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Quick reactions to a couple of books I had a chance to read over the Christmas break.
I can recommend Company Man by John Rizzo. Rizzo was one of the first lawyers at the CIA, and he recounts a thirty year career there with grace and a remarkable absence of rancor, even though he was denied the ultimate promotion — to General Counsel — after a highly politicized confirmation hearing. (His offense was asking the Justice Department whether certain harsh interrogation techniques were legal, and not selling out the CIA officers who relied on Justice’s advice by disavowing it when he got to the hearing.)
Rizzo had a ringside seat at all the most dramatic political events involving the CIA from the 1970s to the Obama Administration. He brings self-deprecating wit and a lot of human insight to his portrayal of these events and the CIA directors he helped guide through them. It’s available on January 5, 2014. (Disclosure: I got an early copy because John and I have been friends and colleagues for a long time. But in the interest of full disclosure, I have no incentive to overpraise his book, since I’m afraid it’s actually better than mine.)
In contrast, The Frackers by Gregory Zuckerman was a disappointment. The book is getting praise from the right blogosphere because it tells the story of fracking straight, with only occasional flaming faucets and with considerable attention to the remarkable contribution that the frackers have made to the nation’s energy independence. I tend to agree that that’s the right take on the industry, but as a read, the book is benefiting from conservative affirmative action. It’s long, dense, and full of characters whose stories are admirable but pretty much indistinguishable. Wait, which founder nearly went bankrupt and which one was fired after hitting a slump? Which one bet big on shale in Texas? North Dakota? Pennsylvania? Who ended up making his wife a very rich divorcee and whose son developed a drug problem? And why do I care? The book would have been better with fewer stories and a bit more differentiation among them.
Voting for the 2014 Dubious Achievements in Privacy Law is almost done, and the race is heating up. Who used privacy law most egregiously to serve power and privilege? There are plenty of candidates, but the leaders this year are two: On the one hand, the Chinese government, which adopted a privacy law and promptly brought criminal privacy charges against a Western investigator examining corporate misdeeds. And on the other, the Obama administration’s Agriculture Department, which cited privacy grounds in refusing to name any of the beneficiaries of the notoriously fraud-ridden “Pigford” settlement.
But if your favorite was a man who could afford both a naked five-hour, five-hooker sadomasochistic orgy and a litigation campaign to clear his name by proving that it was not a naked five-hour, five-hooker sadomasochistic orgy with a Nazi theme, well, Max Mosley isn’t quite out of the running yet. With a surge of support, his privacy law campaign to force the Internet to forget pictures of his naked five-hour etcetera still could qualify as the worst use of privacy law to protect the privileged.
If you’re sure you know which of the candidates is abusing privacy law most egregiously to serve the powerful, and you haven’t already voted, now is the time to review the candidates and then to cast your ballot.
The post Privy Peek: Worst Use of Privacy Law to Serve Power — China or the Obama Administration? appeared first on The Volokh Conspiracy.
Many commentators decry the increasing polarization between “red states” and “blue states.” This recent Washington Post article summarizes some of the standard criticisms. But as my George Mason colleague Michael Greve explains, state polarization also has some valuable benefits:
Polarization (whether measured by single-party control over states, policy outcomes, or whatever) has its downsides. Single-part states may start to work like the House of Commons and “overshoot” in a red or blue direction. At the federal level, a polarized system is bound to produce politicians who aren’t used to compromise…..
On the other hand:… [the] “competitive” kind of federalism requires a certain degree of polarization (or sectionalism). And the price may well be worth paying. Consider a few well-understood but underestimated advantages:
Competitive federalism reveals information. We can debate the abstract advantages of “red” or “blue,” “American” and “European” social models until the cows come home: there’s no substitute for observing the actual effects in real life.
Competitive federalism satisfies preferences. A thoroughly blue or red United States would leave one half of the country very unhappy. That’s not true under federalism—not when preferences are heterogeneous across states and (relatively) homogeneous within states. As, increasingly, now.
Competitive federalism reveals preferences and reduces ignorance. People move across states lines in response to a ton of factors (climate, jobs, housing costs…)—many of which are policy-dependent. “Foot-voting” is a pretty good political feed-back mechanism: sooner or later, (state) politicians will pay attention….
You can’t have those sweet advantages without the bitter; the trick is to minimize the costs. Here, that means national-level solutions that allow the states to go their own way, instead of entangling them in federal schemes.
As Michael notes, I have explained why foot voting often leads to better-informed decisions than ballot-box voting in my recent book Democracy and Political Ignorance (see also here and here). State polarization can facilitate foot voting by giving people a wider range of options to choose from.
Michael also correctly emphasizes that the effectiveness of foot voting is sometimes undercut by large states such as California and Texas, which are so big that leaving them becomes extremely costly, at least for people who have to be located somewhere within the large geographic area they control. In previous posts, I outlined why California’s size is a significant cause of some of the state’s dysfunctional policies in recent years (see here and here). Because the state is so enormous and occupies some much of the attractive real estate on the West Coast, people have often been reluctant to leave even when its policies are badly flawed. Over the last decade, things got so bad that California finally did start losing large numbers of migrants to other states. But not before the state’s government dug a much deeper hole for itself than would have been likely had California been three or four smaller states, each forced to compete for migrants with the others.
On January 7, co-bloggers Randy Barnett, Orin Kerr, and I will be speaking at an upcoming event at the Heritage Foundation in Washington, DC on our recently published book A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, which details ours and the VC’s role in developing the arguments in the Supreme Court’s Obamacare decision (the book is also coauthored with Jonathan Adler, David Bernstein, and David Kopel). The book’s editor, Trevor Burrus of the Cato Institute, will also speak at Heritage.
The event will be held on from 12 to 1 PM. More information, including how to RSVP is available here.
NOTE: This event has been rescheduled from December 10, when it was wiped out by a “snowstorm” that shut down most of the DC area, despite the fact that there was only about 1 inch of snow. We hope to avoid a repeat on January 7!
The post Upcoming Heritage Foundation Event on Our Book A Conspiracy Against Obamacare appeared first on The Volokh Conspiracy.
Avik Roy writes on how Politifact’s assessment of the “if you like your plan, you can keep it” promise went from 100% true to half-true to a “pants on fire” lie to the “lie of the year.” The column is fairly devastating by itself, but then Politifact’s Angie Holan, who authored some of the relevant evaluations, tried to defend Politifact with a tweet:
@avik The ’08 rating was for a campaign proposal with NO mandate. Very different set of facts than later ruling.
— Angie Drobnic Holan (@AngieHolan) December 27, 2013
The mind reels. Then-Senator Obama’s 2008 health care plan had numerous elements that were sure to disrupt health insurance markets, as Roy noted in the column. (If, on the other hand, Politifact wants to argue that the initial promise was “true” because it represented then-candidate Obama’s honest intent in 2008, then there was no point in fact-checking it at all.) More importantly, insofar as one wants to argue that the 2008 plan and the PPACA are sufficiently different to justify different assessments of the claim, the individual mandate is largely irrelevant — and this is the first time someone from Politifact has tried to suggest otherwise. (For instance, there’s no mention of the mandate in Ms. Holan’s “Lie of the Year” post.) The individual mandate is not what is causing individuals to lose their health insurance. If anything, it has the opposite effect by reducing the effect of other PPACA requirements. It’s as if Politifact “fact-checkers” don’t know very much about the subjects of their “fact checks.”
If any further proof were needed of the absurdity of our self-appointed political “fact-checkers” this is it.
Lawprof Miriam Baer reflects on that subject here. And Miriam doesn’t get into the remedies side of the picture: The fact that all this uncertainty is happening right when the remedies for Fourth Amendment violations are also very much in flux makes it all the more interesting.
Most students who take a property law class study the famous New York case of Stambovsky v. Ackley, where a New York court ruled that sellers of a house must disclose to potential buyers the fact that the house was reputedly haunted. The court concluded that the house was “haunted as a matter of law” and that the haunting qualifies as a latent defect, because it is a condition that might reduce the value of the house. Courts in some other states have ruled differently, holding that sellers only have a duty to reveal physical, structural, or legal defects, not poltergeists. However, as Josh Blackman notes (citing this Forbes article), one Pennsylvania seller recently noted the haunting in his house ad, with the result that he actually ended getting more interest than expected:
I went back and forth,” Gregory Leeson says when asked about listing his Dunmore, PA home as “slightly haunted” on real estate website Zillow. “I thought I might as well. I didn’t think it would generate this much interest.”
But since uploading his for sale by owner listing on Sunday, Leeson has received multiple offers and interest from buyers as well as ghost hunters across the country. The home has also ignited a growing discussion on Twitter, with many sharing their own haunted home stories:
Leeson’s somewhat tongue-in-cheek description of his home, which is listed for $144,000, begins by pointing out typical features — 4 bedrooms and 2.5 bathrooms — before delving into the property’s more unusual characteristics:
“Slightly haunted. Nothing serious though,” he writes in the listing. “The sounds of phantom footsteps. A strange knocking sound followed by a very quiet (hardly noticeable, even) scream.”
While some people might recoil at the prospect of living in a “haunted” house and others might not care, haunting could actually increase the value of the house by turning it into a potential tourist attraction. Indeed, the sellers of the house at issue in Stambovsky actually were advertising it as a haunted house and arranged its inclusion in a walking tour of the city of Nyack, NY.
Obviously, many people – including many of my property students, when I teach Stambovsky – react with incredulity to the very idea that ghosts might be relevant to the value of a house and that sellers have a legal obligation to disclose their supposed presence. As the dissenting opinion in Stambovsky puts it, “[t]he existence of a poltergeist is no more binding upon the defendants than it is upon this court.” I have a lot of sympathy for that position. Ghosts don’t actually exist, and their supposed presence has no tangible effect on the quality of a house.
But it’s worth noting that many things that affect the value of real estate are intangibles based on the arbitrary preferences of potential buyers. One such is the history and reputation of the house. For example, one of my students several years ago had lived near the house where serial killer Jeffrey Dahmer murdered his victims. He told me that the house went unoccupied for years afterwards, even though Dahmer was long gone, and the house had been refurbished. Rejecting a house because it was the site of a murder seems just as irrational as rejecting it because of a supposed haunting. It’s true that the murderer, unlike the ghost, was actually physically in the house at some point. But that has no relevance to the livability of the house years later. Yet many people clearly would prefer to avoid living in such a building. Even if a given buyer does not personally care whether a house was the site of a notorious murder or a supposed haunting, they might want to know about it because of its impact on resale value.
UPDATE: I should note that, technically, Stambovsky did not hold that sellers have an absolute obligation to disclose the fact that their house is reputed to be haunted, but merely that if they did not, the buyer could have the sale rescinded. However, as a practical matter, this means they do have an obligation to disclose if they want to effectuate a sale that the buyer cannot repudiate.
Shortly before the holiday the Ohio Supreme Court rejected a challenge to Governor John Kasich’s decision to accept Medicaid expansion under the PPACA. This was a controversial decision within the Governor’s party, and prompted a lawsuit. The plaintiffs, six state legislators and two anti-abortion groups, argued that the state could not accept Medicaid expansion without express legislative authorization. Under Ohio law, however, an entity called the Controlling Board may authorize state agencies to accept and spend federal funds, and the Controlling Board voted to approve the Medicaid expansion which, at least initially, is fully funded by the federal government. According to the Ohio Supreme Court, the Controlling Board could take this step.
Chief Justice Maureen O’Connor wrote the majority opinion in State ex rel. Cleveland Right to Life v. State of Ohio Controlling Board, joined by Justices Pfeifer and O’Neill. Justice O’Donnell, joined by Justices Kennedy and French, dissented on the grounds that the case presented a non-justiciable “political question” that was not fit for resolution by the courts. Justice Lanzinger concurred in the judgment without opinion. So while the case was decided 4-3 (or 3-1-3), not a single justice voted to invalidate Ohio’s acceptance of Medicaid expansion under the PPACA.
In my opinion, the Court reached the correct outcome, though I am torn on the rationale. Whether the case presented a non-justiciable political question is a close call. The dissent is correct that the state legislature retains “both the incentive to protect its prerogatives and the institutional mechanisms to do so.” Courts need not sully themselves by inserting themselves into intra-branch political disputes, particularly where individual rights are not at stake. Here, however, the controlling statute does seem to provide a sufficiently clear standard for resolving the case. The relevant statutory provision provides that “The controlling board shall take no action which does not carry out the legislative intent of the general assembly regarding program goals and levels of support of state agencies as expressed in the prevailing appropriation acts of the general assembly” (emphasis added). As the majority noted, nothing in the text of the relevant appropriations acts precludes the controlling board from expanding Medicaid. The legislature had tried to enact such language, but it was vetoed by the Governor and no effort was made to override this action. So, even if one assumes a majority of the legislature opposed Medicaid expansion (a debatable assumption), such legislative intent was not “expressed in the prevailing appropriation acts” as required under Ohio law. Given the posture of the case — those challenging the expansion were seeking a writ of mandamus — this was a relatively easy call on the merits. So whether or not this case presented a non-justiciable political question, the challenge to Ohio’s Medicaid expansion deserved to lose.
The opinion is here, and it’s pretty much the opposite of Judge Leon’s recent opinion. Judge Pauley rules that the Section 215 telephony metadata program is lawful both as a matter of statutory and constitutional law. Based on our experience with lower court rulings on Obamacare, I gather that Pauley’s opinion will draw only a small amount of attention relative to Judge Leon’s contrary ruling. But it’s an interesting contrast, both on the legal merits and as a matter of judicial rhetoric.
The post Judge Pauley of the SDNY Upholds NSA Section 215 Program appeared first on The Volokh Conspiracy.
Around 12:50pm EST I’ll appear on HuffPost Live to discuss legal cases to watch in 2014, with a focus on the Supreme Court. Mike Sacks is the host and the other guests are Carrie Severino of the Judicial Crisis Network and Georgia State University law professor Eric Segall. I’ll post a link to the segment after it airs.
UPDATE: Here’s a link to the segment.
The U.S. Court of Appeals for the Tenth Circuit’s refusal to stay a district court decision invalidating Utah’s ban on same-sex marriage is sending the issue back to the Supreme Court less than six months after last summer’s the Windsor and Perry decisions. Adam Liptak reports:
The question for the Supreme Court in the short term will be whether to block Judge Shelby’s ruling while appeals proceed. The state’s request will initially be directed to Justice Sonia Sotomayor, the member of the court responsible for overseeing the Tenth Circuit, but she will almost certainly refer the matter to the full court. It is likely to act within several days.
The Supreme Court will face difficult calculations, ones it did not have to confront in reviewing decisions from federal courts in California striking down Proposition 8, the state’s ban on same-sex marriage. In that case, the United States Court of Appeals for the Ninth Circuit, in San Francisco, stayed both the trial judge’s ruling and its own as appeals went ahead.
The ultimate argument for a stay would be to preserve the status quo while the underlying legal issues are resolved. Were Judge Shelby’s decision to be overturned, courts would face the choice of invalidating those same-sex marriages conducted in the interim, or rewarding those who raced to the courthouse in the wake of the initial decision. Yet, as Rick Hasen notes, that will not buy the Court all that much time. It may be too late for a decision on the merits of this issue this term, but the Supreme Court may have little choice to decide whether there is a constitutional right to same-sex marriage as soon as 2015.
UPDATE: According to Andrew Koppelman, the Utah AG’s “goof” is the reason there was no stay in the trial court.
In a statement e-mailed to faculty and other members of the university community, Case Western Reserve University President Barbara Snyder and Provost Bud Baeslack forcefully rejected calls for an academic boycott of Israel. As they note, academic boycotts of this sort run contrary to principles of academic freedom and “seek to subvert one of higher education’s core values in service of other ends.” I’ve reproduced their entire statement below the fold.
To the Case Western Reserve University Community:
As leaders of an institution of higher education, we must oppose the proposed academic boycotts of Israel in the strongest possible terms. In our 2008 strategic plan, Case Western Reserve embraced a vision where we sought to be recognized “as an institution that imagines and influences the future.” One of the ways we realize that aspiration is to exchange ideas, engage with one another and, ideally, discover concepts and deepen understandings in ways we never could have alone. In contrast, the surest way to fall short of that ideal is to withdraw and isolate, to let silence be our sole contribution to conversations and debates.
At an even more fundamental level, boycotts exemplify the converse of the concept of academic freedom. They seek to subvert one of higher education’s core values in service of other ends. One of the most admirable traits of the academe is that scholars often collaborate across borders of nationalities and governments, political and social systems. Indeed, Case Western Reserve so values the diversity of perspectives that come from global experiences that internationalization has been one of our leading priorities for the past five years. Since 2008, we have forged many new partnerships with academic institutions around the world, increased the proportion of our undergraduate classes that come from abroad, and actively encouraged our U.S. students to pursue studies in other countries.
We strongly endorse the statement opposing the boycott from the Association of American Universities, a group of the nation’s leading public and private higher education research institutions that includes Case Western Reserve. In addition, the American Association of University Professors has articulated a broad stanceagainst academic boycotts, and more recently urged the members of the American Studies Association not to support a resolution calling for such action against Israeli universities.
By the same token, we do not consider it sufficient simply to oppose academic boycotts. Threats to academic freedom damage all of us committed to the work of higher education. We stand with those who support freedom of thought and expression for scholars and students at institutions of higher learning around the globe.
In keeping with the principle of academic freedom, individual scholars at Case Western Reserve may well choose to embrace the boycott, condemn our opposition to it, or speak in favor of other solutions. Similarly, our university Faculty Senate may choose to issue its own statement after the winter semester commences. But after receiving direct inquiries from alumni and faculty regarding our position as the institution’s leaders, we thought it appropriate to describe our thinking in a thorough and transparent manner.
Barbara R. Snyder
W.A. “Bud” Baeslack III
Provost and Executive Vice President
The post CWRU President and Provost Reject Academic Boycott of Israel appeared first on The Volokh Conspiracy.
On December 19, the District of Columbia Court of Appeals effectively erased Michael Mann’s initial court victory in his defamation lawsuit against Mark Steyn, National Review, Rand Simberg and the Competitive Enterprise Institute. Here’s how Mark Steyn pithily summarizes the developments:
1. Dr Michael Mann’s lawyer, John Williams, filed a fraudulent complaint falsely representing his client as a Nobel Laureate, and accusing us of the hitherto unknown crime of defaming a Nobel Laureate.
2. After Charles C W Cooke and others exposed Dr Mann’s serial misrepresentation of himself as a Nobel Prize winner, Mann’s counsel decided to file an amended complaint with the Nobel falsehood removed.
3. Among her many staggering incompetences, DC Superior Court judge Natalia Combs-Greene then denied NR’s motion to dismiss the fraudulent complaint while simultaneously permitting Mann’s lawyers to file an amended complaint.
4. The appellate judges have now tossed out anything relating to Mann’s original fraudulent complaint, including Judge Combs-Greene’s unbelievably careless ruling in which the obtuse jurist managed to confuse the defendants, and her subsequent ruling in which she chose to double-down on her own stupidity. Anything with Combs-Greene’s name on it has now been flushed down the toilet of history.
5. So everyone is starting afresh with a new judge, a new complaint from the plaintiff, and new motions to dismiss from the defendants. That’s the good news.
6. The bad news is that Mann’s misrepresentation of himself as a Nobel Laureate and Combs-Greene’s inept management of her case means that all parties have racked up significant six-figure sums just to get back to square one. In a real courthouse – in London, Toronto, Dublin, Singapore, Sydney – Dr Mann would be on the hook for what he has cost all the parties through his fraudulent complaint. But, this being quite the most insane “justice system” I have ever found myself in, instead the costs of the plaintiff’s vanity, his lawyer’s laziness and the judge’s incompetence must apparently be borne by everyone.
So, the lawsuit is effectively reset in the trial court, where a motion to dismiss Mann’s amended complaint remains pending with a new judge. (The original judge was the recently reproached and retired Judge Natalie Combs Greene who, as I noted in this post, was quite sloppy in her initial opinion.)
In a related development, the defendants received substantial support in their effort to seek interlocutory appeal of Judge Combs Greene’s initial order, in the form of amicus briefs from the ACLU, Reporters Committee for the Freedom of the Press (joined by several more media organizations), and the District of Columbia.
Readers may also be interested in this recent decision by the U.S. Court of Appeals for the D.C. Circuit upholding the district court’s dismissal of Joseph Farah’s defamation claim against Esquire magazine under D.C.’s anti-SLAPP statute.
NOTE: I inadvertently omitted the name of one of the defendants in this suit, Rand Simberg when I first published this post.
UPDATE: Reading the comments, I figured it would be helpful to provide a bit more procedural background to explain why the appellate decision in this case effectively resets the litigation. Here’s the relevant timeline (summarized in Judge Weisberg’s Oct 2 order). After Mann filed his initial complaint, the defendants filed motions to dismiss under the D.C. anti-SLAPP statute. While these motions were pending, Mann filed an amended complaint on July 10, 2013. On July 19, Judge Combs Greene (the original judge in this case) denied the defendants motion to dismiss the original complaint and lifted the stay on discovery. On July 24, the defendants filed motions to dismiss the amended complaint and subsequently filed an interlocutory appeal.
The primary question in the appeal was whether the appellate court had jurisdiction over an interlocutory appeal of a denial of a motion to dismiss under the anti-SLAPP Act. Yet a threshold question was whether the appeal was moot because of the amended complaint. One might have thought that the amended complaint superseded the original complaint, but Judge Greene went ahead and ruled on the motion to dismiss the original complaint after the amended complaint was filed. In such a case, seeking an immediate appeal serves two purposes: challenging the trial court’s order on the merits as well as giving the appellate court the opportunity to make clear that the initial order was procedurally improper and does not constitute the law of the case for subsequent proceedings in the trial court. The defendants would obviously preferred a victory on the merits, but an order effectively erasing Judge Combs Greene’s adverse decision from this past fall is a second-best.
As Judge Weisberg (Judge Combs Greene’s replacement) noted in his Oct 9 order, a reason for the appellate panel to “dismiss the appeal as moot” would be “that the trial court should not have denied the motions to dismiss the first complaint after the Plaintiff had filed his amended complaint.” Further, Judge Weisberg noted, “if the appeal is moot it is because the filing of the amended complaint mooted the motions to dismiss the original complaint prior to Judge Combs Greene’s rulings on those motions. In that event, the law of the case doctrine would not apply, or would apply with substantially less force, and this court would be called upon to decide the motions to dismiss the amended complaint ab initio.” In other words, the appellate court’s conclusion that the appeal was moot effectively wipes away Judge Combs Greene’s original opinion, leaving Judge Weisberg a clean slate upon which to consider the relevant legal issues.
A final note, as some commentators have suggested, it would have been more accurate to characterize Steyn’s summary as colorful than as pithy.
Next week, on Friday, January 3, between 5 and 6:15 PM, I will be doing a presentation on my next book, tentatively entitled The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain at the Federalist Society’s annual faculty conference. This will be a preview of the book, which will be the first book-length treatment by a legal scholar of Kelo v. City of New London – one of the most controversial decisions in the modern history of the Supreme Court, and the important constitutional property rights issues it raises. The book considers Kelo from the standpoint of both originalist and living constitution theory, and also has the most complete analysis to date of the enormous political reaction that Kelo generated. I have completed a first draft of the book, but will be making revisions over the coming months.
The Federalist Society conference will be held in parallel with the annual AALS conference nearby. I will be presenting as part of a panel focusing on works in progress. If you are coming to the AALS conference and are interested in constitutional theory, property rights issues, or eminent domain, I hope you will consider dropping by. Legal blogosphere mavens may be interested to know that Dan Markel of Prawfsblawg, a leading criminal law scholar, will be presenting a paper as part of the same panel.
UPDATE: In the initial version of this post, I accidentally forgot to include a link to the Fed Soc faculty conference’s website. I have now fixed that problem.
The post Upcoming Federalist Society Faculty Conference Presentation on my Next Book – The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain appeared first on The Volokh Conspiracy.
A recent case, United States v. Young (D. Utah, December 17, 2013) (Campbell, J.), touches on a novel, interesting, and quite important question of Fourth Amendment law: Assuming that e-mail account-holders generally have Fourth Amendment rights in the contents of their e-mails, as courts have so far held, when does a person’s Fourth Amendment rights in copies of sent e-mails lose Fourth Amendment protection?
To understand the question, consider Fourth Amendment rights in postal letters. Before a letter is sent, only the sender has rights in the letter; during transmission, both the sender and recipient have rights in the letter; and once the letter is delivered at its destination, the recipient maintains Fourth Amendment rights but the sender’s rights expires. But how do you apply this to an e-mail? By analogy, a sender loses Fourth Amendment rights in the copy of the e-mail that the recipient has downloaded to his personal computer or cell phone. But does the sender have Fourth Amendment rights in the copy of the e-mail stored on the recipient’s server after the recipient has accessed the copy? And does the sender have Fourth Amendment rights in the copy of the e-mail stored on the recipient’s server before the recipient has accessed the copy? At what point does the sender’s Fourth Amendment rights in the sent copy expire?
In Young, the government obtained e-mails from the accounts of defendants in a conspiracy case pursuant to a series of search warrants. Two defendants moved to suppress e-mails obtained from the accounts of their co-defendants, alleging that the warrants were defective. The District Court ruled that the movants had no Fourth Amendment rights in the e-mails found in their co-defendants’ accounts:
As parties to the e-mails obtained from AISC’s computers and the Internet service provider (ISP), America Online, Inc., Mr. Lustyik and Mr. Thaler claim that they have standing because they had a subjective and reasonable privacy interest in the e-mail conversations which they were having with their Co-Defendants. Recognizing that they would not have standing if the message had been transported through traditional mail, Mr. Lustyik and Mr. Thaler argue that e-mail and text-message conversations should be distinguished from correspondence by traditional mail because “e[-]mail is non-tangible and provides a platform for communication which, although asynchronous, bares more similarity to a face-to-face meeting or a telephone call than traditional mail.” They further argue that the instantaneous nature of e-mails makes them more comparable to telephone calls: “Whereas the expectation of privacy may be lost upon delivery of a traditional letter, the expectation of privacy in an e[-]mail conversation continues throughout the discussion (similar to a phone call)” and therefore the interception of such a communication violates the privacy interests of all parties involved in the conversation.
But the defendants are wrong as a matter of law. A sender of an e-mail loses his or her reasonable expectation of privacy in an e-mail that has actually reached the intended recipient. Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001); see also United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (An individual may not “enjoy  an expectation of privacy in transmissions over the Internet or e-mail that have already arrived at the recipient”). “The e-mailer would be analogous to a letter-writer, whose `expectation of privacy ordinarily terminates upon delivery’ of the letter.” Guest, 255 F.3d at 333 (quoting United States v. King, 55 F.3d 1193, 1196 (6th Cir. 1995). In Warshak v. United States, the United States Court of Appeals for the Sixth Circuit analogized a search and seizure of e-mails through an ISP to the interception of a letter at a post office. 631 F.3d 266, 286 (6th Cir. 2010). Here, transmission of all the e-mails and texts was complete before seizure, that is, the e-mails had already arrived at the intended recipient account. Any reasonable expectation of privacy Mr. Lustyik and Mr. Thaler may have had in their e-mails ended when Mr. Taylor received the messages in his and AISC’s e-mail accounts.
It’s an interesting analysis, although I’m slightly confused about one point: Is the court saying that the Fourth Amendment rights expired when they arrived at the account, before the e-mails were accessed, or is the court saying that the Fourth Amendment rights expired when the co-defendants accessed the accounts and then left the copies on the server? Read literally, the court seems to be saying that it is arrival at the account that matters, which sounds like no receipt by a person is needed. If so, though, I don’t know why the defendants would concede that rights would have expired in the analogous postal mail setting: The hard part of the analogy is figuring out the proper analogy for “arrival” of the mail. Is arrival for Fourth Amendment purposes the arrival at the ISP, or is arrival of the arrival of a copy at the recipient’s own machine? I think I read the court as saying the former, and I’m interested if others read the opinion the same way.
The post Senders’ Fourth Amendment Rights in E-mails Seized from the E-mail Accounts of Recipients appeared first on The Volokh Conspiracy.
An interesting case, In re Stephen O. (Alaska Dec. 17, 2013), dealing with the recurring question of how religious claims can be relevant to mental commitment proceedings. From the three-Justice majority (some paragraph breaks added):
Shortly after Christmas 2009 Stephen O. experienced what he believed to be a religious conversion and, as he described it, “got [his] relationship back” with Jesus. In the weeks leading up to the holiday that year, Stephen had been “a little nervous” because his children were about to depart for a visit to their mother in Seattle for their Christmas vacation, the first Christmas he had spent without the children in a decade. Stephen and his wife of eleven years had separated in May 2009, when she left their home in Haines to live with her mother….
Stephen testified that when the children returned from their visit shortly after Christmas, he began to hear the voice of Jesus speaking to him, telling Stephen that his sins were forgiven and he should “get on a path of repentance.” According to Stephen, Jesus told him to go to church and, in particular, to talk to a neighbor across the street who attended a Pentecostal church. Stephen visited and prayed with the neighbor, who put Stephen in touch with his pastor. The pastor invited Stephen to attend his church.
Around this same time, Stephen’s father became concerned about him after Stephen’s 12–year–old daughter reported that Stephen’s behavior was “creeping her out.” Stephen had awakened his daughter at night and talked to her about Jesus, going to church, and following “a path of repentance.”
Stephen’s father and daughter were alarmed because they believed Stephen’s behavior was similar to behavior he had exhibited about six years earlier, in 2004, when he heard voices that led him to jump off a ledge approximately 16 to 18 feet high. [It was unclear from the evidence whether the voices were said to be of Jesus or of Lucifer. -EV] He broke his ankle, gashed his head, sustained a concussion, and was temporarily wheelchair-bound as a result. This incident occurred at a hospital in Olympia, Washington; Stephen had been taken to the hospital by members of a church after he asked them to take him to a doctor because he was experiencing “total fear” as a result of hearing voices. Following this incident, Stephen was prescribed Resperdal, an antipsychotic medication, which he took for approximately one to two years. Stephen also began receiving Social Security disability benefits for psychiatric illness.
On January 8, 2010, a petition for initiation of involuntary commitment was filed at the prompting of Stephen’s family members. The petition for commitment alleged that Stephen had been “presenting with psychotic features” and exhibiting behaviors “similar to those he has exhibited in the past, prior to a suicide attempt.” Specifically, the petition alleged that Stephen had been “hearing the voice of Jesus.” On the basis of this allegation, the Haines Police Department took Stephen into emergency custody under AS 47.30.705(a). [More details omitted. -EV] …
“[I]n order to be constitutional, [Alaska involuntary commitment law] must be construed so that the ‘distress’ that justifies commitment refers to a level of incapacity that prevents the person in question from being able to live safely outside of a controlled environment.” … “[T]his construction of the statute is necessary not only to protect persons against the massive curtailment of liberty that involuntary commitment represents, but also to protect against a variety of dangers particular to those subject to civil commitment. For example, there is a danger that the mentally ill may be confined merely because they are physically unattractive or socially eccentric or otherwise exhibit some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable.”
The superior court cited the following facts in support of its conclusion that Stephen was gravely disabled: (1) Dr. Pappenheim’s recollection of Stephen’s father’s statement that Stephen’s 12–year–old daughter complained Stephen was “creeping her out”; (2) Dr. Pappenheim’s discussion of the similarities between Stephen’s 2004 prior psychotic break, hospitalization, and apparent suicide attempt as recounted by Stephen’s father; (3) Stephen’s diagnosis of bipolar affective disorder, current manic with psychotic features, and his eligibility for and receipt of Social Security disability benefits for a psychiatric condition; (4) Dr. Pappenheim’s testimony that Stephen believed that Jesus was telling Stephen that he did not need mental help. These findings together cannot support a firm belief or conviction that Stephen was “gravely disabled” for purposes of involuntary commitment.
First, as the superior court itself acknowledged, the meaning of Stephen’s daughter’s comment that he was “creeping [her] out” was unclear. The quote from Stephen’s daughter came from Dr. Pappenheim’s testimony relaying what Stephen’s father told Dr. Pappenheim the daughter said to him. Dr. Pappenheim admitted he never directly spoke to Stephen’s children and only spoke to Stephen’s father. The superior court is certainly not required to ignore this hearsay-upon-hearsay statement, but its reliability and probative value do not meaningfully contribute to the elevated evidentiary burden in this case.
Second, the record and testimony reveal marked differences between Stephen’s conduct, behavior, and experience in 2004 — six years before the present commitment hearings — and his conduct, behavior, and experience in 2010, such that the 2004 evidence is insufficient to form the basis for any firm conclusions about Stephen’s condition in 2010. As detailed above, both Stephen and Dr. Pappenheim testified concerning the differences between Stephen’s experience in 2004 — when he was “extremely fearful” and “knew something was not right” — and his experience in 2010, when he was calm, at peace, and optimistic about the future. Stephen testified that he was in “total fear” in 2004 “when the voices started” and ran to church so someone there could take him to see a doctor because he “didn’t want to hurt [anyone].” On direct examination Stephen was asked if he presently felt “any of the types of emotions or [heard] the types of voices” he experienced in 2004 or whether he felt “any pains or … internal sufferings” or “physical distress” as in 2004, and Stephen replied “no.” On the contrary, Stephen testified that he felt he was “doing good” and he was looking to the future because “[t]hings … always work out better.”
Moreover, Dr. Pappenheim acknowledged that his conclusions concerning the similarities between the two instances were substantially based on information from Stephen’s father that Dr. Pappenheim was unable to corroborate with the medical reports from the Olympia hospital….
Third, while the superior court was entitled to weigh the evidence of Stephen’s diagnosis of bipolar disorder in its gravely disabled determination, courts should proceed with caution when relying on mental illness as a basis for involuntary commitment…. “[M]ental illness, without more, ‘does not disqualify a person from preferring his home to the comforts of an institution.’” In order to involuntarily commit someone “it is not enough to show that care and treatment of an individual’s mental illness would be preferred or beneficial or even in his best interests.” Stephen’s diagnosis of illness and eligibility for Social Security benefits on the basis of his diagnosis likewise do not contribute much to the elevated burden of proof required in this case to justify commitment.
Fourth, Stephen did not express any general objections to “mental health help,” but only to psychotropic medication, particularly because of the side effects that he had previously experienced when taking such medication. Stephen stated that he was willing to comply with a court order for involuntary psychotropic medication if the court so decided.
A finding of gravely disabled by clear and convincing evidence in this case required the superior court to have a firm belief in the fact that Stephen could not live safely outside of a controlled environment, and had a condition of mental illness that, if left untreated, would cause him to suffer significant impairment of judgment, reason, or behavior. Stephen’s willingness to get treatment if the court so ordered demonstrates his ability to reason and make autonomous choices, contrary to the involuntary commitment ordered. Expressing a preference for treatment is not synonymous with refusing all mental help.
In sum, the superior court’s decision to commit Stephen was based on partial and unclear evidence, much of which was hearsay, and which the court acknowledged was in tension with significant evidence in favor of Stephen’s ability to function independently and live outside of a controlled environment…. Stephen was functioning independently before and during the hearing, and concern that Stephen would decompensate and harm himself at some time in the future was speculative….
Finally, there was much discussion at the January 20 hearing about Stephen’s religious background, belief, and practice. Dr. Pappenheim testified that Stephen’s religious beliefs were irrational and delusional, principally because they did not “come from a cultural, historical context” but rather came “out of the blue.” The superior court also seemed to regard Stephen’s religious background as important, noting that Stephen had not “regularly attended church,” although the court also commented that a person’s decision “in a time of stress” to find a “religious connection” and to proceed “to an active involvement with God” could not be regarded as “mental illness.”
In any event, even if Stephen’s beliefs did come about suddenly, this should not undermine their validity. More to the point, there was nothing harmful or dangerous about Stephen’s religious beliefs or experiences. Stephen testified that Jesus had forgiven his sins and told him to repent and to have a positive outlook on the future, messages that gave Stephen a sense of happiness and relief. Stephen also testified that he began to pray, that he wanted to pray with his children, and that, through his neighbor, he had been put in touch with the pastor of a local Pentecostal church. None of these activities or experiences rendered Stephen gravely disabled or interfered with his ability to live safely outside of a controlled environment.
Here’s an excerpt from the two-Justice dissent:
Dr. Pappenheim said … “Now, if somebody had a religious belief that they grew up with that was part of their culture, that is considered a rational means for that belief. However, in [Stephen]‘s case, the religiosity that he manifested started five years ago and led him to behave in a way that was substantially dangerous to himself, and could have killed him.” …
While Dr. Pappenheim emphasized the recency of Stephen’s religiosity, he appears to have relied at least as much on the notion that the voices directed Stephen to throw himself off a building. With regard to the superior court, the majority suggests that the superior court was unduly concerned with Stephen’s religious background. But the record shows that both parties had adduced substantial evidence on the subject and that Judge Collins merely made careful findings about it.
This was a difficult case. A troubled young man, suffering from mental illness, had a few years previously responded to voices directing him to leap from a building, seriously injuring himself. Again he was hearing voices. His worried family sought to obtain his hospitalization for his benefit and reported that he was behaving “in precisely the same fashion” now as he had in his previous psychotic episode.
An experienced trial judge, after hearing from the patient and a psychiatrist who reported the family’s concerns, found facts sufficient to support the determination that the patient was gravely disabled. Today’s majority reverses that finding by re-weighing the evidence and substituting its judgment for the trial court’s and by requiring a predictive capacity that no expert will be able to satisfy. Because I believe that the trial court did not clearly err, I respectfully dissent.
A directive released on Tuesday by the Ministry of Justice and Religious Affairs stated that no Christian festivities could be held in Somalia….
“We alert fellow Muslims in Somalia that some festivities to mark Christian Days will take place around the world in this week,” said [the Director of the Religious Matters] during [a] press conference [to announce the ban], adding: “It is prohibited to celebrate those days in this country.”
[The Director General of the Ministry of Justice and Religious Affairs], on his part, stated that all security and law enforcement agencies had been instructed to counter any such celebrations….
The officials did not say anything on whether non-Muslim foreign workers or residents could celebrate or not.
It is the first time that a Somali government bans the celebrations since the last central government collapsed in 1991.
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
In time for Christmas, we just filed the amended reply brief in United States v. Auernheimer.
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A recent Washington Post poll asked, “How concerned are you, if at all, about the collection and use of your personal information by the National Security Agency?” I was interested in the different degree of concern among political liberals and political conservatives. Here are the results among political liberals:
On the other hand, here are the results among political conservatives:
It’s an interesting reversal from 2006, when the President was a Republican instead of a Democrat. Back then, a Pew poll found 75% of Republicans approved of NSA surveillance but only 37% of Democrats approved. Granted, there are some differences between what we know the NSA was up to then and now. The polling questions are not identical, and party affiliation is not the same as ideology. Still, it’s an interesting shift. Kerr’s Law in action, I suppose.
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