Facial recognition technology has advanced rapidly, and its integration into social media provides gee-whiz features to users as well as plenty of opportunities to marketers. It also interests government actors, who already have ways, through subpoenas and otherwise, to harvest both public and non-public information from social media providers without notice to users. [Trevor Timm, The Guardian (“Think it’s cool Facebook can auto-tag you in pics? So does the government”)]
In Los Angeles v. Patel, decided this morning, the Supreme Court held 5-4 with Justice Kennedy joining the four liberals that a Los Angeles law requiring hotels to give police free access to guest registries was facially in violation of the Fourth Amendment because it did not provide a way for hotels to challenge a given disclosure. Justice Sotomayor wrote the majority opinion. Cato had filed an amicus brief on behalf of the position that prevailed. Earlier here. Pictured postcard via present-day Vibe Hotel. More: Josh Gerstein, Politico; Jim Harper, Cato.
More from Conor Friedersdorf: Justice Scalia in dissent focused on the historically closely regulated nature of innkeepers, but would he feel as comfortable if technological advance turned the hotel registries into an instantly accessible government database of where all travelers are staying, a development lawyers for Los Angeles appeared to view as perfectly Constitutional?
- Polls, not chancy politics of Justice-watching, represent surest hope for gay-marriage supporters [me in New York Daily News]
- “A reasonably good week for the Fourth Amendment” [Jonathan Blanks, Cato on Rodriguez v. U.S. on prolonged traffic stops, 6-3 SCOTUS, and from the D.C. Circuit, Janice Rogers Brown’s concurrence in Gross v. U.S., on rationale for D.C.’s gun sweeps]
- David Bernstein, who has done so much to enrich our understanding of Lochner v. New York, hears from Mr. Lochner’s great-granddaughter [Volokh Conspiracy]
- Armstrong v. Exceptional Child Center: Supremacy Clause doesn’t provide implied private right of action [William Baude, SCOTUSBlog; James Beck (implication for product liability); from the losing side, Steve Vladeck/Prawfs]
- Please, SCOTUS, kill off for good the awful Calder v. Jones “effects” test for personal jurisdiction [David Post] “We’re Not in Kansas: No General Jurisdiction After Bauman” [Steven Boranian, Drug and Device Law]
- Noah Feldman, for one, isn’t buying Toobin’s latest sanctimonious swipe at Scalia [Bloomberg View]
- Usage of commas in famous first line of Pride and Prejudice can shed light on how to read Constitutional guarantee of right to keep and bear arms [Eugene Volokh]
Radley Balko on the aftermath of a Cambridge, Md. “no-knock” police raid gone very wrong: “if the Fourth Amendment is due to the Founders’ offense at British soldiers forcibly entering homes in daylight hours after knocking and announcing to search for contraband, it seems safe to say that the Founders would be appalled by the fact that today, dozens of times each day, heavily armed government officials break into homes, often at night, without first knocking and announcing, in order to conduct searches for contraband.” More: Adam Bates, Cato.
Very Cato-centric this time:
- Perez v. Mortgage Bankers: yes, agencies can dodge notice and comment requirements of Administrative Procedures Act by couching action as other than making new rule [SCOTUSBlog and more links, earlier; Michael Greve and followup; Daniel Fisher on concurrence by Justices Scalia, Thomas, and Alito and related on Thomas, Alito concurrences in Amtrak case]
- New Jersey high court is unreasonably hostile to arbitration clauses, which raises issues worthy of review [Shapiro on Cato cert petition]
- “When Wisconsin Officials Badger Their Political Opponents, It’s a Federal Case” [Ilya Shapiro, earlier here, here, etc.]
- Richard Epstein on King v. Burwell oral argument [Hoover, earlier]
- With Profs. Bill Eskridge and Steve Calabresi, Cato files probably its last same-sex marriage brief before SCOTUS [Shapiro; Timothy Kincaid, Box Turtle Bulletin]
- On Abercrombie (religious headscarf) case, Jon Hyman sees an edge for plaintiff at supposedly pro-business Court [Ohio Employer Law Blog, earlier]
- A different view on Fourth Amendment challenge to cops’ warrantless access to hotel guest registries [James Copland on Nicholas Quinn Rosenkranz brief; earlier Cato amicus]
- “Why the Court Should Strike Down the Armed Career Criminal Act as Unconstitutionally Vague” [Trevor Burrus]
- “Judges seemed to be troubled that prosecutors in Manhattan had secretly searched the entire Facebook accounts of about 300 people who were not charged with a crime” [New York Times]
- Goshen, N.Y.: “Dozens of speakers thundered against the proposed asset forfeiture law at two public hearings held Monday by Orange County Executive Steve Neuhaus.” [Goshen Chronicle; Neuhaus vetoes measure] Related, forfeiture at work in Pennsylvania [AP/same]
- Buried lede in breathless story about federal bank fines: “The agency receives a cut of up to 3 percent of its share of the total settlements for its Working Capital Fund, a slush fund common across major government agencies.” [Newsweek]
- From amid the wreckage: Dan and Fran Keller abuse case [Austin American Statesman]
- “Missouri’s attorney general announced lawsuits against 13 [St. Louis] suburbs on Thursday, accusing them of ignoring a law that sets limits on revenue derived from traffic fines.” [NY Times via Tabarrok]
- “It is remarkable enough that an African-American man can be convicted by a jury for breaking into a store that video shows was burglarized by a white female.” [The Open File on Indiana prosecutorial misconduct case via Radley Balko]
- “Lawyers for California Attorney General Kamala Harris argued releasing non-violent inmates early would harm efforts to fight California wildfires. Harris told BuzzFeed News she first heard about this when she read it in the paper.” [BuzzFeed]
From the United Kingdom [Camilla Swift, The Spectator]:
Police this week were granted the authority to carry out random, unannounced checks at the home of anyone who has a gun license. Why? They claim that shooters may be ‘vulnerable to criminal or terrorist groups’ and this is the way to tackle the ‘problem’. The new Home Office guidance assures us this won’t occur ‘at an unsocial hour unless there is a justified and specific requirement to do so.’ Some get-out clause.
More: CPSA. Perhaps, in our American Bill of Rights, there is more of a connection between the Second Amendment and Fourth Amendment than is at first apparent.
And: “Watervliet, NY Asks Pistol Permit Applicants for Facebook Passwords. Or Not.” [Robert Farago, The Truth About Guns]
- Cop caught on camera stealing dying motorist’s $3700 and gold crucifix “walked out of courtroom with big smile on face” [Bridgeport; Connecticut Post]
- Durham, N.C. police officer testifies department would illegally gain access to homes for purposes of search by lying about getting 911 calls [IndyWeek]
- “California Highway Patrol Seizes Medical Records Of Woman An Officer Was Caught On Tape Beating” [Tim Cushing, TechDirt]
- Drivers routinely expected to give up otherwise-basic civil liberties in exchange for right to use the roads [Michael Tracey, Vice]
- Teen sexting prosecutions in Virginia and elsewhere: “We must destroy the children in order to save them” [Radley Balko]
- Narcotics officers get training credit at tax-funded seminars in how to argue in favor of drug laws [Missouri pro-legalization site via Balko]
- Back from the ashes: advances in fire and arson forensics cast doubt on earlier convictions [Texas Monthly]
“The United States asserts that a search of all data stored on a cell phone is ‘materially indistinguishable’ from searches of [a wallet or purse] … That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together.” — Chief Justice Roberts, writing for the Court in Riley v. California, in which the Justices unanimously disallowed warrantless police searches of arrestees’ cell phones.
In its ruling today in Riley v. California, the Supreme Court unanimously established a clear new rule for police-citizen interaction: The police can’t, without a warrant, search the digital information on cell phones they seize from people they arrest. This is a big deal because it means that being arrested for, say, not paying a speeding ticket, will no longer open you up to having your entire life examined by law enforcement. Unlike the satchels and billfolds of yore, people now carry essentially all their private documents with them at all times: address books, financial and medical records, photo albums, diaries, correspondence, and more. To allow police to review all of that information just because they happen to have arrested someone would violate the Fourth Amendment’s protection of personal papers and effects against unreasonable searches and seizures. …
Kudos to the Court—and raspberries to the federal government, which has now had its expansive arguments rejected unanimously 11 times since January 2012.
More: Orin Kerr.