Marc Jonathan Blitz: Warranting a Closer Look: When Should the Government Need Probable Cause to Analyze Information It Has Already Acquired?
Comment by: Peter Winn
PLSC 2011
Workshop draft abstract:
As the Supreme Court made clear in United States v. Jacobsen, the fact that government officials may constitutionally seize and hold an item doesn’t mean they have the authority to look inside: “Even when government agents may lawfully seize [] a package to prevent loss or destruction of suspected contraband, the Fourth Amendment requires that they obtain a warrant before examining the contents of such a package.” 466 U.S. 107, 114 (1984). A similar distinction between authority to seize and authority to search arises in other contexts, and Orin Kerr has recently proposed applying a rule like this to Internet communications, arguing that government officials should be “allowed to run off a copy of the data without a warrant but then not actually observe the data until a warrant is obtained.” Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005, 1042 (2010).
However, while government might not be permitted to search what it has seized, courts have been more willing to let law enforcement officials analyze information they have previously acquired in a search (or other information-gathering). A few months ago, for example, the Eighth Circuit Court of Appeals rejected a litigant’s argument that if government needed a warrant to look inside the seized package in Jacobsen, it should also need a warrant to chemically reveal the contents of the blood sample they had taken. See Dodd v. Jones, 623 F.3d 563, 568-69 (8th Cir. 2010). It cited an earlier Ninth Circuit case, United States v. Snyder, that reached a similar conclusion and stated that treating the extraction of blood as one search and the chemical testing of it as another would divide the information-gathering process “into too many separate incidents, each to be given significance for fourth amendment purposes.” U.S. v. Snyder, 852 F.2d 471, 473 (9th Cir. 1988).
This article will argue, however, that in some circumstances, the information gathering process should be divided up in precisely this way for Fourth Amendment purposes – requiring government to get a warrant before analyzing information they have obtained in a permissible warrantless search, or in surveillance that does not count as a search. More specifically, I will consider whether and when (1) government should be required to obtain a warrant to “unscramble” technologically-masked faces in video records, or otherwise apply identification technologies, to archives generated by public video surveillance; (2) to analyze data obtained in Internet searches; and (3) to conduct a chemical analysis of blood, DNA, or other biological samples, as Justice Marshall suggested in his dissent in Skinner v. Railway Executives Labor Association. See 489 U.S. 602, 642 (1989) (Marshall, J., dissenting) (observing that even if requiring a warrant is impractical when the urine samples were taken from railroad workers, “no exigency prevents railroad officials from securing a warrant before chemically testing the samples they obtain.”). Indeed, I argue, changes in the architecture that protects our physical and electronic privacy may increasingly require that warrant or other probable cause protections be moved from the information-acquisition stage to the information-analysis stage and that “analysis warrants” of this kind should (consistent with Justice Marshall’s suggestion in his Skinner dissent) play a key role in courts’ jurisprudence on the special needs and administrative search exceptions to the warrant requirement.