Advisory Opinions - A Digital Fourth Amendment

Episode Date: August 8, 2023

UC Berkeley law professor Orin Kerr joins David and Sarah to explain how Fourth Amendment jurisprudence applies to a digital age. Do you have an expectation of privacy online? Can terms of services null your right against unreasonable searches and seizures? But first Sarah generously offers David time to rant about certain legal takes surrounding Trump’s most recent indictment. Plus: -David’s (recent) paintball career -What is general public use? -Are pole cameras unconstitutional? Show notes- -Section 241 and the First Amendment in the Duke Law Journal -Professor Kerr’s profile at Berkeley Law -Professor Kerr's Twitter profile -Professor Kerr's writing for The Volokh Conspiracy Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And wow, we have a great show for you today because I'm sick. So what you're going to get is David ranting and just imagine me nodding along during the whole thing or shaking my head no we'll see I don't know I may interject I may not um but then we have an awesome guest professor Oren Kerr from Berkeley Law School has prepared for us a fourth amendment feast so that we can talk about something else uh we'll get to that in a minute David uh we'll get to that in a minute david um it's been the worst week i think ever to be a lawyer on twitter i imagine that maybe if twitter had existed during the oj trial maybe that would

have been also an unfun week but this week has been stupid yes rant away friend rant away yes okay so i there are two things i i want Okay. So there are two things I want to rant about. There are two things that are causing me to be... I think I put this in dispatch slack. One will make me want to walk around like a raving madman and the other one just puts me in a catatonic fugue state. So if you want to make one of these two arguments, I'm either going to walk around raving like a madman or going to be in a catatonic fugue state. So if you want to make one of these two arguments, I'm either going to walk around raving like a madman or going to be in a catatonic fugue state. So here's what makes me,

here are the two things, and I'm going to try to walk through this with some, you know, I want to walk through this with some deliberation just to sort of capture what is going on here. Okay. So the two things that are putting me into a difficult mental state, we'll just leave it like this, is one, the next piece that I read that says in the January 6th case brought by the special counsel's office, that in reality, Jack Smith doesn't have to prove criminal intent okay

now there are varying degrees of this sort of piece but a lot of them are really boiling down to trying to escape in some way the idea that donald trump uh proving that don Trump knew what he was doing was unlawful, wrong, that he didn't, in fact, win the election, etc., etc. So there's been a lot of people saying, wait, oh, no, oh, no. Do you really have to prove intent? What if Donald Trump believes his own BS? And so there's been sort of some itching ears really want to hear the argument. You don't have to prove intent. So that's number itching ears really want to hear the argument. You don't have to prove intent. So that's number one. I'm going to deal with that. And number two is the when

people say, oh, you have to prove intent. Well, the case against Trump is over. It is the prosecution is screwed. There's just no way they can do this. They cannot prove intent. Donald Trump's, how can you dive into Donald Trump's mind and prove to a jury beyond a reasonable doubt about intent? So then that makes people go back to point number one and say, hey, is there any way I don't have to prove intent? So let's walk through this and step by step, do you have to prove intent to convict Donald Trump? The answer is yes, yes, yes, yes, yes. Now, there are nuances to yes, yes, yes, yes, yes. There are absolutely nuances depending on the statute but the fundamental bottom line is you're gonna have to prove consciousness of wrongdoing here to some degree you absolutely have to okay so let's

look at 18 usc section 241 this is the uh clan act era um conspiracy against rights statute that a lot of people have really zeroed in on and saying, well, we don't actually have to prove intent on 18 USC section 241. You merely have to prove that there is some sort of injury to rights. You don't have to prove any actually underlying intent to injure rights. Well, I'm going to go back to, and we'll put this piece in the show notes. There was a law review article that I believe we referred to before that talks about this in some detail. And it says in one circumstance, there's a case called Guest, a SCOTUS case, 1960s era SCOTUS case. And it says, and I'm quoting and I'm reading from the

law review article, guest established that to be guilty under section 241, the defendant must act with a specific purpose to deprive someone of a federally guaranteed right, not merely with the purpose to commit the act that causes the deprivation. Okay. I'll read that again. You must act with a specific purpose to deprive someone of a federally guaranteed right, not merely with the purpose to commit the act that causes the deprivation. This is my highway robbery example.

They have to prove that I didn't rob you for your watch, but that I robbed you to stop you from going to vote. Bingo. Exactly. Exactly. Now, why you might think well okay well if you're putting forth this slate of electors that is not accurate aren't you intentionally putting forth the slate of electors doesn't that establish the intent requirement no and we actually have a really good example. In the 1960 election, the Hawaii election was incredibly close, incredibly close. And so the Democrats and the Republicans put forth competing slates of electors worried about the deadline while the recount was underway. After the recount finished and Kennedy won, there was then a third slate of electors put forward. So the final Democratic slate. So you

had three slates. You had the initial Democratic slate, you had the initial Republican slate, and you had then the final Democratic slate, which Nixon himself as VP accepted without incident. himself as VP accepted without incident. So there was no trace of criminal intent, even though everyone involved put forward this elector slate intentionally. So you had intentionally putting forward the elector slate. Only one of the three ended up being the accurate elector slate, right? So only one of the three ended up being accurate. And even though they intentionally put forward the slates, and if the Republican slate had been accepted, then you would have deprived Democrats of their right to vote.

There was no allegation that that elector slate was put forward with criminal intent. So when you think about this for just a few minutes, you can understand why the criminal intent element is necessary. Can I just add one thing on that? Yeah. That doesn't mean you need to prove that Donald Trump knew he lost the election on the fake slate of electors. Right. You do need to prove that Trump knew that the slate of electors he was putting forward was fake. Correct. Which for some reason, that distinction is just being lost on everyone.

Right. So let me put it this way. Let's suppose Donald Trump thought and believed with every fiber of his being, you could pass God's lie detector test that he believes he won the overall election because he won Pennsylvania and Michigan and Wisconsin, but he believes the only path to vindicating himself is by Georgia fake electors where he doesn't believe that he won. He violated 18 USC section 241. Or even that he knows that that slate of electors was put together in an unlawful way. Exactly. So, for example, there's a case called Anderson from the Supreme Court from 1974 that talks about you don't even have to have the intent to actually believe that you to win the election with your false votes.

You just have the intent with your false votes you just have the intent to cast false votes correct which again is a nuanced distinction right but it is a distinction and it's still specific intent and it's still acting with that intent you still have to prove intent exactly exactly let's go to the statute 18 18 U.S.C. Section 1512, that we've actually talked about a great deal on this podcast. So 18 U.S.C. Section 1512 has a corrupt intent element. And this is an issue that is very, very important to the January 6th prosecution so far. There was a 20 page concurrence in the D.C. circuit dealing, even though there wasn't necessarily necessary to do so based on the appellate issue involved, but dealing with the issue of

what is corrupt intent. And to be clear, we're getting corrupt intent because literally the word corruptly is the word in the statute. It says who, whoever corruptly colon number one, whoever corruptly colon number one destroys alters records blah blah blah or number two otherwise obstructs an official government proceeding right exactly and so the corruption there's no way around proving a corrupt purpose here there's no way around it now how corrupt does the purpose have to be is right now a matter of dispute. So, Judge Walker and his concurrent says the defendant must not only know he was obtaining an unlawful benefit, it must be his objective or purpose. So, what's presumed in the Walker formulation is he's gotten there, knowing he's obtaining an unlawful benefit is the basic floor.

And Walker says should be another element here that obtaining an unlawful benefit has to be your fundamental underlying objective or purpose. Now, this is going to be litigated here, but there's no universe under 1512 where there is a there is a lack of a corrupt purpose as a requirement. Cert petition pending at the Supreme Court. Right. So corrupt purpose there. It's just how corrupt does the purpose have to be is going to be the big question here. It's not a strict liability statute. Also, can I just like side rant?

Yeah, please. I'm very annoyed with the people who are like well the only people who have been reading corruptly or otherwise to have some sort of quote heightened intent standard are trump appointed judges okay give me a break so because this is just the reverse argument of uh what i've seen on the right which is oh well oh, well, to prove any fraud, it has to be for property or sort of financial benefit, money or property, referring to totally different fraud statutes, but saying the Supreme Court over time has been narrowing wire fraud. We talked about those two cases this past term of honest services fraud. Yes. So the Supreme Court has been narrowing fraud statutes,

but they haven't narrowed these. Nope. And so it's just again, if you're on the right, you're like, well, the Supreme Court could narrow it. And if you're on the left, you're like, only Trump judges would require intent. Literally, it says corruptly. I assure you that all judges are going to require corruptly to mean something. Now the otherwise part of it, literally I mean the word otherwise, I find that one way more fascinating. I think the corruptly is sort of a done deal. I don't necessarily actually subscribe to Judge Walker's heightened corruption standard, but there is a corruption. You have to know unlawful benefit or something. But there is a corruption like you have to know, you know, unlawful benefit or something.

But the otherwise part is where I'm like super nerding out. Does otherwise expand or does otherwise shrink? I don't care who the judge is. That's an interesting question because the statute does not make sense, frankly, either way. Yeah, it's a very as we talked at length when this when we discuss the D.C. Circuit case, that's a very poorly written statute it's very poorly written thanks congress when we said do your job we meant it was implied do your job well or at least competently minimally not poorly yeah and then on the the fraud element you know defrauding the united states guys look if you think that fraud is a synonym for a mistake, I don't know what to say.

I don't know what to say. And I've not even seen that many people who are sort of really zealous about prosecuting Trump argue that fraud and mistake are synonymous. zealous about prosecuting Trump argue that fraud and mistake are synonymous. No, I've seen more on the other side that somehow this is actually then unlawful because it's Trump's free speech rights or the fraud has to be for money. Right. You can't indict Trump. He was exercising his right to free speech. Again, like let's, let's dispense with the silliness here. When you go into a bank, I hate the bank robbery example. And you a bank, I hate the bank robbery example.

And you'll know I hate the bank robbery example. When you go into a bank and hold up a gun and say, give me all your money. The give me all your money part of that isn't free speech. Yes, you're using words, but it's not free speech. Or, you know, let's use an actual fraud example. Probably most or many, if not most, listeners have filled out some of these uniform real estate disclosures where you disclose the condition of your house. And I know this question is not on the form, but let's take my house,

for example. If one of the questions was, has a chipmunk ever been found underneath your kitchen sink? And I answered no to that when I was the one who found the chipmunk. That is fraud. If I answer no to that, having no idea that my then 12-year-old daughter had found a chipmunk four years ago, that's called a mistake. That is not fraud. Who found the chipmunk, David? fraud. Who found the chipmunk, David? Pardon? Who found the chipmunk? Well, the dogs found the chipmunk first. And I am the one who, and this will make you very proud, Sarah, saved the chipmunk's life.

That's a hard thing to do, by the way, because chipmunks will bite you. Yeah, it was much more a matter of moving the dogs away than it was a matter of grabbing the chipmunk. It was return the dogs to a place of confinement to allow the chipmunk to live its life. This is where I just give a little PSA to people that having a cereal box in your car or house, an empty one, can always come in handy. You can get a snake into a cereal box, a chipmunk into a cereal box. Everything goes into a cereal box, a chipmunk into a cereal box. Everything goes into a cereal box. Yeah, that's see, you know, you never know where this podcast will go. That's very, very helpful advice. So, so a fraud is a lot more than just making a mistake here. Okay. So, um, and there's a shorthand way. And I know there's, there is nuance after nuance after nuance, if you're going to really scratch below the surface, but when someone is a shorthand way, and I know there is nuance after nuance after nuance if you're going to really scratch below the surface.

But when someone as a matter of a shorthand says, Trump has to know he didn't win the election, that's a fair shorthand way of describing it. Even if I could say, for example, Trump might think he won the election but didn't win Georgia and directed the fake elector scheme in Georgia. There's still an element there of he knew he didn't win in Georgia, or if he knew he believed he won elsewhere but knew he didn't win in Michigan and directed the scheme in Michigan. That would violate 18 U.S.C. Section 241, even if he believed he knew he, or believed he thought he won the whole thing. But look, bottom line, there is a corrupt intent purpose in all of these statutes. So that's rant number one. Here's rant number two. Once it has been established that intent is an element here, there's a lot of people who are just like, well, can't win this case. Who can plunge into the

mind of Donald Trump? I'll give you a two word question, answer to that question. The jury, that's actually their job. Okay. That is their job. Now I know I've was almost exclusively, not exclusively, but almost exclusively a civil litigator. I had some criminal experience through military justice, for example, and some cup of coffee interning stuff in law school. But primarily a civil litigator, secondarily way down and secondarily a criminal litigator. a criminal litigator, but I can tell you the vast majority of both the civil and criminal cases that I was involved in involved proving intent. One of the most common kinds of cases I filed was a kind of case we talk about all the time, first amendment retaliation. So for example, if you deny a professor, an applicant to be a professor does not have a right to a job, but they do have, for example, a right to the job.

They have a right to be considered for the job free of discrimination on the basis of race or free of discrimination on the basis of sex. Or if it's a public employee's job, they have a right to not have their to not be subject to unconstitutional viewpoint discrimination. Guess what you have to do to determine whether someone's been a victim of unlawful retaliation versus just didn't get the job because they weren't good enough for the job. You have to present evidence of intent. And you often you can win these cases, guys. You can win these cases when somebody gets in front of a jury and swears up and freaking down that they had no poor motive in their heart at all, that they were nothing but the most high integrity human being that has ever been met, that you've ever met.

And they can swear in front of a jury that they had no ill intent, and a jury can guess what? Believe that the prosecution or the plaintiff in a civil circumstance has carried the burden of proof of proving intent. If all it took to get out of an intent prosecution is somebody with extreme conviction saying, you've got me all wrong. You've got me wrong. I was pure as the driven snow in my heart of hearts on all of this. If all that took to end a prosecution was, well, I mean, who are we to dive into their hearts and minds? Well, then in a lot of American criminal enforcement just collapses, just falls apart. Being on a jury is a really, really important and hard job.

And one of the reasons why it's really important and hard is you're often going to be asked to determine whether someone's lying when they are vigorously protesting that they're not lying. And some cases are easier to do to prove that. And some cases are a lot easier to do to prove that. And some cases are a lot harder to do to prove that. But it's a big part of basically the entire edifice of American criminal and civil law. Can I tell you what the most important part of this case is going to be by far? And there's not a number two. Oh, I want to hear. The jury instructions. Oh, yes. Yes. Will you explain to people what the jury instructions are and why it ties both of these together? So the jury instructions, and let me give you guys, if you're the kind of person who likes to Google stuff a lot, like while you're watching the news, I have

this really bad habit, Sarah, that's sometimes irritating to my family of Wikipedia-ing a bunch of stuff that comes up when i'm watching anything on television i do the same thing yeah it's fantastic it's a great way to enhance your enjoyment yeah someone taught me that this is actually the correct way to watch movies or television and they're a hundred percent right it adds a whole dimension to your experience and then you can spend some hours afterwards it can be part of a conversation with your unwilling spouse some hours afterwards. It can be part of a conversation with your unwilling spouse. It's like, I would compare it to enjoying the director's notes while you're enjoying the main show. But if you're the kind of person who likes to get a more complete picture and maybe

immediately, here's a life hack to get immediately deeper than 99% of the commentary you're going to hear or read. Google the jury instructions for any relevant criminal statute. So there are federal form jury instructions, for example, for all of these statutes. And there are form jury instructions about intent. There are form jury instructions. And we can't go into all of them, but let me just, I just happen to have, for example, jury instructions that are general jury instructions around 18 USC section 241. So what happens is a court, the court will, before a jury goes in to

deliberate, they don't just deliberate based on what the prosecution and defense say they should do. After the closing arguments, the judge is going to read jury instructions and they're designed to be written in such a way that a person of ordinary intelligence can read, understand, and apply them. And so here, for example, are some basic jury instructions about 18 U.S.C. Section 241. First, imagine a judge saying, there are three things that the prosecution has to prove beyond a reasonable doubt, and the jury instructions will define what beyond a reasonable doubt is. There are additional ways that that phrase is defined so after you've been told what beyond a reasonable doubt means and you'll walk through some other

things and it'll and he'll say here is what the prosecution must prove beyond a reasonable doubt first that two or more persons agreed to injure threaten, or intimidate any person. Second, in that person's free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having exercised his right or privilege. And third, that the defendant knew of the agreement and willfully participated in it. Now, I would ask you to listen to those or read for yourself those jury instructions, and I'll put some model jury instructions in the show notes, and ask yourself, can I

as a juror, in good conscience, convict someone after hearing that jury instruction without proof of criminal intent? Can you? You cannot. You cannot. And that's, I think it's a great way to cut through a lot of BS is by Googling jury instructions, by researching jury instructions. Now, you're not going to know everything because jury instructions are not always going to be based on the exact, they're not always going to be the exact language from the form. Often the form language is the starting point for a back and forth between the prosecution and the defense.

And often the exact wording is litigated in front of the judge, then become subject to appeal. So don't think whatever you're pulling up in like a form book on jury instructions is the last word in that case. But it's going to be a great kind of step-by-step guide for these things. And when you read it and then you turn on cable news, you will become like Sarah and me in that state of near hysteria over the commentary of the last week plus. Jury instructions are also a popular topic of appeal. I will note that you didn't give the correct definition of intent, not enough intent, too much intent, etc.

the correct definition of intent, not enough intent, too much intent, et cetera. Um, so yeah, that's why I'm going to really be thinking about jury instructions for the next, however long of my life that this hideous conversation continues. All right. Uh, so we're going to have a little break from all of this. We're going to do fun stuff, David Fourth Amendment fun I want to welcome to the podcast Professor Oren Kerr He's been on before He's a professor at Berkeley Law School You can find him on Twitter At Oren Kerr

He writes for Volet Conspiracy And he has a book coming out And we'll take a quick break To hear from our sponsor today, Aura Ready to win Mother's Day And cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy-to-use app, you can keep updating mom's frame with new photos.

So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day.

It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code advisory at checkout to save. Terms and conditions apply. And just a quick rundown for those of you who may not remember professor Kerr from previous episodes he's our fourth amendment guy he's always out there trolling all the fourth amendment cases finding the weird ones and so I reached out and was like we need some just we need some fun fourth

amendment cases this summer we gotta have a break from this other stuff so he's pulled together a little um fourth amendment meal for us a mousse bouche, some entree. I think you're going to have a great time. Background, Professor Kerr clerked on the Third Circuit, then for Justice Anthony Kennedy on the Supreme Court. He has, I don't know, he's done everything, DOJ, all the things. And he has a book upcoming. Professor professor will you tell us real quick about the book yeah i'm working on a book called the digital fourth amendment uh talking about the fourth amendment in the new digital world which is uh which is is the title literally the digital fourth

amendment it is wait wait professor professor you didn't go with the classic formulation of very catchy opening title, colon, the digital Fourth Amendment. You went with the digital Fourth Amendment. Please have a colon with something crazy behind it. Well, you know, it's still early, so I could make it like, you know, the digital Fourth Amendment, colon, why Donald Trump should go to jail or the deep state should go to jail, depending on which side of the political spectrum you're on. Oh, I've got it. I have it. I have it.

That you need no more. You don't need to talk to anybody. You don't need to workshop. This is it. Your iPhone is your enemy, colon, the digital fourth amendment. That would probably sell more books than the digital fourth amendment.

I'm here all week. I'm here all week. all right well until the book comes out you can also find him twitter he's just at or in cur also he writes for volat conspiracy um and let's be clear david and i find lots of these cases on volat conspiracy from professor cur and others so if you're not reading volat conspiracy you're missing out on some of the brilliance. Speaking of iPhones, though, Professor, will you kick us off with some tinted window law? And be sure you have to discuss the difference between Kilo and Kylo. So many K slash low cases to think of. Yeah. So the first case, United States versus Polar. This is the case raising the question of do tinted windows do anything in 2023? You've probably, you know, you see tinted windows and they're very dark. You wonder, can you see through them? Well,

it turns out if you have a smartphone, which, you know, like 99% of people now do, you can see straight through a tinted window. If you just put the phone right up to the tinted window, it'll see straight through it. The iPhone is your enemy. The iPhone is your enemy. See the new top selling book. Yeah, so turns out the law enforcement,

they were following this guy who was a suspect. They thought he might have some guns and drugs in his car. And he parked his car in front of his apartment building, went inside. And they one guy wanted to see, like, I wonder what's inside the car. And the officer says, well, look, takes out his iPhone and puts it right up to the window. And he can see good enough. There's illegal guns and drugs sitting right inside the passenger compartment of the car, and then opens up the car and takes the stuff. And the defendant, Mr. Poehler, challenges this. He says, hey, you searched my car. You were able to see what was going on in the car, and I

had tinted windows, and that's a Fourth Amendment search. And the trial court says, no, that is not a search, relying in large part on this case, Kylo versus United States from a little more than 20 years ago, which said that a thermal imaging device, which lets out that indicates the temperature of surfaces, use of that against a home is a search as long as the device is not in general public use. And so there's this potential sort of exception in the Fourth Amendment for things that are in general public use. And that goes back to some earlier cases we can talk about if you want sort of where that might come from. But what Judge Meyer, this district judge in

Connecticut says is, yeah, so it may be the case that using some high tech surveillance tools to see what you didn't think could be seen as a search, but not when it's in general public use. And iPhones and smartphones generally, wow. They are in general public use. Like everyone has one of these and they may not know that you can use them to see through tinted windows, but you can. And so the use of this iPhone or any iPhone or any smartphone to see through the tinted window, not a search under the fourth amendment. And then there's a second rationale of what is a Fourth Amendment search, the so-called trespass test, which is from another case, United States v. Jones. And that was a case

involving attaching a GPS device to a car. And the Supreme Court said that was a search because it was a physical intrusion onto the car. And Judge Meyer says, well, you know, you don't really need to touch the phone up to the window in order to see through it. This works even if you're just pretty close to it. And so it's it's the touching was incidental to the use of the device to see through. And therefore, it wasn't a Fourth Amendment search, at least according to Judge Meyer. OK, so questions. So first, general public use. I think it's obvious that an iPhone could qualify that that's general public use.

Where's the line? So you mentioned night vision back in earlier in my life. When I was younger, I played a little bit of paintball in my day and my group had night vision on our paintball in our paint. Part of our paintball gear included night vision because we'd play at night. Yet it sounds to me like if you're running around with night vision, that's not general public use in spite of its widespread paintball application. And just to be clear, David, you were a grown ass man at this point? Yes. A lawyer in a law firm. Just wanted to clarify that you weren't 15 or 13.

I was playing paintball against the kids in the college group. You used your own money for this? Wasn't your allowance? Yes. Well, see, what I told them was when I first time I showed up to play paintball and I had very basic equipment and they had very advanced equipment compared to me, as I said, I did not go to law school and get a job in corporate law to be outgunned by a bunch of college students

and so i splurged and quickly became the best equipped paintballer in the land but that's not this that's beside the point well i don't know the question is between night vision offline you know not general public use and iPhone. Do we have any guidance on how common something has to be to be general public use? First, I want to say, David, if you are ever criminally charged with unlawful paintball, then give me a call and we can we can we can consult one on one. But no. So this question of what is in general public use is actually really hard to figure out. In fact, in this Kylo case from more than 20 years ago,

Scalia and the majority and Stevens and the dissent, they go back and forth as to how do you know something is in general public use? Because like, what is it? Is it the tool? Is it the application of the tool? Is it the technology used by the tool? And where this becomes super interesting is the thermal imaging device in Kylo was the same basic technology as thermal. You may have seen sort of like non-contact thermometers, especially during the COVID era.

They pointed at your forehead. All that's doing is it's the same technology. It's infrared light, which it turns out is emitted in proportion to the surface temperature of something. And so you can, for 20 bucks, buy one of these infrared thermometers and they're used all the time. I query my students every year.

I ask them like, how many of you have ever used one of these? They've all had them used on their foreheads now. And maybe 10 or 20% of them have used them for something. You know, if you're working on a car or something like that, it's useful. Or checking for heat. So wait a minute,'re working on a car or something like that, it's useful or checking for heat. So wait a minute.

Does that mean that the facts of Kylo, like using a thermal imaging device, maybe that's in general public use and that's allowed. Now we, we don't know. There just aren't a lot of cases on these, which is on this issue, which is what makes it kind of interesting.

We don't exactly know where the line is. can I also to, to this specific point, is it, do you think how many people in the united states use it or is it its availability so for instance at the time kylo was decided you could not get the thermal imaging device on amazon you'd have to probably i don't know go to some specialty paintball store like david um geared specifically toward tween boys. But now, so much stuff is available on Amazon, even though I don't... On the one hand,

I can see that everything being on Amazon arguably is in general public use if it's on Amazon, for instance, or Walmart. It doesn't need to be Amazon for this example. But at the same time, there's so much available that lots of people don't even know about, would never use. My dad, you know, ordered the part that seals your freezer, the little squishy part that actually does the like sealing when you close it, you know, off Walmart. But like, that's not really in general public use because you can find part number, serial number of 10 things long of the squishy thing in the freezer. Yeah, we the short version is we don't know what. How dare you, sir? Well, let me tell you a little bit where this comes from, because this may be useful.

So, you know, back in the 1920s, the Supreme Court started to get these technology in the Fourth Amendment cases. And one of the claims that was made in a 1927 case was that a flashlight was actually a searchlight used on a boat to shine a light onto another boat to show alcohol that was being brought in from Canada. They said, yeah, that was a search. And the Supreme Court is like, that's not a search. That's just like a telescope. That's nothing. That's not a search. And so then you get these, the Supreme Court is held like using a flashlight is not a search without really explaining why. And then you get cameras that are used. And binoculars. And binoculars are not a search. Cameras, the Supreme Court later says, well, that doesn't matter if it's just sort of a normal camera. And then you get this case in 1986 called Dow Chemical, where it was like a really high resolution camera. And it was a camera used

for map making. And the Supreme Court is like, ah, well, it didn't really take high resolution photos here, but maybe it could. And at least as long as it's a sort of a common camera, that's not a problem. And so that language is what Scalia picks up on on Kylo. And so I think where the Supreme Court was coming from is like normal things that we're used to, eyeglasses, binoculars, flashlights. They're not, you can use those without it being a search, but like super scary new things

that can see things you weren't expecting. That is a search. And what's the line? Maybe general public use. This seems like a real problem., like because it changes with time. What where's history, text and tradition in all of this? Where is the breakdown between sort of the conservatives and the liberals on this? What's happening here, sir? Oh, great questions.

Yeah. So it turns out there's just not a lot of knowledge. We just don't know what search would have been understood to me, what principle the Fourth Amendment was adopting. And here's the challenge. The facts that led to the enactment of the Fourth Amendment were like breaking into someone's home and taking away their stuff. But exactly what was a search didn't matter. I mean, everyone sort of understood it's a search of a house to break into the house, and it's a seizure of property to take away the property. But, like, what was the concept that the Fourth Amendment was designed to enact? No one knew.

It wasn't an issue that came up until the 20th century when suddenly all these new technologies are happening. So if you're an originalist, if you're focused on text, you can say, okay, well, I know what the original facts were that the framers were thinking about, but they would never have confronted this new technology. So you can kind of say, which is what Scalia did and Kylo. All right. What matters is the protection that the framers wanted, which was to say, you can't get all this private stuff from the inside of a house without a warrant. That's what the Fourth Amendment is really about. That's the principle. And in order to maintain the principle, we need to say that using these newfangled devices to find out stuff inside property, that is a search. And what Scalia even says, like he was really worried about is, you know, tools and development to see through walls. If you just say physical intrusion is the

test, then suddenly the government has this way of virtually breaking in without physical intrusion. And that can't be what the Fourth Amendment means, because then the Fourth Amendment no longer has any vitality today. And you got to maintain the role of the Constitution over time. So how to deal with technological change is this continuing problem, because the government keeps coming up with new tools to invade privacy, and people keep coming up with new ways of trying to block the government. It's like an endless cat and mouse game where the courts are trying to figure out, all right, what principle do we adopt over time? And it's hard. You know, I did, to Sarah's point, some live in podcast Googling while you were giving your answer. And it is stunning. Like when you look on Amazon, drones, thermal imaging,

Drones, thermal imaging, all of that stuff can be in my house and, you know, some places less than 24 hours. Two hour thermal imaging delivery. Phew. So, you know, I don't want to jump the gun on different cases, but I guess that starts leads to another question. OK, drones. What is the state of drone law in the Fourth Amendment? Yeah, there are cases from the 1980s dealing with aerial surveillance and helicopter surveillance. And so there was a line drawn in those cases that was basically as long as it's in public airspace, use of it is not a search. And then you had the Dow Chemical case, which I mentioned

a little bit ago, that sort of high-resolution cameras, does that matter? Now, in the drone era, some courts are like, well, that line doesn't make any sense anymore because now you can have drones go anywhere. Maybe drones have eroded the privacy line, or drones with cameras, maybe

drones with thermal imaging devices. Go back to the Kylo case. You can combine the technologies. Well, do you stick with the 1980s line? Do you draw a new line? That's, that's lower courts are just now trying to figure all this stuff out. And do you ever like hang out with the property professors and talk drones about like when you can shoot down the drone over your house when it's searching your house?

Yeah, this did become an issue a couple of years ago when someone found the GPS device attached to his car. And there was a question of like, if he destroyed the GPS device, could he be liable for like damaging the government's property? Like, you know, like I found this thing on my car. Or obstruction. Like, I don't know. Or obstruction. Yeah. And so, yeah, that was the biggest Fourth Amendment property line. But it is, the Fourth Amendment property, actually, it is, this is, you know, the lesson that you teach first-year law students. By the end of the semester, you show them how, like,

every first-year class and every part of law is connected to every other part of law. And there's that moment when they're like, oh, my God, these classes are connected. So, yeah, there's a connection there they're like, oh, my God, these classes are connected. So, yeah, there's a there's a connection there and some other places, too. All right. Let's stick on the iPhone problem, because you are a little hot under the collar about phone companies, tech companies keeping your information, but then copying your information just for funsies, holding on to it, just in case. Yeah, this is not just phones. This is everything. This is all of your online accounts. Majority of American adults have a Facebook account. Pretty much everybody has email accounts. And there's a law called the Stored Communications Act, which has a provision saying that if the government comes along and makes a request to any company provider, any internet provider or telephone provider,

to make copies of the account, that the company has to make a copy of the account and hold it for up to 180 days for the government, just in case they come back with legal process. And the question is whether that's constitutional and what the constitutional limits are of that. And, but wait, this blew my mind. The stat that you have in 2019,

about one out of every 820 adults had their account copied for possible government use. What? What? Yeah. That's crazy scale. Crazy scale. Facebook alone,

something like 300,000 accounts preserved. The government loves to do this with Facebook because Facebook accounts are in your own name, right? You're supposed to use your real name. So they have a suspect. They just look on Facebook. Does this person have a Facebook account? They probably do. Send that preservation request, even if they don't have any cause that that person is actually engaged in criminal activity. Facebook will run off a total copy of everything you've done with your account and set it aside and will never let you know. And if the government comes back with a search warrant, they'll then hand over that copy to the government. But if the government doesn't come back with a search warrant, which they usually don't, eventually a year or two down the road, they'll delete it. But it's all done in secret. And the scale is amazing.

And the point is, at the point that they think you're a suspect, they don't want you going and deleting your social media. And that's the idea behind it. Yeah, exactly. They're worried that if you find out you're a suspect, you'll delete your files or cancel your account. And so just to make sure that everything that might be there eventually is still there, they get this sort of freebie copy that

they can rely on months ahead of time. And they do this all the time. Now, is there any legislative energy on countering this, um, notifying, notifying users, for example, or creating a legal standard for requests? I mean, is there any energy at all on the reform part of this, sort of separate and apart from what courts might be saying? Yeah, I think mathematically, the answer is if you had to scale how much interest there is on legislative reform, I think the exact number would be zero. So there's no interest that I'm aware of in legislative reform. So I wrote a model motion to suppress for defense lawyers to use to try to get them to start challenging this process. Because this has been going on for decades. And I think there are problems with it.

And so I wrote a model motion to suppress, which I've been endlessly trying to get defense lawyers to file. And a few of them have started to file these motions. So we're just starting to see court decisions, although at least so far, they're going the wrong way. Courts are not interested in trying to find Fourth Amendment limits in this so far. I had no idea until I read this, by the way, that professors write model motions. so far. I had no idea until I read this, by the way, that professors write model motions. Law Review articles, sure, but this actually seems far more effective and a way to get your ideas more mainstream to actually write a model motion that lawyers can use in real life and try to get a ruling on this pet thing that you're writing about. It's kind of brilliant.

Well, we'll see. It started off as a Law Review article, and then it became, I realized this means nothing unless someone actually starts filing these motions. So then I wrote the model motion, and I got to say, getting defense lawyers to file motions is harder than it seems. When I was on the government side, so I used to work at the Justice Department, and if you came up with a clever legal strategy, you could talk to people and they'd be like, oh, yes, a clever legal strategy. It was all very well organized. On the defense side, it's individual defense lawyers. They've got a million cases and they don't have time to stop and sort of think about this novel legal argument. So actually getting sort of encouraging people, even a handwritten motion, I've already written it for them, is harder than I expected. That's fascinating because, you fascinating because listeners who aren't aware of sort of like big firm practice and things like that might not know that good big firms,

at least when I was practicing, had all kinds of model motions, had all kinds. And you can search for briefs that were written in similar cases by lawyers in the firm. And you really were almost never starting from scratch on anything. And it was one of the advantages of being at a big firm in my era was that you had at your fingertips an enormous amount of high-quality legal work that you could base a lot of your work on. You know, what I don't know, what's an interesting question is, let's say you're a public advocate. Like we we've had a previous podcast guest a couple of times.

Who's my law school classmate. Who's the runs is a public advocate for Kentucky run sort of the public Kentucky public defenders. Um, do they have, do you have an access sort of into sort of like the, the say a public defender's office to sort of put this in the forms book, so to speak. I'm brainstorming with you, Professor. We need to get your motion out there. I appreciate that. And there is a NACDL, the National Association of Criminal Defense Lawyers, has a brief bank, and I'm trying to get them to post the model brief, which I think will help. And a few people have filed this, I should say. It's just, at least so far, you know, the challenge with this is, you know, you're basically

saying, here's this practice that is occurring at an incredible scale and has been for decades. This should be stopped. This practice needs to be reined in. And if you're a magistrate judge or a district judge, I can understand why you'd just be like, wait a minute, it's been done that way for years. How could that be problematic? So it's in that sense, always an uphill battle to try to sort of change the understandings of what the law is in a motion like this. Not only has it been practiced, it's statutorily authorized by Congress, which I think also makes it a bit of an uphill climb here. This isn't just, you know, well, we came up with this good idea, but will you walk through what the actual, what your theory is of

the Fourth Amendment violation here and what the remedy would be? Yeah, so super simple. First, when the law says that providers have to comply with a quote unquote request, first of all, they become state actors when they do respond to that, right? Like, so it's, it's the law literally saying you are required when the government requests that you do this, that you do it. And so first of all, the internet providers are acting as fourth amendment state actors for, for, for those purposes. And then second, when you run off a copy of someone's account, you're seizing the account. So the question here, and this is really the fundamental question I think is, is making a copy of someone's account, you're seizing the account. So the question here, and this is really the fundamental question I think is, is making a copy of someone's

digital files a Fourth Amendment seizure? And the test for what is a seizure of property is traditionally, is it a substantial interference with possessory interests? And so that's obviously like if it's a tangible object like someone's gun, grabbing their gun and taking it away is a seizure of the gun. They used to have possession. They don't anymore. That's a seizure. So what is the rule if it's a copy? So you used to have one copy of your digital files and now you've got the copy you had before and the government has its copy, but you don't know about it. And so is that a seizure? I would say yes. The government, what matters is the data, not whether you could still access your files when you log into Facebook

or something like that. And so the government has a copy of all of your private stuff. And with Facebook, that could be like every click you've ever made, every message you've ever sent, every photo you've ever posted. Even if you later deleted it, Facebook has everything. And so the government now has its copy. I think that's a seizure of the account. But others will argue, no, what matters is did they interfere with the original version? And therefore, basically, the government is free to make its own copies. And that's not a seizure. That's really the big legal question. And if I'm right that that's a seizure, then the next question is, is it a reasonable seizure?

And usually the government needs probable cause in order to temporarily see something before they get a warrant. I think that's totally fine. If they have probable cause before they see someone's copy someone's account, they have a certain window of time, you know, I don't know, a day or two or something like that to get probable to get a warrant. That's how it would work with physical property. So that's what I

think it should be, just the same rule for the physical world and the digital world, instead of a world where if it's data, the government is free to get copies of every piece of data in the world and they can just hold it as long as they don't yet look at it. That's, I think, what the problem is. so what what is the theory let's talk for a minute about the idea that what you're seizing when you're seizing a facebook record is something that's actually mine um isn't it just facebook's is it are you are you seizing something that is actually facebook's property yeah so it's it's clearly protected by the Fourth Amendment. So your contents are protected and lots of court of appeals holdings on this. Your contents of your email are protected. The contents of your remotely stored files are protected. And under Carpenter

versus United States, the Supreme Court's 2018 decision, your historical cell site records are also protected, even though you don't even know they exist and you can't access them, they're still protected. So there's lots of protected data about people. And it's clear the government is getting its own copy of your protected data. What the government will argue is, yeah, we've, well, they'll say, first of all, it's private action. We had nothing to do with this, which I think is just kind of silly. But even if it's government action, we can't access the copy.

It's like we have it, but we can't search it yet. And we agree we need a warrant to search it. So this is separate. Just can we hold it? Do we have it? And so that's the big difference. So it's clearly Fourth Amendment protected. It's just a question of whether it's a seizure to then copy it.

That's absolutely fascinating. So even though I have data and information that is held by a third party and maybe even the terms of service. So, for example, you know, I remember this was I don't know if the X used to be Twitter's terms of service are still the same on this point. But one of the things that was when you were when you're using Twitter, essentially, they were saying we own all of it. Everything, everything that you you put into Twitter, it's all ours. Now, it doesn't mean that you can't use it, but you can only use it if we grant you permission. grant you permission. So this sort of, even the sort of terms of service where these companies are vacuuming up everything that you do and saying, mine, you know, the seagull call, mine, mine, mine, all that you do is mine, that you're still having the expectation of privacy. You still have, at least from the fourth amendment standpoint, some degree of ownership over that.

Yeah. So, so the role of terms of service is yet another interesting question in this on which lower courts are divided. Some courts say that terms of service can eliminate your Fourth Amendment rights, which if that's true, you basically don't have any Fourth Amendment rights on the internet because terms of service are written by these company lawyers to just take away all your rights because why would they want users to have rights? It's just rights to sue the company. They don't want that. And then other courts say, no, it can't be that terms of service eliminate Fourth Amendment rights because there are kind of terms of service equivalents with like car rental agreements or leases on apartments. And the courts have said

that does not control your Fourth Amendment rights. So that's another thing. And I think the correct answer is the terms of service don't matter. So you still have your Fourth Amendment rights in your online accounts, even if some lawyer inserted Clause 83.5 BC, which says you have no rights in this account. That's a private contract. That's not a contract with the government. And therefore, it doesn't matter for Fourth Amendment purposes. That's a private contract. That's not a contract with the government. And therefore, it doesn't matter for Fourth Amendment purposes. Okay.

Last case, a little dessert. This also has to do with searching copies, consent, all of those things. And I think I might disagree with you on this one. Oh. So walk us through it. All right. Good. Now we're cooking with fire.

Yes. State versus McDonald. This is a case from the Maryland Supreme Court last month. And it involves your rights in copies. And here's a key background to understand. When the government searches a computer, they don't just search the computer. They make a copy of everything. They make a digital image, as it's known. It's a perfect copy of the device.

And they search the digital copy. And they do that because if it gets to litigation and the defendant says, hey, you altered the files, you say you found evidence of crime. But actually, I think you put the evidence of crime in the file. The government would be like, oh, whoops, you know, we searched that and now it's different than it was before. By making that copy on the front end, they can say, well, we have a perfect, we have the original that has never been searched and we can go back to that. And I'll bet you, we find that evidence again. So defendants basically, they won't make that challenge unless they think they have some reason to think they're right. And so the issue in state versus McDonald's is what happens with consent when the following happens. If they go to the defendant, they think there's evidence on his computer, and he consents to a search.

And so he fills out the consent form. He says, yeah, yeah, you can search this. And then a few days later, he withdraws his consent. He gets a lawyer, and his lawyer says, you are not consenting to searches. We withdraw our consent. Now, in the meantime, the government has made its image. So they have their image copy. And the government says, well, you've withdrawn consent, but you can't withdraw consent as

to the image. You can only withdraw consent as the original. And so fine, we won't search the original, but we sure are going to search the image based on your consent. So they search the image and they find some evidence of crime and then charges follow and he files a motion to suppress. The Maryland Supreme Court says you keep your Fourth Amendment rights in the image just like you do in the original. So the fact that an image is made does not alter your rights, at least as long as that image hasn't been searched before the

consent was withdrawn. So what does this mean? Basically, it doesn't matter how the details of the forensic process works. What matters is you as a person have rights to consent and withdraw consent. And that's just as true whether there's an image made or not. That's the basic idea. Yeah, that makes no sense to me. because all you're doing is telling the government they need to search immediately when they get the image to thwart this sort of withdrawal of consent. It'd be like giving the government the bloody knife and then coming back later and be like, JK, now I have a lawyer and it turns out, stupid me, I shouldn't have given you the bloody knife. I'd like it back. Like, no, you gave him the bloody knife.

That's on you, friend. I think that's always going to be the case with the consent search. The nature of it is like I was OK with what the government did. And so as long as the government can persuade someone to consent and maintain their consent and they do it in the time period, that's fine. That's, that's all right from a fourth amendment standpoint. So, so I think, you know, there is a practical challenge to searching very quickly, which is that the forensics process takes a long time.

And so if the government really, really thinks they've, you know, they're just going to be consent for a super short window, searching very quickly is going to be hard in light of all, you know, usually the way it works is they bring it back to the lab and there's, you know, a thousand computers or a hundred computers waiting to be searched. And so, hey, do this one first. No, do this one first. That's that's tricky. So so what this does, I think, is it limits consent searches. It doesn't eliminate the government's ability to rely on consent searches, but it does limit it given how long the forensic process can take. Nope. Once the government has a copy. We're not playing consent-y games.

No. Yeah, there is one open question left in this case, which is super interesting, which is can the language of the consent form make a difference? So the language in this consent form actually kind of suggested, it said specifically, we're going to make a copy and you won't have privacy rights in the copy that we make. specifically, we're going to make a copy and you won't have privacy rights in the copy that we make. And so the government says, well, even if in general you retain rights to withdraw consent as to copies, not here, because there was this form. And the court basically says, listen, this was like in the middle of a long form and you can't expect someone to have understood in

context that that's what that meant. And we're not going to answer whether if the form were clearer, which like every government lawyer is quickly writing the new form, which is like super, super clear. We're not going to answer whether a super clear form would have made a difference. So it may be that this is just a hiccup on the way to a super clear form that says, listen, once you consent, we're going to make a copy. You cannot withdraw consent as to the copy in big bold letters. And maybe that controls. Although on the other hand, maybe that makes people go, well, maybe I don't want to consent. I should talk to a lawyer first. So we'll have to see. You know, it's interesting going back to,

maybe I don't want to consent. Perhaps I should talk to a lawyer. One sign that your spouse is married to a lawyer is we had, this is a little bit of a macabre example, but we had a situation a couple of years ago or a few years ago where somebody was, had searched for our address to send us a bomb. And the FBI reached out to our, to us. I was out of town and Nancy calls me and says, the FBI is trying to reach me. Should I talk to them? That is the sign that your spouse has been at least listening somewhat.

And I was like, what's the general topic answer? I think somebody might be trying to kill us. Yes. Yes. And that circumstance. Trying to kill us. Yes. Yes. In that circumstance. So moving. So moving on from some of these specific cases, if you had to. I'm super fascinated by all of the tech aspects of of, you know, the Fourth Amendment now, if you had to look at the next few terms of the Supreme Court and say, here's one or two issues involving tech and the Fourth Amendment that we're just

screaming for the Supreme Court to resolve, what would that be? Yeah, so the couple of big ones, poll cameras, which is cameras that are put up on public property and they focus on someone's front porch and they can just have those cameras up quietly for months. Some courts say that's a search. Some courts that say that's not a search would be awesome for the Supreme Court to answer that. They haven't done that yet. There's a fifth. I'm going to cheat a little bit. Wait, wait.

That seems insane to me. So they put a camera like on the sidewalk across the street focused on your front door yep yep and so one perspective is well that's public surveillance usually not a search yeah like for instance if they had a police car over there with 24-hour surveillance you couldn't you know tell the police officer to leave but also that takes a lot of resources and they have to really like, you know, narrow that down. It's all, it's the same problem of what happens when technology makes it easy to do something that used to be really, really hard. And where does the Fourth

Amendment line shift? So that's a big one. Unlocking a phone is another big one. This is actually the Fifth Amendment privilege. If they try to make somebody enter in passcodes or unlock their phone, is that a violation of the Fifth Amendment? And then the last one, border searches of computers is another biggie. What happens if you're crossing the border with your phone or your laptop? Can the government search that like they can search other property, or do they need a warrant or some sort of calls? Yeah, those are all good ones. We've talked about the testimonial nature of putting in your password, et cetera are all good ones. We've talked about the testimonial nature of putting in your password, et cetera. And the border, we've talked about a border case

of that, like the law at the border is quite different than the rest of the country. So on the unlocking of the phones, it's also seems like an area where simply the ease of the technology, you start to wonder. So for example, it was considered more private to have facial recognition in some ways, or it may be easier, but maybe more precise to have facial recognition

than the push code and, you know, than the push button and enter the code, etc. But it strikes me as now phenomenally easy to just hold up a phone and say, look, look at me and pop the phones open. Does the ease of opening the phone in those circumstances, is that going to play into this at all? What every eight year old child has figured out with their parents' phone, by the way. Yeah, exactly. So, so it shouldn't be the ease. What makes it tricky is this is a fifth amendment issue, which the real issue is, are you testifying? Are you sort of giving the contents of your mind? And so our instincts about sort of privacy don't really play out because it's not a privacy question. And what the government argues is like, wait a minute, we're getting a warrant to search the phone. So we have satisfied

all of the privacy concerns. This is like something new that technology is adding in to make it harder. And so it shouldn't be artificially hard because we're already getting a warrant. So a lot of our instincts about sort of all these Fourth Amendment cases end up being different as played out in the Fifth Amendment setting than in the Fourth Amendment setting. All right. Professor Kerr, with a little Fourth Amendment meal for everyone to chew on, where our AO listeners are going to be such a hit at their summer cocktail parties, little league games. Well, I... Pillow talk. There's no limit to where this comes in.

We laugh, but I can easily imagine holding court at a party with my phone in my hand talking about all the ways it could betray you like Brutus did Caesar on the floor of the Roman Senate. I mean, that's good material right there. And I just want to say, I hope you will all buy my book titled Your iPhone is Your Enemy or whatever it's going to be called. We'll see. It's too early for that. I can always change the title. So that's easy. But no, it's all great issues. And the courts just keep coming up with new cases.

And it's always fresh. If you want this sort of fun diversion from your daily life of Twitter or whatever else, I really, Professor Kerr's Twitter feed is the best. You will just get the weirdest cases with little screenshots from odd fact patterns. It brings me joy on a daily basis. Thank you. Thank you. Thank you.