Case o' The Week: Bad Cops Make Good Law, Quon -- Fourth Amendment Privacy Interests in Text Content

Ever notice that cops behaving badly create the best defense decisions? For example, cops beat the daylights out of Rodney King, get convicted, and generate the Supreme Court's seminal case on sentencing departures. Koon v. United States, 518 U.S. 81 (1996). Prison guards terrorize inmates, are convicted, and generate the seminal decision on bail pending appeal. United States v. Garcia, 340 F.3d 1013 (9th Cir. 2003). And now, in Quon, a SWAT cop uses his work pager to send sexually-explicit texts (and lots of them), and generates the nation's leading decision on Fourth Amendment protections in digital content. Quon v. Arch Wireless, __ F.3d __, 2008 WL 2440559 (9th Cir. June 18, 2008), decision available here. Keep up the good work, Lads and Lassies in Blue.

Ribbing aside for a moment, Quon is an important and well-written decision that merits a very close read by anyone one interested in privacy issues, Fourth Amendment protections, and how those concerns play out in the new digital era.

Players: Another great decision by Judge Wardlaw, joined by Judge Pregerson and District Judge Ronald Leighton.

Facts: SWAT Cop Quon was given a pager by the City of Ontario, with an allotted number of characters. Id. at *1. He repeatedly exceeded his allotment and paid for the overages. Id. at *3. No one read the texts when this happened. Id. The cop in charge of the pager account got tired of billing Quon personally for the overages, so the Police Department got transcripts of Quon’s texts from service provider Arch Wireless. Id. at *3-*4. Turns out the texts included personal, sexually-explicit messages. Id. at *4. Quon and others to whom he texted and from whom we was texted sued Arch, the City, and police supervisors. Quon appealed (civil) Rule 59 motions from the federal district court. Id.

Issue(s): “Do users of text messaging services such as those provided by Arch Wireless have a reasonable expectation of privacy in their text messages stored on the service provider’s network?” Id. at *10.

Held: “We hold that they do.” Id. “[U]sers do have a reasonable expectation of privacy in the content of their text messages vis-a-vis the service provider.” Id. at *11.

Of Note: Quon is rich with holdings that will keep law reviews busy for years. Judge Wardlaw pragmatically analogizes a text message (and, by extension, e-mail) to snail mail. The Fourth doesn’t protect the address on an envelope, but does protect the contents of the letter within. Id. Similarly, the “address” of a digital message (the phone number or e-mail address) is not protected by the Fourth, but the content of the message is. Id.

(Aside: OK, bring on the anonymous comments questioning why this snail mail analogy is apt in Quon, but the analogy of a computer to a briefcase is not persuasive in Giberson. I'll respond and explain. Here's a hint: in Quon, Judge Wardlaw correctly focuses on the privacy interest in content. In Giberson, Judge Wallace (incorrectly, in our view) focuses on the 'storage' aspect of a computer at the expense of many other characteristics of a computer that raise privacy concerns. Keep an eye out for the Giberson en banc petition).

Note also that it isn’t only the subscriber of the pager that has a privacy interest in Quon – so do the others who texted him and who received texts from him! Id. at *12 (holding that other plaintiffs who received and sent the texts had a Fourth Amendment privacy interest).

There are, admittedly, some caveats. Here, because of some fact-specific practices Quon wasn’t on notice that his texts would be read. He thus had an expectation of privacy. On different facts that expectation may not be the same. Nonetheless, Quon will be a cornerstone case for Fourth Amendment litigation in the digital age.

How to Use: Quon’s rule is that the content of messages – phone calls, letters, e-mails or texts – are protected by the Fourth Amendment. In Quon, the content was improperly obtained from the text/pager service provider. In another case, the content may be improperly obtained by a cop’s warrantless search of an iPhone, Blackberry, P.D.A., or pager, seized during an arrest.

(We think) the Fourth Amendment prohibits warrantless searches of electronic devices recovered from a person during an arrest. The Northern District of California's own Judge Illston so held in United States v. Park, 2007 WL 1521573 (N.D. Cal. May 23, 2008) (ord.). The reasoning of Quon proves her both correct, and prescient.

Our challenge after Quon is to push the definition of Fourth Amendment “content.” E-mails and pager text messages are protected content. Subject lines in e-mails should be considered content as well, and instant messages too. IP addresses and URLs? An IP address isn’t “content,” thanks to the poorly-reasoned Forrester decision. See blog here. But, as even Forrester concedes, a URL might be. Id.

For Further Reading: Those clever digital-privacy gurus at the Electronic Frontier Foundation nailed Quon as a Big Case the minute it hit the web. For Jennifer Grannick’s very thoughtful dissection of the decision – including its many holdings and broad implications – visit her post here. As Grannick astutely opines, “Wow.”

The decision itself relies heavily on a law review article, Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 GEO. WASH. L. REV. 1208, 1209-13 (2004). Professor Kerr has blogged the Quon decision here. As the good prof explains,

The reasoning [in Quon] is broad: It pretty clearly indicates that there is a default of a reasonable expectation of privacy in not only text messages but also e-mails. It also further cements the emerging content/non-content distinction that I have been expecting courts to grab on to for some sort of certainty in this area.

Id.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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Case o' The Week: Graber and Waiver - Laurienti and 10b-5

In a new rule for white collar defense, Judge Graber (left) holds that brokers can be criminally liable for failure to disclose commissions - if they owe a fiduciary duty to their clients. United States v. Laurienti,__ F.3d __, 2010 WL 2266986 (9th Cir. June 16, 2010), decision available here.

Before you write-off Laurienti as irrelevant to indigent defense, note that a PD had part of this case, and that the decision is thick with holdings that apply outside of the white collar context.

Players: Decision by Judge Graber. Hard-fought case by, among others, SF appellate attorney Dennis Riordan, CD Cal AFPD Jonathan Libby, and Oakland appellate attorney Karen Landau.

Facts: Laurienti and his co-defendants were senior brokers in a firm charged with having a “pump and dump” scheme – pushing select “house” stocks on clients and getting secret “bonus” commissions for the sales. Id. at *1. They were charged with, among other things, securities fraud conspiracy under the conspiracy statute (§ 371) and securities violations (including 17 CFR § 240.10b-5).

A key legal theory was that the brokers failed to disclose these bonus commissions. Id. at *4-*5. Although the government asked for one, the trial court rejected an instruction requiring the jury to find the brokers owed their clients a fiduciary duty. Id. at *11. All were convicted at trial.

Issue(s): “[W]hether, and (if so) in what circumstances, a broker’s failure to disclose bonus commissions can give rise to criminal liability.” Id. at *5.

Held: “[W]hen a relationship of trust and confidence exists between a broker and client, a broker must disclose all facts material to that relationship.” Id. at *7 (emphasis added). . . [W]e reject Defendant’s argument that a broker never has a duty to disclose bonus commissions.” Id.

Of Note: This is a long, dense, and complex decision with many holdings important to indigent defense beyond the core 10b-5, white collar analysis. Here’s one of concern – the central holding of the case, on 10b-5 liability, is probably irrelevant because a defendant can conspire to commit securities fraud even if the underlying act isn’t a crime. Id. at *4-*5 (“In short, even if the failure to disclose was perfectly legal in all circumstances, the government still met its burden to establish a conspiracy.”) It is a troubling and expansive theory of criminal liability, reminiscent of a similar holding in the recent United States v. Judy Green decision. See blog here.

Another unwelcome holding is that the government can use “guilt-assuming hypotheticals” when asking questions of its own fact witnesses. Id. at *16. On a brighter note, the Court found the district court erred by limiting the testimony of a defense securities expert. Id. at *15 - *16 (though, sadly, it was harmless error).

How to Use: Because there was no instruction requiring the jury find a fiduciary relationship for these defendants, there was error in this trial. A big question for the Ninth was how to review this error – was it waived by the defense, given Laurienti’s opposition to the government’s proposed “fiduciary” instruction? Id. at *11-*12. Judge Graber concludes that the legal issue was waived by Laurienti and – of greater interest – found it was waived by other the defendants as well. Why? Because, in a familiar practice, the trial judge had held that an objection raised by one defendant would be deemed to have been raised by all. Id. at *12. Judge Graber explained that the co-defendants’ silence, in the context of Laurienti’s fight about the jury instructions, could constitute waiver of the legal argument. Id.

It is a worrisome holding for multiple defendant cases, and a reminder to keep a sharp eye out for legal arguments or objections raised by co-counsel that can be imputed against you on appeal (even if you remain silent).

For Further Reading: Quon? Gone. The Ninth Circuit, dragging the nation into the 21st century, gave us the great Quon decision on the Fourth Amendment search of a text pager. 529 F.3d 892 (9th Cir. 2008).

But, what the Ninth giveth, the Supremes taketh away. Ontario v. Quon, 2010 WL 2400087 (June 17, 2010).

In Quon, SCOTUS dodged the Fourth Amendment issues presented by new technologies. It issued a narrow holding that in the context of a workplace search, the review of the texts was not an unreasonable Fourth Amendment search. Id. at *14.

What does Quon mean for the future of the recent jewel of the Ninth’s Fourth Amendment law, Comprehensive Drug Testing? Justice Scalia, for one, seems ready to tackle the case: “Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice . . . The-times-they-are-a-changin' is a feeble excuse for disregard of duty.." Id. at *15 (Scalia, J. concurring).


Image of the Hon. Susan Graber from http://www.law.gwu.edu/News/newsstories/Pages/2010_VanVleck.aspx

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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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

Case o' The Week: The Fourth, the Ninth, and the Tenth: New 4th Amendment Standing Rule in Ninth Circuit, SDI Future Health

In a case that presents more Fourth Amendment issues than a CrimPro exam, the Ninth Circuit imports a Tenth Circuit test to create a new rule for gauging the standing of corporate employees to challenge a search within a business. United States v. SDI Future Health, Inc.,__ F.3d __, No. 07-10261, 2009 WL 174910 (9th Cir. Jan. 27, 2009), decision available here.

A must-read for white collar folks.

Players: Decision by Judge Diarmuid F. O’Scannlain (left), joined by Judges Hawkins and McKeown.

Facts: Feds suspected Medicare and tax fraud within SDI Future Health Services, and got a search warrant for the company. Id. at *1. The corporate-executive defendants successfully challenged this search when they were later prosecuted. Id. at *2. The government took an interlocutory appeal. Id. at *3.

Issue(s): “We must decide whether corporate executives may challenge a police search of company premises not reserved for the executives’ exclusive use.” Id. at *1. “The government . . . argues . . that [the defendants] lack standing to challenge the search and seizure of materials from SDI’s premises. According to the government, the mere ownership and management of SDI, and the steps SDI took to preserve the security of its business files, are inadequate to support the conclusion that [the corporate executive defendants] personally had an expectation of privacy in the search areas and seized materials.” Id. at *3. “[T]his case presents the novel issue of the extent to which a business employee may have standing to challenge a search of business premises generally.” Id.

Held: “[W]e conclude that, except in the case of a small, family-run business over which an individual exercises daily management and control, an individual challenging a search of workplace areas beyond his own internal office must generally show some personal connection to the places searched and the materials seized. To adapt [United States v.] Anderson, [154 F/3d 1225, 1230-32 (10th Cir. 1998)] although all the circumstances remain relevant, we will specifically determine the strength of such personal connection with reference to the following factors: (1) whether the item seized is personal property or otherwise kept in a private place separate from other work-related material; (2) whether the defendant had custody or immediate control of the item when officers seized it; and (3) whether the defendant took precautions on his own behalf to secure the place searched or things seized from any interference without his authorization. Absent such a personal connection or exclusive use, a defendant cannot establish standing for Fourth Amendment purposes to challenge the search of a workplace beyond his internal office.” Id. at *5 (footnotes omitted). “The district court’s grant of the motion to suppress must be reversed and the matter remanded for further fact-finding.” Id. at *7.

Of Note: The new rule of SDI is an imported 10th Circuit standing test. There are, however, many additional Fourth Amendment sub-issues in the decision. Judge O’Scannlain discusses the incorporation of affidavits into search warrants – and finds that the affidavit was incorporated in this warrant. Id. at *8-*9. The decision also explains the difference between “particularity” and “overbreadth” in a search warrant challenge – and finds that several categories of the warrant were in fact overbroad. Id. at *10. Finally, the opinion expounds on severance of a search warrant, allowing for a partial suppression of materials seized from overbroad categories of the warrant. Id. at *13-*14. All in all, an expansive Fourth Amendment decision.

How to Use: White-collar counsel (and P.D.s who inherit these clients when retainers are tapped) will want to read SDI carefully. Note that the decision doesn’t strip corporate executives of all standing to challenge a search of a business: here, the executive-defendants still had “standing to challenge the admission of any evidence obtained from their own, personal, internal offices.” Id. at *7. Also, the opinion’s many footnotes merit close attention. For example, notes six and eight concede that these new standing factors are not exclusive. Id. at *5-*6, nn. 6 & 8.

For Further Reading: SDI was the most important case of the week: Quon, the most interesting to read. The panel for the great Quon v. Arch Wireless decision (cops and pager searches) fended-off an en banc attempt, prompting a dissent from the denial of rehearing en banc by Judge Ikuta (right). This in turn sparked a blistering “concurrence” in the denial of rehearing en banc by Judge Kim Wardlaw (left). See Judge Wardlaw's concurrence here.

Here’s Judge Wardlaw’s memorable first line: “No poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal.” Id.




Image of the Hon. Diarmuid O'Scannlain from http://law.lclark.edu/org/bov/oscannlain.html. Image of the Hon. Sandra Ikuta from http://ms-jd.org/blogs/212. Image of the Hon. Kim Wardlaw from http://www.abovethelaw.com/2008/02/

Steven Kalar, Senior Litigator, N.D. Cal. FPD. Website at www.ndcalfpd.org

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