It's interesting that the Supreme Court in Torres v. Madrid opted for the "right to be secure" description of the 4th Amendment. As far as I can recall, that's a first for the Supreme Court.
The idea that the 4A provides a "right to be secure" has been floating around 4A scholarship for the last 15 years. But as far as I know, the Supreme Court has never suggested it before. It has stuck to the constitutional text, which it seems to me is narrower.
I wrote a blog post on the "right to be secure" claim in 2017. At least in the scholarship, it it is used generally to argue for a broader application of the 4A. lawfareblog.com/fourth-amendme…
As my 2017 blog post says, I don't think there's a general "right to be secure" in persons, etc. from the text. The text is a lot narrower than that:
More of the argument from that 2017 post.
In Torres, though, Chief Justice Roberts introduces the case with the (first-ever, I think, in a SCOTUS case) claim that there is a general right to be secure in persons, etc. And he comes back to it later in the opinion, at least sort of.
Will this matter going forward? It's hard to know. But it was worth flagging, I think.
P.S. I have a vague recollection that Justice Sotomayor may have suggested the "right to be secure" at some point, maybe in an oral arg? This is pure speculation, but maybe she suggested it, and the Chief added it to get 5, as Torres was 5-3. Who knows.
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It's common to object to the length of Supreme Court opinions. My own sense is that the typical length of majority opinions is about right. It's the separate opinions -- the concurrences and dissents -- that are often too long. Not always, of course, but often.
It's understandable how that plays out. When the dissent/concurrence is being written, it is a competing view of the law. But after it is decided -- that is, when it's public -- it's a view that isn't binding law, and so is a lot less important to folks than the majority opinion.
Dissents in particular can have a venting quality, where the author needs to say everything on the author’s mind and doesn’t have a majority to worry about.
WANT TO SEE SOME FIREWORKS? I just uploaded a new draft essay, "Buying Data and the Fourth Amendment," on whether or how the 4A applies to buying records as an end-run around Carpenter. A quick read, only 13 pages.
Substantive comments, reactions, and criticisms very welcome, as always, either here via Twitter or by email, orin [at] berkeley.edu. Thanks.
One paragraph I will add, in response to a few comments in just the last 20 minutes (Twitter FTW), is how current statutes regulate this. The Stored Communications Act prohibits giving/selling non-content records to the govt for many covered providers. /1
Reading over the 4th Circuit's new mosaic-theory case, on the Baltimore aerial surveillance program, I'm struck by it being different from the mosaic theory of the Mass SJC in McCarthy, the ALPR case
A thread.
The two opinions start from similar premises. They both take the view that the 4th Amendment has a mosaic theory, and that, if enough information is revealed about a person, a search is deemed to occur.
The big question is always, how do you draw that line? If I'm interpreting the opinions correctly, the CA4 and Mass SJC draw the line *very differently.*
Major 4th Amendment ruling from the en banc CA4: The specifics of Baltimore's aerial surveillance program -- how much it showed, and how long data was retained -- collected enough information that it is a 4A search and unconstitutional. #N s3.documentcloud.org/documents/2097…
This is a strong endorsement of the mosaic theory, with the court accepting that "short term" surveillance is fine but that "long term" is not. If the judges feel the surveillance is revealing a lot of information about people, a line is crossed and the Constitution is violated.
They base their conclusion in part on an article that the plaintiffs submitted showing that if you have a view data points about where someone's phone goes, you can probably figure out who they are. (Yes, most people are at home at night.)
In 2005, it was still the case that a very common view on the right was that the Supreme Court's role should be narrow. Roberts' focus on judicial restraint was a popular view in conservative legal circles.
It's hard to overstate how much the quick rethinking needed to coalesce around opposition to Obamacare changed conservative legal views. Opposition to Obamacare -- not just as policy, but belief in its unconstitutionality -- became a sort of litmus test of being conservative.
On Thursday, the Supreme Court will decide whether to hear two computer border search cases: US v. Cano, from a DOJ cert petn; and Merchant v Mayorkas, the ACLU's challenge to border search policies.
Notably, the docket page for Cano had listed the petn as "rescheduled" on June 15. Yesterday, a new docket entry said it has been distributed for consideration for Thursday -- the same day as they're considering Merchant. Hmm.
Ooh there's another one. Thursday is looking like a big day. Although we won't have any idea what they decided until Friday or Monday at the earliest, I gather.