Supreme Court To Tackle LA Law Enforcement's Warrantless Access To Hotel Records

from the time-to-take-the-3rd-party-doctrine-'round-back-and-put-it-out-of-everyone&# dept

The question of whether law enforcement's warrantless (and subpoena-less) access to hotel records falls outside the confines of the Constitution will be answered by the Supreme Court. An en banc hearing by the Ninth Circuit Court found that Los Angeles' ordinance granting local law enforcement this power was unconstitutional. Not content with this finding, the city of Los Angeles has managed to bump it up to the highest judicial level.

Along the way, the city has argued that its access-on-demand doesn't constitute a search, much less violate hotel owners' (or their customers') civil liberties. It also argued that the end justifies the means, and that because the files were often electronic, there was no real intrusion. The city's arguments rely heavily on two oft-misused Fourth Amendment-related terms: "reasonable expectation of privacy" and the infamous "Third Party Doctrine."

The Cato Institute has entered a brief in support of the plaintiffs which points out that both of these go-to justifications for warrantless access to the papers of others are deeply flawed. (via Overlawyered)
As we’ve done in many prior briefs, we discourage the Court from applying the “reasonable expectation of privacy” test. “Reasonable expectations” doctrine is a contortion of the Fourth Amendment that springs from one concurrence in a 1967 case. Rather than estimating whether hoteliers have a “privacy expectation” in their records, we invite the Court to adhere to the Fourth Amendment’s language and determine whether the the right of Los Angeles hoteliers “to be secure in their persons, houses, papers, and effects” is protected by a statute that permits any search of their records law enforcement should want.
The same could be said for hotel guests, whose expectation that any info turned over in exchange for access to a room would be limited to them and the business owners -- and not forcibly "shared" with any law enforcement officer who happened to wander into the building.

The brief also argues that the court should revisit the Third Party Doctrine, as long as it has the eternally-ethereal "reasonable expectation of privacy" on its mind. This doctrine has been used to justify all sorts of warrantless demands for data, as well as forming the backbone of the NSA's most infamous domestic surveillance program, the Section 215 telephone metadata dragnet.

The argument frequently deployed by the government is that any information voluntarily turned over to a third party is fair game. But is the information gathered by hotel/motel operators, in any shape or form, voluntary? The answer should be obvious, but has rarely been given by federal judges. A hotel owner isn't going to give someone a room unless they give up a certain amount of personal information. It clearly isn't voluntary. It's a requirement -- one that's no different than AT&T refusing to give you cellphone service unless it can collect data on calls made and received, along with a certain amount of location data to ensure no roaming fees go uncollected. This "exchange" is no more "voluntary" than the hotel/customer exchange. But yet, the government continues to insist it is, and it is very rarely challenged on this assertion.

As Cato points out, to continue to rely on a barely-there precedent from nearly 50 years ago is absurd. After all, if this outdated view on "reasonable expectation of privacy" was weaponized to turn businesses into ad hoc informants for intelligence and law enforcement agencies, it would be pure madness.
There would be no end to it if the government were allowed to require businesses to perform surveillance on its behalf. Banks could be made to collect and turn over sensitive financial information about customers. The phone company could be made to turn over information about Americans’ calling behavior. The list goes on.
Ha. It's funny because IT'S EXACTLY WHAT HAS HAPPENED.

The government has no "right" to warrantless access to anything it decides is "voluntarily" being turned over to third parties. Or, at least, it shouldn't have this right, but the courts (and secret laws with secret interpretations) have turned warrantless acquisition into the default mode. If the end is law enforcement, then these agencies need to be forced to produce something resembling "probable cause" in exchange for the wealth of data being generated by citizens every minute of every day. But respecting the Fourth Amendment is often pitched to judges as an impediment to efficient law enforcement. There has been some very recent pushback from the judicial branch that calls into question the long-held assumption that the ends are self-justifying. The same needs to happen here at the highest court in the land.

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  • identicon
    David, 18 Feb 2015 @ 1:59pm

    "Third party doctrine"

    If you really look at what the "third party" doctrine claims, every communication should be available to the government without warrant since "communication" implies information handed to somebody else.

    Now if we look closely, it's actually a second party we are talking about. But why should my registration information to the hotel be considered to be handed to a third party? If that's supposed to be the third party, who is the second one?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Feb 2015 @ 2:17pm

      Re: "Third party doctrine"

      "Aliens"

      reply to this | link to this | view in chronology ]

    • icon
      The Wanderer (profile), 12 Sep 2016 @ 7:40am

      Re: "Third party doctrine"

      Since this hasn't been answered in the intervening year-and-a-half, here's my understanding of the logic underlying the use of the term "third party" in this context.

      The first party is the one to whom the "papers and effects" in question belong.

      The second party is the one who is looking to gain access to those same items - i.e., the government.

      If this second party demanded them from the first party, the first party would have a right under the Fourth Amendment to refuse; if the second party tried to access them in the first party's possession without permission, or tried to take them from the first party without permission, that would be a violation of the Fourth Amendment.

      The third party is the one to whom the first party has voluntarily provided those same items.

      The Third Party Doctrine holds A: that since these items do not belong to this third party, the third party does not have a Fourth Amendment right to refuse the second party's demand to see or obtain them, and if the second party were to access them without permission that would not be a violation of the Fourth Amendment, and B: that since the first party voluntarily provided the items to the third party, the first party does not have a Fourth Amendment right to preclude the third party from handing them over.

      Thereby neatly precluding anyone from having a Fourth Amendment right to object to the second party's obtaining these items.

      reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 18 Feb 2015 @ 2:19pm

    A hotel owner isn't going to give someone a room unless they give up a certain amount of personal information. It clearly isn't voluntary. It's a requirement -- one that's no different than AT&T refusing to give you cellphone service unless it can collect data on calls made and received, along with a certain amount of location data to ensure no roaming fees go uncollected. This "exchange" is no more "voluntary" than the hotel/customer exchange. But yet, the government continues to insist it is, and it is very rarely challenged on this assertion.

    ...but if you don't want to voluntarily turn this information over, you're free to not do business with the entity attempting to collect this information, right? Vote with your wallet, just go to the competition who's providing better service and asking less questions, and let the Invisible Hand of the Free Market magically come to the rescue.

    ...right?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Feb 2015 @ 2:43pm

      Re:

      I haven't seen that hand work anything out yet.

      reply to this | link to this | view in chronology ]

      • icon
        John Fenderson (profile), 18 Feb 2015 @ 2:58pm

        Re: Re:

        The "invisible hand" is a real thing that makes a real impact, but despite what so many free market extremists claim, the "invisible hand" is not omnipotent.

        reply to this | link to this | view in chronology ]

        • identicon
          Pragmatic, 19 Feb 2015 @ 6:32am

          Re: Re: Re:

          @ Mason Wheeler, there is no such thing as the free market. The notion of an invisible hand intervening via shifts in supply and demand provide cover for what is essentially a delusion: that however small or disadvantaged we are we can trade or negotiate our way to a better tomorrow. Uh, that's not true.

          While the market in hotels is not exactly strangulated in the way that broadband is, there are times when you have to choose between what you want and what there is. Where is that invisible hand then?

          I usually find it flipping the bird at me.

          reply to this | link to this | view in chronology ]

          • icon
            John Fenderson (profile), 19 Feb 2015 @ 7:46am

            Re: Re: Re: Re:

            "that however small or disadvantaged we are we can trade or negotiate our way to a better tomorrow. Uh, that's not true."

            That's also not exactly what Adam Smith was talking about with the "invisible hand" phrase. But you're right -- modern corporatists have a terrible habit of misrepresenting his works, including this.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Feb 2015 @ 3:32pm

      Re:

      I think you missed the part where the hotels are required by law to collect this information.

      reply to this | link to this | view in chronology ]

      • identicon
        Zonker, 18 Feb 2015 @ 4:08pm

        Re: Re:

        Ah yes, hotels are required by law to collect your information, which they are in turn required to turn over to law enforcement without a warrant under the "Third Party Doctrine". Thus, you are required by law to consent to unwarranted searches of your personal information without your knowledge if you ever stay at a US hotel.

        Totally constitutional, right?

        reply to this | link to this | view in chronology ]

    • icon
      ottermaton (profile), 19 Feb 2015 @ 8:23am

      Re:

      ... let the Invisible Hand of the Free Market magically come to the rescue.

      Read this somewhere once:
      The invisible hand of the free market is what punches workers in the nuts.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Feb 2015 @ 2:25pm

    Bottom line -

    Only the Govt can arrest you, shoot you, take your stuff and hold you in prison. A hotel, retailer, marketer, etc can NOT do any of those things. I higher standard MUST be placed on those who have authority to use force.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Feb 2015 @ 2:41pm

    Next, they're going to want AirBnB records,

    warrantlessly.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Feb 2015 @ 3:31pm

    The police will counter that this is the ONLY way that they can hope to catch fugitives on the run. Unless it is a very small hotel in the middle of nowhere, you can be sure that when you check in, your identity will be in the hands of local police within a matter of hours at most.

    reply to this | link to this | view in chronology ]

  • icon
    got_runs? (profile), 18 Feb 2015 @ 5:50pm

    >_

    It doesn't matter what the Supremers say the cops will do whatever they want and lie about it.

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 18 Feb 2015 @ 6:17pm

    The title of this article is wrong. It should read;

    Supreme Court To Greenlight LA Law Enforcement's Warrantless Access To Hotel Records

    Also, regarding this part;

    The brief also argues that the court should revisit the Third Party Doctrine, as long as it has the eternally-ethereal "reasonable expectation of privacy" on its mind.

    That's never going to happen. How many times in the past has the SCOTUS heard a case where they also had the opportunity to make a decision on the bad law the case was based on and they punted?

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 18 Feb 2015 @ 9:08pm

    Don't get your hopes up

    Yeah, as nice as this could be, I can't help but think that there is absolutely no way the SC would ever rule in such a manner to strike the Third Party Doctrine from the books. The government absolutely loves that little trick to scoop up info without warrants, there is no way the SC has the spine to take their favorite toy away from them.

    If, and that's a big if, the SC rules against the police here, I have no doubt they will rule as narrowly as they can, such that the ruling will only apply to a very specific set of circumstances, and leave the legality, and constitutional status of the third party doctorine completely untouched.

    reply to this | link to this | view in chronology ]

  • icon
    Padpaw (profile), 19 Feb 2015 @ 7:24am

    "we are the police, we do whatever we want."

    reply to this | link to this | view in chronology ]


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