Archives

Larry Rosenthal, Binary Searches and the Central Idea of the Fourth Amendment

By privacylaw | Posted on

Larry Rosenthal, Binary Searches and the Central Idea of the Fourth Amendment

Comment by: Marc Blitz

PLSC 2013

Workshop draft abstract:

Many scholars and judicial decisions have identified privacy as the central value at the root of the Fourth Amendment’s prohibition on unreasonable search and seizure.  Yet, the conception of Fourth Amendment privacy is deeply contested.  Fourth Amendment jurisprudence has oscillated between competing conceptions of privacy.  The libertarian conception argues that the Fourth Amendment works to identify a private domain free from unwarranted governmental intrusion, while the pragmatic conception sees privacy as a function of an effort to balance liberty against law enforcement interests.

Few cases force such a clear choice between these competing conceptions as Florida v. Jardines, in which the United States Supreme Court will decide whether the use of a drug-detection dog to determine whether a home contains contraband is considered a “search,” regulated for reasonableness under the Fourth Amendment.  The use of a properly trained drug-detection dog is often characterized as a “binary search” because it discloses nothing other than the presence of absence of contraband. Deciding whether a binary search should be regarded as infringing a legitimate expectation of privacy is no small matter.  Indeed, to decide Jardines, one is forced to choose between the libertarian and pragmatic conceptions of Fourth Amendment privacy.  From a libertarian perspective, there is no stronger candidate for a private domain free from official scrutiny than the home.  Yet, there are powerful pragmatic arguments against limiting the use of binary search techniques.  A binary search discloses nothing of interest about the innocent; it reveals only that an individual has utilized the privacy of the home to break the law.  The decision whether to treat a binary search as infringing an expectation of privacy that we should regard as legitimate accordingly reveals a great deal about our conceptions of privacy as a legal concept.  This paper will explore what the binary search in general, and the Jardines decision in particular, tell us about the character of Fourth Amendment privacy.

Marc Blitz, The Law and Political Theory of “Privacy Substitutes”

By privacylaw | Posted on

Marc Blitz, The Law and Political Theory of “Privacy Substitutes”

Comment by: Ian Kerr

PLSC 2013

Workshop draft abstract:

The article explores the question of when the government officials should in some cases be permitted to take measures that lessen individuals’ informational privacy – on the condition that they in some sense compensate for it “in kind” – either by (i) recreating this privacy in a different form or (ii) providing individuals with some other kind of legal protection which assures, for example, the information disclosed by the government will not be used to impose other kinds of harm.

My aim in the article is to make three points.  First, I explore the ways in which the concept of a privacy substitute already plays a role in at least two areas of Fourth Amendment law:

  1. The case law on “special needs” and administrative searches, which discusses when “constitutionally adequate substitute[s]” for a warrant (to use the language of New York v. Burger (1987)) or statutory privacy protections (such as those in the DNA act), may compensate for the absence of warrant- or other privacy safeguards and
  2. cases holding that certain technologies which allow individuals to gather information from a private environment (such as a closed container) might be deemed “non-searches” if the technologies have built-in limitations assuring that they do not gather information beyond that information about the presence of contraband material or other information in which there is no “reasonable expectation of privacy” under the Fourth Amendment.

In each of these cases, I argue, courts have relied on certain assumptions – some of them problematic – about when certain kinds of statutory, administrative, or technological privacy protections may be substituted for more familiar constitutional privacy protections such as warrant requirements.

Second, I argue that, while such cases have sometimes set the bar too low for government searches, “privacy substitutes” of this sort can and should play a role in Fourth Amendment jurisprudence, and also perhaps in First Amendment law on anonymous speech and other constitutional privacy protections.  In fact, I will argue, there are situations where technological developments may make such “privacy substitutions” not merely helpful to saving certain government measures from invalidation, but essential for replacing certain kinds of privacy safeguards that would otherwise fall victim to technological changes (such as advances in location tracking and video surveillance technology which undermine the features of the public environment individuals could previously rely upon to find privacy in public settings).

Third, focusing on the example of protections for anonymous speech in First Amendment law, I explore under what circumstances government should, in some cases, be permitted to replace privacy protections not with new kinds of privacy protection, but rather with other legal measures that serve the same end — for example, measures that provide the liberty, or sanctuary from retaliation, that privacy is sometimes relied upon for.

Marc Jonathan Blitz: Warranting a Closer Look: When Should the Government Need Probable Cause to Analyze Information It Has Already Acquired?

By privacylaw | Posted on

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.

Marc Blitz, Privacy and the Thought Centered First Amendment

By privacylaw | Posted on

Marc Blitz, Privacy and the Thought Centered First Amendment

Comment by: Ann Bartow

PLSC 2010

Workshop draft abstract:

In his 2008 article, Intellectual Privacy (presented at PLSC 2008), Neil Richards proposes that activities that constitute close proxies for our thought should be shielded with a distinctive (and perhaps stronger) level of privacy protection than that provided to other activities — and that this additional layer of privacy protection is needed to protect the freedom of thought that underlies, and provides the foundation, for our First Amendment freedom of speech. (Neil M. Richards, Intellectual Privacy, 87 TEXAS L. REV. 387, 411 (2008))

This essay aims to build upon this project in two closely related ways: First, it closely considers the possible implications for both privacy and First Amendment law of the concept of “the extended mind,” which was proposed by Andy Clark and David Chalmers in 1998 and has recently attracted significant attention from both philosophers of mind and ethicists.   Clark and Chalmers argue that mental processes may sometimes be embodied not only in our brains, but also in certain parts of the inanimate world, in the notes we take in a journal, for example, or in computer technology we use to store and retrieve information.  As Clark and Chalmers note, this concept of mind as extending beyond the body may have ethical implications, since “in some cases, interfering with someone’s environment will have the same moral significance as interfering with their person.”  (“The Extended Mind” in Andy Clark, Supersizing the Mind (2008)).  Philosopher Neil Levy spells out such ethical implications of the extended mind concept, noting, for example, that “if it would be wrong to read [a person’s] mind because it would be an invasion of their privacy, then it might be equally wrong for the same reason to read their diary.” (Neil Levy, Neuroethics 62 (2004)).  If, as Richard proposes, there is a class of activities that is so closely related to thought it deserves a distinctive kind of privacy protection, then we might define the rough boundaries of such activities by drawing on work (like that of Clark and Chalmers) in philosophy of mind, and on related work in cognitive neuroscience, that considers what sort of activity — including activities outside of our person — counts as an integral part of a mental process.

Second, the essay looks at recent consideration of whether observations or records of our brain processes (for example, in functional Magnetic Resonance Imaging (fMRI) or EEG readings) raise privacy problems distinct from those raised by other kinds of monitoring that reveals aspects of our physiological functioning (e.g., our blood type) or of our psychological character (e.g., profiling based on records of our consumer purchases).   An argument for a special type of thought-protecting privacy does not necessarily entail the view that brain activity requires stronger insulation against monitoring than other kinds of activity — especially if “extended mind” encompasses many processes that occur outside of the brain.  But, given the assumption among many in Western societies that mental processes take place inside of the brain, intuitions about the appropriateness of monitoring the brain provide a starting point for elaborating privacy protections that might ultimately also protect embodiment of mental processes which occur outside of it.