A Round Tuit (28)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

The Pope plans to arrive in Britain this autumn for a scheduled visit; whether he leaves the country after an unscheduled arrest remains to be seen. In the wake of new revelations about the widespread and systematic sexual abuse of children within the Catholic church, two prominent British atheists, Richard Dawkins and Christopher Hitchens, have proposed that Pope Benedict be arrested when he arrives in England and be brought to trial on charges relating to the abuse and the church's efforts to conceal it over a period of decades. Their suggestions have met with a certain degree of public acclaim. Whether the plan is legally tenable was considered in some depth by several legal bloggers this week.

Allen Green, whose Jack of Kent blog has been shortlisted for the prestigious Orwell Prize, can understand the sentiments of those who would arrest the Pope, but urged that such a course of action would compromise the liberal values it purports to uphold:

There would be a certain irony if Joseph Alois Ratzinger, the 265th "pope", was arrested, charged, convicted, and punished in controversial circumstances.

For after all, that is what supposedly happened to Jesus of Nazereth, and so led to the various religious movements which we now generally call "Christianity".

Such an irony would in some ways be pleasing, for the Roman Catholic church has long sought arrogantly to put themselves beyond the reach of the civil authorities.

In principle, watching the pope do the "perp walk" - perhaps handcuffed to some surly female police officer - would be satisfying to those, like me, of a strong atheist and anti-clerical temperament.

However, such fantasies must yield to the fundamental liberal requirements of due process and the rule of law.

Of course, Ratzinger should not be immune from arrest or charge, prosecution or punishment, just because he is the pope; but he also should not arrested or charged, prosecuted or punished, just because he is the pope.

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There is always an impulse to use the coercive power of law as an aid in controversial issues: for example, alternative health practitioners sue for libel just as Christian Evangelicals used to try and bring blasphemy prosecutions.

But it is an impulse one really should resist.

Dapo Akande explained the uphill battle prosecutors would face to overcome the Pope's immunity from criminal prosecution as the head of the Vatican state:

[T]his attempt to get the Pope arrested and prosecuted in the UK has no chance of success as such an arrest would be in violation of international law. Likewise, the proposed prosecution by the International Criminal Court is most unlikely to get off the ground and similarly flawed as a matter of international law. However, these proposals raise some interesting issues of international law surrounding the status of the Pope, the Vatican and the Holy See.

The reason the Pope cannot be arrested and prosecuted in the UK is because he is entitled to Head of State immunity. Dawkins and Hitchens are not unaware of this problem. Apparently they have enlisted Geoffrey Robertson QC to provide an opinion stating that the pope is not a head of State and therefore not entitled to head of State immunity. Robertson elaborates on this point in a recent article in the Guardian. Robertson argues that the Pope is not entitled head of State immunity as a matter of international law because the Vatican is not a State. His arguments are simply incorrect. The Vatican has a tiny territory and a tiny population but it does fulfill the criteria for Statehood.

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[A]s far as I know Britain has not objected in the past to the Vatican’s claims to be a State nor has it, as far as I know, opposed the Vatican’s accession to treaties that are only open to States.

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The suggestion that the Pope could be indicted by the International Criminal Court will fail for similar reasons. Although the Vatican is not a party to the Statute of the ICC, the ICC will have jurisdiction over acts committed on the territory of States parties. But, even if these acts amounted to crimes against humanity – and that would be very hard to prove – the Pope would still be entitled to immunity as the head of a non-Party State. The indictment of Sudanese President Bashir is not a precedent here unless those mounting this campaign are able to get the Security Council to refer the case to the ICC. I have written on these issues at length on this blog and elsewhere so I won’t go into the details of the argument. However, the immunities of non-parties to the ICC Statute is recognised by Article 98 of the ICC Statute

So the campaign to get the Pope arrested has generated enormous media coverage but the legal analysis deployed in support is very weak indeed. Don’t expect to see the Pope in handcuffs anytime soon.

Carl Gardner noted that while the Pope's immunity claim is a strong one, it need be considered only if credible criminal charges could be brought; Gardner considered crimes against humanity as defined under the Rome Statute and criminal statutes in Britain and concluded that these could not:

I admire both Dawkins and Hitchens immensely, and agree that the Pope should be held accountable for his own actions and for the policies of his church. I support their efforts to have him subjected to international law in just the same way as any ruler. And few things give me greater pleasure than the knowledge that, although baptised and confirmed in the Church of Rome, I am now excommunicated from it. I hope I’ve made it clear that I am no fan, and no defender, of the Pope. But I don’t see how he can be arrested or put on trial when he visits England later this year.

Geoffrey Robertson QC, who with Mark Stephens is considering possible legal avenues of redress, places great emphasis on the question of the Pope’s immunity as a head of state, arguing that it does not apply, either because the Vatican is not a state or because in any event, there is no immunity from prosecution in the International Criminal Court. I think he has a decent argument on the first point, and he’s right on the second – see article 27 of the Rome Statute.

But before any question of immunity arises, the prior question is whether there’s any offence for which the Pope can be arrested or with which he can be charged in the first place. Only if there is does he have any need of immunity.

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At this point, I can hear some readers thinking, how come a warrant was granted recently for the arrest of Tzipi Livni recently, the former Israeli foreign minister? The key difference in that case was that the warrant was sought in respect of an alleged offence under the Geneva Conventions Act 1957, which provides for universal jurisdiction. A war crime under that Act can be committed by anyone, anywhere. Whatever else the Pope might be guilty of, it isn’t war crimes.

Gardner explored these issues further in an excellent podcast interview with Charon QC and in a follow-on post wherein he rebutted the arguments made by the Catholic Union against Dawkins' and Hitchens' proposal:

To say, as they do, that

There is not a single criminal offence under British law which could conceivably be alleged against Pope Benedict

is I think putting their case unnecessarily high. I agree there’s nothing he can realistically be arrested for, but to consider the documentary evidence of what he has done in the past in legal terms, as Richard Dawkins and Christopher Hitchens have asked lawyers to do, and to suggest that international human rights law may be or should be relevant is neither inconceivable nor “risible”, as the Catholic Union also suggests.

I don’t think they help their moral case by implicitly arguing on technical grounds that the Pope, or Cardinal Ratzinger as he was, cannot be legally responsible for the Church’s actions... [w]hich amounts to defending him on the basis that “he never gave any orders”. This strikes me as the worst sort of casuistry.

He was even more dismissive of the Catholic Union's suggestions that discussion of the Pope's potential arrest and criminal liability for the crimes undeniably committed by so many priests and covered-up by the official church amounts to incitement of religious hatred, a crime in Britain.

If the Pope can't be charged, much less convicted, under applicable international and British law, can he be sued in a civil court? It may be difficult to prevail, but Antonin Pribetic suggested that it may be possible. He discussed a number of precedents in the United States and Canada and concluded:

In my personal opinion, absolute immunity is inappropriate in cases where the Vatican or Holy See directly aids and abets the cover-up of sexual abuse by its priests by transferring them to a different parish in order to avoid public scrutiny. State immunity for tortious acts by priests, bishops or cardinals (or any other employees of a religious organization) is not sacrosanct. The commercial activity exception falls squarely in the respondeat superior (employer-employee) context, irrespective of the nature of the work or services performed, whether or not it is "good works" or "salvation".

Supreme Court Justice Stevens' pending retirement has been mentioned once or twice in the legal blogosphere recently. While many bloggers have speculated about the impact Stevens' departure will have on the Court's jurisprudence in coming years, none has done so more competently or comprehensively than Tom Goldstein this week. Goldstein detailed the future of the Stevens-less SCOTUS (as best anyone can, considering the fact that we don't yet know President Obama's nominee to replace him) in Constitutional and other law; he summarized these assessments for us:

The single largest body of cases in which Justice Stevens’ retirement could hypothetically shift the balance on the Supreme Court involves ideological issues on which the four most liberal Justices (Stevens, plus Souter, Ginsburg, and Breyer) joined with Justice Kennedy to create a majority. But although these cases involve very important issues, most of them are not very relevant to an examination of how the Court might shift because for that to occur Justice Stevens’ successor would have to be more conservative than not just him but also each of the other four members of the majority: Souter, Ginsburg, and Breyer, but also (the reasonably conservative) Kennedy. That is very unlikely.

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There nonetheless are a couple of issues... for which a new appointment could realistically change the result because the issues do not necessarily track the traditional liberal-versus- conservative breakdown: executive power and preemption.

Thus, the Court has been narrowly divided, with the left prevailing, in cases relating to the rights of military detainees to have access to the federal courts, including particularly on federal habeas corpus. A nominee who had a substantially more robust view of presidential powers, or even greater confidence in this Administration’s approach to detainee questions, could shift the course of those rulings. In addition, other important presidential-power questions are headed towards the Supreme Court, including with respect to the NSA wiretapping program.

On preemption, Justice Stevens recently had significant success in securing a majority for two important opinions limiting the extent to which federal law trumps state law. His successor could take a broader view of the extent to which federal law controls, which would allow fewer state-law tort suits to proceed.

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Another example is the death penalty, where Justice Stevens (who late in his tenure concluded that the death penalty is unconstitutional) was relatively willing to provide a vote in favor of stays of execution. His replacement might be less willing to do so.

For those who are looking for an assessment of Stevens' departure "in plain English", Goldstein's co-blogger, Lisa McElroy provided it:

A President’s number one criterion in this day and age? Confirmability. The Constitution states that a President’s choice is subject to the “advice and consent” of the Senate. That’s why we see these seemingly endless meetings between Senators and the nominee (remember Justice Sotomayor making her rounds with a broken ankle?) and the days-long confirmation hearings in which Senators ask the nominee difficult questions in an attempt to determine her confirmability. No President wants to be “Borked,” or have his choice’s character and judicial temperament disparaged and destroyed (as in the case of Judge Bork), and no President wants to have his choice exposed as lacking in experience or smarts (as in the recent case of Harriet Miers). In fact, no President wants much of a fight at all – he’d like to see his nominee sail through confirmation, as Justice O’Connor did with a unanimous vote in 1981. But the days of unanimity are over, at least for now, and so a President must choose someone who is less, rather than more, controversial. That – and the fact that the Republicans have threatened to filibuster an unpalatable nominee – may mean that Obama’s choice will be more moderate than liberal, or perhaps lacking in a judicial record.

For all the discussion of ideology, however, Erik Gerding hopes that the nominee will be able to add a bit of practical business experience to the Supreme Court mix. He wrote that "the Court has not had a justice with significant transactional experience since Lewis Powell retired" and reassured liberals that "[h]aving a business law background doesn't necessarily make one "conservative," even on business law issues. Example: William O. Douglas." Frankly, after what we witnessed this week during arguments in City of Ontario v. Quon, a fifth-grade level understanding of modern technology might not be another qualification worth considering. Before we arrive there, however, let's take a look at the case itself.

Lyle Denniston previewed the case and explored its somewhat complicated facts. In a nutshell, an Ontario, California police officer sent a number of sexually-explicit and otherwise indiscreet text messages to his estranged wife, his girlfriend, and a male colleague using a City-issued pager device. The content of the messages was obtained by the City from the service provider and, as they say, hilarity ensued and the City was sued by the officer — Quon — and those with whom he corresponded. Denniston outlined the legal issues:

It has been long been clear that government employees have some privacy while they are at work in their public jobs. The Supreme Court reinforced that notion a quarter-century ago in O’Connor v. Ortega, declaring that “individuals do not lose their Fourth Amendment rights merely because they work for the government instead of a private employer….We reject the suggestion…that public employees never have a reasonable expectation of privacy in their place of work.” That 1987 decision — still regarded as the Court’s leading pronouncement on privacy in the government work setting — involved the search of a California state employee’s desk, files and cabinets in his office, turning up only personal items; the worker’s work-related files were kept elsewhere.

The O’Connor precedent’s application to texting to and from a government employee’s pager is now before the Court in a new case from California, City of Ontario, et al., v. Quon, et al. It has a special factual twist that may, or may not, make a difference: the pagers involved were provided to members of the Ontario Police Department’s SWAT team by the Department itself, for official use. That, however, only refines the issue before the Court into a more specific question: no matter who owns the device, is there a right of privacy in the text messages to and from the police officer using the device? A related question is how or when that right might be violated by a government agency or supervisor.

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This is another case in which the Court’s view of the facts may powerfully influence its reaction to the constitutional arguments. If, as the O’Connor precedent seems to require, the Court must look at the particular facts that each public employee privacy case presents, the Justices must satisfy itself that it knows what those facts actually are. It thus will find itself moving past the “spin” that each side puts on the facts on operations of the Ontario Police Department, to see if it can establish what actually happened. Just as one example: suppose that the Court were to view the actions of the police lieutenant as crucial to the constitutional equation, these are some of the factual disputes it will have to resolve: what did the lieutenant say about use of the devices, when did he say it, how binding was what he said, did he switch later and give actual — or implied — permission to do private texting, how did Sgt. Quon and others on the force interpret what they were told by the lieutenant? Or take another example: did the city have a no-privacy policy that actually applied to pagers?

Although the Justices usually can rely on the lower courts’ articulation of the facts in a case, it is evident, from the exchanges in the en banc Ninth Circuit when it passed up further review, that not even those judges, closer to the scene, could agree on what the facts are.

Moving beyond that fundamental task, the Court may well have to provide some clearer guidance than it has up to now about what it meant, in O’Connor, about taking into account the “operational realities of the workplace” in evaluating the breadth of public employee privacy and the scope of Fourth Amendment protection for that privacy.

Also previewing the arguments, Daniel Solove pointed-out that the Court's inquiry may not end with a consideration of Quon's expectation of privacy:

Suppose the Supreme Court finds that Quon lacks a reasonable expectation of privacy in his text message communications. What about the other people, including Quon’s wife, who had no idea whether the city was monitoring Quon’s communications or not?

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What if the Court were to expand the misplaced trust doctrine to encompass not only situations where any party to the communication consents but also to situations where any party to a communication lacks a reasonable expectation of privacy? This would create a very broad and unprecedented hole in Fourth Amendment protection.

Orin Kerr attended the arguments and provided an early impression of their tone and focus:

Based on the questions, the strongest proponent of Fourth Amendment protection in this case appeared to be Chief Justice Roberts. Yes, seriously.

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There was a lot of discussion of the Stored Communications Act, and whether breach of a statutory privacy law essentially created or at least helped make the case for a Fourth Amendment violation. I don’t think there was a real resolution of the issue, or that enough Justices tipped their hand on this, but there was a lot of discussion of it. As I’ve written here before, I don’t think the statutory questions should be part of the constitutional inquiry: Especially so with a hypertechnical statute like the Stored Communications Act. But there were at least some Justices (including Roberts, if I recall correctly) who seemed to think SCA violations were relevant to whether there was a constitutional violation.

Kashmir Hill was struck by the what the arguments revealed about the general lack of awareness at the Court of basic modern technology characteristics and capabilities:

The facts in the case make it complicated enough to warrant SCOTUS review. But what seemed especially complicated to The Nine were the technological issues.

Stepping into One First Street is like stepping back into the 1950s. No Blackberries or electronic devices allowed. No cameras (in spite of C-SPAN’s fervent wishes). The most technologically advanced items in the courtroom are the microphones. So it seemed appropriate then that many of the justices’ questions strayed away from reasonable expectations of privacy and proper searches, and got into how exactly texting works…

If you were to split the Court into two categories — The Hip Justices and The Hip-Replacement Justices — Chief Justice Roberts would fall into the former category.

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It’s fair to say that his fellow justices are less comfortable. Justice Kennedy, 73, doesn’t appear to be a frequent SMSer.

Surprisingly, as Hill noted in another post, even the attorneys who argued the case were not especially clear on the finer details of the technologies involved:

Quon’s lawyer didn’t know whether deleting a message on his pager would erase the message from the wireless company’s transcript (My guess is that it would not.) There was a lot of talk about how you could review Quon’s messages to see how many were for work-purposes and how many were personal, without actually looking at the messages themselves. The obvious solution to me was to sort them by number dialed, and then figure out which were work numbers and which were personal numbers, but that solution was not raised. Instead, Quon’s lawyer suggested that the transcripts could have been printed out and that Quon could have redacted the personal stuff.

Only Unfrozen Caveman Lawyer couldn't have responded better, I think. Even the relatively-hip Chief Justice seemed a bit flummoxed by the differences between a pager like the City of Ontario-issued one used by Quon and e-mail. Ashby Jones highlighted a few particularly galling exchanges:

[T]he first sign of trouble came was about midway through the argument, when Chief Justice John Roberts asked what the difference was “between email and a pager?” (Cue sound of hard slap against forehead.)

At another point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.

“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked. (Cue sound of louder slap against forehead.)

Justice Antonin Scalia stumbled getting his arms around with the idea of a service provider.

“You mean (the text) doesn’t go right to me?” he asked.

Then he asked whether they can be printed out in hard copy.

“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.

Maybe the justices are against cameras in the court because when they think of cameras, they think of those huge cameras on tripods with the cloth to cover the photographers and the supernova flash-bulbs.

Brett Trout rightly concluded that the Court's lack of familiarity with current technologies ("current" being very generously defined here) handicaps its ability to competently decide matters which are inherently technological — like many patent cases — or even where technology is more incidental to the facts, as in Quon. Trout wrote:

With billions of dollars hanging in the balance in cases like In re Bilski, it is imperative that courts fully inform themselves about the technologies at issue and the ramifications various judicial rulings will have not only on the specific technology at issue in the case, but on technology as a whole. Uncertainty in this decision-making process or the appearance of a less than fully informed judiciary encourages untoward actions in the industry and discourages desirable conduct. The announcement of Justice John Paul Stevens’ retirement provides President Obama the perfect opportunity to add certainty to this decision-making process, by selecting a technological savvy Justice to the Court. Selecting a technophile would not only provide the Court with much needed expertise, but would allay concerns, however unfounded, that future decisions of the Court might be decided on Twentieth Century notions of Twenty-First Century technology.

Forget cutting-edge technology; at this point, familiarity with mainstream technology would be welcomed at all levels of the judiciary, including our highest court. Fifteen years ago, we could find some humor in the judge or lawyer who was not just befuddled by or resistant to technological advancement, but wore his Luddism like a badge of honor. There's no honor in it anymore and there's very little humor to be found, either.

The much-anticipated decision in U.S. v. Stevens was handed-down this week and it was a nearly-unanimous victory for First Amendment rights. Lyle Denniston summarized the decision:

Refusing to remove another form of expression from the protection of the First Amendment, the Supreme Court on Tuesday ruled 8-1 that the government lacks the power to outlaw expressions of animal cruelty, when that is done in videotapes and other commercial media. The Court noted that it had previously withdrawn “a few historic categories” of speech from the First Amendment’s shield, but concluded that “depictions of animal cruelty should not be added to the list.” The decision nullified a 1999 federal law passed by Congress in an attempt to curb animal cruelty by forbidding its depiction. That law, the Court said, sweeps too broadly.

The Court, in an opinion written by Chief Justice John G. Roberts, Jr., stressed that it was not restricting the power of government to punish actual acts of animal cruelty, and it noted that such prohibitions have “a long history in American law” and now are on the books in all 50 states and Washington, D.C. But it said there was no similar history behind Congress’s attempt to ban video or other portrayals of acts of cruelty to living creatures.

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Recalling its precedent putting child pornography outside the First Amendment, the opinion said that the Court had done so because the depictions of such pornography was necessarily linked to actual abuse of children in the production of such materials. That approach, and other cases discussing what the First Amendment does not protect, the Court added, “cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”

Marc Randazza was overjoyed at the result, calling it "a sunny day for the First Amendment". He was less complimentary of dissenting Justice Alito's position on the wrong side of the decision:

[I]t appears that Alito has decided to become the modern-day Rehnquist as he issued a 19 page dissent in which he seems to demonstrate a complete lack of understanding or respect for what the First Amendment is supposed to protect. Essentially he feels that if the amount of free speech that might be burdened is small, then that is okay. He completely ignores the fact that the number of “crush videos” produced worldwide is so painfully small (I would venture to guess it is less than 10), that there would be more legal expressive conduct banned under his view than illegal conduct suppressed.

Jeff Gamso suggested that the decision came down to issues of trust:

By a vote of 8 to Alito, the Court did the right thing. It refused to carve out a new exception to the First Amendment. And it refused to trust the government. Wisely, of course.

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Roberts wrote the opinion. Here's the money quote:

Not to worry, the Government says: The ExecutiveBranch construes §48 to reach only “extreme” cruelty, Brief for United States 8, and it “neither has brought nor will bring a prosecution for anything less,” Reply Brief 6–7. The Government hits this theme hard, invoking its prosecutorial discretion several times. See id., at 6–7, 10, and n. 6, 19, 22. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. Cf. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 473 (2001).

It's that line about noblesse oblige that should be put on placards.

David Kopel noted that this "big First Amendment win" was made possible by the overbreadth of the invalidated statute and the government's unconvincing assurances that it would use those overbroad powers with restraint:

The government argued that hunting videos and magazines are protected by the exception for depictions of “serious” educational, journalistic, etc. value. However, as the Court notes, relying on amici briefs from Safari Club International, the Congressional Sportsmen’s Foundation, and the National Rifle Association, many hunting videos or magazines are not instructional, artistic, or historical, but are mainly for entertainment or recreation. The government urged that the exception be applied to any depiction which has at least “scant” value. However, the majority declines to read “serious” as equivalent to “scant.”

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[T]he statute is plainly invalid under well-established First Amendment doctrine.

Ashby Jones appreciated the First Amendment significance of the decision, but suggested that the content of the speech at issue in this case made that decision harder for the Court's majority, as it would have for many of us:

It’s one of those arguments that make even the most fervent free-speechers flinch a little bit — does a First Amendment right attach to videos that show graphic violence against animals?

Frankly, we can’t imagine who would want to watch such a video — or, further, who would want to make such a thing. And we’d bet the justices all feel the same way.

At the Popehat blog, Patrick put it just as aptly and even more succinctly, summarizing the decision thusly: "Bullfighting Videos And Old Yeller Are Still Legal. The First Amendment Survives. Robert J. Stevens Is Still An Asshole." He continued:

The statute, according to the Court, is blatantly unconstitutional in that, as written, it goes far beyond the dog-fighting and “crush” videos (you don’t want to know) Congress claimed to be outlawing, to prohibiting possession of Field & Stream in the District of Columbia, where hunting is illegal. Cockfighting videos would be legal in Puerto Rico, where the “sport” is legal, but illegal in all 50 states. Fishing magazines would be legal everywhere, but Goth music videos, all of which for some reason feature gasping fish out of water, might be criminal, though fish suffocation features prominently in each.

Of course the government, in defending the statute, says it would never seek to prosecute Field & Stream subscribers in DC, and would never imprison cockfight journalists in Puerto Rico. We just want to go after those evil dogfight video makers and the like. “Trust us.”

Fortunately in this case the Court doesn’t seem to trust the government, which receives a rebuke worth reading from the Chief Justice. As does Congress, for its incompetent drafting of a statute which, while intended to eliminate only one sick and obscene form of entertainment, does indeed by its terms ban hunting magazines in DC. Congress drafted an elephant of a law, to kill a gnat.

There were new revelations this week in the surveillance scandal involving the Lower Merion School District in Pennsylvania, about which I wrote a few weeks ago. When the scandal broke, Radley Balko was appalled, as many of us were, by the allegations of surreptitious surveillance of underage students by school administrators; at that time, however, he suggested that perhaps the plaintiffs' contentions about the amount of surveillance were somewhat exaggerated. As new information surfaced this week, he reassessed:

I was a little skeptical when the story of the Pennsylvania school snapping photos of its students through the cameras in school-issued laptops first came out. I thought the story had the signs of being a bit overblown.

I stand corrected. Jesus.

Dan Filler also noted the new findings:

Now it turns out that in the last two years, the surveillance system was used 146 times and captured 56,000 photos. While most of these were probably within the officially intended scope of the program, technicians failed to stop the surveillance even after several of the computers were found. In fact, 13,000 of the pictures were snapped after computers had been located. The district assures everyone that nothing really inappropriate was photographed. No need to worry, folks. But hey - we did notice that your wallpaper is peeling in the corner!

At the Popehat blog, Ken took a closer look at plaintiff Blake Robbins' motion for sanctions against the school district administrator:

The motion seeks sanctions against district administrator Carol Cafiero, one of two people who ran the webcam program, for refusing to produce her home computers for examination. The judge previously granted Robbins’ motion to compel Cafiero to sit for deposition; in light of the pending federal grand jury investigation of the incident, she prudently took the Fifth. Quoting emails produced in discovery, the motion paints an ugly picture of Cafiero’s attitude towards her ability to spy on kids through their webcams. The motion claims that an IT staffer wrote to Cafiero that using the webcams was like a window into “a little LMSD soap opera,” and claims that Cafiero responded “I know, I love it.”

Robbins’ motion goes much further than that. It rather unfairly accuses Cafiero of being a voyeur, which I think is an irresponsible and baseless accusation — at least if “voyeur” is defined as someone who derives sexual pleasure from secretly viewing others. Robbins doesn’t cite any evidence that Cafiero used the system for sexual gratification. The quote from her, however, suggests that she used it for bureaucratic gratification — the pleasure that petty officials take in nosing into the private lives of citizens. It may not be sexually perverse, but it is, in fact, sick and despicable.

Karl Bode also noted these petty bureaucrats' casual disregard of the Constitution and common sense in overstepping their authority:

Even if you could somehow argue the project didn't violate the Fourth Amendment, it remains mind boggling that anybody, at any level in the district, would think that off-site covert photography of students was a bright idea for any reason. As more and more schools offer kids laptops and netbooks, this case acts as a reminder to parents and students to ask questions as these kinds of programs are developed elsewhere. It's also a warning shot to administrators who think protecting their property (or personal amusement) trumps a student's right to privacy at home. You do start to wonder where people could possibly be getting the idea that surveillance with no recourse to law or common sense is a good idea.

No doubt, when the time comes, the school district will attempt to find some exception to the Fourth Amendment which permits their gratuitous surveillance of their students; they might just find one, considering how shot full of holes the Fourth Amendment is today. Blogging as "Publius" at the Affirmative Links blog, one observer counted those holes — Terry stop-and-frisk searches, searches of vehicles incident to arrests, full inventories of impounded vehicles, DUI checkpoints, immigration checkpoints, plain view, open fields, and exigent circumstances exception, not to mention allowances for "good faith" even where authorities screw up and no exception arguably applies. Publius wondered like many of us, "How many exceptions can you have, before you no longer have a rule?"

That was precisely Scott Greenfield's concern when Orin Kerr suggested that existing Fourth Amendment law could be ported to searches in the future in a technology-neutral manner. Greenfield argued that existing law is fundamentally broken and technological advancements give us a prime opportunity to restart things, returning to the basic rule that warrantless searches are unconstitutional and starting anew from there:

It's been clear for some time that Orin's "net neutrality" approach, the application of existing "brick and mortar" Fourth Amendment precedent to evolving technologies and the digital world by analogy meant that we are doomed. Same black letter law. Same 17 million exceptions to cover every search. Same judges using the "file cabinet" analogy to explain why suppression is denied.

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Ultimately, the technology neutral approach leaves it up to the only person in the room who can't distinguish a text message from twitter to decide which inapplicable analogy strikes him as most appealing. At least when we went from Conestoga to Packards, you could see that one had chrome and the other didn't.

Since Orin first floated his tech neutral approach, I've tried to persuade him that it was the wrong way to go. I've failed.

In comments to Greenfield's post, Kerr replied:

It seems to me that you see the choice as being between (a) your personal fantasy of what the Fourth Amendment should be or (b) a virtual version of what the Fourth Amendment is in the physical world. You then lament that if the choice is (b), because you don't like the Fourth Amendment we have now, and if we accept that Fourth Amendment we have now then we will never have the Scott Greenfield fantasy come true. But why are those the two choices?

Greenfield defended his position:

We've been through this before. The state of the Fourth is horrific, with a general rule that is observed only as lip service prefacing a million exceptions. My personal fantasy is to return to the rule. My personal fantasy is to not perpetuate an exception for everything. My personal fantasy is to not have a ibunch of judges who don't really grasp the digital world making decisions by analogy. My personal fantasy is to not have constitutional rights determined by which side can muster the cuter analogy.

My personal fantasy is to start with the rule, that warrantless searches are unconstitutional, develop Fourth Amendment jurisprudence anew for the digital world, from the position of protecting the expectation of privacy and enforcing it, without the million exceptions from horse and buggy days, or cute analogies to file cabinets, or result oriented application of rubrics that ignore the rationale. The baggage developed over the past 100 years has choked the Fourth to death. My personal fantasy is to see it live again.

Kerr agreed to disagree, suggesting that disregarding reality is both unproductive and unnecessary, considering that things aren't really as bad as Greenfield makes out:

I think existing Fourth Amendment law is actually pretty sensible, on the whole. Sure, it has some problems, and if I were king of the world, I suppose I would make some changes. But life is short, and perfection is impossible in any real-world system (especially a real-world system run by the government). So unlike you, I don't have any wish to burn down the edifice and start anew.

Kerr's view, right or wrong, is shared by the Supremes, who are not edifice-burners by any stretch of the imagination. We'll continue to argue over existing exceptions and to create new ones and in our technological future, our privacy and security are in the hands of the only nine people in existence who have less understanding of technology than my grandmother.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., "Noli Me Tangere" (Antonio da Correggio; 1534), Make: Magazine, and Paris Odds n Ends Thrift Store.