City of Los Angeles v. Patel – Facial Challenges to Privacy Statutes and Why They Are Essential to Developing a Body of Statutory Law to Govern Privacy

On October 20, 2014 the Supreme Court decided to hear the case City of Los Angeles v. Patel. [1] The case involves a local ordinance, which requires operators of hotels to keep records of their guests, and to provide them to the police if requested without any judicial oversight.[2] The Ninth Circuit held that the statute was invalid because it did not satisfy the Fourth Amendment’s reasonableness requirements in all circumstances.[3] As presented to the Supreme Court, this case presents two questions: (1) Whether a person may make a facial challenge to a statute or ordinance on the basis of the Fourth Amendment and (2) what kinds of checks on laws authorizing searches are necessary. [4]

Statutory law has historically been, and will continue to be, important in responding to new technologies in the context of the Fourth Amendment. It is important that courts allow challenges to statutes in order to give guidance to legislatures. Sibron v. New York[5] should not foreclose a facial challenge to the statute in question in Patel,[6] because Sibron is not so much about judicial restraint as about federalism.[7] And in any event the statute in question was likely compliant.[8]

What do hotel records have to do with emails, smartphones, and the cloud?

At present, development of new technologies has outpaced ability of legislatures to pass laws regulating privacy, especially in the law enforcement context. The main statutes at the federal level, passed as the Electronic Communications and Privacy Act (ECPA),[9] were written in the 1980’s, before the widespread use of email, smartphones, and services “in the cloud” on third-party servers such as Gmail, Facebook, etc.

The Sixth Circuit has made some adjustments to electronic privacy statutes.

In United States v. Warshak, the Sixth Circuit held that certain sections of the Stored Communications Act were unconstitutional for violating the Fourth Amendment as-applied to the defendant.[10] Specifically, the statute allowed e-mail retrieval from servers without a warrant after six months.[11] The Warshak court held that the defendant had a reasonable expectation of privacy notwithstanding the language of the Stored Communications Act, and therefore the emails could not be obtained without a warrant.[12]

Despite institutional competency concerns, the Court has played a role in developing successful statutory law by giving guidance to Congress and state legislatures.

In two recent cases, United States v. Jones[13] and Riley v. California,[14] Justice Alito has stated that issues relating to balancing the governmental interest in fighting crime with an individual’s interest in privacy may be best left to the legislature. In Jones, which involved the privacy interest in one’s public movements, the majority opinion avoided the privacy issue and decided the case on an alternative ground ground that it was the physical attachment of a GPS tracker with an intent to collect information without a valid warrant that violated the Fourth Amendment thereby allowing the Court to avoid the issue of how much tracking violated the defendant’s reasonable expectation of privacy.[15] In his concurrence, Justice Alito said, “On the other hand, concern about new intrusions on privacy may spur the enactment of legislation to protect against these intrusions.”[16] In Riley, which involved searches of cell phones, Justice Alito pointed to the development of a statutory regime to deal with wiretapping and telephones as a success story:

While I agree with the holding of the Court, I would reconsider the question presented here if either Congress or state legislatures, after assessing the legitimate needs of law enforcement and the privacy interests of cell phone owners, enact legislation that draws reasonable distinctions based on categories of information or perhaps other variables.

The regulation of electronic surveillance provides an instructive example. After this Court held that electronic surveillance constitutes a search even when no property interest is invaded, see Katz v. United States, 389 U.S. 347, 353–359, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), Congress responded by enacting Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211. See also 18 U.S.C. § 2510 et seq. Since that time, electronic surveillance has been governed primarily, not by decisions of this Court, but by the statute, which authorizes but imposes detailed restrictions on electronic surveillance. See ibid.

What Justice Alito leaves out from his historical analysis is that Title III was influenced by a Supreme Court case, Berger v. New York.[17] In Berger, the Supreme Court struck down a New York statute, which permitted wiretapping “based on reasonable suspicion without a particularity requirement or a showing of exigent circumstances.”[18] The subsequent success of Title III was, in part, a result of the courts willingness to analyze statutes, and to explain constitutional law more fully.[19]

The Sibron decision as Federalism

Professor Kerr has written about his position that Sibron[20] should control Patel and that facial challenges should not be allowed to statutes on the basis of Fourth Amendment[21]. Another approach would be to use the Salerno standard, which allows facial challenges to statutes when they are not constitutional in all circumstances.[22]

Sibron[23] involved a New York statute which allowed police officers to stop individuals based on reasonable suspicion and was very similar to the standard announced in the companion case Terry v. Ohio,[24]The court in Sibron explained that state law did not enter into its Fourth Amendment analysis, clearly stating that a statute could not authorize conduct that violated the Fourth Amendment.

Although the court chose to pass on ruling on the facial validity of the New York statute, it seems to indicate that the inclusion of a “reasonable suspicion” requirement allowed it to conform with its constitutional requirements. Justice Harlan in his concurrence states that he thinks the statute is valid.[25] The Sibron decision can be read as having more to do with keeping Fourth Amendment doctrine a matter of constitutional law, thereby preventing states from restricting the rulings of the court. This was, after all, towards the end of the Warren Court’s broad expansion of constitutional doctrines involving police action and the Fourth[26], Fifth[27], and Sixth Amendments[28]. At the time there was a deep skepticism as to states’ ability to protect the individual rights of their citizens.[29]

Conclusion

By allowing Patel to proceed as a facial challenge, the court would increase its ability to give guidance to legislatures. An important function of the Supreme Court is to “say what the law is.”[30]In contrast to the Warren Court era, when there were legitimate concerns about the desires of states to limit constitutional decisions, now the Court is inviting the legislature to relieve it from having to conduct the intricate balancing between privacy interests and governmental interests that is demanded by the emergence of new technology.[31] Accordingly, in light of the historical changes that mitigate the Federalism concerns present in Sibron and the institutional competency concerns that arise from using judge made law to accommodate rapidly changing technology, the Court should reach the merits in Patel.

[1] City of Los Angeles, Cal. v. Patel, No. 13-1175, 2014 WL 1254566 (U.S. Oct. 20, 2014).

[2] L.A. Mun.Code § 41.49.

[3] Patel v. City of Los Angeles, 738 F.3d 1058 (9th Cir. 2013) cert. granted sub nom. City of Los Angeles, Cal. v. Patel, 135 S. Ct. 400 (2014).

[4] Petition for Writ of Certiorari, Patel, 135 S. Ct. 400 (13-1175).

[5] Sibron v. New York, 392 U.S. 40, 60-62 (1968).

[6] Patel, 135 S. Ct. 400 (13-1175).

[7] Cf. Francis A. Allen, Federalism and the Fourth Amendment: A Requiem for Wolf , 1961 Supreme Ct Review 1 (1961) (discussing the Federalism of Mapp v. Ohio the first of the Warren Court’s major Fourth Amendment Cases).

[8] Sibron, 392 U.S. at 71 (Harlan, J. concurring in result).

[9] Electronic Communications Privacy Act of 1986 (ECPA), Pub. L. No. 99-508, Oct. 21, 1986, 100 Stat. 1848 (codified as amended at 18 U.S.C. § 2510 (1986)).

[10] United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010).

[11] 18 U.S.C.A. § 2701 et seq. (West 2014).

[12] Warshak, 631 F.3d at 288.

[13] United States v. Jones, 132 S. Ct. 945 (2012).

[14] Riley v. California, 134 S. Ct. 2473 (2014).

[15] Jones, 132 S. Ct. at 954 (“We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.”).

[16] Jones, 132 S. Ct. at 962 (Alito, J. concurring in part and concurring in the judgment).

[17] Berger v. State of N.Y., 388 U.S. 41 (1967); see Susan Freiwald, Online Surveillance: Remembering the Lessons of the Wiretap Act, 56 Ala. L. Rev. 9, 24-26 (2004).

[18] Berger, 388 U.S. at 58-60.

[19] See Frewald note 14, supra.

[20] Sibron v. New York, 392 U.S. 40 (1968).

[21] Orin S. Kerr, En Banc Ninth Circuit Invalidates Hotel Inspection Regulation, Volokh Conspiracy, (Jan. 5, 2014 6:15 PM), http://volokh.com/2014/01/05/en-banc-ninth-circuit-invalidates-hotel-inspection-regulation.

[22] United States v. Salerno, 481 U.S. 739, 745 (1987) (“[In order to make a facial challenge to a legislative Act] the challenger must establish that no set of circumstances exists under which the Act would be valid.”).

[23] Sibron, 392 U.S. 40.

[24] Terry v. Ohio, 392 U.S. 1 (1968).

[25] Sibron, 392 U.S. at 71 (Harlan, J. concurring).

[26] Mapp v. Ohio, 367 U.S. 643 (1961); Katz v. United States, 389 U.S. 347 (1967); Terry, 392 U.S. 1.

[27] Miranda v. Arizona, 384 U.S. 436 (1966).

[28] Gideon v. Wainwright, 372 U.S. 335 (1963).

[29] William J. Brennan, Jr., The Bill of Rights and the States, 36 N.Y.U. L. Rev 761, 778 (1961).

[30] Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

[31] Compare William J. Brennan, Jr., The Bill of Rights and the States, 36 N.Y.U. L. Rev 761, 778 (1961) (“Far too many cases come from the states to the Supreme Court presenting dismal pictures of official lawlessness, of illegal searches and seizures, illegal detentions attended by prolonged interrogation and coerced admissions of guilt, of the denial of counsel, and downright brutality. Judicial self-restraint which defers too much to the sovereign powers of the states and reserves judicial intervention for only the most revolting cases will not serve to enhance Madison’s priceless gift of ‘the great rights of mankind secured under this Constitution.’”) (citations omitted) with United States v. Jones, 132 S. Ct. 945, 962 (2012) (Alito, J. concurring) (“I would reconsider the question presented here if either Congress or state legislatures, after assessing the legitimate needs of law enforcement and the privacy interests of cell phone owners, enact legislation that draws reasonable distinctions based on categories of information or perhaps other variables.”); see also Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution,102 Mich. L. Rev. 801, 888 (2004) (“[L]egislatures often are better situated than courts to protect privacy in new technologies, and that courts should be wary of imposing broad privacy protections against the government’s use of new technologies in light of the judiciary’s institutional difficulties.“).

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