from the area-law-prof-feels-cops-shouldn't-be-restrained-by-the-Constitution dept
On March 9th, we covered a Virginia court’s decision to reject a geofence/”reverse” warrant as unconstitutional. This was brought to our attention by FourthAmendment.com. Roughly a month later, it’s suddenly news.
The belated coverage — most of which is simply a reprint of an Associated Press report — is kind of terrible. So is the original reporting. Here’s ABC News’ regurgitation of the AP report:
The decision — believed to be the first of its kind — could make it more difficult for police to continue using an investigative technique that has exploded in popularity in recent years, privacy experts say.
The ruling came earlier this month in a closely watched Virginia case in which the robbery suspect argued that the use of a “geofence warrant” violated the Fourth Amendment.
First: this rejection is not the “first of its kind.” These warrants have been rejected by courts before. Here’s Techdirt’s coverage of two consecutive rejections of a geofence warrant published in June 2020. Here’s another rejection covered by Techdirt — this one arriving nearly a year ago, in June 2021.
So, not the first of its kind. And for a “closely watched,” it seems to have been ignored for most of the month before achieving some sort of critical mass via the AP’s reporting.
It has also caused people to form opinions. Some of those opinions are as awful as the delayed reporting preceding them. Case in point, this op-ed written for the Washington Post by University of Arizona law professor, Jane Bambauer.
According to the headline, this is the argument Bambauer is making:
Letting police access Google location data can help solve crimes
Well, sure. That’s an easy argument to win. All sorts of things would help police solve crime, like warrantless searches of houses or a national registry of all users of messaging services that includes accounts and passwords. Plenty of things would help solve crimes. But we have a Constitution that says rights can’t be ignored just because law enforcement wants to be more efficient.
Because this fact of American life is inescapable, there’s a head nod towards the Constitution in the subhead… but only to suggest the Constitution doesn’t apply to geofence warrants and their reversal of probable cause requirements.
Acquiring anonymous data about which devices were in a bank at the time of a robbery should not be unconstitutional.
Really? I mean, is that the argument that needs to be made: that tech company data collections should be an open book for law enforcement? The operative word is “reasonable.” “Reasonable” as in searches and “reasonable” as in expectations of privacy. People may agree to share location data with Google. That doesn’t mean they should “reasonably expect” law enforcement can obtain this data with so-called warrants that turn all devices in sometimes very unreasonable proximity of a criminal act into evidence of that criminal act. And it turns everyone into a suspect until proven otherwise by corroborating data that relies on a pretty unconstitutional process to generate leads.
The argument in the body of the Washington Post op-ed is about as conclusory as the headline, unfortunately.
Clearly, some judges are uncomfortable with giving police any access, absent a finding of probable cause, to the gobs of data that are collected on law-abiding Americans. But while some civil-liberties advocates hailed the decision, it may reflect a too-cramped view of how to balance a right to privacy against the effective maintenance of public security. In truth, geofence warrants present an opportunity for sound policing that is consistent with constitutional principles.
Cognitive dissonance is definitely one way to present an argument. It won’t be taken seriously by people who seriously consider things, but it will be useful to people who present arguments resting almost solely on appeals to authority, like so many law enforcement officials do.
But this is Bambauer’s wheelhouse. She hasn’t always been terrible about law enforcement/tech issues. She appears willing to seriously consider the implications of allowing law enforcement to exploit the gaps between the law and tech advances. But she also has provided plenty of arguments law enforcement officials will find attractive (and, hopefully, convincing) in published papers and articles.
Here’s her coming down on the side of those who see American’s carceral state as something more closely aligned with uncalibrated vengeance, rather than the system of justice and rehabilitation it pretends to be.
The other two of us — Jane Bambauer and Andrea Roth — independently arrived at the same methodology as a way to determine what sentence of imprisonment might be “proportionate” to the harm inflicted by the crime. Their motivation was to explore whether the substantive due process limits on punitive damages in tort law (which, under State Farm v. Campbell, generally cannot be over 10 times the amount of “compensatory” damages corresponding to the harm caused) might be extended to criminal sentences as well. Bambauer and Roth overcame the difficulty in estimating what part of a criminal sentence corresponds to the harm caused by the crime by using RHV. This method measured the harm-equivalent sentence by quantifying what length of prison sentence survey respondents would be willing to endure to avoid being victimized by various crimes.
Bambauer and Roth’s results suggest that sentences exceeding a 10:1 ratio to “harm” are routinely imposed and thus would be presumptively unconstitutional under Campbell.
Good stuff. But most of what Bambauer has advocated for in the past more closely aligns with this op-ed. If cops can exploit tech because the law is underdeveloped, the public would be better served even if their rights are sacrificed on the altar of cop efficiency.
One such sacrifice would be to the God of Facial Recognition. As Bambauer argues in this paper, any immediate “hassle” of innocent people due to imperfect tech would first be outweighed by contributions to public safety. This would allow police activity to scale properly (in Bambauer’s belief) while the public waits for courts and laws to catch up with the constitutional implications.
Because courts designate practices as individualized when they are costly (for example, gumshoe methods) or lucky (for example, tips), the requirement has confined law enforcement to practices that cannot scale. New investigation methods such as facial-recognition software and pattern-based data mining, by contrast, can scale up law-enforcement activities very quickly. Although these innovations have the potential to increase the accuracy of stops and searches, they may also increase the total number of innocent individuals searched because of the innovations’ speed and cost-effectiveness. By reforming individualization to minimize hassle, courts can enable law-enforcement innovations that are fairer and more accurate than traditional police investigations without increasing burdens on the innocent.
The same point is made again, possibly even less artfully, in Bambauer’s post for Lawfare.
[A]cknowledging the potential costs of police use of facial recognition, I make the case that such use is still warranted. My argument goes as follows: (1) to the extent criminal justice reformers have political capital to spend, it should be spent dramatically reducing criminal liability and sentences for all crimes while increasing the probability that criminal conduct will be detected; and (2) facial recognition is a valuable tool for increasing the probability of detection because it reduces the discretion that police officers have as compared to other forms of surveillance. Holding everything else constant, it is more efficient and more fair for police to run a photograph through facial recognition software to identify candidate suspects than to try to identify the suspect using witnesses or to solve the case without using the image.
This published paper is even more absurd. The first sentence is a non-starter and it closes with a completely bizarre assertion that is completely disconnected from reality.
This short essay makes the uneasy case for the narcotics dog. Those in favor of U.S. drug enforcement presumably need no convincing, but this Article intends to address the concerns of skeptics who worry about unjust drug enforcement, or who believe that criminalization is just plain bad policy. Dogs are just the first generation of a new set of law enforcement tools that can help us divorce criminal investigation from the bias and discretion that comes with traditional policing.
As long as drug dogs are used by cops, they cannot possibly be divorced from “bias and discretion.” The problem isn’t necessarily the dogs. It’s the police. They’re “bias and discretion” incarnate. Until you remove bias and discretionary enforcement from the business of policing, it doesn’t really matter what case you make for drug dogs. For their entire history, drug dogs have been nothing but animals trained to do tricks that allow cops to bypass constitutional protections.
Back to the matter at hand, Bambauer believes the Virginia court was wrong. And she has brought more incorrect assertions to back up her assertions.
[T]he judge overemphasized the importance of consent. Even though voluntary consent is a factor in determining which privacy expectations are “reasonable,” it is not a necessary condition. There’s clearly no consent involved when phone companies track the numbers people have dialed or banks keep records of deposits and withdrawals, but police can access these without a warrant. Police of course can also observe and follow people in public even though people have not affirmatively consented to being watched in public. And police can freely consult security-camera footage, inside and outside of buildings.
First, the courts are starting to pay more attention to what consent means in this context, as well as what’s reasonable following the Supreme Court’s decision in the Carpenter case. Some courts are starting to realize that consent to supply information to service providers is not a tacit agreement to share that info with the government. Cell site location info has already been found to be past the bounds of “reasonable,” at least in some situations. This op-ed ignores this fact and tries to equate other records still covered by the Third Party Doctrine to the mass collection of location info from hundreds of non-suspects via reverse warrants.
Then it goes on to assert something that simply isn’t true: police cannot “freely consult” security camera footage collected and owned by private companies or individuals. They can request it and seek consent. But no one is obligated to turn over this footage without being served a warrant or subpoena.
According to this op-ed, as long as the list of potential suspects was whittled down to an apparently acceptable number, no harm was done.
It is not clear what sorts of encounters and information-gathering the police used to rule out these two potential suspects, but the anxiety and privacy burden absorbed by them was almost certainly greater than the burden to the 18 individuals whose approximate movements in public during a one hour time span were disclosed in deidentified form.
Basically, this piece says the Fourth Amendment should not be applied to new tech because doing so might prevent law enforcement from investigating some crimes. But even taking that at face value would be incorrect. It won’t stop law enforcement from investigating crimes. It will simply stop law enforcement from using these methods during investigations. Investigations will still occur. It’s just that cops won’t be able to use Google to build their lists of suspects. All is not lost if courts find these warrants unconstitutional. Law enforcement investigators solved crimes before Google and smartphones. They’ll still be able to do this even without access to a third party’s data stores.
Filed Under: 4th amendment, drug dogs, geofence warrants, law enforcement, surveillance