In class we talk a lot about safeguarding rights and protecting individuals from the government, but sometimes, these rights go too far. As (generally) liberal college students, it’s easy to talk about principles, but at some point, the pragmatic applications of these principles have to kick in, and if some rights just protect the guilty instead of the innocent, perhaps they shouldn’t be rights at all. Specifically in the case of search and seizure, we want to make sure that the government cannot unnecessarily invade people’s lives. Well, honestly, in reality, it’s probably okay if the government is invading your life, if in the major case, it’s protecting the community’s right to safety. I know it’s very PATRIOT Act, but I don’t think this issue has to polarize down party lines.

Also, we act like we want to make sure that no innocent individual is screwed over in the quest to catch the guilty. I’m not sure that our justice system really works that way, though. We do value efficiency and practicality, even if accuracy in outcomes decreases. For example, we have plea bargains, and we all know that some innocent people do plead guilty. I think we’re OK with this because in most cases, the outcome is correct, and plea bargains serve justice by freeing up the system to prosecute the most important cases. If we didn’t have plea bargains, there would simply be too many cases, and pragmatically, the system would not function.

Basically, I think practicality and efficiency matter more than people give them credit for, and for those reasons, I think the decision in Kyllo v. US was incorrect. In Kyllo, the Supreme Court ruled that the use of a thermal imaging device placed at a public vantage point, used to catch a man who was growing a lot of marijuana in his home, was unconstitutional. There are several reasons why this seems like a bad decision.

First, the search method is narrowly tailored. The thermal imaging device didn’t pick up lots of scandalous details about the man’s life or anything that an innocent person would want to hide. It simply detected enormous amounts of heat. There really aren’t many uses of large amounts of heat that aren’t suspicious. It sounds like the type of device used was advanced enough that it wouldn’t catch cases like the man taking a hot bath – it was specific to uses of so much heat that a policeman should rightfully be suspicious. And the Court ruled that the use of the device itself wasn’t OK, so the Court didn’t just have a problem with the lack of warrant, it seems. It was the use of the device to identify the pot farm, the initial step – even if the police should have gotten a warrant before intervening, the device should have still been permissible.

And more importantly, we can envision a circumstance where technology advances so much that a device could practically be a litmus test of guilt or innocence with minimal physical intrusions: i.e., a device that could detect only whether large amounts of marijuana was being grown in a house. The Court has seemed to uphold that even in these types of cases, people deserve protections; however, if we had a magical machine that would only catch the guilty, we’d probably be OK with it, since it doesn’t take any secrets from the innocent.

Using this device doesn’t hurt innocent people – it doesn’t take secrets from them and doesn’t impose on them. It also doesn’t create a culture of fear and suspicion, which was what the 4^th amendment was supposed to avoid. This is an unobtrusive device with a specific use. And we force people to go through metal detectors (we force kids to go to school and juror/witness/defendants to go to court, and we often put metal detectors in those places) without thinking twice. Metal detectors are external technology that catches the guilty without harming innocents. No warrant needed.

Also, the heat was leaked outside of the home. Cases that are analogous in my mind: 1. A cop happens to be walking by a house and smells opium. He should be allowed to intervene. 2. A cop is walking by a home and hears a gunshot, or the sound of someone being assaulted. He should be allowed to intervene. In this case, the cops used technology to enhance their sensory capacities. But why should cops have to hinder themselves? Should we not use technology because the Constitution leaves scientific evolution as a gray area in terms of rights protections? Ultimately, the Constitution is only a broad set of principles, and our understanding of it should evolve with technological progress. Also, Kyllo should have had a reasonable expectation of that type of technology: it doesn’t take much to detect that much heat. I know it’s hard to draw a line ascertaining what type of technology people should “expect,” but I think someone growing a pot farm in his house could expect the heat to be detectable in some way.

I guess one could say that we have to be careful because the police might use this technology against an innocent person. Well…so what? I don’t care if the police measure the heat radiating from my home. We can say that innocent people deserve protections, but this manifestation of the 4^th amendment does not help innocents. And the police have no incentive to misuse or overuse the technology – they’re rewarded for catching guilty people, so they have the incentive to go after the people who have actually done something wrong.

Ultimately, it’s cases like Kyllo that make it seem like the guilty have too many protections in our society. Our system is about fairness, but it’s also about catching guilty people, and we have to look at pragmatic outcomes, not just principles, to maintain a balance of rights that best advances our conception of fairness.

Just last week, District Judge Mosman in Oregon ruled that, according to the language of the SCA, the government has no requirement to notify an email subscriber when their email is searched with warrant.  The story was broken by the Volokh Conspiracy blog, though after some review, it was realized that Judge Mosman’s ruling is not nearly as threatening as at first presumed.  Judge Mosman’s interpretation of the SCA does not obviate the need for a warrant entirely; it simply clarifies that the warrant must be served to the email provider, rather than the subscriber whose material is being searched.  Judge Mosman’s opinion is here.  At the bottom of page 13, Judge Mosman makes a compelling analogy to explain his ruling:

If a suspect leaves private documents at his mother’s house and the police obtain a warrant to search his mother’s house, they need only provide a copy of the warrant and a receipt to the mother, even though she is not the “owner” of the documents.

Now, Judge Mosman is not acting in a particularly high court, nor does he have an inordinate amount of sway in the legal world; one could convincingly argue that the scholars of the Volokh Conspiracy are more influential than he is, and Orin Kerr, writing the blog post, disagrees with him.  But his ruling is troubling.

I also disagree with Judge Mosman.  I think the essential question (as in many cases covered in the reading) over where one can maintain a reasonable expectation of privacy.  When you’ve left important documents at your mother’s house, you have, intentionally or not, left private documents in a location owned and controlled by another person.  A commenter on the blog named Gabriel McCall makes a counter-analogy: “In that case, the bank safe-deposit box analogy comes fully into play. Would anyone argue that warrants and notice for the bank but not the customer would be sufficient to search a box?”  A safe-deposit box is a space in the bank’s keeping, but you maintain control over it; were the bank to access it, they would need to obtain your key or a copy thereof, just as an ISP would need to obtain your password or bypass its protection.

When I think of my email inbox, I think of it as a space belonging to me; it may be stored on someone else’s server, but the distinction is incidental.  The safe-deposit box analogy is an apt one.  Rather than your email being a space on someone else’s system, wholly within their jurisdiction, one can think of it as being more akin to a rented apartment.  You exercise control over the space; in the normal course of living, you and you alone undertake operations in it.  And it is an intensely private portion of your life, where you store, possibly permanently, private correspondence that you would never have released to others (have you ever written a nasty email about someone?).  I maintain that any modern individual would in fact maintain a reasonable expectation of privacy in their email inbox, and as such, the government has an obligation to provide notice to a subscriber upon a warranted search.

To quote Justice Scalia in the Kyllo opinion, “With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.”  The principle of skepticism towards warrantless searches is necessary and fundamental to our view of liberty.  The notice doctrine is a small portion of the legal language surrounding unreasonable search and seizure, but a crucial one; at the very least, any citizen is surely entitled to know when government agents have violated their privacy.  And so I think I have to disagree with Judge Mosman on this one; I hope he gets overturned on appeal.