Monday, August 2

Haystacks, Needles, And The Fourth Amendment

Such is the parlous state of the Trump Administration’s attitude toward constitutional liberties that the knee-jerk reaction is instant alarm to any contact between the Trump Justice Department and, e.g., the First Amendment.  Maintaining one’s equanimity is difficult, rather like discovering after lunch that one’s Caesar salad had been sprinkled with Ebola Zaire. In a certain sense, that is as it should be. One does not have to advocate for the sainthood of Barry Goldwater to agree that “Extremism in the defense of liberty is no vice”. But especially in just such cases, one needs to exercise some rationality and restraint. One such case is the recent request by the Justice Department for a warrant to obtain the web histories of all visitors to an anti-Trump website. Even granted that the Devil is in the details, there are enough troubling circumstances about this request, and even the limited, on-second-thought degree to which it was granted, that lovers of the First Amendment should be concerned.

On the one hand and in the interest of bend-over-backwards fairness, we should admit up front that, yes, there are times when such surveillance is justified, provided that all the usual Fourth Amendment safeguards are in place and respected:  probable cause, explicit specificity written into the warrant of materials / objects to be searched for, and approval and signature of a judge who presumably heard adversarial arguments for and against the issuance of the warrant.  Evidence obtained in violation of any of these restrictions has long been held as inadmissible, as has any evidence indirectly obtained by virtue of the initial improper search. The Nardone case, in fact, seems to have been the origin of the term “fruit of the poison tree”, and this entire sequence of Fourth Amendment case law was eventually summarized under the so-called “exclusionary rule” whereby evidence obtained in a manner violative of the Fourth Amendment may be excluded from presentation at trial. (This is not the whole story; keep reading.) Nevertheless, there have been hundreds of cases in which practices like wiretapping, the interception of mail, and both photographic and audio / video surveillance have been approved, and the results cited, in pursuit of quite legitimate, even life-and-death-vital aspects of law enforcement and national security. Therefore, while the Justice Department’s request for a warrant to obtain web histories of all people visiting a given site is properly a matter of concern for civil libertarians, the mere request for permission to exercise such surveillance is not prima facie violative of the Fourth Amendment. Citizens have a compelling interest in privacy, but the government has a no-less-compelling interest in maintaining national security.

But in the particular case of the web histories of people visiting DisruptJ20, there are some elements of concern.  In particular:

o There are some 1.3 million individual IP addresses encompassed by the request for a warrant. Granted, the Justice Department considerably scaled back the scope of this request. But it is not clear how many IP addresses would be subject to examination in the smaller-scale version. Let’s use a strictly seat-of-the-pants number and suppose that the revised warrant request excluded all but two percent of the original 1.3 million. That would still leave 26 thousand IP addresses to be evaluated for potential threats. Remember that the Fourth Amendment permits issuance of a warrant only on “probable cause”.  I.e., the mere fact that someone visited the DisruptJ20 web site does not constitute probable cause. The visit could be no less accounted for by, e.g., idle curiosity, mis-typing the URL, inadvertent linking to DisruptJ20 from click-bait sites hosted on other web pages, etc., etc., etc.  So there would be 26 thousand individual instances in which some kind of suspicious activity would have to be demonstrated before a warrant could be properly issued justifying further examination of activity on that particular, individual IP address.

o The Justice Department lawyers who originated the warrant request egregiously underestimated the scope of the task. NBC News quotes unnamed government prosecutors as saying that "what the government did not know when it obtained the warrant — what it could not have reasonably known — was the extent of visitor data maintained by DreamHost [the web hosting company used by DisruptJ20] that extends beyond the government's singular locus in this case." This strains credibility. Are we to seriously entertain the possibility that attorneys prosecuting a case of serious cyber-crime are surprised by the scope of data contained in the records of a company whose most fundamental raison d’etre is to host web pages? One would be less surprised at a cattleman’s astonishment upon  learning that … wow! … there really is actual cow manure in feedlots. Do the learned attorneys  requesting the original warrant know how to spell “disingenuous”? On the other hand, if the surprise should prove genuine, then said lawyers are clearly incompetent to prosecute – of all things! -- cyber-crime.

o It is worth noting that the original anti-Trump Inauguration Day protests resulted in only about 2 hundred indictments, i.e., one-hundredth of 1.5 percent of the projected 1.3 million, and that is assuming that all 200 indictments were traceable to the examination of suspects’ DisruptJ20 histories … searching a mighty big haystack for a mighty small number of needles. Just this raw disparity of scale alone raises interesting questions about precisely what the Trump Justice Department is after. Captain Ahab did not go hunting for Moby Dick in a neighbor’s koi pond.

Finally, just to be complete, it is worth briefly noting that the application of the exclusionary rule is not as cut-and-dried as I perhaps made it sound above. There are certain circumstances whereby the consequences of the exclusionary rule may be avoided, even if a search is improper:

o Incriminating articles evident in plain sight … e.g., a search for a weapon in a house where marijuana is lying in the open on a sofa and clearly visible would be legal, even if marijuana were not mentioned in the warrant (Washington v. Chrisman)

o Incriminating items improperly found and seized under the terms of an improper search, but which were legally found and seized under the terms of a separate and proper warrant:  the “independent source exception” to the exclusionary rule, e.g., Gilbert v. California

o Incriminating materials that were not found under the terms of a proper warrant, but which, judging by preponderating evidence, would inevitably have been found (e.g., a drug stash hidden under a stack of newspapers during an otherwise-exhaustive search of the premises) as in e.g., Hudson v. Michigan.the doctrine of “inevitable discovery”

o The doctrine of “attenuation,” whereby sufficient time has elapsed between an illegal search and its precipitating cause to purge the illegal search of any “poison tree” taint, e.g., United States v. Ceccolini. Also see the more recent case of Utah v. Strieff.

The point of all the above case-law citations is that, in order to circumvent questions of the constitutionality of the DisruptJ20 warrant, such a hypothetical warrant would have to be shown to be superfluous, so as to render constitutional issues moot, by appeal to one of the four classes of exceptions to the exclusionary rule. Given that we are discussing electronic evidence, and given the potential volume of data and records, it is difficult to see how the above exceptions would be relevant.

(If all this seems head-bustingly complicated, please rest assured that [a] this degree of complexity is quite routine in questions of deep constitutionality, and so [b] I have not so much as even touched the uppermost crystal on top of the jurisprudential iceberg, e.g., I have not so much as alluded to the exclusionary rule in relation to primary vs. derivative evidence. Nor have I even mentioned the much weaker "reasonable suspicion" criterion in Terry v. Ohio, which is probably not relevant, anyway, since Terry mostly pertains to the grounds for detaining a suspect. And I am not even a lawyer.)

One concluding note:  considerations like the above illustrate why, as much as I admire him otherwise, to the point of dreaming of him someday becoming Chief Justice of the Supreme Court, I nevertheless vehemently disagree with Prof. Akhil Reed Amar of Yale Law School re the exclusionary rule. Prof. Amar regularly takes the Warren Court to task for what he regards as an overly draconian construction of the exclusionary rule, holding police and courts to unnecessarily stringent requirements regarding the “pedigree” of evidence. Prof. Amar’s alternative is to allow the defendant to contest the constitutionality of evidence by retaining legal counsel, and arguing against allegedly tainted evidence on appeal. Theoretically, yes, that could work. But, even if the complainant won and the conviction were overturned on Fourth Amendment grounds, the resulting legal costs would render such a “victory” Pyrrhic, at best. Someone convicted on the basis of an improper / illegal search, who proceeded to challenge same, would lose even if s/he won. Better to keep the exclusionary rule as it is, and to revise it in specific detail, than to open the Pandora's box of unintended consequences by undertaking a ground-up reinterpretation of the Fourth Amendment.

This is especially true if the Trump Justice Department is, as it may well be, determined to tear apart the entire immense haystack in order to find and punish a few dissident needles.

James R. Cowles

Image credits

4th Amendment ... Nick Youngson ... CC by SA 3.0
4th Amendment written ... Nick Youngson ... CC by SA 3.0
"Privacy" gag ... Tom Murphy ... Creative Commons Attribution-Share Alike 3.0 Unported
March on Washington ... Rowland Scherman, USIA ... Public domain
"White tenants" ... Arthur S. Siegel, Library of Congress ... Public domain
Eggs ... Gabriel Lima ... CC BY 2.0


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