Why empowering consumers won’t (by itself) stop privacy breaches [cross-posted]

Cross posted from Concurring Opinions, where I’m guest-blogging this month

Who bears the costs of privacy breaches? It’s challenging enough to articulate the nature of privacy harms, let alone determine how the resulting costs should be allocated. Yet the question of “who pays” is an important, unavoidable, and in my view undertheorized one. The current default seems to be something akin to caveat emptor: consumers of services — both individually as data subjects and collectively as taxpayers — bear most of the risks, costs, and burdens of privacy breaches. This default is reflected, for example, in legal rules that place high burdens on consumers seeking legal redress in the wake of enterprise data breaches and liability caps for violations of privacy rules.

Ironically, the “consumer pays” default may also (unwittingly) be reinforced in well-meaning attempts to empower consumers. This has been one of the unintended consequences of decades of advocacy aiming to strengthen notice and consent requirements. These efforts take it for granted that data subjects are best-positioned to make effective data privacy and security decisions, and thus reinforce the idea that data subjects should bear the ultimate costs of failures to do so. (After all, they consented to the use!). And while notice and consent are still the centerpiece of every regulator’s data privacy toolbox, there’s reason to doubt that empowering consumers to make more informed and granular privacy decisions will reduce the incidence or the costs of privacy breaches.

Continue reading Why empowering consumers won’t (by itself) stop privacy breaches [cross-posted]

Functionalist explanations in biology and law

Over at Legal Theory Blog, the indefatigable Larry Solum has an entry on functionalist explanations in legal theory. It’s overall a great entry, but I wanted to comment on the section describing the role of functionalist explanations in evolutionary biology:

Functionalist explanations are familiar to almost everyone, because of the important role they play in evolutionary biology. When we try to explain why an organism has a particular trait–why male peacock’s have their colorful feathers or why the elephants have trunks–we appeal to the function that the trait serves. Male peacock’s have colorful feathers because that trait serves to attract female peacocks and hence the genes produce this trait are favored by evolution. Elephants have trunks, because they enable elephants to eat and drink more efficiently.

In biology, functionalist explanations are scientifically valid, because we understand the causal mechanism whereby function plays a causal role. That causal mechanism is evolution, of course, and we have a very good explanation for how evolution works in the form of genetics. DNA (plus a lot of other stuff) provides the precise causal mechanism by which evolution operates.

This account and the subsequent discussion of similar explanations in law and humanities immediately reminded me of the philosopher John’s Searle’s work on functions, formulated in his book The Construction of Social Reality.  Aside from being generally fascinating (and I think correct), Searle’s account of functions has some bearing on how we think of functionalist explanation in legal theory.  (Disclaimer: John Searle was my undergraduate thesis advisor).

Searle’s argument, in a nutshell, is that functions (unlike causes) are not intrinsic to natural phenomena; functions are always imposed by observers and they exist only relative to a particular teleology.  If Searle is right, then functionalist explanations — even those that purport to describe intrinsic facts about nature or other phenomena — may often say more about the explainer’s value system than about the phenomena that’s being explained.

Since I haven’t found any in depth accounts of Searle’s theory of functions online, I’ll try to cover some of it in this post.  I’ll start by giving a quick rundown of two interesting parts of Searle’s account of functions: first, his argument that functions are observer-relative rather than observer-independent, and second, his claim that evolutionary explanations are not functionalist explanations in the most relevant sense.  I’ll conclude by sharing some thoughts about what Searle’s account might mean for functionalist explanations in legal theory.

Searle’s account of functions

Searle makes two points about functionalist explanations (in biology and elsewhere) that are relevant here.  I’ll cover them in turn.

1. Functions are observer-relative

First, Searle argues that functions are not intrinsic to nature but rather assigned by observers. Or, as Searle puts it, a “function” is always an observer-relative fact about the world rather than an observer-independent (i.e., ontologically objective) fact about the world.  When we use the term “function” in an explanation, then, we may be revealing more about our values than about the intrinsic nature of the thing we’re trying to explain.

This, surprisingly, is true even for functional explanations in biology.  Take the explanation, “the function of the heart is to pump blood.”  Is it an observer-independent description of the heart’s intrinsic features, or is it an assertion of particular community’s value-system?  Here’s Searle’s take:

It is … intrinsic to nature that the heart pumps blood, and causes it to course through the body. It is also an intrinsic fact of nature that the movement of the blood is related to a whole lot of other causal processes having to do with the survival of the organism. But when, in addition to saying “The heart pumps blood” we say, “The function of the heart is to pump blood,” we are doing something more than recording … intrinsic facts. We are situating these facts relative to a system of values that we hold. It is intrinsic to us that we hold these values, but the attribution of these values to nature independent of us is observer relative.  Even when we discover a function in nature, as when we discovered the function of the heart, the discovery consists in the discovery of the causal processes together with the assignment of a teleology to those causal processes. This is shown by the fact that a whole vocabulary of success and failure is now appropriate that is not appropriate to simple brute facts of nature. Thus we can speak of “malfunction,”“heart disease,” and better and worse hearts. We do not speak of better and worse stones, unless of course we have assigned a function to the stone. If we use the stone as a weapon or a paperweight or an objet d’art trouvé, for example, we can asses its adequacy under these functional descriptions.

(All quotes are from Searle’s The Construction of Social Reality).

To be clear, Searle is not denying that the heart causes blood to pump, and I don’t think he’s arguing that biologists should abandon the use of the term “function” in this context.

Searle is, instead, pointing out that the vocabulary of functions is inherently observer relative: it always assumes a teleology and a background value system.  The heart causes many things: thumping noises, blood circulation, and so on. When we choose to describe just one of those causes as the heart’s “function,” we reveal something about our value system — we prefer life and the things that promote it, like blood circulation.  And indeed, if we had a different value system, we would very likely describe the heart’s function differently:

It is because we take it for granted in biology that life and survival are values that we can discover that the function of the heart is to pump blood. If we thought the most important value in the world was to glorify God by making thumping noises, then the function of the heart would be to make a thumping noise, and the noisier heart would be the better heart. If we valued death and extinction above all, then we would say that a function of cancer is to speed death. The function of aging would be to hasten death, and the function of natural selection would be extinction. In all these functional assignments, no new intrinsic facts are involved. As far as nature is concerned intrinsically, there are no functional facts beyond causal facts. The further assignment of function is observer relative.

In a nutshell, then, Searle’s first argument is that functions only exist relative to an observer’s value system, or teleology — functions are never intrinsic to natural phenomena independent of observers.  The obvious implication for our purposes is that functionalist explanations, which are often presented as descriptive accounts of the world, are likely to be normative or (at least) value-laden: they assume a particular set of community values, and their persuasiveness depends not merely on the existence of brute facts about nature but also on the acceptance of the value-system that’s implied.

2.  Evolutionary biology does not rely on functionalist explanations

The second of Searle’s arguments I want to cover is about the nature of explanations in evolutionary biology. As discussed above, Searle has made a strong case that functionalist explanations are always observer-relative.  Now Searle has to account for the fact that explanations in evolutionary biology often use the language of functions, even though they very effectively explain observer-independent phenomena.

Searle’s answer to this puzzle, on my reading, is that explanations in evolutionary biology aren’t functionalist in the sense that matters.  That is to say, evolutionary explanations (unlike functionalist arguments) don’t derive explanatory force from the existence of functions in nature.  Instead, evolutionary explanations work by describing brute, observer-independent causal processes at multiple levels of abstraction.  In fact, the genius of Darwin’s theory of evolution and natural selection is precisely that it strips naturalistic explanations of all teleological assumptions. Here’s Searle:

One of Darwin’s greatest achievements was to drive teleology out of the account of the origin of species. On the Darwinian account, evolution occurs by way of blind, brute, natural forces. There is no intrinsic purpose whatever to the origin and survival of biological species. We can, arbitrarily, define the “functions” of biological processes relative to the survival of organisms, but the idea that any such assignment of function is a matter of the discovery of an intrinsic teleology in nature, and that functions are therefore intrinsic, is always subject to a variant of Moore’s open-question argument: What is so functional about functions, so defined? Either “function” is defined in terms of causes, in which case there is nothing intrinsically functional about functions, they are just causes like any others. Or functions are defined in terms of the furtherance of a set of values that we hold—life, survival, reproduction, health—in which case they are observer relative.

(Note that Searle is using “function” and “teleology” or “purpose” somewhat interchangeably at this point in the book.  This makes sense: if you agree with Searle that functions are observer relative, then all functionalist accounts imply a teleology.)

Searle’s point, again, is that evolutionary explanations are specifically non-teleological.  This makes explanations in evolutionary biology different from functionalist explanations. To the extent evolutionary explanations use the vocabulary of functions, they draw little or no explanatory force from that vocabulary.  Explanations in evolutionary biology instead derive their force from the coherent causal story they provide — including causal relationships (such as those between genetic, individual and species survival; natural selection and evolution; etc.) that occur at multiple levels of abstraction and at different temporal scales:

From a philosophical point of view, the marvelous thing about Darwinian evolutionary biology was not only that it drove teleology out of the biological explanation of the origin of species but that it gave us a new kind of explanation, a form of explanation that inverts the order of the explanatory apparatus. So, in pre-Darwinian biology, we would say, for example, “The fish has the shape that it does in order to survive in water.” In evolutionary biology we perform an inversion on that intentional or teleological explanation, where we substitute two levels of explanation. First, the causal level: We say the fish has the shape that it has because of its genetic structure, because of the way the genotype, in response to the environment, produces the phenotype. Second, the “functional” level: We say that fish that have that shape are more likely to survive than fish that do not.  Thus, we have inverted the structure of the explanation. The original structure was, the fish has this shape in order to survive; now we have inverted it: the fish is going to have this shape anyway, but fish that do have this shape are more likely to survive than fish that do not. Notice what we have done in the inversion. Survival still functions as part of the explanation, but now it is introduced into the explanation diachronically. It functions over a period of many generations, and its causal role is inverted. Because the teleology is now eliminated, survival is not a goal that is pursued but simply an effect that happens; and when it happens it enables the reproduction of the survival-producing mechanisms.

The brilliance of Darwin’s theory is that — unlike most functionalist explanations — it explains nature causally, rather than teleologically.  In that sense it is hermetic — observer-relative values don’t need to play a role in evolutionary explanations the way they do in most functionalist explanations.  As Searle points out, this is true even for concepts such as “survival.”  Under Darwin’s theory of evolution, survival is not an inherent function of living things or an overarching value of natural phenomena. Survival is instead an effect that happens, and one that enables reproduction of the survival-producing mechanisms.

Those mechanisms are themselves explained wholly causally — and indeed, we can explain the entire evolutionary process that leads to, say, a fish’s shape, without any assumptions about an overarching teleology, value system, function, or goal.

What Searle’s account means for functionalist arguments in legal theory

The two arguments described above are a very small piece of Searle’s broader project in The Construction of Social Reality (and subsequent works), which is to provide an account of the ontology of human institutions, from money and marriage to games and governments.[1] While these two arguments were not intended as critiques of functionalist explanations in the law and humanities, I do think they have some practical implications for how we evaluate such explanations.

First, Searle’s point that functions are observer-relative suggests we should always be on the lookout for the teleological assumptions underlying a functionalist explanations. While functionalist explanations often purport to describe objective cause and effect relationships, they just as often rely on normative or teleological assumptions for their force. Sometimes, as with self-described Marxists explanations of institutions, the underlying teleology is explicit, and we know where to look for it (start with Das Kapital, etc.). Other times, as with many modern economic analyses of the law, the teleology (e.g., a preference for maximizing efficiency or for free market mechanisms) may sometimes be presented as an intrinsic feature of the world rather than a value framework preferred by the author.  In almost all cases, the persuasive force of the functionalist argument depends on acceptance of the underlying teleology, rather than on the mechanical details of the functionalist story.

Second, Searle’s account demonstrates some of the dangers of injecting terminology from evolutionary biology into social science and legal explanations. Despite it’s use of functionalist vocabulary, evolutionary biology derives its explanatory force from the fact that it presents a coherent, observer-independent, complex causal account of the world around us that is consistent with the weight of empirical evidence.  Evolutionary explanations don’t rely on any intrinsic teleology to be persuasive.  Their persuasiveness hinges wholly on their consistency with brute facts.

By contrast, functional explanations in the social sciences, as elsewhere, derive at least part of their force from a teleology or a specific set of values.  We should therefore be very careful when we see the language of science used to discuss social or legal phenomena to lend “objectivity” to what may ultimately be a normative account.

Of course, none of this is to say that functionalist explanations are bad, just that they often require additional unpacking.  And it is not to say that Searle believes an objective account of humanities — institutions like laws, schools, money, and so on — is impossible.  The rest of his book is, in fact, an effort to draw the broad outlines of what such an account would look like.  There’s quite a bit more to Searle’s account, which I’m skipping over for the sake of brevity.  I encourage those who are interested to go straight to the source (and at the time of this writing, an early chapter of The Construction of Social Reality is available here).

[1] One point of disambiguation for those who have read the book: while Searle’s theory of institutions relies on the terminology “status functions,” Searle’s account of human institutions is ontological rather than functionalist — he argues institutions exist by virtue of collective acceptance of certain deontological relationships of power, duties, rights, roles, etc., and calls those “status functions.”  In other words, he does not claim that institutions exist because they serve particular functions, he argues that institutions exist (and perform particular functions) because people collectively believe them to exist.

Do great professors make great litigators?

The New York Times’s recent coverage of lAffair Larry Tribe:

Mr. Tribe, 73, has been retained to represent Peabody Energy, the nation’s largest coal company, in its legal quest to block an Environmental Protection Agency regulation that would cut carbon dioxide emissions from the nation’s coal-fired power plants — the heart of Mr. Obama’s climate change agenda.

To many Democrats and professors at Harvard, Mr. Tribe is a traitor. “The administration’s climate rule is far from perfect, but sweeping assertions of unconstitutionality are baseless,” Jody Freeman, director of the environmental law program at Harvard Law School, and Richard Lazarus, an expert in environmental law who has argued over a dozen cases before the Supreme Court, wrote in a rebuttal to Mr. Tribe’s brief on the Harvard Law School website. “Were Professor Tribe’s name not attached to them, no one would take them seriously.”

I’ll admit the “bunch of Harvard professors are mad at other Harvard professor” narrative doesn’t move the needle for me. (The underlying legal issues are both important and interesting, but that’s not what got this story in the paper of record).

Here’s an interesting (non-rhetorical) question: do great law professors make great litigators? Or to put it another way, is there a direct relationship between great “law professor skills” and great “litigator skills”? If so, I suspect the correlation is strongest at the Supreme Court level (where the EPA issue may eventually be headed). But even there my quick mental list of the top Supreme Court litigators of the last decade includes fewer Profs than I’d expect.

To be sure, Larry Tribe, who has at least three dozen Supreme Court arguments under his belt, is both an influential law professor and one of the most accomplished constitutional lawyers in the country. But he may be closer to the exception than the rule.

What Obamacare teaches us about privacy

Here’s an interesting consequence of the Affordable Care Act’s ban on discrimination based on pre-existing conditions — it has made some patients more comfortable with sharing otherwise sensitive medical information.  From the New York Times:

Reluctance to share personal health information is declining, and not only for cultural reasons. A prevalent fear, said Ben Heywood, co-founder and president of PatientsLikeMe, an online discussion and research forum, has been that if a person disclosed an illness, it might be more difficult to obtain health insurance. But the Affordable Care Act bans discrimination by insurers based on so-called pre-existing conditions. “The biggest deterrent has been removed by law,” Mr. Heywood said.

There are, of course, many good reasons patients may want to keep medical information private beyond protecting against insurer discrimination. And medical information can still be used in a variety of ways to discriminate against patients, by insurers or non-insurers, without running afoul of the ACA. Nevertheless, we should not be surprised that the ACA’s non-discrimination provisions have changed patients’ privacy attitudes.

There is an interesting theoretical question in all this: what do non-discrimination rules have to do with privacy? Isn’t privacy about keeping things secret? This question, a version of which privacy scholars have been debating for decades, has both theoretical and practical significance. If privacy is mainly about secrecy, then perhaps we should take steps to limit the reach of privacy rules — and adjust our discourse on privacy — to exclude situations where the real concern is something other than privacy (in this case, discrimination).

The best answer given by privacy scholars is that privacy is in fact about much more than secrecy. This is the only way we can make sense of the types of privacy-driven value judgments we make every day. We object on privacy grounds when Facebook changes its terms of service not because Facebook revealed our secrets, but because we feel we’ve lost control over information we shared with a specific group of people in a specific setting. We object on privacy grounds when a business takes information we provided for one purpose and uses it for an entirely different purpose because we understand that privacy can be about how information is used in addition to how it’s learned. And so on.

As scholars like Dan Solove and Helen Nissenbaum (and others) have argued, privacy is best defined from the bottom up, as a series of related but distinct problems that come into focus against the backdrop of specific contextual norms regarding information collection, sharing, and processing. That’s a mouthful, but in a nutshell it means privacy rights and privacy harms are context-specific: in some cases privacy rights might require keeping information secret; in others they might require placing restrictions on the misuse of information, or something entirely different. It also means that privacy problems are often very hard to diagnose and address, and are rarely just about privacy qua privacy.

This theoretical backdrop explains why removing insurers’ ability to discriminate based on medical information can be a valid (though partial) answer to the privacy problems posed by the disclosure of medical records; just as accountability mechanisms (like the requirement that police apply for a search warrant to a neutral magistrate) can be valid answers to the privacy problems posed by government surveillance. And it explains why addressing one set of privacy problems, pertaining to the risk of discrimination by insurers, doesn’t necessarily extinguish other privacy risks with the sharing of medical data. Per the Times:

But concerns remain, especially about privacy, given the sensitive nature of medical information. One of the research projects Mr. Keating plans to share his data with is the Personal Genome Project at Harvard. The file of a person’s DNA fingerprint need not bear a name to identify its owner… in principle someone with scientific skills could use a person’s genome to infer paternity, generate statistical evidence that might hurt a person’s chances of getting a job, insurance or loans, and make synthetic DNA to plant at a crime scene.

America’s biggest industry by far

From the review of Steven Brill’s new book:

“Healthcare,” he writes, “is America’s largest industry by far.” It employs “a sixth of the country’s workforce. And it is the average American family’s largest single expense, whether paid out of their pockets or through taxes and insurance premiums.” He estimates that the health insurance companies employ about 1.5 million people, roughly twice the number of practicing physicians. Hospital executives preside over lucrative businesses, whether nominally nonprofit or not, and are paid huge salaries, even while they charge patients obscene prices (Brill cites $77 for a box of gauze pads) drawn from “what they called their ‘chargemaster,’ which was the menu of list prices they used to soak patients who did not have Medicare or private insurance.” He tells us that the CEO of New York–Presbyterian Hospital, where he had major surgery shortly after his article appeared in Time, had an income of $3.58 million. And finally, he gives us the really bad news: “All that extra money produces no better, and in many cases worse, results.”

The Supreme Court’s Decision in Hollingsworth v. Perry Effectively Renders Prop 8 Unconstitutional

[Cross posted from concurring opinions]

The Supreme Court’s decision in Hollingsworth v. Perry, issued today, will have something of a domino effect on the rights of Californians:  The Supreme Court dismissed the defendants’ appeal on standing grounds, thereby reinstating a district court ruling that held Prop 8 violates the Due Process and Equal Protection Clauses of the U.S. Constitution, thereby reinstating a 2008 California Supreme Court rulingthat effectively created a state constitutional right to same-sex marriage.

The Perry Court’s immediate ruling is narrow:  Prop 8′s civilian defenders do not have standing to challenge the district court’s invalidation of the law.  Any defense of the law on appeal would have to come from California officials, who declined to defend Prop 8 or appeal the district court ruling finding it unconstitutional.

The Supreme Court’s decision effectively reinstates the lower court decision by California District Judge Vaughn Walker, which “declared Proposition 8 unconstitutional, permanently enjoining the California officials named as defendants from enforcing the law, and ‘directing the official defendants that all persons under their control or supervision’ shall not enforce it.”   (See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1004 (ND Cal.)).

The effect of the Supreme Court’s decision in Perry is complicated by this particular twist: California officials enforced Prop 8, but declined to defend it.

 

The fact that California officials enforced Prop 8 explains why the plaintiffs (supporters of gay marriage) had standing to challenge it before the district court.  The plaintiffs won that challenge, and California officials declined to appeal that decision. The fact that California officials declined to defend Prop 8 explains why there was no case or controversy on appeal (or at the Supreme Court).  California accepted the district court’s holding, and there was therefore nothing left to appeal.

Here’s another confusing aspect of the Supreme Court’s decision.  After Perry, gay marriage is a state constitutional right in California (per the State Supreme Court’s previous ruling), and attempts to change that state constitutional right (e.g., Prop 8) are unconstitutional under the federal constitution — but strictly speaking, only in California (specifically the Northern District, where Judge Walker issued his ruling).

At least that’s my understanding.  The upshot is, it looks like California will join the growing number of states where same-sex marriage is legal.

[UPDATE – See comment thread below, and Marty Lederman’s post on Scotusblog, for a discussion of whether the district court’s ruling and injunction apply outside of the Northern District; whether the governor can force all counties to abide by the district court’s injunction; and whether the answer to these questions will change the facts on the ground regarding who can get married in California and where].

[UPDATE 2 – And here is AG Harris’s analysis, arguing that the District Court’s ruling invalidating Prop 8 applies statewide.]

 

Guest blogging at Concurring Opinions

It’s a great honor to be guest-blogging at www.concurringopinions.com for the next month or so. Catch my first two posts, on the Supreme Court’s recent decision in Maryland v. King, here:

I’m thrilled to be guest-blogging at Concurring Opinions just in time for Maryland v. King, the Supreme Court’s decision today on the constitutionality of DNA testing. The Court held (5-4) that the police’s collection (and testing) of King’s DNA after his arrest for a violent crime, and pursuant to Maryland’s public safety statute, was a reasonable search under the Fourth Amendment.

Though the case’s up/down holding is straightforward enough, the majority’s rationale is not. Read in a vacuum, the majority opinion reads as a full-throated legal and policy defense of the government’s use of DNA to verify a suspect’s identification at various stages following a lawful arrest.

But this case—and indeed, the Maryland statute at issue—was not merely about the use of DNA testing for a routine purpose ancillary to police investigations, such as verifying a suspect’s identification. It was, instead, also about the use of suspicionless DNA searches as part of the police’s quintessential activity: investigating and solving crimes.  And that is precisely the conduct which the majority’s opinion authorizes.  (Do read Justice Scalia’s dissent, which argues this point persuasively).

and here

This is a follow-up to my previous post on the Supreme Court’s recent decision in Maryland v. King, which upheld, over a scathing dissent by Justice Scalia, the constitutionality of DNA searches of arestees for “serious offenses” under Maryland’s public safety statute.  One open question after King is how the majority’s rule would apply to other states’ DNA collection statutes, which permit DNA collection for a broader range of offenses than does Maryland’s statute.

The King majority repeatedly limited its holding to DNA searches that followed arrests for a “serious offense.” But what counts as a serious offense?  This is a live question in Haskel v. Harris, the ACLU’s challenge to California’s DNA collection law (Prop. 69). According to the ACLU, California’s law would permit DNA collection for arrests on suspicion of “simple drug possession, joyriding, or intentionally bouncing a check.” An en banc panel of the Ninth Circuit is considering the case in light of Maryland v. King. If the ACLU’s characterization is correct, then California’s law may not survive intact underKing’s “serious offense” limiting principle.

The Fourth Amendment’s Future

Shortly after the Supreme Court issued its decision in US v. Jones, my (former) colleague Micah and I — who had written much of the brief together — reflected on the decision’s implications for Fourth Amendment law in a post on the ACS blog titled “The Fourth Amendment’s Future.”  

While a number of people in the privacy community thought Jones didn’t go far enough (I recall Tom Goldstein, a prominent Supreme Court advocate, calling the decision a potential “nothingburger”) we argued the Jones opinion was important proof that the Fourth Amendment is resilient enough to survive technological change.  

Here’s what we wrote (original here), with some thoughts in hindsight:

The Fourth Amendment’s Future

In June of last year, Chief Judge Alex Kozinski and one of his law clerks wrote a eulogy for the Fourth Amendment, in which they mournfully concluded that “[w]ith so little left private, the Fourth Amendment is all but obsolete.” With the benefit of hindsight, it seems the eulogy may have been premature. On Monday, the Supreme Court handed down its decision in United States v. Jones, and unanimously held that the government violated Antoine Jones’s Fourth Amendment rights by surreptitiously monitoring his vehicle’s movements on public roads for four weeks. The Court’s decision is a ringing endorsement of the Fourth Amendment as a bulwark of liberty — and of the Amendment’s relevance to the surveillance technologies of the twenty-first century.

As members of Antoine Jones’s legal team in the Supreme Court, we thought we’d offer a few thoughts on the case and its implications. Given the significant amount of commentary that is already available on the blogosphere, we won’t dwell too much on the details. (For readers interested in a more granular analysis, we recommend Tom Goldstein’s post atSCOTUSblog. Or Orin Kerr’s several posts atThe Volokh Conspiracy. For readers interested in a broader overview, try Adam Liptak’s article in The New York Times.)

Prior to Jones, there were good reasons to believe the Fourth Amendment was dying. Since the Court decided Katz v. United States over forty years ago, the Amendment’s protections were commonly understood to apply only when the government intruded on a person’s subjective expectation of privacy that society would deem reasonable. The Court had never explicitly overruled earlier cases that pinned the Fourth Amendment to founding-era property concepts, but any commentator familiar with LaFave’s authoritative treatises would have been tempted to conclude that those cases had lost their vitality, or were, in legal jargon, no longer “good law.”

The problem was that at the same time it took on Fourth Amendment primacy, privacy was losing some of its power. This was in part because new and fast-changing technologies — think smart phones, sophisticated data mining techniques, and Google — were at once making our lives more and more convenient and less and less private. It was also perhaps because a new generation of Americans has come of age with Twitter and Facebook and YouTube, and many of us now have a much more complicated relationship with privacy. It’s a relationship that takes for granted that privacy might flourish even in public places, and even in information that has been shared with some people but not everyone. And it’s a relationship the law has been too quick to paint as a lack of any privacy at all.

Perhaps that’s in part what motivated the Court in Jones to write an opinion that ensures the Fourth Amendment would survive the death of the traditional notion of privacy. In a legally groundbreaking majority opinion for the Court, Justice Scalia wrote that the government engaged in a “search” simply because it committed “a physical intrusion of a constitutionally protected area in order to obtain information.” Finding that this “common-law trespass test” was enough to decide the case, the majority passed on applying the alternative “reasonable expectation of privacy test”— or what many would have thought was not the alternative test, but the only one.

It was left to Justice Alito, in an opinion concurring in the judgment, to apply Katz’s privacy-based test to the government conduct. He concluded that the 28-day surveillance of Jones’s movements on public streets was enough to violate Jones’s reasonable expectation of privacy.  Justice Sotomayor embraced both Justice Scalia’s and, to some extent, Justice Alito’s opinions, and wrote a potentially pathmarking concurrence that explained how the reasonable expectation of privacy test should be applied to future technologies and cases. Notably, Justices Alito and Sotomayor recognized that privacy does not wither in public, and Justice Sotomayor went so far as to say that Fourth Amendment jurisprudence should “cease to treat secrecy as a prerequisite for privacy.”

Taken together, these three opinions create what we might call a “big tent” approach to the Fourth Amendment, which should attract both property and privacy rights enthusiasts. It effectively creates a two-step test that lower courts must apply to determine whether a particular government conduct is a Fourth Amendment “search.” First, courts should ask whether the government obtained information through an act amounting to a physical intrusion of a constitutionally protected area — an individual’s person, home, papers, or effects. Such a trespass is presumably always a search, regardless of the scope of the intrusion or the privacy interests at issue. Second, if there is no physical intrusion, court should apply the familiar reasonable expectation of privacy test from Katz, in light of the additional guidance from Justice Alito and Justice Sotomayor’s concurring opinions.

The biggest open question, of course, is how courts will apply these standards in future cases.  Only time will tell. But as several commentators have already noted, the Jones decision’s “big tent” approach leaves open many important questions about how the property- and privacy-based tests should be applied in new situations, particularly in those involving emerging surveillance technologies.

We predict that the fate of each of these tests is likely to be driven by the Justices who are perhaps least likely to be sympathetic to the interests the tests preserve.

On the one hand, Justice Alito has taken a leading role in articulating how privacy should be understood and applied in cases involving emerging technologies. It might be fair to say, however, that in comparison to the other Justices sympathetic to the privacy test — Justices Ginsburg, Breyer, Sotomayor, and Kagan — Justice Alito is the least likely to apply the test expansively in future cases. On the other hand, Justice Sotomayor has cast herself in a leading role in articulating how the Court’s new common-law trespass test should be understood and applied in future cases. As the fifth vote for the property-driven standard, she is likely to play an influential role in determining the test’s fate. And she is probably the least likely of the other Justices who have embraced the common-law trespass test — the Chief Justice and Justices Scalia, Kennedy, Thomas — to apply the property-centric test expansively.

Time holds many mysteries. The more nuanced view of privacy that Justices Alito and Sotomayor embraced might lead to a reasonable-expectation-of-privacy test that will survive technological advances. Or perhaps the common-law trespass test will serve as a critical backstop. But one thing was made clear on Monday: the Fourth Amendment is not yet ready to rest in peace.

With a couple year’s distance I think we were more or less right.  The Jones decision was not a “nothingburger.”  This is clear both from the Supreme Court’s application of Jones in subsequent cases, including Jardines, and from the continued attention the case has recieved in the legal academy.  

If the round up from this year’s PLSC papers is any indication, the Jones decision is also on the minds of academics and practitioners working at the forefront of privacy. My own paper at this year’s PLSC is no exception: it seeks to ground the Fourth Amendment’s flexibility in its text, history, and key Supreme Court precedent, including Jones.  More on that soon. 

CRS Report on FBI intelligence gathering

As fas.org notes, there is a remarkable quote in this report:

“Intelligence activity in the past decades has, all too often, exceeded the restraints on the exercise of governmental power that are imposed by our country’s Constitution, laws, and traditions,” according to the Congressional Research Service.

The CRS, which shuns polemical claims, presents that assertion as a simple statement of fact (although cautiously sourced to the 1976 Church Committee report) in a newly updated report on FBI terrorism investigations.

The report reviews the FBI investigative process, the statutory framework within which it operates, and the tools at its disposal, along with oversight considerations for Congress.  See The Federal Bureau of Investigation and Terrorism Investigations, April 24, 2013.