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.

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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.

CRS reports on domestic drones, super PACs, Amazon tax

Hat tip to fas.org for keeping us up to date with the latest CRS reports.  The two reports on domestic drones are excellent primers.   

Other new or newly updated CRS reports include the following.

Integration of Drones into Domestic Airspace: Selected Legal Issues, April 4, 2013

Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses, April 3, 2013

Super PACs in Federal Elections: Overview and Issues for Congress, April 4, 2013

“Amazon” Laws and Taxation of Internet Sales: Constitutional Analysis, April 3, 2013

FutureGen: A Brief History and Issues for Congress, April 3, 2013

Congressional Redistricting and the Voting Rights Act: A Legal Overview, April 2, 2013

The Temporary Assistance for Needy Families (TANF) Block Grant: A Primer on TANF Financing and Federal Requirements, April 2, 2013

The Recess Appointment Power After Noel Canning v. NLRB: Constitutional Implications, March 27, 2013

Overview of Health Care Changes in the FY2014 Budget Proposal Offered by House Budget Committee Chairman Ryan, March 22, 2013

Cuba: U.S. Policy and Issues for the 113th Congress, March 29, 2013

Google’s brilliance

You might call it leading from behind; you might call it smart, proactive lawyering; or you might call it good business.  Either way, it’s a brilliant move.

Less than a month after a federal judge held that National Security Letters (NSLs) are unconstitutional, Google has decided it will also challenge the practice — and in doing so, it drew the same judge that just held NSLs were unconstitutional, Susan Illston of the Northern District of California.

Once again, Google picked a fight on an important privacy issue, and it did it in a way that makes a win likely, even if it loses.

If it seems like a reoccurring theme, it’s because it is.  Earlier this year Google revealed that it requires a probable-cause warrant for any law enforcement request for user emails and cloud content, despite the fact that the governing federal statute on electronic communications (ECPA) doesn’t always require one.

Google’s cover?  A Sixth Circuit opinion that held that email content is protected by the Fourth Amendment of the US Constitution, and a growing awareness of email privacy issues (in part because of the fallout from the Petraeus affair).  Other email providers soon announced they also require warrants for this information.

Let’s put the substance of these difficult privacy issues aside for a minute — they are tough, and there are valid interests on both sides — and focus on Google’s strategic brilliance.

Google’s foray into high-profile user privacy issues is carefully calculated.  It’s not just that Google has picked battles it can win — both public opinion and the law have already started to turn Google’s way on NSLs and email privacy — it’s that even if Google loses on these issues, its effort will pay off in the long run.

Here’s how Google will win with this latest (some would argue, selective) campaign to protect user privacy:

First, Google will win with its customers, who regularly store private and sensitive photos, documents, and emails on its servers.  Don’t get it twisted — these cases are not just about privacy, they are also about business.  A world where government has easy access to cloud-based information is a world where Google’s services are less valuable.  And a world where customers see Microsoft and Twitter following Google’s lead on privacy issues is a world where Google’s stock stays at an all time high.

Second, Google will win the public relations battle. Google has had mixed reviews on user privacy.  Let’s put it this way: there is a 29-page wikipedia page called “criticism of Google,” and an entire section of the article is about privacy.  But I suspect that if you ask people what they think about Google’s privacy practices today, they are much more likely to think of transparency reports and Google’s lawsuits against the FBI than about Google’s recent street view controversy.

Third, it will win with its critics in the privacy and civil liberties community, who must once again give Google their grudging respect.  This is beginning to become a reoccurring theme, going back to Google’s decision to pull out of China and its recent decision to include NSL data in its transparency reports.

Fourth, Google will win political leverage over regulators, by showing them that it is willing to use the courts to get its way.  Take ECPA reform. Until very recently, law enforcement officials were fighting hard to prevent changes to email privacy laws, which allowed them to get email and cloud data without a warrant under certain circumstances. But last month, the Department of Justice argued before congress that key provisions of the law are “unprincipled” and should be updated.

What gives?  Here’s one possibility: once Google decided it would require a warrant for law enforcement requests for email and cloud data, others — including Yahoo, Microsoft, and Facebook — announced similar policies.  That put the DOJ in a tough position: either fight the decision in the courts, and risk permanently losing the right to get warrantless access to cloud data, or avoid a court battle by asking congress to reform the privacy laws, even though such reform will invariably be a multi-stakeholder process (and of course, Google is sure to be one of the stakeholders).

And finally, with these moves Google will win with prospective hires, including the talented 20-something engineers who want to join a company that cares about the issues they care about.

Put it all together and it’s a win for Google.  Whether you’re a fierce critic of Google’s privacy practices or ready to drink the cool-aid you have to admire the company’s strategic acumen.

Does privacy protect “the right to fail”? — and, the vexing problem of privacy harms.

An interesting post on Lawfare quoting David Hoffman on the right to privacy as the “right to fail”: 

In the past, I have discussed the European Commission’s “Right to be Forgotten” proposal, and the issues with trying to provide a comprehensive right to wipe a record clean. I have argued individuals need a sphere of privacy where they know they can make mistakes, without those errors following them for the rest of their lives. Individuals will shy away from risky or provocative ideas and efforts, if they fear organizations will use those activities to discriminate against them forever. These provocative ideas challenge the status quo and are often what is needed to break away from conformity and innovate. Technology companies are familiar with this need for space to allow employees to innovate, and many structure their performance review systems to create the ability for individuals to take risks.  I call the need for this space for innovation, “The Right to Fail”.

I appreciate new and thoughtful attempts at defining the value of privacy, and Hoffman’s idea has a ring of truth to it. 

This brings me to another topic: the vexing problem of privacy harms.  The most vexing failure of privacy scholarship, in my opinion, is that “privacy advocates” have failed to articulate in simple terms (to the public or any other audience) the value of privacy and the harm from undermining it. 

I’m not suggesting there is an easy solution to this problem, but I have some thoughts about its sources.  There are several reasons privacy harms and benefits are difficult to articulate, including the following:

(1) in addition to being an individual right, privacy is (in the most important ways) a collective or system-based right, and the harm from violating privacy rights and the benefits from protecting them are only apparent in the aggregate.  That makes these harms and benefits more difficult to articulate in simple terms. 

In this sense, privacy is like voting — it may be a relatively small societal harm to prevent one person from voting, but restricting the right to vote will, in the aggregate, fundamentally change the democratic nature of the system we live in.  In the same way, taking away a bit of privacy from one person might not be a huge deal, but curtailing privacy rights across the board may fundamentally change the type of society we live in — for example, by discouraging innovation, experimentation, or dissent.  

To be sure, the concept of privacy as a collective or systemic right is hardly new.  Julie Cohen’s book Configuring the Networked Self and Dan Solove’s recent book Nothing to Hide each cover some of the theory behind this understanding of privacy. 

(2) A second possible reason privacy harms and values are hard to articulate is the boiling frog problem.  Like the frog who doesn’t know it’s boiling until it’s too late, the harm from undermining privacy might not be apparent to us until it’s too late.  This is related to (1) above — we may not take notice of incremental encroachments on privacy rights, but we may find (hopefully not too late) that the the delayed, aggregate harm to the system may be very great indeed.

(3) A third reason privacy harms and values are difficult to articulate is that technology just isn’t there yet.  Believe it or not, we’re still at the beginning of the road when it comes to effectively collecting and processing the mountains of personal and public data in the world.  Just as we may have to wait for technology to catch up before we see the full value of that collection and processing, we may also have to wait to see the full scope of possible harms that could result. 

These are just quick thoughts. 

Does privacy protect “the right to fail”? — and, the vexing problem of privacy harms.

Do you have a constitutional right to record the police in public spaces? The Obama Administration says yes.

You have a First Amendment right to record the police in public spaces, and a Fourth and Fourteenth Amendment right protecting you from having those recordings seized without probable cause or due process.

That, at least, is the Obama Administration’s position, articulated in a brief earlier this month by the Department of Justice’s Civil Rights division.  (The brief was the second one by the Obama Administration on this issue).  The case involves Mannie Garcia, a White House credentialed journalist who sued the Maryland Police department after he was arrested while photographing police officers.

The Administration’s position is a significant development in an unsettled and rapidly changing area of law.  It would arguably broaden the types of First Amendment challenges to police conduct that courts have been willing to consider.  And, as I discuss below, it is a position that is likely to have important consequences for how we conceive of government accountability in a world where technology is changing the way we enjoy—and conceive of—privacy.

The facts of the case 

The case is the latest in a growing number of incidents and legal challenges involving the right to record the police.  According to the complaint, on June 6, 2011, Mannie Garcia observed Montgomery County Police Department officers arresting two men on a public street, took out his camera, and began photographing the incident from between 30 feet and 100 feet away. Garcia never interfered with the police activity, and other than clearly and audibly identifying himself as a member of the press, he did not speak to the officers.

This, according to Garcia, is when things got out of hand.  One of the officers became visibly upset that Garcia was recording and shouted that Garcia was under arrest.  He placed Garcia in a choke-hold and dragged him to the police cruiser.  The officer placed Garcia in handcuffs, seized his camera, and threw Garcia to the ground, injuring him.  While in the police car, Mr. Garcia observed the officer remove the battery and video card from his camera. 

Adding insult to injury, Garcia was charged with disorderly conduct—a charge for which he was acquitted after a bench trial.  Although his possessions were returned to him when he was released, Garcia’s video card was never returned. 

The Obama Administration’s arguments 

The Obama Administration’s brief makes four basic arguments. 

  • First, the Administration argues that there is a First Amendment right to record the police in public spaces, so long as the recording does not interfere with the police activity.  This is both because of where the recording occurred and what it was a recording of.  The Supreme Court has long held that public streets are “held in trust for the use of the public … for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”  Hague v. Committee for Industrial OrganizationAnd the recording of police activity—which courts have characterized as speech critical of the state—lies at the very center of what the First Amendment protects.  As the Supreme Court has put it, “the freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” City of Houston v. Hill.
  • Second—bloggers rejoice—the Obama Administration argues that there is no difference, as far as the First Amendment is concerned, between so-called citizen journalists and official members of the press.  Garcia was a White-House Credentialed journalist, but his status as such has no bearing on the case—any old (or young) blogger or activist would be entitled to the same protection.  (This strikes me as the right result, and in line with Eugene Volokh’s findings on the meaning of “press” in the First Amendment). 
  • Third, the Administration argues that the Fourth and the Fourteenth Amendment provide strong protection for recordings of police activity once they are made.  In Garcia’s case, the brief argues, the police violated Garcia’s Fourth and Fourteenth Amendment rights (in addition to his First Amendment rights) when it seized his camera without a warrant or due process of law. Crucially, the Administration also argues that the reviewing court should treat the Fourth Amendment and First Amendment claims separately.
  • Finally, the Obama Administration argues that the police cannot use broad laws that such as disorderly conduct, loitering, disturbing the peace, and resisting arrest as a pretext to arrest individuals for recording the police. 

An expansion of First Amendment rights against the police

I wrote this week about the Supreme Court’s ruling in Jardines being in tension with the general rule that courts do not look into police intent in resolving Fourth Amendment issues. 

It looks like the Obama Administration’s position on police recording might also create some tension with that rule: it asks a court to treat stops and arrests differently when the purpose of the stop is to prevent someone from peacefully recording police activity.

Specifically, the Administration’s brief is in tension with longstanding Supreme Court doctrine that a police officer’s “[s]ubjective intent does not make otherwise lawful conduct illegal or unconstitutional.”  Whren v. United States. In practice, this rule means legal claims that an arrest or stop is based on an improper motive, such as race, will generally fail in court if the police can point to some valid basis for the stop—say, a broken taillight, disorderly conduct, or a loitering violation.  

Legal challenges to so-called “pretextual” police stops or arrests (where the police stops you for a traffic violation, but their real reasons were different) are therefore rarely successful.The Obama Administration’s position would seem to change this by making a certain type of police conduct—retaliation for recording the police—actionable even where the police had a valid basis for the arrest. 

In other words, the Administration’s brief appears to make an exception to the pretextual stop rule when the pretext in question appears to be quashing First Amendment speech.

Two other facts about the Administration’s brief underscore the breadth of the position.  First, the administration asks the court to treat Mr. Garcia’s First and Fourth Amendment claims separately.  This means that if Mr. Garcia does not have a Fourth Amendment claim—say, because the officers had some objective basis to arrest him—he may still have a First Amendment claim if the police’s objective basis was a pretext to stop him from recording.[1]

Second, the Administration argues that police should not be permitted to use broad laws that such as disorderly conduct, loitering, disturbing the peace, and resisting arrest as a pretext to arrest individuals for recording the police.

Put together, these arguments would arguably significantly broaden the type of retaliation claims against the police that courts will hear.  

I’m hoping to write a bit more about the legalistic aspects of this in another blog post—“when does probable cause kill your First Amendment rights?” 

The Fourth Amendment is shrinking. Long live the First Amendment?   

Fourth Amendment scholar Paul Ohm recently asked what role the Fourth Amendment will play in a world where technology has radically changed how we conceive of privacy.  One might answer with a different question—what role will the First Amendment play in a world where technology has radically changed how we conceive of speech and association?  

The First and the Fourth Amendments play different but complimentary roles when it comes to holding the government to account.  The privacy and property rights protected by the Fourth Amendment create the necessary space individuals and groups need to flourish, while the speech and associational rights protected by the First Amendment allow people to sound the alarm and mobilize democratic forces when government is out of bounds.  

As these police recording cases show, as the Fourth Amendment shrinks in the face of technology, we may see the First Amendment pick up some of the slack.  After all, in a world where nearly anyone can record and disseminate a message critical of the government to millions of others, the First Amendment is likely to play a far bigger role in ensuring government accountability than it ever has.  

—-


[1] Based on a quick look, this is not a well-established position in the case law, though I suspect it is sound.  There is some supporting case law in the Ninth Circuit—see Skoog v. County of Clackamas, 469 F.3d 1221, 1235 (9th Cir. 2006)—however, even that has been narrowed in later cases.