Judge Smith, The Fourth Amendment, And Technological Innovations In Surveillance

Judge Stephen Smith from the Southern District of Texas filed an opinion on October 29th that continues his important role in engaging on the issues deferred by the Supreme Court in City of Ontario v. Quon, 130 S. Ct. 2610 (2010). In Quon, Justice Kennedy identified but ultimately avoided the big Fourth Amendment questions implicated by technological innovations in communications such as, in that case, examination of text messages on a government pager. The Court found the city’s review of text messages on a government issued pager with text message capability was reasonable because the search was motivated by a legitimate work-related purposes.

While reiterating that individuals do not lose Fourth Amendment rights merely because they work for the government, the Court in Quon declined to elaborate fully on the Fourth Amendment implications of "emerging technology before its role in society has become clear." The Court stated, "rapid changes in the dynamics of communication and information transmission are evident not just in technology itself but in what society accepts as proper behavior." In finding that it was unnecessary to reach the scope of reasonable expectations in Quon, the Court contrasted the pervasive use of cell phones and text messaging as "essential means or necessary instruments for self expression, even self identification," with, on the other hand "the ubiquity of those devices," which makes private use much easier for government employees.

Strangely enough, the front lines of the struggle regarding technologically advanced surveillance and the Fourth Amendment are not being filled by defense counsel so much as by magistrate judges. And there is a good reason for this: Most of the innovations are occurring behind closed doors through sealed warrants, court orders, and administrative subpoenas that include gag orders. Judge Smith gave a taste of the pervasive and intrusive monitoring that goes on – with no adversary testing of Fourth Amendment boundaries – in his testimony before the House subcommittee on crime and homeland security (available here).

Following up on his careful study of technology and privacy, Judge Smith issued a critically important opinion in the evolution of Fourth Amendment protections regarding electronic surveillance. The government had been requesting warrants under the Stored Communications Act to compel service providers to produce cell phone records, including historical information regarding the cell sites contacted, covering 60 days. The information would provide the government with continuous location data regarding the target phone, whether the phone was in active use or not. Although he had previously signed such warrants, his opinion in In re Application For Historical Cell Site Data (available here) reversed course because “important developments in both technology and caselaw rais[e] serious constitutional doubts about such rulings.”

The major new case was the ground-breaking decision in United States v. Maynard, 615 F.3d 544 (D.C.Cir. 2010), which held that continuous Global Positioning System surveillance of a vehicle required a search warrant. The court distinguished the old Supreme Court case of Knotts because that case expressly reserved the question of 24/7 surveillance. The Maynard court rejected the Ninth Circuit’s decision in Piñeda-Moreno, which found no Fourth Amendment violation is long-term around-the-clock GPS monitoring (and generated this spectacular dissent by Chief Judge Kozinski on the denial of rehearing en banc). As reported by Lyle Dennison at Scotusblog here, the D.C. court of appeals denied rehearing en banc in Maynard, and certiorari has been filed on Piñeda-Moreno.

The new legal decisions also showed the importance of magistrate judges and the absence of adversary proceedings. In light of Maynard, Magistrate Judge James Ornstein issued an opinion finding that historical cell site information constituted a search that implicated the Fourth Amendment’s warrant requirement (available here). Judge Smith also referenced the Third Circuit’s response to unprecedented collective action by magistrate judges in requiring probable cause before issuing warrants for historical cell site information, which resulted in a remand for factual findings (available here).

In keeping with the Third Circuit’s emphasis on the need for factual development, Judge Smith carefully set out the manner in which the technology operates in the real world, the information that is collected and retained, and the pervasiveness of cell phone use. With four-part harmony, Judge Smith then reached the three conclusions of law that supported his denial of the warrants:

• Cell site historical data reveals non-public information about constitutionally protected spaces;
• Under the prolonged surveillance doctrine of Maynard, historical cell site records are subject to Fourth Amendment protections;
• Because the government failed to demonstrate that the user voluntarily conveyed location data, the case law on information voluntarily conveyed to third parties does not apply.

The lack of adversary proceedings has led to a procedurally unique litigation pattern. For example, in the Third Circuit case, no party could oppose the government’s appeal of the magistrate judges’ decisions. Instead, the magistrate judges’ position was defended by amici, including the Federal Public Defender, the American Civil Liberties Union, and the Electronic Frontiers Foundation. Similarly, in Oregon, Magistrate Judge Dennis Hubel refused to authorize an indefinite gag order regarding warrants for emails, holding that after 180 days, the government should provide notice to the email user that the seizure of records had occurred, absent a special showing of need. The government appealed with no party opposing. The Federal Public Defender was appointed to file an amicus brief in support of Judge Hubel’s decision. The district court reversed, approving no notice to the persons whose emails were examined on the basis that emails do not receive the protection of seized property and should be treated analogously to items left in the custody of third parties. In the absence of a party who could appeal, the district judge’s opinion (available here) is the last word in this District, never receiving the appellate review it deserved.

Magistrate judges are alerting the defense bar to massive intrusions on our clients and the general public that are occurring without proper judicial review, often without the knowledge of the person whose privacy has been breached. This means that, in order to protect our clients, and by doing so protect the public, we need to identify issues involving technological intrusions on privacy and use the available discovery and pretrial mechanisms to advocate for compliance with traditional Fourth Amendment standards. Judge Smith has provided an important template for the factual and legal predicates to litigate privacy rights back on the books.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon