October 5, 2017USA Liberty Act Allows FBI’s End-Run Around The Constitution To Continue

On Thursday, the House Judiciary Committee will be filing the so-called “USA
Liberty Act”, an attempt to deal with the fact that the main statutory authority for the
government’s mass surveillance programs is due to expire December 31.

The product of lengthy negotiations between ranking minority member Rep. John Conyers (DMI),
committee chair Bob Goodlatte (R-VA) and others, it unfortunately showcases that a
bipartisan solution is not always a good one.

“The least the bill could have done,” says Restore The Fourth National Chair Alex Marthews, “would have been to fix the backdoor searches problem.”1

An unknown, but probably very large, number of Americans’ communications are being collected by the NSA’s systems without a warrant ‘for foreign intelligence purposes’, and then exploited by domestic agencies like the FBI for use in ordinary criminal investigations of all kinds. It’s common for the FBI to claim a connection of an investigation to foreign intelligence or counterterrorism, even when the `connection’ is nothing more than `the suspect read something on the Internet or traveled abroad.’2

The USA Liberty Act would still allow the FBI to warrantlessly search the NSA’s stored communications based on such a claim. It says a warrant is needed if the FBI already has a domestic crime it’s investigating, and wants to find more evidence among the content of Americans’ communications held by the NSA; but (a) it requires no warrant for metadata hits anyway, and (b) those aren’t the really worrying situations.

Instead, we’re worried about the stage where the FBI doesn’t really have a crime in mind yet, but is trying to find dirt on people. It has been historically very easy for them to claim a “foreign intelligence” connection in the case of any immigrant, or a “counterterrorism” connection in the case of any Muslim; effectively, if this is codified into law, the Fourth Amendment might as well be a dead letter for such people’s online communications. Under the practice of “parallel construction”, the FBI actually starts with a person of interest, uses NSA data to find the initial evidence of a crime, and then “backfills” a plausible chain of non-NSA evidence so that their use of intelligence-derived information is not challengeable in court.3 This bill won’t fix that. Most
Americans brought up on charges based on NSA-derived information are never told where that evidence came from. We don’t even know in aggregate or in general an estimate of how many Americans NSA’s “PRISM” and “UPSTREAM” programs, governed by Section 702, have had their data warrantlessly seized; Congressmembers have been asking for six years for an estimate, and the intelligence community has stolidly refused to give one.4

This bill does some good things. For example, it extends whistleblower protections to
intelligence community contractors. It codifies a ban on so-called “about collection.” But given all we have learned as a nation about mass surveillance on us since December 2012, when this law last came up for renewal, it should at the very least require a warrant for all domestic agencies’ searches of intelligence databases.

1 For more on Restore The Fourth, see www.restorethe4th.com.
2 See, among many others, the case of Tarek Mehanna of Sudbury, MA
3 See a fuller explanation at https://en.wikipedia.org/wiki/Parallel_construction.
4 This sorry history is detailed at https://www.emptywheel.net/2017/03/17/ron-wydens-history-of-bogus-excuses-for-not-counting-702-us-person-collection.

 

Contact:
Alex Marthews
National Chair, Restore the Fourth
rt4chair@protonmail.com
781-258-2936

Jonathan Capra
Communications Chair,
Restore the Fourth
fongaboo@protonmail.com

November 3, 2017Restore the Fourth (RT4) and the Identity Project (IDP) have collaboratively submitted their formal comments to the U.S. Department of State regarding Proposed Information Collection: Supplemental Questions for Visa Applicants. This supplementary procedure would subject certain applicants for visas for admission to the United States to the following additional inquiry items:

  • Travel history during the last fifteen years, including source of funding for travel
  • Address history during the last fifteen years
  • Employment history during the last fifteen years
  • All passport numbers and country of issuance held by the applicant
  • Names and dates of birth for all siblings
  • Name and dates of birth for all children
  • Names and dates of birth for all current and former spouses, or civil or domestic partners
  • Social media platforms and identifiers, also known as handles, used during the last five years
  • Phone numbers and email addresses used during the last five years

RT4 and IDP address conflicts between this proposed policy and the U.S. Constitution, the International Covenant on Civil and Political Rights (ICCPR), and the Paperwork Reduction Act (PRA). This practice stands to encroach on freedom of speech, freedom of the press, freedom of movement, freedom of association, freedom of assembly, and freedom from unreasonable searches and seizures.

The proposed inquiries stand to be lacking in specificity or granularity. How comprehensive is the request for emails, phone numbers, and ‘social media’ handles? What is considered ‘social media’ in the absence of any statutory, regulatory, or legal definition? For example, is an applicant expected to remember every web site on which they have registered as a commenter? Are applicants expected to obtain and provide cellphone tower location tracking logs? Public transit or road-toll RFID-chip movement logs? License-plate reader motor vehicle movement logs? In-vehicle GPS logs? Or “merely” airline, train, intercity bus, and/or hotel reservation and ticketing records?

These additional inquiries exposes applicants to guilt by association based on family members, domestic partners, or people who provide funds for travel. They also expose applicants to legal sanctions in their home countries. For instance, Saudi Arabia is a U.S. ally with which the U.S. Department of State might be expected to share information obtained through this collection of information. This could include information that could identity Saudi Arabian citizens or residents who have engaged in activities protected by the First Amendment but are considered capital crimes in their homeland, such as blasphemy.

The Department of State has been processing visa applications for almost two centuries without requiring this information. It is not necessary for the proper performance of the functions of the Department of State.

 

SB21, a California state ordinance that will mandate extensive oversight of police surveillance technology, is just two votes from being penned into law.

Restore the Fourth is urging all Californians, on behalf of Oakland Privacy, to contact state representatives by Friday to urge them to bring the bill out of suspense for Gov. Brown to sign.

You can contact the governor and your state representative here. But more importantly, we urge you to reach out to the following representatives by phone or on Twitter – especially ones marked with an asterisk(*).

PLEASE CALL OR TWEET and tell them to vote FOR SB 21.</span?

*Lorena Gonzalez-Fletcher (chair) – Tel: (916) 319-2080

Frank Bigelow (vice chair) – Tel: (916) 319-2005

*Richard Bloom – Tel: (916) 319-2050

*Raul Bocanegra – Tel: (916) 319-2039

*Rob Bonta – Tel: (916) 319-2018

William Brough – Tel: (916) 319-2073

Ian Calderon – Tel: (916) 319-2057

Ed Chau – Tel: (916) 319-2049

*Susan Talamantes Eggman – Tel: (916) 319-2013

Vince Fong – Tel: (916) 319-2034

*Laura Friedman – Tel: (916) 319-2043

James Gallagher – Tel: (916) 319-2003

*Eduardo Garcia -Tel: (916) 319-2056

*Adam Gray – Tel: (916) 319-2021

Reginald Jones-Sawyer  – Tel: (916) 319-2059

Jay Olbernolte – Tel: (916) 319-2033

Eloise Gomez Reyes – Tel: (916) 319-2047

(Tweets to cut and paste):

Please release #SB21 from suspense to end secret mass police #surveillance in CA @LorenaAD80 @JonesSawyer59 @AsmRichardBloom @AsmBocanegra

Please release #SB21 from suspense to end secret mass police #surveillance in CA @RobBonta @IanCalderon @AsmEdChau @AsmSusanEggman 

Please release #SB21 from suspense to end secret mass police #surveillance in CA @AsmEGarciaAD56 @AdamGrayCA @reyes4assembly 

Please release #SB21 from suspense to end secret mass police #surveillance in CA @laurafriedman43 @FrankBigelowCA @vfong @J_GallagherAD3 

Please release #SB21 from suspense to end secret mass police #surveillance in CA @JayObernolte @BillBroughCA 

Tuesday, August 8th, 2017 – Restore the Fourth has filed an amicus curiae in the case of Timothy Ivory Carpenter v. United States of America. In this case, cell-site location information (CSLI) was obtained by subpoena from a cellphone carrier pertaining to the suspect’s cellphone.

In submitting this brief, we seek to urge the court on the following points:

  • From the nature of CSLI, it can be derived that privacy is relational: That is, that even when people disclose their information to third parties, that should not mean that they do not have a reasonable expectation of privacy.
  • CSLI will become more revealing over time: This is due to the increasing density of tower locations, and the increased power of computers to algorithmically parse a given set of information on people’s locations to predict where they will be in the future.
  • Police use of CSLI comes with a high risk of abuse: Such as, usage for LOVEINT (ie. officials with access to government surveillance and data collections utilizing it to spy on lovers, exes, etc.), police concealment of stingray use, and precedents for CLSI used to harass political dissidents abroad.

For these reasons, we urge that the Court should adopt a warrant standard for governmental searches and seizures of CSLI. We hope that the Court will see Carpenter v. USA as an opportunity to make a much-needed reexamination of the ‘third-party doctrine.’

Restore the Fourth would like to thank our counsel, Mahesha Subbaraman, of Subbaraman PLLC, for contributing this brief.

 

Please contact:

Alex Marthews

National Chair

rt4chair@protonmail.com

(781) 258-2936

You can tell a government is terrified when they punish people who reveal the truth.

NSA contractor Reality Winner was arrested just over a month ago, for leaking to The Intercept internal NSA documents showing what NSA believed to be Russian military intelligence efforts to penetrate US voting systems. She is being held without bail, and charged with offenses carrying a maximum penalty of 10 years in jail and $250,000 in fines.

The law she is being charged under, the “Espionage Act”, is a repressive WWI-era law that criminalizes leaks irrespective of whether they are to the press or a foreign power. The Nixon administration used it to prosecute Daniel Ellsberg for releasing the Pentagon Papers, that revealed that the American public and Congress had been lied to about the Vietnam War. Since the advent of the digital age, under President Obama, the increased ease of leaking secret documents led to the revival of the Espionage Act as a tool to intimidate `insider threats.’ Chelsea Manning was convicted under the Espionage Act, and her sentence was commuted after six long years. Edward Snowden was indicted under the Espionage Act four years ago for revealing perhaps the greatest violation of our 4th Amendment rights, and remains a fugitive. Julian Assange, if extradited to the US, would likely be indicted under the same law.

The Espionage Act, originally intended to protect against foreign spies and their aides, has become a tool for the deep state to crack down on anything that might embarrass it. We don’t believe that keeping our newly digitized secrets requires terrorizing government employees into silence; instead, it requires running a clean and transparent government that refrains from criminality, and protects whistleblowing as a crucial internal corrective.

 

3 Ways to Get Involved

 

Rulings in Ziglar and Hernandez: The Supreme Court, the Fourth Amendment and the `Special Factor’ of `National Security’

In Hernandez v. Mesa and Ziglar v. Abbasi, two just-decided cases, the Supreme Court has now made it such that individuals wishing to obtain damages from agents of the federal government for violation of their Fourth Amendment rights have very limited avenues left to do so.

These claims are called “Bivens claims”, after the 1971 Supreme Court case Bivens v. Six Unknown Federal Agents, which was a suit for damages against agents who conducted an unreasonable, warrantless search of a private home, using excessive force. Under Ziglar, any new case not closely (or even, for Justice Thomas, “precisely”) resembling the situation in Bivens must be subjected to a broad-ranging `special factors’ test as to whether the courts should `hesitate’ to create a new ground for Bivens claims. New types of claims, Ziglar suggests, should be denied if Congress has not signaled support for such claims. Bivens claims are not “a proper vehicle for altering an entity’s policy” and are “not designed to hold officers responsible for acts of their subordinates.” If brought directly against executive officials for their own actions, a successful claim would “interfere with sensitive Executive Branch functions” of policy deliberation. If the claim would involve inquiry into “national-security policy, hesitation is warranted, because that “is the prerogative of Congress and the President.” The “proper balance in situations like this, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary.” This is a substantial extension from the “special factors” cited to in Bivens, which suggested hesitation only in cases involving “federal fiscal policy”, cases where the agent’s conduct was “contrary to no constitutional prohibition”, and cases where Congress had barred money damages in particular.

One issue here, among many, is that “national-security policy” now, relative to 1971, is used to cover a vast array of activities by the federal government. Infrastructure? Sure. Global warming? Absolutely. Border policy? Why not?

Beyond that, “national security” is the constant refrain of those in government who seek to conceal merely embarrassing or unpopular conduct. National security, as the Ninth Circuit has put it in this year’s `travel ban’ cases, is often used as a “talismanic incantation that, once invoked, can support any and all exercise of executive power[.]” Such talismanic uses deserve increased alertness from the courts, not increased deference. In truth, no Supreme Court decision, in our current hegemonic situation, is capable of rendering the executive unable to defend the country. Our military is well-founded and technologically advanced; there is no prospect of foreign invasion.

Since “national security” is such an interpretive inkblot, asking courts to accept or deny damages claims on the basis of it leads only to arbitrary decisions based on judges’ prior biases. One could as easily argue that detention of Muslims without charge (Ziglar) or a CBP agent shooting a Mexican teenager harms national security as hurts it. When dealing with such a protean concept, any argument is possible; Ziglar’s novel inclusion of “national security” as a “special factor counseling hesitation” is highly dangerous and overbroad.

In Hernandez¸ a 15-year-old Mexican national was shot in a culvert from across the invisible line separating the U. S. from Mexico, by a border agent, and his surviving family wished to bring a Bivens claim for damages under the Fourth Amendment. However, the Fourth Amendment is often conceived of as being primarily a collective right that pertains only to those who have acted to make themselves in some sense part of “the people” of the United States (see, for example, the plurality ruling in U. S. v. Verdugo-Urquidez [1990]). As such, it is hard to apply it on behalf of an individual who had never apparently been to the United States, nor taken any steps to render himself part of “the people.” A Guantanamo case, Boumediene v. Bush [2008], did permit non-citizens outside the US to bring a habeas corpus claim. So, when Hernandez was accepted for argument before the Supreme Court, at least four Justices wished to see the following three questions answered:

May qualified immunity be granted or denied based on facts—such as the victim’s legal status— unknown to the officer at the time of the incident?

Whether the claim in this case may be asserted under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971)?

Does a formalist or functionalist analysis govern the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States?

The Court was able to agree only on the first of these, that the government was mistaken in arguing that Agent Mesa should enjoy “qualified immunity” for his actions, because that immunity could only be based on facts known at the time. They remanded to the lower court the question of whether the claim could be asserted under Bivens in light of Ziglar, heavily hinting that “special factors” would apply.

It is hard to see how even under the new “special factors” envisioned in Ziglar, the situation in Hernandez would require denial of the Bivens claim. The aim of the suit in Hernandez is not to alter policy at the border – indeed, the Customs and Border Police, in light of this case and an analogous Ninth Circuit case, have already revised their policy. The aim of the suit is not to hold Agent Mesa’s superior officers responsible for his own actions. Congress has not barred such suits for damages. Perhaps, the Supreme Court could be viewing border control as an aspect of “national-security policy” to which the Courts should be deferential. However, in this case Agent Mesa is conceded by both sides to have acted contrary to CBP policy in shooting Sergio Hernandez, even if there are arguments about how intentionally he did so. If the Fifth Circuit finds accordingly, it would be possible, even under Ziglar, for them to conclude that a Bivens claim could proceed.

The last and largest of these three questions, on whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment, was the main topic of our brief, which argued that the history of claims by non-US persons against US government agents shows that the Constitution does not give power to its agents to arbitrarily deprive non-US persons of life. This question was only really addressed in a dissent authored by Justice Breyer and joined by Justice Ginsburg, who tried to construct a basis for allowing a claim by Hernandez’ surviving family because of the “special border-related features” and “limitroph[ic]” nature of the border in the El Paso-Ciudad Juarez area, but their arguments did not secure a majority.

To our disappointment, these rulings, rather than confronting and correcting the adverse consequences of current agency practices, defer their resolution to another day. Eventually, however, even if not explicitly in this case, the Court will have to rule on the third question above, and when they do, it will be fascinating.

Please join our partners at Demand Progress and sign their petition to let Section 702 of the Foreign Intelligence Surveillance Act expire at the end of this year.

Restore the Fourth has been a strong critic of the secretive practices this section allows, due to the potential to allow end-runs around restrictions prohibiting targeting domestic communications of American citizens. We need to close this remaining loophole that still provides an avenue for warrantless dragnets. Let your representatives know that they need to let this clearly unconstitutional practice end.

We thank our allies at Demand Progress for providing this channel to our representatives.

Now that Sen. Tom Cotton has proposed making Section 702 surveillance permanent, it’s important to reach out to the members of the Senate Intelligence Committee who will be initially considering this. Let them know that the United States government needs to stop end-runs around our Constitutional rights and end unlawful mass surveillance once and for all. Let Section 702 sunset at the end of this year.

Reach out to these representatives by phone, email or Twitter:

UPDATE:  (5/31/17) SB21 passed the California State Senate 21-15, and now will move on to the Assembly.

SB 21 was filed in December by state Sen. Jerry Hill (D-San Mateo), proposing that all new law enforcement surveillance equipment to be first approved by local government. The approval process would require agencies to submit a Surveillance Use Policy at a meeting open to the public. They would have to specify the type of technology to be use, data to be collected, who would have data access, storage duration, and the steps taken to ensure security and privacy. The bill had initially been approved by the Judiciary Committee.

Thanks to the input of privacy advocate groups, including ACLU, EFF, Oakland Privacy and Restore the Fourth, several amendments have since been added:

  • Separate use policies for each kind of equipment
  • Affirmative legislative approval required for use policies and impact reports or use ceases
  • Ongoing usage reporting no less than every two years
  • Amendments required due to requesting funds for acquiring, using, or accessing information from any new technology
  • Private right of action for those harmed by violation of the policy
  • Limitations on exigent use
  • Inclusion of district attorneys

The bill, in its latest incarnation, has now passed through the Budget Committee (aka. Appropriations), and can now move on to the State Senate and Assembly.

By Alex Marthews and Taylor Campbell

It’s expected that the Judiciary Committee will vote April 3 on Judge Neil Gorsuch’s nomination to the Supreme Court. He comes to the nomination with stellar formal qualifications, which is a nice change from, say, 90% of President Trump’s cabinet nominees (hello there, Betsy DeVos!). Inevitably and appropriately, Democrats are articulating the best arguments they can find as to why he should not be nominated. This article discusses those arguments, and gives Gorsuch a good hard look in terms of his Fourth Amendment jurisprudence.

Political Arguments

The first arguments made by Democrats, naturally, are political ones.

Throughout last year, after the death of Justice Antonin Scalia, Republicans mounted an unprecedented resistance to holding any hearings on any Obama nominee at all, on the specious ground that there was less than a year left in President Obama’s term. President Obama’s nominee, Judge Merrick Garland, should have been given a fair hearing. Not giving him one was a dangerous violation of past practice on advice and consent. It galls many people on the Left that now, thanks to the improbable election of President Trump coupled with Republican retention of the Senate, this obstructionism will now be rewarded. However, the Right violating past practice does not launder the Left repeating that violation. Gorsuch deserves the careful consideration the Founders envisioned when they gave Senators the power to “advise and consent.”

Second, now that there is an acknowledged FBI investigation into President Trump and Russian influence over the election, some folks who should know better (I’m looking at you, NARAL and Laurence Tribe) are arguing that Trump has lost the moral authority to nominate anyone, that anyone he nominates is tarred with Putinism, and that he won’t be around long enough as President to give rise to any Senate obligation to pay attention to his Supreme Court nominees. Plainly speaking, this is nonsense. Trump may have an array of increasingly obvious defects, but he is the duly elected President, and it’s exceedingly rare for Presidents to not serve out a full four-year term. Nor is there the least whit of evidence that Judge Gorsuch himself is beholden to Russian interests. Guilt by association is revolting, and the mere fact of being a conservative jurist is not disqualifying.

So let’s look more closely at Judge Gorsuch’s record, with a particular application to his Fourth Amendment jurisprudence, and other matters that may affect his future rulings in the field of mass surveillance.

Gorsuch on Chevron

The most distinctive element of his jurisprudence seems to be a desire to rein in the Chevron doctrine. This doctrine advises deference to executive branch interpretations of statutes where the statute is ambiguous and the executive branch’s interpretation is a possible reading – even if it is not the most natural reading, and even if courts have previously ruled otherwise. Chevron deference has enabled the rapid growth of the administrative state, which in turn has enabled executive agencies to respond to problems in the implementation of policies without depending on a dysfunctional Congress and understaffed courts for specific guidance.

The NAACP has taken issue with Judge Gorsuch on this ground, noting that administrative interpretations have played an important role in enforcing Title IX rules against gender discrimination and the Voting Rights Act. They are supportive of Chevron deference because the main examples they are thinking of are where agencies are trying to protect, rather than to violate, the rights of ordinary people. However, Gorsuch’s approach to Chevron is also, to an honest observer, the best evidence of his willingness to challenge presidents and agencies intent on violating people’s rights.

Restore The Fourth is centrally concerned with the overreach of executive power represented by the mass surveillance programs of the NSA, FBI, CIA, DHS and other agencies in the intelligence community. This overreach has been made possible by these agencies, in Michael Hayden’s phrase, “playing to the edge” of what the law allows, so that they get “chalk on their cleats.” Thus, they have adopted extraordinary and overstrained interpretations of ambiguous laws such as PATRIOT Act Section 215 and the FISA Amendments Act of 2008, until the actual programs as implemented bore scarcely any resemblance to what Congress at the time thought it was authorizing. Chevron seems highly relevant to the work of reining in those agencies, and skepticism regarding that doctrine could well be a useful quality.

Gorsuch’s Fourth Amendment Rulings

A Tenth Circuit appeals court judge does not see much by way of cases grappling with surveillance. Judge Gorsuch has generally refrained in his rulings from commenting on electronic surveillance or on Fourth Amendment issues with modern surveillance technology. The best evidence we have found of his views is as follows.

On the pro-Fourth Amendment side, in United States v. Carloss, his dissent opposed the argument that there was an implicit “permanent easement” of police access to the curtilage of a home, and argued that even if such a license existed, it would surely be revoked by the existence of multiple “No Trespassing” signs. In US v. Denson, he appeared willing to consider, following the Supreme Court’s ruling in Kyllo, that police warrantless use of a Doppler device to detect human movement and breathing within a home “posed grave Fourth Amendment questions”, but that opinion decided the case on other grounds without a (potentially useful) explicit ruling that radar guns fell under Kyllo‘s rule and would require a warrant. In US v. Ackerman, Gorsuch declared that the case involved “the warrantless opening and examination of (presumptively) private correspondence [i.e. email] that could have contained much besides potential contraband for all anyone knew. And that seems pretty clearly to qualify as exactly the type of trespass to chattel that the framers sought to prevent when they adopted the Fourth Amendment.”  He is clearly willing to apply the Scalia doctrine of warrantless “trespass to chattels” as the quintessential Fourth Amendment violation, to electronic as well as physical situations. In US v. Krueger, he defended the concept of territorial limitations to warrants in a way that points toward possible sympathy for Microsoft’s position in Microsoft v. Ireland, a crucial case relating to whether US government warrants can operate worldwide.

On the anti-Fourth Amendment side, Gorsuch’s attitude to law enforcement stops on the street or searches within the home often turns on less originalist and more contextual analysis of whether the law enforcement officer’s behavior was reasonable “in the totality of the circumstances.” In US v. Nicholson, his solitary dissent argued against exclusion of evidence in a stop-and-frisk case where the officer had made a “reasonable mistake in law”, stopping a driver for making a left turn that he believed to be illegal but in fact was legal; his reasoning was unexpectedly adopted by eight Supreme Court Justices in their later ruling inHeien v. North Carolina. In US v. Andrus, Gorsuch participated in a majority ruling that held that the police had consent with apparent authority from the father to search the computer, which they used to search theson’s files on the hard drive using forensic analysis software, and found evidence of child pornography. Officers would have lacked authority to search the son’s files had they turned the computer on and found out a priori that there were separate user accounts. From the perspective of a forensic examiner presented with a hard disk image, it would seem to make little difference how the hard disk image was obtained, but the ruling presumably enabled law enforcement officers to evade the warrant requirement by avoiding a situation where they might find out about multiple user accounts. The ruling might be influential in other situations, such as a police search of the hard disk of a shared VPS host in a data center before they realize it is shared by multiple users.

In “qualified immunity” cases, plaintiffs bring suit against law enforcement officers, seeking to establish that they acted so outside the norms of their training and expectations that they cannot properly enjoy immunity from suit. From a Fourth Amendment perspective, an excessive qualified immunity doctrine can prevent people from obtaining justice for violation of their Fourth Amendment rights; this has been a live issue in Rodriguez v. Swartz and Hernandez v. Mesa, two cases in which Restore The Fourth has submitted amicus briefs. In Kerns v. Bader, Judge Gorsuch refused to rule on the Fourth Amendment issue and awarded the officer qualified immunity. The question was whether searching medical records requires a warrant under the Fourth Amendment, given the third party doctrine. In dissent, Judge Holloway argued that they should. Unless courts ditch the third party doctrine altogether, which seems unlikely, clarity about exceptions to it is critical for digital Fourth Amendment issues, and it is helpful when courts are able to provide such guidance. If Gorsuch is unwilling to reach that question in a situation involving doctor/patient confidentiality, he may, speculatively, similarly not reach the question when considering cases involving attorney/client privilege.

Judge Gorsuch appeared in this and other cases particularly concerned to reinforce the notion that officers must know that there is “clearly established” law prohibiting their conduct in order for them to be stripped of qualified immunity.

Regrettably, the Supreme Court itself has made it hard for lower court judges, especially lower court judges who are devoted textualists, to roll back the epidemic of unjustified grants of qualified immunity to police officers or to restore the exclusionary rule to its proper status as a normal rather than extraordinary rule. Gorsuch is a stickler for litigants (except pro se litigants) adhering meticulously to procedural requirements, and he is unwilling to rule on constitutional issues unless the procedural requirements have unambiguously been satisfied. This tends to produce opinions that are narrow and by nature very deferential to the Supreme Court’s steady rollback of defendants’ Fourth Amendment rights; his concern for the “clear establishment” of a legal rule fits in here. It is possible that a Supreme Court Justice Gorsuch may be able to do what a Judge Gorsuch could not, and lower some of these hurdles that enable abuses of the Fourth to thrive, but that is unknowable before the fact. It is also possible that Justice Gorsuch would support narrow rules on standing and a strict attention to procedure that will make it hard for imperfect human beings to achieve vindication against abuses of their Fourth Amendment and other constitutional rights.

Gorsuch on Executive Wartime Authority

Most controversially from a civil liberties perspective, before becoming a judge, Gorsuch served in a junior capacity in President George W. Bush’s Department of Justice for a short period in 2005-06. During that time, he authored a draft memo that argued for a very expansive interpretation of executive power in time of war. His draft argued that, on matters of indefinite detention and torture, executive actions were essentially unreviewable by either Congress or the courts, thanks to Article II’s grant of unitary executive authority to the President as commander-in-chief.[2] This was a commonly articulated perspective within the Bush Justice Department in the years after the September 11 attacks, but Gorsuch experienced some pushback from other attorneys within the Justice Department and dropped the draft language, claiming that he was a “scrivener” of a consensus perspective rather than articulating a personal opinion. Whether that was true or not, it is reasonable to expect that Gorsuch will be less likely to rule in favor of Fourth Amendment protections where they rub up against executive war-making powers, such as a hypothetical lawsuit brought by the family of a US citizen victim of a US government drone strike. Too often, Fourth (and Fifth, and Eighth, and Fourteenth) Amendment claims are turned aside by easy invocation of “state secrets” and “national security”, words that appear nowhere in the Constitution and hopefully never will.

The Fourth Amendment is a large topic, and it is to be expected that over the course of his career, Judge Gorsuch would have written opinions that sometimes allow and sometimes deny Fourth Amendment protections. It may be that he would be more favorable to Fourth Amendment claims by defendants than Merrick Garland, which was characterized by “deference to police and prosecutors, including the suppression of evidence allegedly obtained by way of an unconstitutional police search.” However, our aim here is not to endorse or dis-endorse, but to inform participants in the discussion over Gorsuch’s nomination, and to draw from a large and varied record the most interesting Fourth Amendment elements.

[1] Charlie Savage, `Was That Search Legal?  Sometimes, Neil Gorsuch Ruled It Was’, February 2, 2017.

https://www.nytimes.com/2017/02/02/us/politics/neil-gorsuch-supreme-court-fourth-amendment.html

[2] Charlie Savage, `Neil Gorsuch Helped Defend Disputed Bush-Era Terror Policies’, New York Times, March 15, 2017.

https://www.nytimes.com/2017/03/15/us/politics/neil-gorsuch-torture-guantanamo-bay.html

[3] Amy Howe, `Gorsuch and the Fourth Amendment’, March 17, 2017.

http://www.scotusblog.com/2017/03/gorsuch-fourth-amendment/

[4] Sophie J. Hart & Dennis M. Martin, `Judge Gorsuch and the Fourth Amendment’, March 2017.

https://www.stanfordlawreview.org/online/spotlight-fourth-amendment/

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