Transcripts For CSPAN3 Fourth Amendment And Technology Panel

Cs. With congress on its summer recess, the cities tour is on cspan every day at 6 00 p. M. Eastern. Today we head to wheeling, west virginia. The first major highway built by the federal government. Well take a look at civil war battle flags and recount senator Joe Mccarthys enemy from within speech which he delivered in wheeling in 1950. T next, legal analysts talk about government surveillance and data gathering technologies in the digital age. They examine the role of congress, the courts, and the administration in enacting rules to protect consumer privacy. American university hosted this event. The senior counsel with the National Association of criminal defense lawyers. If you missed it, but if youre watching online and you have questions you can email them to nacdlquestions gmail. Com. Xrikz well do our best to get them asked. For those tweeting weve been tweeting with the hashtag Fourth Amendment. So feel free to use that. I want to introduce the moderator of our next panel, who is gerry morris. A sole practitioner in austin, texas whos practiced criminal defense both state and federal for 36 years. He focuses primarily on trial work but also happens appeals and postjudgment relief. He is the president elect of nacdl and also currently our Fourth Amendment Advocacy Committee cochair. In addition to Fourth Amendment work that he does including this symposium which he worked on very closely he also works on indigent defense reform and currently working in travis county, texas, on a groundbreaking effort to strengthen the aed counsel system there. Please welcome him up to the podium. [ applause ] ant to once again t American University for dedicating the resources and the staff and all that goes into having us here to put on this symposium. Ive asked around and im quite confident that this is the mostg comprehensive symposium on this topic thats ever been held. Thats both rewarding and a bit concerning because this is not new stuff. Ul4o and the discussion certainly needs to move forward. The panel the topic of this panel, its a good segue from the last panel. We talked in the last panel about what is the technology out there for surveillance, data content, location, what are the techniques available to the government and the devices, technology. This panel is basically going talk about what can we as practitioners do about it . How do we challenge the use of these techniques and devices in our cases . Pyn like the last moderator im not going to give the long introduction because you have the biographies in your materials. Our panelists are hanni fakhoury, senior staff attorney Electronic Frontier foundation. Most of you are familiar with that organization and what they do. Theyre on the cutting edge of these issues. Also if you look at the materials you were given when you came in, youll see the copy of champion, this months issue of the National Association of criminal defense lawyers magazine. Theres an article in here by mr. Fakhoury that discusses the riley decision and practice steps having to do with that decision. Neema singh guliani, counsel American Civil Liberties union. Jim harper, senior fellow cato institute. And orrin kerr, Francis Steven Research Professor of law at George Washington University Law school. R n when we were preparing for this panel i proposed three general areas of discussion. The panelists are not limited to these. But to give you an idea of where were going with this. Those areas of discussion are what is the current law, Fourth Amendment law, regarding these issues and where do we think its going looking at the Court Decisions that have come down to date. And a corollary of that is, does the current analysis under the Fourth Amendment, reasonable expectation of privacy, does it really fit this subject matter . Or is there another way to look at it, perhaps . Another topic is, how do we find out in our cases whether this technology has been used . Youve heard from our last panel ahahat have been made b Law Enforcement to basically keep it secret. How do we determine that it has been used . And for instance, in the instance of the stingray device, even after it was discovered that it was being used, Law Enforcement made an effort to keep the details of how the device worked secret. b how do you discover how these devices are used, whether, for instance, they involve a plurality of opinion in jones, how are they attached to something . Do they grab something out of the air . How do they work . And third, what do we do with this stuff . These issues in court. With that i will direct the first discussion to professor kerr. Id like for you to go first and jim follow up because yours is thank you for the invitation to be here this morning. If and especially accommodating k my slight change in panel. It took me for a while to realize when passover was scheduled for this year. I was like, oops, thats a problem. So i wanted to talk about the situation for the development of Fourth Amendment law in the digit age, how it looks right now, and some of the major fault lines and issues that youre seeing. 6b from a defense attorney standpoint theres good news and bad news. The good news is courts are being creative in interpreting the Fourth Amendment as it applies to new technologies. Theyre doing interesting things, theyre expanding Constitutional Rights in a lot of surprising ways. 1 rrn think of the riley decision recently, the Supreme Courts decision on searching a cell phone incident to arrest. A unanimous decision in favor oc rejecting the traditional Fourth Amendment rule and enacting a broad warrant requirement. Kind of a Surprising Development in a lot of the ways as to its unanimity. From a right standpoint good news from Defense Council. Theres a lot of creative arguments that defense lawyers should be making and can be making that things violate the Fourth Amendment that a few years ago probably would have seemed like very, very hard arguments to make are now look easier and easier. And the downside is just as thats happening the Supreme Court is cutting away on the scope of the remedy that matters most to Defense Attorneys. That is, the suppression remedy and cases such as davis v. United states saying no e74 exclusionary rule applies when the court for when the officer relied on thenexisting law. Full disclosure, you can blame me. I argued the case for davis and i lost. So it pains me that i have to keep talking about it wherever i go because i knew this was going to happen and oh, well. Two votes. What can you do . So in effect i think these trends are related, actually. As the courts move away from the exclusionary rule they feel more comfortable creating broad rules because no one is getting out of jail. So the good news from a defense attorney standpoint is the Fourth Amendment is expanding and the bad news is your client is obably not going to benefit much from it. But there are certainly arguments to be made to get around this and we can talk let me first focus on the rights standpoint. So from a standpoint of what is a search or seizure, great cases out there that you should be using if youre a defense attorney with a digital evidence case. You should be relying on ah theres the jones majority opinion, the trespass case. . B nobody quite knows what the trespass theory is in jones. Its really counterintuitive that placing a gps device on a car is a trespass into the car. Its not actually going into the car, its affixed on to the car. Just this week we saw a decision in grady v. North carolina saying that also applies to an ankle bracelet around a gps monitoring bracelet around a persons ankle and they did that without argument even. They just reversed on that xu7l ground so on the rights question, theres the trespass argument, the jones concurring f opinions which really sort of depart from traditional understandings of Fourth Amendment law by suggesting that monitoring over time could be a search even though individual pieces of collection of evidence are not searches. Thats another thing you should be using wherever you have digital evidence collection because a lot of times digital evidence collection is part of a broader effort to collect evidence. That could be argued to create o mosaic which constitutes a search even if in the traditional context it might not seem like a search. For Fourth Amendment reasonableness we have the riley case which i talked about a minute ago and you should be pushing for riley moments in your cases. Just as the Supreme Court said in riley that the traditional Fourth Amendment rule for search incidence arrest does not apply in the computer context because computers are different, i think of that as the riley moment where the court says we need a new rule and that opens the doo for lots of opportunities to make riley moment arguments in other contexts and some courts have already gone in this direction. And so from a rights standpoint theres just a lot of arguments that can be made as to whats a search, whats reasonable, pushing against the doctrine as it exists now with riley at youe back and jones at your back and other cases that are suggesting that the courts are open to do lots of creative things. So ill emphasize that part and then ill not talk about the exclusionary rule part because, oh, im out of time. We should move on to someone else. I will probably use the same internal clock to figure out when im out of time. And i may not be the most helpful to defense counsel with their cases because im sort of a onenote johnny. Ive never tried a case or defended a case. But im a one note on how to argue your Fourth Amendment of course, as practical matter you want to argue the expectation of private. Because thats how its im always intrigued to find many lawyers believe that reasonable expectation of is a prefix to.  the word privacy, not regarding privacy as a separate condition that exists or doesnt exist without respect to what people think about it. But understand so argue that, but understand that that doctrine is a failure. And i think it wont survive very long, along with the thirdparty doctrine. The Supreme Court hasnt been using reasonable expectation doctrine for the last little while, at least not very much. Sure, a lot of people read jones as being all about that, but that was the concurrence and not the majority of opinion. Whats wrong with that test . Mz well, its not administered verh well. Rarely does a court actually examine the subjective feeling of the defendant as to their privacy. The objective part of the reasonable expectation of privacy is actually just a subjective statement on the part of the judge or judges who issued the decision. Usually or as often as not, i should say, in accuracy, it comes to the wrong result and i think that a welldone study of peoples expectations, that is people out in the land, not here in this room, with regard to their telephone dialing information would find that smith vs. Maryland is simply most people who arent lawyers, who dont know about smith vs. Maryland and all this stuff, would say heck no, you cant see the content of my phone bill, thats stuff that i have. Its also not a product of the katz decision. Its a product of a solely concurrence in katz. Justice harlan i think was doing his very best to try to capture these difficult problems, the intersection between technology and the Fourth Amendment when he stated what has now become pw whats called the katz test. But katz actually went down on the fact that the defendant had; entered into a phone booth and there concealed the sound of his voice from other people. So in closing himself in a miniature room, of sorts, prevented the information from reaching others and the government accessing it through use of a bug was unreasonable. The majority read your cases, folks. The majority in katz did not decide based on what has now become the katz test, reasonable expectation of privacy. My argument is to obviously use it but also argue for administering the Fourth Amendment the way you would any other law. So you go through it like a student would through a statutory law. The right to be secure against unreasonable searches and seizures in a persons houses, papers, and effects. You go through the major elements of that. Was there a seizure . Was there a search . Was the thing seized or searched protected by the Fourth Amendment . Then you get to the question of whether it was reasonable. The seizure so seizure and search are often collapsed together and that makes it hard to work with sometimes. But there are cases where there are seizures that are not in part of the not part of the search and there are cases where there searches that are not part but jones is actually a good seizure case because the court found it used the word search but what it was talking search butas the invasion of property right. Kara will send you off on a tangent because it treats the property right and the possessory interest as the same thing. But Property Rights go beyond  use, administration, benefitting from the profits of having a thing. These are all within the realm of Property Rights according to that bundle of sticks that we learned about in law school. And attaching a device to a car converts the car to the purposes of an outsider, an interloper on this piece of property. So attaching a gps device to a car very much is an invasion of a property right. Its just not the possessory right. So jones didnt lose control of his car, the car wasnt taken away but his car was used by somebody else which is a violation of that right to exclude. So watch for seizures. Very often seizures and searches are mixed because the Law Enforcement officer will look at the underside, this is the seizure, this is is search and there are one or two cases where the court articulates those independently. Searchatqjan happen in a stand alone way and kylo is the best example of that. Thats the case with where Law Enforcement used a thermal imager to access the heat profile on the side of the building. What it did was it made things that were otherwise imperceptible perceptible. Literally a thermal imager takes heat waves are that are imperceptible to the human eye and moves them a different place on the spectrum so you can actually see the heat as visible. So in ordinary light no one can a different place on the spectrum to you can see the heat as visible. So in ordinary life no one can see what the heat of the building is but using the technology at the time, that made visible what was there to for invisible. That was a search. There are ways to strer a administer a search. Going to Law Enforcement. We were really looking hard at a thing. You call that a search. But being more granula and scientific of taking things from imperceptible to perceptible is the search. Third question. Is the thing seized or searched protected by the Fourth Amendment. Persons, houses, papers and effects and cartilage, and people things carry, cars and the effects that the court found. And the final question is was it or was it not reasonable. And judging has to happen. There is no judging from the Fourth Amendment that gets away from it. But it is focused in the right place, and that is whether or not the government was being re reasonable, and the individual is being seasonable in respecting privacy and that is not what the terms of the Fourth Amendment call for. To apply this sort of statutory style way of working with the Fourth Amendment, you have to really understand how the technologies work. So let me walk you through a few technologies that weve encountered over time to show you how it applies. And ill start with mail. Paper is a very handy form factor for cell los that is light weight. It has a terrific sort of absorbancy of ink. And we use paper to put high row glifs into a fixed form, numbers, forms and symbols ab they convey our thoughts, feelings, emotions, et cetera, et cetera. When folded and it concealed in an envelope, the paper makes those thoughts, feelings, emotion, et cetera, et cetera, imperceptible to others that have not accessed the inside of the mail. And what we find is that when we use these physical characteristics of paper to conceal information, the information gets Fourth Amendment protection. So in ex parte jackson in 1877 which discussed interestingly the constitutional difference between sealed and open mail like newspaper and flyers, the court said packages of this kind are as fully guarded from examination and inspection as to the outward form and weight as if they were retained by the parties forwarding them in their own dom isil. The constitutional guarantee is closed against inspection, wherever they may be. So using theo passity of paper gives you constitutional protection, as a matter of physics in the first instance which is backed by law. Fast forward from 1877 to 1929 and the home stead decision. The majority got it wrong but the decents were the interesting one. Brandize is need because he said there is this wonderful right to be let alone which is