In the BT era, before every waking moment was spent obsessing over the hour’s idiocy from the White House, there was a quiet revolt taking place in the courthouse by a handful of United States Magistrate Judges challenging the government’s efforts to remain a few steps ahead of the law and technology. I dubbed it the Magistrate’s Revolt. Good times. Fond memories of when law was still something of interest.
It’s back. Well, not quite back, as in some critical mass of people focusing on the same government apparatus as flourished before Trump, but at least a a few finding it worthy of attention again. Most notably, the New York Times has shifted from its “All Trump, All the time” status to giving a little real estate to a substantive legal issue of monumental important and doubtful sexiness. It begins with the plight of poor Timothy Carpenter, as Cristian Farias describes, who won huge and will spend the rest of his life in prison.
Timothy Carpenter won’t be remembered for the circumstances that landed him in prison, but for the Supreme Court case that bears his name.
Carpenter v. United States, which set a new benchmark for privacy in the digital age, requires the police to obtain a warrant before obtaining cellphone location history from a phone company. Privacy advocates hailed the ruling, and saw in it the potential for broader protections for personal data in the digital age.
What to make of the Carpenter decision wasn’t entirely clear, but it was, if nothing else, a huge step forward in the battle for constraints on the use of technology to invade our privacy. But for Tim Carpenter, it was an exercise in futility when the case was remanded to the Sixth Circuit.
The appeals court this week acknowledged that the government “violated the Fourth Amendment” when F.B.I. agents sought and obtained, without a warrant, Mr. Carpenter’s location data. But under the good-faith exception to violations of the Fourth Amendment, the court said the agents acted reasonably and in “good faith” — and so whatever they gathered could still be used at trial. The F.B.I. merely followed the law and the rules that applied at the time of the violation.
Much to the surprise of the unwary, and the disappointment of the too-wary, the winner at SCOTUS gets no special dispensation from the rest of the law, here the “good faith” exception, and walks out. Even the Wandering Prawf, Orin Kerr, concedes that sucks.
“Supreme Court cases should mean something,” Mr. Kerr said in an email. “The Supreme Court is supposed to decide a person’s case, not just settle the rules for everyone else.”
Is it purely coincidental that EDNY Magistrate Judge James Orenstein, the east coast leader of the Mag’s Revolt, was given the real estate next door to Cristian?
On most weekdays in the federal courthouse in Brooklyn, prosecutors will ask the magistrate judge on duty to issue lots of sealed orders authorizing them to use all sorts of investigative technologies or requiring technology companies to keep tech-based searches secret.
But that typically won’t happen when I’m the judge on duty. When it’s my turn, the docket gets awfully quiet as prosecutors wait for another judge. That’s not because the prosecutors or other judges are doing something they shouldn’t. It’s because prosecutors think they’ll stand a better chance of getting what they want from another judge. This waiting game is a symptom of how new surveillance technologies are challenging a legal system that hasn’t figured out how to handle them. (The views here are my own, not those of the federal courts.)
Judge Orenstein doesn’t blame AUSA’s for avoiding him like the plague, knowing that he’s going to challenge their claim to a warrant, limit its scope or consider duties to impose in the absence of law authorizing (or not) their actions. That’s part of the game, finding the mag most inclined to sign off on a warrant with the least hassle, which pulls a Carpenter at worst if it all blows up later. If the scheme is subsequently held unconstitutional, there’s always the “good faith” of having a warrant to salvage the life plus cancer sentence.
Rather, the onus is on Congress, because they have a theoretical duty to create the law which the judges are to apply if they can find time in between hearings on the awfulness of the executive branch.
Congress is way behind in determining how far the police can go in using technology to invade people’s privacy, and many of the legal disputes arising from this collision have not reached the Supreme Court. For the public, as a practical matter, the rules of the road are being decided by prosecutors. Your privacy is not their highest priority.
Judge Orenstein is a master of understatement. But as a mag, it puts him in an awkward position. Does the absence of law dealing with tech intrusion and constant advancement mean it’s his job to make waves or his job to sign off because of Congress’ not-quite-benign neglect?
Those decisions are best made in Congress, but if Congress fails to do so, judges should at least hear opposing views and give a public account of the reasoning behind their decision. These choices should not be left to the secret deliberation of a judge, handpicked by prosecutors, who sits on the lowest tier of the judiciary.
Warrants are odd animals, obtained in darkness with no one to question or oppose. And yet they are magic, salvaging all manner of search that might otherwise be in violation of the Fourth Amendment from exclusion because the prosecutors tried to do the right thing. What more can one ask, even if it means picking the judge on the “lowest tier of the judiciary” least inclined to feel the need to give a public account of their reasoning.
If Congress won’t write laws for this century’s technology, courts must craft rules that ensure a fair and orderly review of new investigative methods.
As everyone knows, Congress is very, very busy issuing subpoenas and trying to figure out how they’ll enforce their contempt citations so they don’t look impotent. The problem for judges like Orenstein is that they can do their best to craft rules consistent with existing, if archaic, law, but if the Mag’s Revolt makes the job too hard for prosecutors, they’ll just find a mag who doesn’t share this concern. And once there’s a signed warrant in hand, who wants to be the next Timothy Carpenter, basking in the warm glow of his huge Supreme Court win for the rest of his days in prison?