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Saturday, December 28, 2013

Teaching Criminal Procedure in a changing world

As I ready myself for teaching a new semester of Criminal Procedure I (often known as the "investigation" course, as opposed to the Crim Pro II "adjudication" course, which ostensibly covers everything from "bail to jail"), I cannot help but think how much the course -- and my syllabus - has changed in the last year or so, and how much it is likely to change over the next 24 months.  

Just two years ago, the discussion of whether police action constituted a "search" would have been answered primarily by asking whether the action intruded upon an individual's "reasonable expectation of privacy."  Today, however, it would be unthinkable not to also ask whether the action interefered with the individual's property rights.  

A few years ago, if one taught the "third party doctrine," one likely referred to it as an established yet disfavored doctrine that drew the ire of civil libertarians and privacy scholars, but whose implementation continued largely without challenge.  (For a defense of the doctrine, see Orin Kerr's article here; for an extensive critique of the doctrine, and suggestions for reforming it, see Christopher Slobogin's very well received  2007 book here).  Thus, you couldn't complain if the government sought your phone records without a search warrant because you had no "reasonable expectation of privacy" in the phone numbers you voluntarily dialed and communicated to the telephone company.   

Today, the third party doctrine appears less stable than it once seemed, partially because the government has harnessed that "third party information" in ways that make us increasingly uncomfortable, particularly in terms of the volume of information collected and stored.  Thus, as has been widely reported, lower court judges have rendered dichotomous opinions on the constitutionality of the NSA's program relating to the collection of telophony metadata.  It seems inconceivable that the Supreme Court will not eventually take up this issue itself.  Until it does, however, we will likely see more and more aggressive attacks on the doctrine, as well as challenges from the data-collecting "third parties" themselves, as witnessed by this case.

And finally, a few years ago, I would not have thought a police officer's surveillance of an individual in a public setting violated the Fourth Amendment, since the Supreme Court had previously established that we generally have no expectation of privacy in our public movements.  And yet, following the DC Circuit's decision in United States v Maynard (which eventually became United States v Jones when it was decided by the Supreme Court), individual jurists and scholars have increasingly embraced a mosaic theory of the Fourth Amendment, under which a discrete action (watching someone in public, seeking their phone records via a grand jury subpoena) becomes unconstitutional when government officials engage in that action too intensively and for too long, and with regard to too many people.  (Note: not everyone embraces the mosaic theory; see Orin Kerr's extensive analysis here, where he also raises a number of concerns regarding its implementation).  Like the assault on the third party doctrine, the mosaic theory too is in flux. Until the Court as a whole addresses it directly, it is difficult to predict when and how it will apply. 

Perhaps this is a big hullabaloo about nothing.  After all, two or three years from now, the third party doctrine might emerge more or less intact, and the mosaic theory might fall by the wayside.  Or maybe not. Much of the doctrinal unrest has been driven by technological advances that make the government's surveillance and collection and storage of data cheaper and more pervasive.  Even a relatively sympathetic "law and order" gal like myself can't help but be alarmed by the government's rapidly expanding surveillance abilities

Until we reach some new equilibrium, these issues present challenges for criminal procedure students and teachers alike. For professors, the issue is one of organization: which materials should we cut and which should we leave intact in order to make room for discussion of new cases and evolving doctrines?  It's not an easy question to answer: the third party doctrine may be under assault, but that doesn't lessen the need to teach the "fruit of the poisonous tree" doctrine or the exculsionary rule.  At this point, one could easily fill a single semester with just the Fourth Amendment.  That wouldn't be of much service to our students, who presumably want (and need) to learn something about the Fifth and Sixth Amendments.  Nevertheless, I have a feeling that for many professors, the Fourth Amendment will continue to cast a very long shadow over the rest of the course.  Given the importance of the issues discussed above, however, I'm not so sure that's a bad thing.  

Posted by Miriam Baer on December 28, 2013 at 05:37 PM | Permalink


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Three things I learned from the Snowden files - Jay Rosen



1. It’s not “privacy” but freedom.

2. “Collect it all” was the decisive break.

"“Rather than look for a single needle in the haystack, his approach was, ‘Let’s collect the whole haystack,’ ” said one former senior U.S. intelligence official who tracked the plan’s implementation. “Collect it all, tag it, store it. . . . And whatever it is you want, you go searching for it.”"


US V. Jones was wrongly decided in my point of view, because the stuff about trespass v. search was a distraction and missed everything salient in 2012 about the case.

It's about government's new ability, and plan, to collect it all and process it later. From telephone records, ALPR devices, cell phones, credit cards, metadata, and yeah gps data but certainly they don't to approach a vehicle to get that.

As a software engineer, I am curious, how do you think the Snowden revelations and the NSA invasions will effect a future US V. Jones or other Fourth Amendment decisions?

Posted by: Jay | Dec 29, 2013 10:58:06 PM

As a software engineer, I find it interesting that what I view as a data mining/data warehousing problem from the increasing power of computers and cameras is referred to by the legal system as a "mosaic theory" which is certainly a nice name for it (seriously kudos to whomever came up with that) but seems to miss the fundamental nature of the problem.

Because of that I think, I find law professors willing to discuss US V. Jones on the grounds that a trespass was or was not a search without ever contemplating how they are missing the point that GPS surveillance is obsolete in an era of ALPR.

Posted by: Jay | Dec 28, 2013 9:29:35 PM

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