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

Privacy

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.

Filed Under: 4th amendment, 9th circuit, hotel records, supreme court, third party doctrine, warrants