Policing in a Democracy Without Privacy

Introduction

It is an honor to be invited to offer a book review of another fine work by Professor Barry Friedman. There is so much to love about his book. Unwarranted: Policing Without Permission (hereinafter “Unwarranted”) weaves together powerful vignettes to create a cohesive narrative about modern policing in the United States. The book provides an overview of problems with modern policing, evaluates constitutional safeguards, and addresses challenges that arise as technology advances. Combining short stories with a survey of constitutional law and its application to a changing world, Unwarranted is relevant, interesting, and accessible to the scholar and layperson alike. However, we provide less value to potential readers by simply heralding this wonderful book than in pointing out its flaws, so we will not focus on those great many things that are praiseworthy in this review. Suffice that it is a truly marvelous book, and anyone interested in the subject of law enforcement would be wise to read it.

We will move to our two primary critiques. Our first critique concerns Professor Friedman’s suggestion for “front-end” rules to limit police behavior during encounters with non-law enforcement individuals. Other scholars have suggested similar types of reform, and we remain unconvinced. In a nutshell, as we will detail in Part I, we do not believe drafting what Professor Friedman calls “front-end” rules or standards is going to be as easy or feasible as he hopes. More importantly, we do not think he is going to like the rules we will probably receive from legislatures, internal police boards, or civilian review boards, at whatever local to national level at which they are generated.

Our second critique is that discretion by peace officers in citizen-law enforcement encounters is not the most critical area on which to turn community focus. We think the discretion problem will be resolved primarily by the soon-to-be constant state of private and government surveillance under which we all live. We would have instead liked to see a focus on whether the Fourth Amendment can possibly protect the “privacy” Professor Freidman advocates. We believe that the combination of our fear of terrorism, new Big-Data methods of Counter-Terrorism enforcement, and the relentless march of new intrusive technology by the private sector is going to give national politicians the ammunition they need to demand that high-tech companies share the information they collect on all of us. Thus, we suggest in Part II(A) that privacy is a deadman walking. Cabining discretion by officers in citizen-law enforcement encounters, the focus of Professor Friedman’s book, should not be our top concern. In fact, the impending recording of everything we do or say coupled with Big Data collected by the government may allow easier adjudication of law-enforcement-citizen encounters in subsequent civil rights actions. This is true, we argue in Part II(B), despite the Court’s recent seemingly contrary decision in Carpenter v. United States.¹Finally, in Part II(C), we mention that scientific advances in law enforcement and changes in our substantive criminal law would do a better job of protecting whatever privacy we retain. We conclude that the inevitable lack of privacy will have at least one advantage—we will all be treated more (or less) “reasonably” and equally regardless of skin color, religious beliefs, and other characteristics that should play no role in such encounters. Technology will also foster more efficient predictive policing, which may in turn lower crime rates and make us all safer. We will let the reader decide whether the cost of such improvement, a Big Brother government from which we can keep no secrets,²is worth the price.³

I. Democracy and “Front-End” Police Conduct Rules

Professor Friedman provides many examples of bad behavior by police officers He laments that we cannot make police democratically accountable for such bad behavior by civilian complaint boards, special monitors, or even judicial review. The problem, he informs us, is that “most of the oversight in policing today is after-the-fact review, when what we need are policies put in place before things go wrong. . . . Legislative bodies could write these rules—and undoubtedly do more of it—but the policing agencies also could do it themselves.”⁴

While Professor Friedman correctly describes current police oversight, his wish to resolve the sometimes tragic consequence of encounters between law enforcement officers and citizens cannot be accomplished by his stated solution; “rules that are written before officials act, rules that are public, rules that are written with public participation.”⁵The first obstacle is that a blind request for such rules will not inform the drafters how to create more specific front-end rules that govern the myriad of things that can occur during a routine traffic stop or any other police-citizen encounter. That is, reasonable people will be unable to identify all of the rules that are necessary in advance, and the majority of people (who likely identify more closely with law enforcement than detainees) will have very different ideas regarding which rules to institute than those likely advocated by Professor Friedman. The second obstacle is that good-hearted people may not agree on whether an officer’s conduct was “reasonable” even when they examine it after the encounter, with full audio and video of the event, especially because the consequences of an “unreasonable” finding are so high.⁶

We will start with an example of a controversial police stop of a driver to explore the use of front-end rules to regulate official behavior—the infamous Sandra Bland case.⁷On July 10, 2015, Ms. Bland was pulled over by Texas Department of Public Safety (DPS) Trooper Brian Encinia for failing to signal a lane change. Ms. Bland was a Black Lives Matter activist who thought the traffic stop was pretextual, so she refused the officer’s initially civil request to put out her cigarette. This led to a legal order for her to get out of the car. A twenty-six-minute dashcam video shows that the encounter soon became belligerent on both sides. In the face of her refusal to get out and her creative use of obscenities, Ms. Bland was arrested by Trooper Encinia in a senseless, but legal, arrest. Tragically, she committed suicide by hanging herself in her Waller County Jail cell three days after her arrest.⁸The grand jury on December 21, 2015, decided not to institute charges in Bland’s death. However, her family filed a wrongful death lawsuit which settled for $1.9 million. Trooper Encinia was indicted in 2016 on perjury charges (which were subsequently dropped), and finally he was fired by DPS. Many watching that tape (us included) believed that while the officer was unnecessarily rude and combative, and used his power of arrest to “punish” a driver for being uncooperative, he probably did not technically violate the Fourth Amendment.⁹

However, reasonable minds can differ on this conclusion. Having the twenty-six-minute dashcam video can help the jury (in a potential civil case against the officer) or the grand jury (in a potential criminal indictment against the officer) evaluate the encounter. While there is clearly reduced privacy, as everything we do or say as citizens or as peace officers is recorded, we at least get something in return by way of evidence. Though, as we note above, the possession of such evidence may make it easier to resolve issues of “reasonability,” but it may not be definitive.¹⁰

We rule-drafters, from citizen review boards, internal police guidelines, or local or national legislatures, can do little more, except in the most egregious cases, than give our opinion regarding the reasonability of police conduct, as a judge does after an encounter in a suppression motion or in a civil 42 U.S.C. § 1983 action. In the former situation judges are likely to find that the officer acted in “good faith,” and in the latter, that the officer had qualified immunity.¹¹ We can certainly turn all constitutional Fourth Amendment cases into ex ante rules, and we try. But beyond relatively easy questions such as whether an officer can kill an unarmed, non-dangerous fleeing felon (Tennessee v. Garner—no)¹² or whether an officer can detain a person upon “reasonable suspicion” that he or she committed an offense (Terry v. Ohio—yes), ¹³ one cannot draft ex ante rules to cover most situations. The best we can do is offer an opinion on the reasonability of officer behavior after-the-fact.

While we could try to write an enumerated list of “bright-line” rules for peace officers to follow during the course of a stop, it would be difficult, if not impossible, to cover the myriad of circumstances a cop could encounter even on a routine traffic stop. For example, how would we construct the rules to handle the encounter with Sandra Bland? Can an officer demand that a driver put out her cigarette or spit out gum? What if it were hard to understand her answers to the cop’s questions with something in her mouth? Can he use a “nasty” tone-of-voice? Ask her to put down her phone, or turn it off? Determine whether she is “agitated” from looking at her, especially in cross-racial, cross-gender, and crosssocio- economic scenarios?

For a second example, we will examine the sad story from the introduction of Unwarranted. Mr. and Mrs. Carter, an elderly Black couple in their sixties, were driving from Florida back to their home in Philadelphia after helping their daughter move into her new home.¹⁴ They were pulled over in a rented moving van for weaving through traffic. The officers made the Carters wait while a drug dog was called. The couple was ordered to sit on the side of the road while officers aggressively searched the car. During the search, Mrs. Carter asked to use the portable restroom they carried in the van. The officers said if she stood up again that she would be handcuffed, and Mrs. Carter eventually had to relieve herself in public, wearing her clothes, where she was sitting. The officers found no drugs, and the department found nothing inappropriate, much less unconstitutional with the encounter. Would front-end rules have helped and, if so, which ones? Should a rule require officers to escort drivers or passengers to the restroom? What if they had their own portable restroom, or one was close by? Would it be based on age? Medical condition? Must a proper southern lady explain her bladder-leakage problems to a stranger? Even if you could construct a rule for this and every specific scenario, the resulting rulebook would be enormous. Even if we could list the thousands of rules, no officer will be able to remember them. Perhaps the most we can do is give them discretion and ask them to behave “reasonably.”

Given that it is frequently impossible to answer these questions in advance, and that there is often no way to determine ex ante whether a particular search or seizure is reasonable, the Court created what Professor Klein calls “constitutional safe harbor” rules.¹⁵ These rules provide that when an officer properly follows a limited set of standard procedures the search will not be declared a violation of the Fourth Amendment; any evidence found is admissible and the officer conducting the search cannot be civilly liable for money damages in a civil rights suit.¹⁶ Take the request that an officer makes to a driver and passenger to get out of her stopped vehicle. We could try to list every factor which might make it reasonable to make such a request. Was the driver belligerent? Did the passenger “look sketchy”? Did the officer have any reason to believe there was evidence, contraband, or a weapon in the car? Instead, the Court has held that it is always reasonable for an officer to make such a request in the interest of the officer’s evaluation of her safety.¹⁷ Additionally, the Court finds that we cannot second-guess the officer’s safety evaluation even by watching a video that 100% of us would agree showed that the occupants of the car posed no danger to the officer. We believe the Court proposes such a clearcut rule because it realizes that we simply cannot write detailed rules that will tell us in advance, for each possible permutation of situations, when safety is a legitimate issue, and we value officer safety above what some see as an infringement on their privacy rights.

We should, of course, look for solutions to combat encounters where law enforcement abuses citizens. There are numerous examples of these encounters, and we would be remiss to throw up our hands in defeat simply because Professor Friedman’s solution is not feasible. However, the solution does not lie in crafting more specific front-end rules. It would be impossible to make rules to cover the breadth of situations police officers encounter. Finally, and perhaps of equal importance, even if rules were written, they would likely be pro-government and unhelpful in preventing undesirable encounters. As Professor Bowers noted: “The response of the left-liberal formalist might be to layer on ever-more precisely defined conduct rules—for instance, rules categorically prohibiting pretext, error, or even full-custodial arrest (at least as to some low-level offenses). But even if such bright-line reforms were feasible, they likely would prove inadvisable. The temptation is just too great (and too often normatively appropriate) to carve piecemeal exceptions. Life outstrips law.”¹⁸

We believe that front-end rules both are not possible to craft and would be heavily one-sided in favor of the government if it were possible to craft them. Many scholars have offered alternative suggestions on how to regulate police use of force and improve police department internal guidelines for deciding whether to make stops, and then how to treat people during these stops. We do not think they fare much better. For example, Professors Garrett and Stoughton believe that the problem in use of force cases stems from a Fourth Amendment reasonableness standard that focuses on split second, individual decision-making.¹⁹ They argue that officer behavior in § 1983 suits should instead be evaluated through “objective standards of care” that incorporate research and experience.²⁰ In other words, officer behavior should be evaluated based upon the reasonableness of officer conduct both before and after the moment of force.²¹ Professors Garrett and Stoughton present methods that officers can use to create time (distance, cover, withdrawal) and assert that created time can be used to reduce use of force (conflict avoidance, de-escalation, verbal directions, backup).²² They note that “even the largest police agencies have varying policies, however most counsel the minimization of force and provide guidance on key tactical lessons, such as the principles of conflict avoidance and de-escalation.”²³ Finally, they argue that sound police tactics should be included in constitutional analysis.²⁴ Though Professors Garrett and Stoughton rightly emphasize the need for training that incorporates the latest research regarding which methods best encourage de-escalation, they admit that most large forces already have such guidelines in place. While better training grounded in actual research may not translate into front-end rules, it is still well worth doing if it translates to better police behavior. Moreover, it may be useful in conducting the reasonableness review likely to happen after the encounter.

Professors Eagly and Schwartz also focus on use of force cases, and do a terrific job describing a process already in motion. They identify and analyze the growing practice of privatized police policymaking and describe the rise of Lexipol’s regulations for the use of force.²⁵ Nationwide, over three thousand police agencies have purchased policy manuals, Daily Training Bulletins, and implementation services from this single company. ²⁶ In our opinion, this does no worse a job than police departments writing their own manuals, and perhaps a better one. As Professors Eagly and Schwartz recognize, Lexipol is particularly helpful in providing updated guidelines to small police forces that do not have resources to create their own.²⁷ An inexpensive method for obtaining at least rudimentary access to prevailing SCOTUS opinions regulating police behavior is an improvement. However, such rules will not be specific and detailed enough to guide police behavior in all or even most situations, and thus they do not meet Professor Friedman’s requirements. Further, as Professors Eagly and Schwartz note, there are other serious concerns with this type of private, for-profit policymaking.²⁸ We might be worse off if we allow Lexipol to draft a detailed list of rules.

A number of authors suggest that we use an administrative framework rather than judicial one to vindicate Fourth Amendment values. ²⁹ For example, Professor Renan highlights the difference between Fourth Amendment law, which focuses on a specific search or seizure, and modern surveillance law, which is ongoing and cumulative. ³⁰ Professor Renan emphasizes that this difference means modern surveillance is not adequately handled by Fourth Amendment jurisprudence or current legislation.³¹ She argues that a new criminal procedure where the Fourth Amendment is integrated with administrative law could be an effective solution.³² The Court would supervise agency decision-making, and many types of “searches” could be regulated by transparent programs governed by current administrative law tools.³³ This is no doubt an interesting idea, but one that will not, at least anytime soon, either be implemented by our Court or, if implemented, correct the problems identified by Professor Friedman.

What can we do to resolve disputes regarding the reasonability of police-citizen encounters after they occur? Can we permit more public involvement in the process? This brings us to our second critique of Professor Friedman’s book.

II. Technology and Privacy

We have all heard this horrific story. On July 17, 2014, plainclothes police officers approached Mr. Garner.³⁴ They suspected he was selling individual cigarettes. They had approached him previously for doing so and left when he protested. Mr. Garner passionately protested on this occasion, but the officers moved to handcuff him. A cell phone video captured the encounter. Mr. Garner pulled away and one officer pulled him down in a chokehold. At this point, several uniformed officers helped hold Mr. Garner down as he repeatedly said, “I can’t breathe.” He laid motionless and emergency medical assistance was called. Mr. Garner died about one hour later. In this situation, the bright-line rule existed and was not followed: NYPD policy prohibited the use of chokeholds.³⁵ As the New York Times noted: “Without video of his final struggle, Mr. Garner’s death may have attracted little notice or uproar. Without seeing it, the world would not have known exactly how he died.”³⁶ A grand jury declined to indict the officer who performed the chokehold, but the city of New York settled a lawsuit brought by Mr. Garner’s family for $5.9 million.³⁷ This encounter illustrates that creating audio and video footage helps us evaluate these situations after the fact. Though the grand jury did not indict the officer, the family did receive a large settlement. Obviously, that will not make them whole, but it exhibits the power of pictures over words.

This is one example of how technological innovations may resolve some of the problems Professor Friedman finds in citizen-officer encounters. As technology improves, most of our encounters with law enforcement (or with any government official at any level and in any location) will be audio- and videotaped. Body-worn cameras are used by police officers to collect footage in both public and private spaces. This practice started in a direct effort to reduce the use of unnecessary force, hold officers accountable, and build trust with the community.³⁸ As of 2016, over half of medium-to-large police departments had already implemented or were piloting body camera programs.³⁹ These videotapes make it easier to later assess the reasonability of officer action—judges in suppression motions, juries in civil rights actions, and perhaps citizen review boards can view the incident and decide for themselves.⁴⁰ Even if they cannot always reach consensus as to what is “reasonable” behavior, officers might at least know better in advance what behaviors are acceptable.

A. The Loss of Privacy in the Modern Age

We are not claiming that this technology is a panacea. Though the use of such cameras will quite likely help us later resolve disputed facts, this is a time-consuming endeavor (both collecting the footage but more importantly having to watch every encounter again in real time). And such technology will not always resolve factual disputes between participants in an encounter—it may be that the angle was off, the sound muted, the image blurry, or the equipment faulty. Perhaps these problems will be resolved as technology advances. An equally important issue is whether the use of these cameras will actually improve officer behavior. One theory supporting the use of such cameras is the hope that being filmed may also change officer conduct, as officers will try their best to appear reasonable knowing they are being watched. Conflicting studies exist, however, with only some finding that officer behavior improves.⁴¹ Others find that officers forget that they are wearing the equipment and behave as usual. This may depend upon whether judges and juries trust the video over officer testimony. The video does not convey “feelings,” and a jury might choose to believe an officer’s description of how he felt over what looked like the opposite on clear video. Finally, the technology itself raises additional privacy issues regarding access to footage.⁴² Should the camera be turned off for sensitive matters, like interviewing a rape victim? Should the public have access to only specific footage, all footage, or none? What should we do about footage of naked people, and how do we ensure that such footage is not posted to the internet without permission to embarrass those featured and entertain others?⁴³

More globally, we are snooped on electronically in almost all large cities, whenever we are in public spaces, and frequently when we are in private stores and homes. Often we do this to ourselves, if we carry smartphones,⁴⁴ wear fit bits,⁴⁵ pay by credit card,⁴⁶ or invite Alexa into our homes.⁴⁷ Though Professor Klein has, until last month, resisted carrying a smartphone on her person,⁴⁸ and still refuses to install any smart appliance in her home, she can nonetheless be tracked as Austin (her home city) has more than 600 cameras watching her from strategic vantage points throughout the city. ⁴⁹ “In any metro, urban area, you’re probably photographed 100 times” during an average day.⁵⁰ Even the sewage system can be used to spy on you.⁵¹

Over three quarters of Americans carry a smartphone,⁵² which can offer law enforcement agencies armed with search warrants your location every minute of every day. Many people wear fit bits and other devices that can offer officers biometric information on you. Beyond simple heart rates, the newest Apple Watch can produce an “an ECG similar to a single-lead electrocardiogram” in thirty seconds. ⁵³ Many have networked home appliances—marketed as the “Internet of Things” but called by public and private security “the internet of spy devices” because “such networked appliances can reveal detailed narratives about personal habits such as sleep patterns and comings and goings.”⁵⁴ All of this information can and is being used by law enforcement to solve crimes. People even offer their own DNA to companies like 23andMe, though this DNA can and again will be used by law enforcement to find criminals—in one case the Golden State serial murderer.⁵⁵

Recordings are not limited to stationary cameras on public buildings, parks, and streets. Private businesses collectively have installed thousands of digital security cameras to deter crime on their premises and aid police officers in solving these crimes when they occur. Thousands of private companies have digital surveillance cameras inside their stores as well as in the parking lots. In banks, schools, and stores here in the United States there are an estimated thirty million surveillance cameras now deployed, shooting four billion hours of footage a week.⁵⁶ Video surveillance alone is a $3.2 billion industry, representing about one-third of the overall security market.⁵⁷ One of those private cameras, at a FedEx Office store in Sunset Valley, helped the Austin Police identify, track, and capture suspect Mark Conditt, an Austin serial bomber who terrorized the city in March of 2018.⁵⁸ And it is not just stationary cameras on public and private streets and businesses. Private “dash cams” are mounted on dashboards and aimed into traffic, deployed by commercial drivers and trucking fleets.⁵⁹

In addition to roving cameras on commercial trucks, now many private citizens volunteer their own security footage to police officers. This might be from a video doorbell on the porch or more traditional cameras pointing outside their house and down the street, or it may be from cameras on phones held in their hands. For example, police in Williamson County, near our law school, have asked citizens to register their outdoor video surveillance cameras. They used this system to investigate the attempted kidnapping of an eight-year-old girl last year.⁶⁰ Matt Peskin, executive director of National Association of Town Watch, a Philadelphia-based nonprofit that sponsors National Night Out, sees this as a growing trend.⁶¹ We can use this technology against criminals, and we can also use it to hold officers accountable. For example, along the southern border of Texas, a community group called La Union Del Pueblo Entero (“LUPE”) is working with residents to film law enforcement with their cellphones. On May 25, 2018, they filmed a Border Patrol agent fatally shoot a female migrant while patrolling the border town of Rio Bravo. A Department of Public Safety trooper approached her and can be heard on the video warning her, “Ma’am, you interfere, you’re going to be arrested.”⁶² Nevertheless, the video is now posted on Facebook, and can be used to sway public opinion, or influence a judge or jury should the matter end up in civil or criminal court.

The use of facial recognition software further assists law enforcement efforts to capture criminals while at the same time deepening privacy concerns. Facial recognition software can undeniably be used to save lives. After a shooting on June 28, 2018, at the Capital Gazette in Annapolis left five journalists dead, local law enforcement arrested an uncooperative suspect who would not share his identity.⁶³ The police department used facial recognition software to compare an image of the suspect against a database of license and mugshot photographs.⁶⁴ At the time, it was not clear if the suspect was acting alone or if there were other imminent threats; identifying the suspect through facial recognition software sped up the investigation process to establish that the threat was contained.

Despite this unmitigated success, some privacy advocates have several concerns with the use of the software, including how images of people not convicted of a crime are being used, its reduced accuracy in identifying African-Americans compared to Caucasians, and the increased use of the software to identify people in public spaces.⁶⁵ An MIT Media Lab study found serious disparities in how facial-analysis systems built by IBM, Amazon, Microsoft, and Face Plus Plus classified people: darker-skinned women were the most misclassified group, with error rates of up to 34.7%, whereas the maximum error rate for lighter-skinned males was less than 1%.66 A group of AI scholars has unsuccessfully called on Amazon to stop selling its facial recognition software to police.⁶⁷ Regardless, over half of states use license photos to run facial-recognition searches, and some departments are even integrating the software into their body cameras.⁶⁸ For example, Amazon has sold its facial recognition system, which it calls Rekognition, to law enforcement agencies nationwide. ⁶⁹These technological developments make it increasingly difficult, if not impossible, to live “privately” (without governmental surveillance) in any metropolitan area in the United States.

Protecting “privacy” is a dead end, if by privacy we mean information about ourselves. Many scholars have observed this. As Professor Michael Froomkin stated in 2000, the range of current technologies includes: “routine collection of transactional data, growing automated surveillance in public places, deployment of facial recognition technology and other biometrics, cell-phone tracking, vehicle tracking, satellite monitoring, workplace surveillance, Internet tracking from cookies to ‘clicktrails,’ hardware-based identifiers, intellectual property-protecting ‘snitchware,’ and sense-enhanced searches that allow observers to see through everything from walls to clothes. The cumulative and reinforcing effect of these technologies may make modern live completely visible and permeable to observers; there could be nowhere to hide.”⁷⁰ Professor David Sklansky likewise and more recently noted a modern “belief that the concept of privacy is meaningless, by the fear that privacy is dead or dying” and suggested a move from an understanding of privacy as “control of personal information” to an understanding of privacy “rooted in respect for a zone of refuge."⁷¹

Younger generations understand this pervasive data collection but often do not mind sharing personal information when there is a benefit to them. Professor Klein sees this with her own son (a Gen Z-er), and Ms. Teeter sees it with her friends (Millennials). They know that their iPhones are tracking their locations and that most apps share that location with third parties. Some simply do not seem to care, and many believe that the convenience outweighs any privacy concerns. For example, enabling location on ride sharing apps helps the driver with pick up and enables riders to share their location with friends. Enabling location on dating apps allows matching with nearby users. Further, Millennials and Gen Z-ers are willing to share personal information if it benefits them in the form of personalized offers.⁷² In fact, they expect this type of customization.⁷³

Data-collecting devices are voluntarily carried on our persons and in almost every room of our residence. Though personally Professor Klein and others her age find it a bit creepy, internet-connected “smart” appliances now include cars, refrigerators, thermostats, faucets, ovens, toys, toilets, bathtubs, door locks, indoor and outdoor cameras, and just about everything else in your home and vehicle.⁷⁴ These voice controlled items transmit data back to company services ostensibly when activated by the owner, but the devices frequently mishear innocuous words as legitimate commands to record and send private conversations.⁷⁵ Little thought is given to the fact that such devices can be used to solve violent crimes against (or committed by) their owners.⁷⁶ Amazon, for example, has been repeatedly ordered to turn over to law enforcement the recordings on the Amazon Echo device that sits on many Americans’ kitchen counters.⁷⁷ In fact, there were over 32,000 requests from information by law enforcement to Facebook alone during a six-month period in 2017.⁷⁸ By 2020, three of every four cars sold will be models with connectivity, and red flags have already been raised in China, where automakers have been sharing location details with the government.⁷⁹

Whether we consider this Big-Brotherish, many consider it a huge breakthrough for law enforcement. After all, witnesses are unreliable, and cameras are much more objective. More than 90% of Americans believe, according to Pew Research study published in late 2016, that consumers have lost control of how personal information is collected and used by private companies.⁸⁰ Two-thirds of consumers believe current laws are insufficient to protect privacy online.⁸¹ In response, some citizens have turned to cell phone apps to teach civilians about the law, while also connecting them with bail bondsmen if necessary.⁸² Americans know that the laws in Europe are more protective, yet Americans do nothing to enact nationwide or local laws to protect internet privacy or limit surveillance cameras. Apparently, we are too lazy or do not much care.

B. The Latest SCOTUS Response: Carpenter v. United States

When we began writing this review, we thought that because in all of our above examples we are voluntarily offering our private information to the government or other third parties, the so-called “third party” exception would exempt most government searches based upon new technology from Fourth Amendment protection. The third-party doctrine holds that a person has no expectation of privacy necessary to trigger the Fourth Amendment where she voluntarily turns over such information to third parties.⁸³ Thus, Professor Klein argued that individuals have no Fourth Amendment protection in the content of messages they post to public websites and file-sharing services such as Facebook, Twitter, or YouTube.⁸⁴ Once we started writing this book review, however, the U.S. Supreme Court held, in a 5–4 decision, that a defendant does have a reasonable expectation of privacy in cell-phone site location information (“CSLI”), where this information allows the government to track a person’s movement and location over long periods of time.⁸⁵ The $64,000 question is whether this latest Fourth Amendment case will have any long-term effect on the third-party doctrine in particular and the loss of Fourth Amendment privacy protection in general.

Chief Justice Roberts, joined by the four liberal justices,⁸⁶ held that obtaining seven days of cell phone location data from a suspected robber’s wireless carrier constituted a Fourth Amendment search.⁸⁷ Chief Justice Roberts contrasted the cell phone location data with the type of information in third-party doctrine cases, and found that they did not fit into the exception. The “detailed, encyclopedic, and effortlessly compiled” cell phone data shows “familial, political, professional, religious, and sexual associations.”⁸⁸ Further, cell phones and the services they provide are “such a pervasive and insistent part of daily life” ⁸⁹ that carrying one is indispensable to participation in modern society, so “in no meaningful sense does the user voluntarily assume the risk.”⁹⁰ The majority reasoned that, unlike in third-party doctrine cases, the government needed a warrant to obtain CSLI information on the suspected robber. To hold otherwise, the majority reflected, would give the government near perfect and constant surveillance over a person for the five years that the wireless carriers retain such data.⁹¹

While the majority claims that this decision is narrow and does not call into doubt conventional surveillance techniques and tools such as security cameras,⁹² it seems to us to have the potential to require warrants for most of the technologies described above—from facial-recognition to dash cams. However, we do not believe that the Court will extend or even perhaps adhere to the majority’s reasoning in the Carpenter decision. We anticipate that Congress will again step in and attempt to regulate technology, as it did with Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (regulating wiretapping),⁹³ the Electronic Communications Privacy Act of 1986 (regulating the interception of electronic communications such as email), and the Stored Wire and Electronic Communications and Transactional Records Access Act (regulating government access to the contents of electronic communications stored by providers of electronic communications).⁹⁴

Justices Kennedy, Thomas, Alito, and Gorsuch each filed a dissenting opinion. ⁹⁵ We find the dissents of Justices Kennedy and Gorsuch particularly persuasive. ⁹⁶ Justice Kennedy’s dissent, joined by Justices Thomas and Alito, focuses on how the majority incorrectly distinguished Carpenter from other third-party doctrine cases. ⁹⁷ Justice Kennedy complains that the majority’s reasoning is illogical: “the Government can acquire a record of every credit card purchase and phone call a person makes over months or years without upsetting a legitimate expectation of privacy” but it crosses a constitutional line when it obtains seven days of cell-site records showing only the location of the phone, not the content of any calls.⁹⁸ We agree that it is not clear how records of one’s cell phone locations are pervasive and indispensable, and therefore users do not voluntarily assume the risk required for the third-party doctrine, but bank records and call logs do not qualify for the this new exception to the doctrine. Financial records and call logs can provide a more comprehensive chronicle of that person’s private life that can be easily and retroactively constructed than phone cell tower information.

Justice Gorsuch’s dissent highlights the difficulty in applying the Fourth Amendment in the digital age. He raises three possible paths: ignore the problem and maintain Smith/Miller, set Smith/Miller aside and reapply the Katz test, or look elsewhere for answers.⁹⁹ He argues that the third-party doctrine has never had a persuasive justification, especially as we increasingly entrust information to third parties.¹⁰⁰ He describes Katz as problematic and unpredictable, stressing how judges should generally not be deciding “whether society should be prepared to recognize an expectation of privacy as legitimate.” Justice Gorsuch advocates for instead focusing on the text of the Fourth Amendment and deciding when something is really yours.¹⁰¹ He notes that a third party’s access does not automatically mean something is not yours (giving a valet keys or having your friend watch your dog is a bailment, not a relinquishment of ownership).¹⁰² Justice Gorsuch also emphasizes how exclusive ownership and control is not required in other applications of the Fourth Amendment—considering something “home” for Fourth Amendment purposes does not require fee simple title or title at all.¹⁰³ This strategy, he says, would enable positive law to guide—though not exclusively. ¹⁰⁴ Justice Gorsuch concludes that he disagrees with the opinion to keep “Smith and Miller on life support and supplement them with a new and multilayered inquiry that seems to be only Katz-squared.”¹⁰⁵

The Court will not be able to sustain a distinction between allowing financial and telephone logs and prohibiting cell-site records. Lower courts and law enforcement officials will have “no indication of how to determine whether any particular category of information falls on the financialrecords side or the cell-site-records side of its newly conceived constitutional line.”¹⁰⁶ More importantly, the Court cannot possibly keep up, through Fourth Amendment challenges, with the rapidly advancing technology. It will simply be too easy for the government (and everyone else) to capture the information we will constantly and voluntarily provide to the world, such that requiring warrants to obtain such information will eventually appear not only redundant but silly. Lastly, and related to the first point, no clear majority of Justices can tell us what the Fourth Amendment protects. When Carpenter was decided, only five Justices apparently still believed in reasonable expectation of privacy as a test (plus some unknown enhancements when it comes to applying the third-party exception). There are a stunning four dissenting opinions, each with different tests for what the Fourth Amendment protects, spanning 115 pages of text. It is uncertain what the Court will decide after the next Supreme Court Justice appointment.

Scholars have begun trying to make sense of the Carpenter opinion. Professor Ohm argues that Carpenter is a groundbreaking decision that recognizes the “exceptionalism” of technology and creates a four-factor test based on the type of information sought.¹⁰⁷ Under the Carpenter test as described by Ohm, courts should ask if “that category of information (1) has a deeply revealing nature; (2) possesses depth, breadth, and comprehensive reach; (3) results from an inescapable and automatic for of data collection; and (4) represents a powerful gain in the efficiency of the police.”¹⁰⁸ Ohm then applies this test to web browsing records and large telephone and bank records, finding both likely covered.¹⁰⁹ He further suggests that Carpenter replaces the traditional two-step Katz analysis.¹¹⁰

While most scholars thus far are not any more enamored of the Carpenter test than we are, each has her own resolution to the issue. Professor Bellin notes the fissures in the Court as to what constitutes a “search,” and suggests a three-part formula. ¹¹¹ Professor Gentithes suggests that Carpenter is a compromise between those who hate and those who champion the third-party doctrine. He proposed a two-step test to determine if the government must obtain a warrant before collecting information from a third party.¹¹² Dean Caminker suggests that the Court’s struggle to modernize search and seizure law for the digital age likely “reflects a strong first step towards a new privacy-law enforcement equilibrium rather than a consciously radical regime change.”¹¹³ Professor Priester believes that Carpenter is just one example of the past decade of the Roberts Court desire for the warrant requirement to make a comeback.¹¹⁴ To us, it appears the only thing these articles have in common is how little they have in common. Just like the Justices, they each developed their own test, and none are likely to be accepted by the Court.

C. Solving Crime Through Science and a Sliding Scale of Probable Cause

Even in the absence of self-inflicted technology that eats away at our privacy from governmental intrusion, police are getting better and better at solving crime without even questioning suspects and without necessarily invading any previously recognized privacy interests covered by the Fourth Amendment (interest in places, like homes and cars, and reasonable expectations of privacy in possession of things or contents of conversations). Take the most obvious scientific advance since fingerprints, deoxyribonucleic acid (DNA) analysis. It has become an essential component to an effective and accurate criminal justice system. Law enforcement personnel can find it on victims and property, and in many cases need to sample it from suspects (through a completely painless notparticularly- invasive check swab). In fact, all fifty states and the federal government have laws requiring that DNA samples be collected from certain categories of offenders and even arrestees.¹¹⁵ We are now seeing the even newer method of examining trace evidence called “tough-DNA” evidence and chemical analysis of skin traces.¹¹⁶

While this technology is revolutionary in assisting law enforcement identify perpetrators of violent crimes, especially when there is no living victim to testify, the technology is equally effective and helpful to innocent persons accused of crimes. After all, most of the wrongfully convicted were discovered by doing DNA tests on leftover evidence. The Innocence Protection Act of 2004 gives those in prison for federal offenses the right to request DNA testing on physical evidence involved in their offense and retained by the government. ¹¹⁷ This kind of testing allows us to find perpetrators without invading privacy. The Innocence Project has recorded over 350 felony cases of wrongfully convicted individuals exonerated by DNA testing.¹¹⁸ According to Professor Roberts, this movement is now turning to wrongful misdemeanor convictions. She analyzed eighty-five documented misdemeanor exonerations and concluded that innocence was demonstrated primarily in two ways: laboratory tests of alleged unlawful drugs that reveal no controlled substances and police body camera or citizen videos that surface after a misdemeanor guilty plea that contradicts the factual basis for that conviction.¹¹⁹ The final omission from Professor Friedman’s book is discussion of whether anti-terrorism measures may be perceived as a sufficient reason to give up a bit of privacy. If government cannot keep us safe, why do we need it? Professor Stuntz argued convincingly that there should be a sliding scale of probable cause—the judge should demand less evidence if we are investigating a murder (or certainly a mass bombing) than if we are investigating a drug or vice case. In fact, those “victimless” crimes are more difficult to detect since the perpetrators are voluntarily involved in the transaction, thus these crimes, especially in the controlled substance arena, tend to lead to police behavior (undercover stings) and judicial opinions that diminish our Fourth Amendment rights. ¹²⁰ Whatever privacy Professor Friedman hopes to retain would be fostered much more seriously by decriminalizing victimless crimes¹²¹ and employing a sliding scale of probable cause based upon the seriousness of the offense.

Conclusion

We are all losing privacy in our digital lives. Is there any upside to such a future? Professor Capers makes a compelling argument that what is actually happening in today’s technological age is a redistribution of privacy and can help deracialize policing. ¹²² He notes that in “exchange for a reduction of hard surveillance of people of color, it will require an increase in soft surveillance of everyone.”¹²³

Professor Capers describes the racial inequality in policing with which we are all, unfortunately, familiar. He also describes how the Court is not an innocent bystander; he describes the Court as a facilitator to police violence, under-enforcement, and racial profiling. ¹²⁴ Interestingly and unexpectedly, he advocates for more surveillance to combat these racialized policing problems. He suggests more cameras, facial recognition, and scanning technology. ¹²⁵ He sees what he considers this Orwellian surveillance as improving racial equality:

With the technology I am advancing, none of us would need to be singled out because of race. Or more accurately, everyone else would be subjected to the same soft surveillance. The Asian woman with the briefcase. The white businessman trying to hail a cab. The messenger on his bike. The elderly woman walking her poodle. Everyone. Certainly, this gets us closer to equality before the law.¹²⁶

Essentially, Professor Capers argues that the increase in surveillance overall is a sacrifice that will be worth it. He describes how the use of unbiased technology will increase the appearance of legitimacy, and the “more individuals believe that the law is both fair and fairly applied, the more likely it is that those individuals will comply with the law.” ¹²⁷ Increased surveillance will reduce crime and the sense of belonging.¹²⁸ Further, he emphasizes that privacy is not currently equal. ¹²⁹ “Quite simply, [B]lack and brown folk are more likely to be watched by the police, stopped by the police, and frisked by the police.”¹³⁰

We believe that omnipresent surveillance has arrived and will only continue to expand.¹³¹ We see this as having both costs and benefits. The cost is a reduction in “soft” privacy for everyone—regardless of race, gender, religion, or any other status. The benefit is documented encounters with law enforcement and objective information for police in the field (facial recognition, weapons scanning, DNA swabs, brain scans, etc.). We think it is likely this, not front-end rules, will lead to better adjudication of law enforcement encounters in civil actions and more reasonable treatment for all citizens.