Tuesday, March 31, 2015

Grady v. North Carolina: Is the Supreme Court Sharpening its Knives for the NSA?

Every once in while the U.S. Supreme Court can speak authoritatively with one voice. Thank goodness for that.  We're jumping the gun on the NSA, but ...

Yesterday, in a per curiam decision [unanimous and unsigned],  the court strongly rebuked the North Carolina courts for holding that attaching an ankle bracelet (for life) to a convicted sex offender did not constitute a "search" within the meaning of the Fourth Amendment guarantee against unreasonable searches and seizures.  Of course it's a search said the court. "Can't you read and think?" the court effectively asked the North Carolina courts.  The case is now remanded for a determination whether the search was "reasonable."

This Grady decision is interesting to me because it looks like it will come into play when the court gets to examining the NSA's data dragnet.

Here is the court:
Petitioner Torrey Dale Grady was convicted in North Carolina trial courts of a second degree sexual offense in 1997 and of taking indecent liberties with a child in 2006. After serving his sentence for the latter crime, Grady was ordered to appear in New Hanover County Superior Court for a hearing to determine whether he should be subjected to satellite-based monitoring (SBM) as a recidivist sex offender. .... 
Grady did not dispute that his prior convictions rendered him a recidivist under the relevant North Carolina statutes. He argued, however, that the monitoring program—under which he would be forced to wear tracking devices at all times—would violate his Fourth Amendment right to be free from unreasonable searches and seizures. Unpersuaded, the trial court ordered Grady to enroll in the program and be monitored for the rest of his life. ... 
Grady challenged the ankle bracelet monitoring, relying on United States v. Jones... (S. Ct. 2012) which held that attaching a GPS system to a suspect's car was a "search" within the meaning of the Fourth Amendment. Grady argued that if a GPS device on a car was a search, then surely attaching a bracelet to his ankle and tracking his every movement by satellite for life was a greater intrusion and a search.

Darn tootin' says the Supreme Court.
The only explanation provided below for the rejection of Grady's challenge is ... that ... the State's system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment. That theory is inconsistent with this Court's precedents.
That's pretty blunt. The Court continues:
Where, as here, the Government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.... We reaffirmed this principle in Florida v. Jardines ... (2013) ... where we held that having a drug-sniffing dog nose around a suspect's front porch was a search, because police had "gathered . . .information by physically entering and occupying the[curtilage of the house] to engage in conduct not explicitly or implicitly permitted by the homeowner." See also id.,... (a search occurs "when the government gains evidence by physically intruding on constitutionally protected areas"). 
In light of these decisions, it follows that a State also conducts a search when it attaches a device to a person's body, without consent, for the purpose of tracking that individual's movements. 
In concluding otherwise, the North Carolina Court of Appeals apparently placed decisive weight on the fact that the State's monitoring program is civil in nature. ... "It is well settled," however, "that the Fourth Amendment's protection extends beyond the sphere of criminal investigations," ...  and the government's purpose in collecting information does not control whether the method of collection constitutes a search. A building inspector who enters a home simply to ensure compliance with civil safety regulations has undoubtedly conducted a search under the Fourth Amendment. See Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 534 (1967) (housing inspections are "administrative searches" that must comply with the Fourth Amendment). 
In its brief in opposition to certiorari, the State faults Grady for failing to introduce "evidence about the State's implementation of the SBM program or what information, if any, it currently obtains through the monitoring process." ... Without evidence that it is acting to obtain information, the State argues, "there is no basis upon which this Court can determine whether North Carolina conducts a 'search' of an offender enrolled in its SBM program." Ibid. ... (noting that a government intrusion is not a search unless "done to obtain information")). In other words, the State argues that we cannot be sure its program for satellite-based monitoring of sex offenders collects any information. 
If the very name of the program does not suffice to rebut this contention, the text of the statute surely does: 
  • "The satellite-based monitoring program shall use a system that provides all of the following: "(1) Time-correlated and continuous tracking of the geographic location of the subject . . . ."(2) Reporting of subject's violations of prescriptive and proscriptive schedule or location requirements." N. C. Gen. Stat. Ann. §14–208.40(c).
The State's program is plainly designed to obtain information. And since it does so by physically intruding on a subject's body, it effects a Fourth Amendment search. ....
The petition for certiorari is granted, the judgment of the Supreme Court of North Carolina is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. 
It is so ordered.
So here is what we know:  The police require a search warrant to attach GPS systems to cars to monitor their movements (Jones,  Katzin), they require a warrant to send a beeper inside a house (Karo), they require a warrant to attach an external listening device to a residence (Silverman), they require a warrant to have dog sniff around a suspect's porch (Jardines), they require a warrant to search the cellphone of someone who is arrested because of the wealth of electronic data it contains (Riley), and they may--depending on what happens on remand of this Grady case--require a warrant to subject an ex-felon to satellite based monitoring.

We also know:  a search occurs when the police "physically intrude on a constitutionally protected area" (Grady) and that the constitution protects people not places, so that what a person seeks to maintain private--even in publicly accessible places--may be subject to privacy and require protection from unreasonable searches (Katz ) (unreasonable search to attach listening device on outside of public telephone booth).

Here is what Justice Stewart said in Katz: 
The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye—it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, in a friend's apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication. .... The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance. 
All this suggests to me that when the Supreme Court finally gets around to examining the legality of the NSA's dragnet surveillance of our emails, phone records, blogs, websites, Facebook pages, Messages, Tweets, and Instagrams ....., the NSA is likely to get its wings clipped.

Some of the language chosen by the court here in Grady sure seems tailor made to rebut arguments that will likely be made by the NSA in defending its comprehensive data dragnet:
  • "Where ... the Government obtains information by physically intruding on a constitutionally protected area, ... a search has undoubtedly occurred"
  • "The State program is plainly designed to obtain information" 
  • "Fourth Amendement extends beyond sphere of criminal investigations" 
  • "The government's purpose in collecting information does not control whether the method of collection constitutes a search" 
  • "the State faults Grady for failing to introduce evidence about the State's implementation of the SBM program or what information, if any, it currently obtains through the monitoring process. 

Do I hear the sharpening of knives?

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