inc. v. Brown or Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations) would be no more troubling on constitutional grounds than a civil or criminal penalty. “[T]he order will not have gone into effect before [the court’s] final determination that the [speech was] unprotected.” The Court’s occasional dicta suggesting that all injunctions are prior restraints are therefore somewhat erroneous overgeneralizations. 

But when the injunction is entered prior to this final judicial determination, it is almost always treated as an unconstitutional prior restraint. This is so even when the injunction is entered for the seemingly laudable purpose of preserving the status quo pending the final determination of whether the speech is protected. 

Many of the quintessential unconstitutional prior restraint schemes were in fact prophylactic mechanisms that were aimed at preventing unprotected speech, but that ended up at least temporarily restricting protected speech as well. Thus, traditional licensing systems made it illegal for people to print anything, protected or not, unless they had licenses. Traditional prescreening censorship systems made it illegal for people to distribute anything, protected or not, until the censors gave it their approval. The injunction in Near v. Minnesota banned a newspaper that had printed libelous material in the past from operating, even to publish material that was not libelous. Such restraints are presumptively unconstitutional, because they may restrict protected speech as well as unprotected speech. 

The same goes for preliminary injunctions that restrict speech, as the Court held in Vance v. Universal Amusement Co. Vance struck down a scheme which had let state courts preliminarily enjoin alleged obscenity “based on a showing of probable success on the merits and without a final determination of obscenity.” Such injunctions, the Court held, were unconstitutional because they allowed “prior restraints of indefinite duration on the exhibition of motion pictures that [had] not been finally adjudicated to be obscene.” The Court continued: “That a state trial judge might be thought more likely than an administrative censor to determine accurately that a work is obscene does not change the unconstitutional character of the restraint if erroneously entered.” 

Vance’s wording and logic are relevant to all speech restrictions, not just obscenity law, and lower courts have in fact struck down preliminary injunctions in other contexts on this very ground. Preliminary injunctions, no matter what sort of speech is being enjoined, rest not on “[a court’s] final determination that the [speech is] unprotected,” but on a mere finding of a likelihood that the speech is unprotected.

So it doesn’t matter that the underlying speech restriction is aimed at constitutionally unprotected speech (whether obscenity, libel, or fraud on the electorate). Even when this is so, preliminary injunctions that are “based on a showing of probable success on the merits” (as opposed to a final conclusion as to success on the merits), and that thus go “into effect before [the court’s] final determination that the [speech was] unprotected” are unconstitutional prior restraints.

Prepare to meet the EEOC’s wrath [AP/Law.com]. The topic is not new; I wrote about it for Reason quite a while back.

Tags: criminal records and hiring, EEOC
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(Kenneth Anderson)

Temple University law professor Duncan Hollis, and my co-blogger at Opinio Juris, has a provocative new paper on SSRN addressing the question of cyber-threats and why he believes the threats need new forms of regulation.  Duncan titles his article at SSRN, “An e-SOS for Cyberspace,” and of course I can’t resist adding ‘Sending Out An e-SOS, Sending Out An e-SOS’ ...

Minds more serious than my own have been discussing Duncan’s ideas, however, including our own Orin Kerr, over at Concurring Opinions, to which Duncan responds at OJ.  I am not a cyberthreats expert; I tend to stick with the robotics side of things, so I won’t venture a substantive opinion here.  But obviously these areas overlap in important ways, and the recognition of cyber-threats and cyber-emergencies as legal issues is both important and overdue, so I do try to follow the literature modestly.  Here is Duncan’s abstract:

Individuals, shadowy criminal organizations, and nation states all now have the capacity to devastate modern societies through computer attacks. These new and severe cyberthreats put critical information, infrastructure, and lives at risk. And the threat is growing in scale and intensity with every passing day.

The conventional response to such cyberthreats is self-reliance. When self-reliance comes up short, states have turned to law for a solution. Cybercrime laws proscribe individuals from engaging in unwanted cyberactivities. Other international laws proscribe what states can (and cannot) do in terms of cyberwarfare. Both sets of rules work by attribution, targeting bad actors – whether criminals or states – to deter cyberthreats.

This Article challenges the sufficiency of existing cyber-law and security. Law cannot regulate the authors of cyberthreats because anonymity is built into the very structure of the Internet. As a result, existing rules on cybercrime and cyberwar do little to deter. They may even create new problems, when attackers and victims assume different rules apply to the same conduct.

Instead of regulating bad actors, this Article proposes states adopt a duty to assist victims of the most severe cyberthreats. A duty to assist works by giving victims assistance to avoid or mitigate serious harms. At sea, anyone who hears a victim’s SOS must offer whatever assistance they reasonably can. An e-SOS would work in a similar way. It would require assistance for cyberthreat victims without requiring them to know who, if anyone, was threatening them. An e-SOS system could help avoid harms from existing cyberthreats and deter others. Even when cyberthreats succeed, an e-SOS could make computer systems and networks more resilient to any harm they impose. At the same time, an e-SOS would compliment, rather than compete with, self-reliant measures and the existing legal proscriptions against cyberthreats.

(Update:  The first couple of comments were off topic and not very helpful, so I’m going to delete them and close the post.)

In this September edition of Law Technology Now, host Monica Bay chats with Law Technology News’ Web Watch columnist and co-host of Lawyer2Lawyer, Bob Ambrogi. Bob says legal blogs have matured in the last few years -- and now provide rich, nuanced content that genuinely helps practitioners. Bob talks about why legal blogs are thriving and spotlights new sites that cover everything from fashion law to the Library of Congress.

• “Bullying Busybody for Senate: How Connecticut’s attorney general beat Craigslist into submission” [Sullum, Harper] Blumenthal’s Senate campaign sputtering despite huge advantages [Jack Fowler, NRO] Lloyd Grove interview with challenger Linda McMahon [Daily Beast]
• “How Much Does Defensive Medicine Cost? One Study Says $46 Billion” [WSJ Health Blog, NY Times]
• “Man sues over parking ticket, says it disclosed too much info” [Obscure Store, suburban Chicago Daily Herald]
• New allegations emerge in much-discussed “rape by deception” case in Israel [FrumForum, earlier, an academic comments]
• A Connecticut village turns down money from Hartford and tackles a historic preservation project on its own [me at Cato]
• NY Governor signs bill giving housekeepers, nannies new powers to sue employers for overtime, vacations [Workplace Prof]
• “Lawyers sue Facebook for letting kids like advertisements” [Gryphon, PoL]
• Per his foes, Gilded Age NYC trial lawyer William Howe used onion-scented handkerchief to summon tears at command [five years ago at Overlawyered]

Tags: Connecticut, Craigslist, defensive medicine, Facebook, Israel, New York, Richard Blumenthal, workplace
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The Mississippi Attorney General keeps defending a capital conviction based on dubious bite-mark testimony [Radley Balko, Reason]

Tags: expert witnesses, Mississippi, prosecution
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A Florida complainant might wind up digging himself a deeper hole, reputation-wise. [Above the Law]

Tags: pro se, watch what you say about lawyers
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• Watch what you say about lawyers, cont’d (2)

(David Bernstein)

Earlier today, I received a robocall from a DNC-affiliated pollster asking whether I plan to vote for the Republican or Democratic congressional candidate in my district, and also asking my opinion of Barack Obama’s performance as president. The rub is that I live in Arlington, Virginia, represented in Congress by Rep. Jim Moran. Moran won reelection with almost 70% of the vote in 2008, and his district is one of the few areas that voted Democrat in last year’s gubernatorial election.

Maybe the DNC had some other reason to want survey voters in my district, but if, as the call suggests, the Democrats are worried about whether Moran is vulnerable, panic must be really setting in.

(Ilya Somin)

David Bernstein’s post referencing a commenter who greatly overestimates the extent to which the public pays attention to politics reminds me of an interesting comment on political ignorance from Tony Blair’s recently published memoir:

The single hardest thing for a practising politician to understand is that most people, most of the time, don’t give politics a first thought all day long. Or if they do, it is with a sigh...., before going back to worrying about the kids, the parents, the mortgage, the boss, their friends, their weight, their health, sex and rock ‘n’ roll..... 

For most normal people, politics is a distant, occasionally irritating fog. Failure to comprehend this is a fatal flaw in most politicians. 

Whatever you think of Blair’s overall record (I have very mixed feelings myself), he was certainly a highly successful politician, leading his party from the wilderness to an unprecedented three consecutive electoral victories. Blair’s claim that most “normal people” pay very little attention to politics is backed up by decades of polling data showing that most voters tend to be ignorant about even basic political facts and issues. As I have argued elsewhere, this is rational behavior, given the very low chance that any one vote will make a difference to an electoral outcome. As David notes, the swing voters who determine electoral outcomes are generally also the most ignorant part of the electorate.

I do disagree with Blair’s statement on one point. Most politicians do in fact understand the widespread nature of political ignorance. That’s why they usually talk in simple sound bites, and constantly try to exploit the public’s ignorance for electoral advantage. Of course few of them are willing to comment on public ignorance openly. If they did, it would look like they were putting down the intelligence of voters, even though ignorance isn’t really equivalent to stupidity. Therefore, most politicians work hard to exploit political ignorance even as they pretend to believe that the voters are repositories of profound wisdom. It’s telling that Blair revealed his thoughts on public ignorance only after he left office.

The people who really overestimate public knowledge are not politicians but political pundits. They follow politics closely and are surrounded by others who do the same thing. Unlike politicians, they have little incentive to study public knowledge systematically. As a result, it’s easy for them to assume that the general public is paying attention to the same things as they are. An excellent example of this is the current debate over the reasons for Obama’s plummeting popularity. Republican pundits tend to claim that it’s because he has adopted very liberal policies that most Americans disapprove of. Many Democratic ones blame the administration’s public relations strategy and relentless Republican attacks.

In reality, most voters have very little understanding of the administration’s policies and have not followed them closely (see here and here for examples). Obama’s falling popularity is primarily caused by the continuing poor condition of the economy. As political scientist Larry Sabato points out, Obama’s poll numbers are roughly in line with those of previous presidents who presided over bad economies. The same thing happened to Ronald Reagan in 1981–82, for example, even though the Great Communicator had an excellent public relations strategy and pursued policies that were arguably more in line with public opinion than Obama’s. 

Blaming political incumbents for economic doldrums is often incorrect, or at least oversimplified. After all, Obama did not cause the current recession or the associated financial crisis. While I think that many of his policies made things worse rather than better, the economy might well still be in bad shape at this point even under optimal policies. But simplistically attributing whatever happens in the status quo to the incumbent is the kind of reasoning one would expect from an electorate with very little knowledge of policy. Historically, voters have often blamed or rewarded incumbents for conditions they had no real influence over, including such events as trends in the world economy that national leaders cannot control, droughts and shark attacks.

A minority of voters, of course, do follow politics closely because they find it interesting. They, however, tend to have very strong partisan or ideological commitments, and evaluate new evidence in a highly biased way. As a result, we get an electorate where the majority of voters have very low levels of knowledge and the more knowledgeable minority often does a poor job of evaluating what they know.

(Orin Kerr)

A while back, I blogged at length about the Third Circuit’s pending case involving government access to historical cell-site records. The issue in the case is what legal standard the government must satisfy to obtain orders requiring phone companies to disclose such information. The district court had ruled that a warrant was required, and the government argued that the correct standard under the law was a “specific and articulable facts” court order under 2703(d) rather than a search warrant. Yesterday, the Third Circuit handed down its decision: In The Matter Of The Application Of The United States Of America For An Order Directing A Provider Of Electronic Communication Service To Disclose Records To The Government. In this post will explain the Third Circuit’s decision; try to figure out what it means (which turns out to be quite tricky); and then explain why I think it misreads the Stored Communications Act on an important point.

I. The Third Circuit’s Decision

The Third Circuit’s decision, written by Judge Sloviter, has three major parts. First, the court ruled that the government is right that under the Stored Communications Act, the government can obtain historical cell-site records under 2703(d) without getting a warrant. Second, the court agreed with amicus the Electronic Frontier Foundation that magistrate judges do not have to issue such orders. According to the Third Circuit, it is up to individual magistrate judges to make the decision of whether to issue the orders or else require a full probable cause warrant. Here’s the core argument:

Section § 2703(d) states that a “court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if” the intermediate standard is met. 18 U.S.C. § 2703(d) (emphasis added). We focus first on the language that an order “may be issued” if the appropriate standard is met. This is the language of permission, rather than mandate. If Congress wished that courts “shall,” rather than “may,” issue § 2703(d) orders whenever the intermediate standard is met, Congress could easily have said so. At the very least, the use of “may issue” strongly implies court discretion, an implication bolstered by the subsequent use of the phrase “only if” in the same sentence. . . .

Under the EFF’s reading of the statutory language, § 2703(c) creates a “sliding scale” by which a magistrate judge can, at his or her discretion, require the Government to obtain a warrant or an order. EFF Br. at 6. As the EFF argues, if magistrate judges were required to provide orders under § 2703(d), then the Government would never be required to make the higher showing required to obtain a warrant under § 2703(c)(1)(A). See id.

So according to the Third Circuit, a magistrate judge has discretion to turn down an application for an order even if the 2703(d) order is satisfied. The third and final question is, does the judge have absolute discretion to decide whether to turn down the order, or is there some guide that the magistrate judge is supposed to use?

Here things get fuzzy. Judge Sloviter instructs that magistrate judges should require warrants “sparingly,” for the reason that “Congress also included the option of a § 2703(d) order.” She also writes that magistrate judges do not have “arbitrary” discretion, and that in the rare cases that a magistrate decides to require a warrant, the judge must “make fact findings and give a full explanation that balances the Government’s need (not merely desire) for the information with the privacy interests of cell phone users.”

What exactly does that mean? That is, what is the standard? To be candid, I’m not sure. A discussion around pages 26–27 suggests that perhaps magistrates should to conduct an ex ante constitutional analysis of whether the cell-site surveillance would require a warrant under the Fourth Amendment. Here the court hints that in its view, cell-site surveillance is analogous from a constitutional standpoint to tracking device surveillance in United States v. Karo and United States v. Knotts rather than the numbers dialed in Smith v. Maryland: Because “it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information,” a cell phone user has not conveyed that information to the phone company voluntarily and the third-party doctrine does not apply.

The analysis here is pretty murky, but perhaps the Court is suggesting that if cell-site surveillance reveals that a caller is at home during the call, then under Karo that information could be constitutionally protected and the judge should require a warrant? I’m not really sure what the court is suggesting — elsewhere the court suggests that the decision of what standard to use is entirely up to Congress, so perhaps I’m wrong about that. Ultimately the Third Circuit remands for fact-finding, so perhaps the Court is really punting the issues of what the standard is for another day. In the end, I’m not sure. (If you read the opinion differently and have ideas about the standard, please post them in the comment thread. I would very much appreciate it.)

Judge Sloviter ends with this criticism of the Stored Communications Act:

In the issue before us, which is whether the MJ may require a warrant with its underlying probable cause standard before issuing a § 2703(d) order, we are stymied by the failure of Congress to make its intention clear. A review of the statutory language suggests that the Government can proceed to obtain records pertaining to a subscriber by several routes, one being a warrant with its underlying requirement of probable cause, and the second being an order under § 2703(d). There is an inherent contradiction in the statute or at least an underlying omission. A warrant requires probable cause, but there is no such explicit requirement for securing a § 2703(d) order. We respectfully suggest that if Congress intended to circumscribe the discretion it gave to magistrates under § 2703(d) then Congress, as the representative of the people, would have so provided. Congress would, of course, be aware that such a statute mandating the issuance of a § 2703(d) order without requiring probable cause and based only on the Government’s word may evoke protests by cell phone users concerned about their privacy. The considerations for and against such a requirement would be for Congress to balance. A court is not the appropriate forum for such balancing, and we decline to take a step as to which Congress is silent.

II. Why I Think the Third Circuit’s Opinion is Incorrect

The first part of the Third Circuit’s opinion is pretty clearly right.  However,  I think the second part misunderstands the Stored Communications Act, and that the court’s constitutional hints are not persuasive.  In this part of the post, I want to explain why.

Let me begin with the criticism that the opinion offers at the end about the Stored Communications Act, which seems to frame the Third Circuit’s statutory misunderstanding:

A review of the statutory language suggests that the Government can proceed to obtain records pertaining to a subscriber by several routes, one being a warrant with its underlying requirement of probable cause, and the second being an order under § 2703(d). There is an inherent contradiction in the statute or at least an underlying omission. A warrant requires probable cause, but there is no such explicit requirement for securing a § 2703(d) order.

There’s no contradiction or underlying omission here, however. The drafters of the SCA realized that the government would often obtain different kinds of information all at once in a single case that could be obtained individually under a range of different legal thresholds. The SCA therefore incorporates the principle that the greater includes the lesser: If the government can get particular information under a low threshold, it also always has the option of getting the information using a higher threshold. This allows the government to obtain a single higher-threshold order (such as a search warrant) to obtain several different kinds of information instead of having to obtain a warrant for the most sensitive information, a 2703(d) order for less sensitive information, and a subpoena for the least sensitive information. Here’s how I explained it in my article on the Stored Communications Act:

One interesting aspect of § 2703 is that it generally allows the government to obtain greater process when lesser process will do. If a provision of § 2703 allows government agents to compel information with a subpoena, it also allows them to obtain that information with a 2703(d) order; if it allows agents to obtain information with a 2703(d) order, then a search warrant is also acceptable. Why might the government want this option? The main reason is efficiency. Investigators may decide that they need to compel several types of information, some of which can be obtained with lesser process and some of which requires greater process. The “greater includes the lesser” rule in § 2703 allows the government to obtain only one court order–whatever process is greatest–and compel all of the information in one order all at once.

Kerr, A User’s Guide to the Stored Communications Act and Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1220 (2004). See also J. Carr & P. Bellia, Law of Electronic Surveillance § 4:77, at p. 4–193 (2006)( “One feature of ECPA is that through use of greater legal process officials can gain access to any information that they could obtain with lesser process.”). Giving the government the option of satisfying a higher threshold was designed to reduce paper work at no cost to privacy, not to give magistrate judges the discretion of whether to sign court orders or to instead demand more process.

As for the court’s core argument that 2703(d) was designed to be discretionary, I find this quite unpersuasive. In fact, I admit that when I read this argument in EFF’s brief, I literally laughed out loud: I’ve been studying and working with the SCA since 1998, including working on proposed amendments to it and testifying about it, and I don’t think I have ever encountered the suggestion that 2703(d) orders are discretionary until I read it in EFF’s brief. So on one hand, kudos to my friends at EFF for making such a creative argument (BTW, hey, Kevin — congrats!  And can you believe you beat Eck on an ECPA question?!?).  In my view, it shows how a surprising argument just might find a home with a sympathetic majority of generalist judges. But creativity aside, I don’t think the argument works.

To understand why, it helps to start with the important background principle established in Ex Parte United States, 287 U. S. 241 (1932): Magistrate judges do not have discretion to decide whether to issue court orders if the government satisfies the legal threshold. As the Court explained in Ex Parte United States, where the magistrate judge had declined to issue an arrest warrant:

The authority conferred upon the trial judge to issue a warrant of arrest upon an indictment does not, under the circumstances here disclosed, carry with it the power to decline to do so under the guise of judicial discretion; or, as this Court suggested in Ex parte United States, 242 U. S. 27, 242 U. S. 42, the power to enforce does not inherently beget a discretion permanently to refuse to enforce.

Modern privacy law reflects that principle. The magistrate judge’s job is just to see if the legal threshold: He “must” issue the order if the legal requirements are satisfied. See Fed. R. Crim. Pro. 41 (search warrants). See also United States v. Santtini, 963 F.2d 585, 596 (3d Cir. 1992).

This makes sense if you think about the role of ex ante court order requirements. The purpose of such requirements, whether in the form of the Fourth Amendment warrant requirement or statutory requirements, is to ensure that the government has the threshold of evidence that the Supreme Court or Congress has chosen before the access to information occurs. In the case of a statute like the Stored Communications Act that lacks a suppression remedy, ex ante review ensures that the government is limited to acting when a specific statutory threshold is met. The ex ante review makes Congress’s command enforceable, substituting for ex post review that would occur if there were a suppression remedy.

A discretionary court order system, in which each judge has the discretion of whether to allow the government to proceed at that threshold or require more process, makes no sense in that setting. Indeed, off the top of my head, I have never encountered any ex ante court order requirements in any criminal setting that gave such discretion to a magistrate judge. Giving the power to individual magistrates would be a pretty remarkable departure from established practice: Without some clear language doing do, it would be a strange reading of a statute. All the more so because it would lead to serious problems in practice.  If each judge has the discretion, and the government can forum-shop among magistrate judges, it creates a strong incentive for the government to go to the magistrate judge who tends to allow court orders at the lower threshold rather than the higher threshold.

As for the statutory issue, I think the language of the SCA doesn’t give any sign that Congress intended such a departure from the standard practice.  We need to start with 2703(c), not 2703(d).  It states:

A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity. . . obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure [or] obtains a court order for such disclosure under subsection (d) of this section;

2703(d) then says:

A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.

Notably, in using the words “obtains” and “shall issue,” Congress chose exactly the same terms for 2703(d) orders that it uses for search warrants. “Shall issue” is the same language that the version of Rule 41 used for search warrants back in 1994, when this language was added to the SCA. Rule 41 read: “If the federal magistrate judge or state judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, that magistrate judge or state judge shall issue a warrant identifying the property or person to be seized and naming or describing the person or place to be searched.” Rule 41, 1994 ed. (emphasis added). The choice of the same language as the non-discretionary warrant procedure, together with the background norm that ex ante court order applications are non-discretionary, to my mind indicates that Congress intended 2703(d) orders to be just as discretionary as warrants: That is, not discretionary at all.

It’s true that in the beginning of 2703(d) the statute does say that certain kinds of courts — courts of competent jurisdiction — “may issue” 2703(d) orders. But that’s not supposed to make the procedure discretionary. “May issue” appears in 2703(d) to indicate which courts are empowered to grant 2703(d) orders. It’s the same role played in the search warrant setting by Rule 41(b), “Authority to Issue a Warrant,” which states that “a magistrate judge with authority in the district — or if none is reasonably available, a judge of a state court of record in the district — has authority to issue a warrant to search for and seize a person or property located within the district.” In the case of 2703(d) orders, there has been a legal dispute in the state courts as to whether state courts are empowered to issue 2703(d) orders. The “may issue” language was designed to explain which courts are empowered to issue 2703(d) orders, echoing Rule 41(b).  In particular, courts of competent jurisdiction are empowered to issue the orders — as defined by 18 U.S.C. 3127(2).

The non-discretionary nature of 2703(d) is all the more likely given that the 2703(d) standard was added to the SCA in 1994 in order to raise the privacy level for government access to certain non-content information above a mere subpoena. Under the original 1986 Act, non-content information could always be obtained with a subpoena. The 1994 amendments raised the privacy threshold to a Terry v. Ohio- style court order in order to require the government to establish specific and articulable facts instead of the mere revelance standard of subpoenas. It would be strange if the celebrated privacy enhancement passed in 1994 establishing the 2703(d) standard instead of a subpoena were actually, and apparently secretly (with no one noticing until EFF’s brief), actually giving magistrate judges the discretion of whether to require a warrant or satisfy the 2703(d) order standard.

Finally, a brief note about the Fourth Amendment issue. I’ve explained before why I don’t think you can apply the Fourth Amendment third-party doctrine by assuming that communications technologies are a “magic box.” Notably, Smith v. Maryland did not do that: Smith presupposed a telephone user who knows how phones work. Given that approach in Smith, I don’t think you can presuppose a cell-phone user who sees cell phones as magic boxes that don’t need to communicate with cell towers. But even if you disagree with me here, the idea of applying Karo and Knotts to a cell-site information still cuts against Smith. If I understand the Third Circuit’s opinion correctly, the suggestion is that if you’re calling on a cell phone from your home, the government perhaps needs a warrant to know you’re at home at the time you’re calling. I wonder, though, if you accept that, don’t you have to overturn Smith v. Maryland on its facts?

After all, when you make a call from a land-line phone in your home, as in Smith, pen register information tells you exactly where you are: You’re inside your home, making the call. Indeed, back in the old days, the telephone company installed the phone and there were no cordless phones: Pen register information necessarily told the government you were in the home, and perhaps even what room you were in inside your home. And yet Smith v. Maryland found the location information inside the home to be irrelevant:

[T]he site of the call is immaterial for purposes of analysis in this case. . . . Regardless of his location, petitioner had to convey that number to the telephone company in precisely the same way if he wished to complete his call. The fact that he dialed the number on his home phone rather than on some other phone could make no conceivable difference, nor could any subscriber rationally think that it would.

Of course, it’s possible to distinguish the locational information conferred from cell-site information from the location information from numbers dialed on a home land-line. The former applies both when calls are made and not made, while the latter only is generated when a call is made or received. Still, I think there is some tension there given that the pen-register information in Smith indicated to the police that Smith was inside his home making the calls.

Patrick at Popehat comes up with a generic post that can be re-used every few months (or days, or hours) as similar future controversies thrust themselves into public awareness.

Tags: hate speech
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…goes down in flames [Atlantic Wire] We’ve met the litigant before, and it is worth noting that statute-based challenges to Ladies’ Night discounts remain (unfortunately) alive and well in at least some states.

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“There’s no doubt delivering food is a risky job — it routinely ranks on the U.S. Bureau of Labor’s most-dangerous jobs list — and after last week’s much-publicized robbery of a Chinese food deliveryman, some restaurants might be inclined to avoid delivery to high-crime areas. But in doing so, restaurants might open themselves up to civil litigation regulating anti-discrimination practices, essentially creating a catch-22 for the businesses, legal experts said.” [Harrisburg Patriot-News]

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“The Safe Cosmetics Act of 2010 (SCA 2010), now before the House of Representatives, is an inappropriate and seriously flawed attempt to make cosmetics safer.” Disregarding considerations of dose and concentration, the bill would require label disclosure of every substance present in an ingredient “at levels above technically feasible detection limits.” Essential oils and herb extracts typically contain 100 or more such substances, some of which, in isolation and at much larger concentrations, would qualify as toxic. And there’s a CPSIA-like requirement that manufacturers test all ingredients before sale. “Most small personal care product businesses will not survive if SCA 2010 passes.” [fragrance specialist Robert Tisserand] The lead sponsors of the proposed Safe Cosmetics Act of 2010 (H.R. 5786) are Reps. Jan Schakowsky, D-Ill. of CPSIA fame, Ed Markey, D-Mass., and Tammy Baldwin, D-Wisc. [Drug Store News] More: Lela Barker, Cosmetics Design.

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(David Bernstein)

Froom the comments section on Nate Silver’s 538 blog, where he notes a 1 in 4 chance of the GOP taking the Senate: 

October is known for its surprises, but I would not be surprised if the electorate became more informed about the facts, and the distortions prevalent on both Network and Cable TV, and of course Talk Radio, as we approach this crucial election. And please don’t underestimate the effect of C-span.org on independent voters, who watch Washington Journal regularly with passion.

The combination of earnest hopefulness that the voters will “come to their senses”, apparent ignorance of the fact that “swing” voters tend to be by far the least informed part of the electorate, and the pairing of “passion” with “Washington Journal,” a show only slightly less dull than watching professional golf on t.v., made me laugh out loud.

“Any errors are the fault of no-one in particular; rather, society itself is to blame.” And: “All errors are the authors’ sole responsibility, but persons aggrieved by any such errors are encouraged to sue the companies which manufactured our computers.” [Kopel/Volokh]

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