Carpenter v. US: Gorsuch’s Dissent Re-Ignites Criticism of the Third-Party Doctrine

By Lauryn Gouldin

One interesting aspect of the Court’s decision in Carpenter v. United States is Justice Neil Gorsuch’s dissent. While many will, no doubt, cast the Carpenter decision as a 5-4 decision narrowing the reach of the Court’s broadly applied and long-criticized third-party doctrine, attentive readers will see that the result is a bit more complex. For those trying to predict where the justices stand on Fourth Amendment issues going forward, this is better characterized as a 5-3-1 decision, with Justice Gorsuch standing alone. 

“Like Justice Thomas, Justice Gorsuch is skeptical of the Court’s Katz v. US jurisprudence and its efforts to ascertain (or worse, to dictate) what the community views as a ‘reasonable expectation of privacy.’”

Chief Justice John Robert’s majority opinion, joined by the Court’s four liberal justices (justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), marks a significant narrowing of the third-party doctrine—significant, in part, because it is the first case where a majority of the Court acknowledges that the doctrine has meaningful limitations. But it is also a measured decision. Many encouraged the Court to use Carpenter to eliminate the third-party doctrine altogether. The majority, however, clearly declined to go that far and claimed that its decision was “a narrow one.” 

Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito writing together (and separately) are clearly persuaded that the government conduct in this case—the order to a cell phone company to search company records for data collected about a subscriber’s past locations—was not a “search” under the meaning of the Fourth Amendment. 

Justice Gorsuch’s take on that basic question is different. Like Justice Thomas, Justice Gorsuch is skeptical of the Court’s Katz v. US jurisprudence and its efforts to ascertain (or worse, to dictate) what the community views as a “reasonable expectation of privacy.” Justice Gorsuch clearly disagrees with the other dissenters about the possibility of a Fourth Amendment violation on the facts presented. In his dissenting opinion, Justice Gorsuch repeatedly suggests that he sees government overreaching (and a potential Fourth Amendment violation) in the factual background of the case. He unmistakably criticizes the third-party doctrine, stating, for example, that “[c]onsenting to give a third party access to private papers that remain my property is not the same thing as consenting to a search of those papers by the government.” Further, he agrees with the majority that “the rationale of Smith and Miller is wrong.”

Despite these concerns about the doctrine and about the underlying question, Justice Gorsuch dissents from the majority opinion, ruling against Carpenter on procedural grounds. In Gorsuch’s view, Carpenter failed to assert and develop essential property-based, positive law arguments. Justice Gorsuch even suggests these arguments might have persuaded him to rule in Carpenter’s favor (“In these circumstances, I cannot help but conclude—reluctantly—that Mr. Carpenter forfeited perhaps his most promising line of argument.”) Justice Gorsuch says, explicitly, that it is “entirely possible a person’s cell-site data could qualify as his papers or effects under existing law.”

Lauryn Gouldin is Associate Professor of Law at Syracuse University College of Law.

The Stain of Torture

By David M. Crane

(Re-published from The Jurist | June 26, 2018) June 26th is the United Nations’ International Day in Support of Victims of Torture. Its purpose — to denounce the crime of torture and proclaim solidarity with its survivors — is in stark opposition to the policy of my government.

As a former Chief Prosecutor of an international war crimes tribunal in West Africa, I walked the countryside, interviewing hundreds of victims — often people who had been tortured by their own government. The atrocities scarred them physically, emotionally, and psychologically for life.

But they shared their stories enthusiastically with our team, willing to relay the horror in order to receive human empathy, long after giving up hope of finding anything resembling justice.

Having prosecuted the officials of other governments for torture, I now find myself in a United States increasingly identified with torture and cruelty. Intensifying torture was presidential campaign rhetoric. A person who oversaw waterboarding in black site prisons is promoted to lead the CIA. Children are removed from their families as they flee gang violence. The U.S. reportedly now plans to leave the UN Human Rights Council, although a member has never before departed that body voluntarily.

How Did We Get Here?

A leader in building the post-World War II consensus against torture and for the rule of law, the United States chose a path of lawless brutality after the horrendous crime of 9/11. Lashing out broadly at Muslims, it threw aside its own rules and embarked on the rendition, detention and interrogation program (RDI).

Our government embraced torture, long known by interrogation professionals to be counter-productive. It did so as an attempt at payback, out of anger. Weak justifications defied logic, morality, and international legal norms that had stood for decades.

Two Libyan victims of the RDI program, Abdul-Hakim Belhaj and his wife Fatima Boudchar, exemplify how far the U.S. moved to the dark side. They were on their way to the U.K. to seek asylum as opponents of the Gaddafi regime. With intelligence from the U.K., the CIA detained them in Thailand and tortured them: painful stress positions, drugs, and vicious beatings. Boudchar was several months pregnant.

From Thailand they were rendered to Libya, to the hands of their enemies, where they suffered further torture. Ms. Boudchar was released from prison just three weeks before she gave birth.

Fourteen years later, the British Prime Minister finally issued an apology for the U.K.’s role in the couple’s rendition and torture, a crime led by the United States. Stating that her country had contributed to the couple’s capture, Teresa May admitted “neither of you should have been treated this way,” and apologized unreservedly.

Less than a month later, the European Court of Human Rights also repudiated torture. It delivered judgments against Romania and Lithuania, which both hosted secret CIA torture prisons, finding this supporting role a violation of the European Convention on Human Rights.

In stark contrast, at the same time such moral progress was occurring across the Atlantic, the U.S. confirmed a key figure in the RDI program to lead the CIA. Gina Haspel oversaw detention and torture at a black site occupied by Abd al-Rahim Al-Nashiri, the detainee whom the European Court said was subject to “an extremely harsh interrogation regime.”

What Are Citizens to Do When Their Government Doubles Down on its Torture Record?

I am part of one attempt to answer that question and give the survivors a safe space to tell their stories. I am a Commissioner of the North Carolina Commission of Inquiry on Torture (NCCIT). As part of the RDI program, the CIA used contractors and public facilities in North Carolina to move victims around the world to be tortured. Now local citizens are demanding to know how and why this was allowed to occur …

Read the whole article.

David M. Crane to Speak on Yemen Crisis at Stimson Center Event

David Crane Stimson CenterINSCT Faculty Member David M. Crane will join other distinguished international law scholars and practitioners at “Crisis in Yemen: Accountability and Reparations,” an event designed to bring the world’s attention to a growing humanitarian disaster in this Middle East nation.

The panel discussion takes place at The Stimson Center in Washington, DC, on June 26, 2018, from 10 a.m. to 1:30 p.m. The simulcast can be viewed here.

Sponsored by the American Society of International Law, the Stimson Center, and the Washington Foreign Law Society, the panel also features Stephen Rapp, Former US Ambassador-At-Large for War Crimes; Mark Agrast, Executive Director, American Society of International Law; and Sarah Leah Whitson, Executive Director, Middle East and North Africa Division, Human Rights Watch, among others. View the full list of panelists here.

The Yemen Civil War, which had its roots in the political upheaval of 2011-2012, has since turned into a complex conflict among a central, recognized government and its powerful Saudi-led allies, an alternative government in the country’s north backed by Houthi rebels, and several terrorist groups.

Escalating in 2015, the civil war has created the world’s worst humanitarian crisis. An estimated three quarters of the civilian population have been affected by the devastation from warring parties on all sides. Death, disappearances, detentions, torture, displacement and famine are ravishing the country. A cholera epidemic is being exacerbated by raids on civilian populations.

Meanwhile, critical ports for delivery of food and medicines have been blocked. Arms and deadly munitions, funded by the US and UK, have proliferated. Secret prisons established inside and outside the country are detaining countless numbers of civilians, women, children, and aid workers.

The panel of experts, led by Rapp and Crane, will assess the situation on the ground in this stage of the Yemen crisis, and propose solutions drawn from fundamental international laws and standards.

Corri Zoli Co-Authors Safety Science Article on “Terrorist Critical Infrastructures”

INSCT Director of Research Corri Zoli has published “Terrorist Critical Infrastructures, Organizational Capacity, and Security Risk” in the engineering journal Safety Science. This interdisciplinary article is co-authored with Zoli’s Syracuse University colleagues Professor Laura J. Steinberg of the School of Engineering and Computer Science and Professor Margaret Hermann of the Maxwell School, along with Martha Grabowski, an engineering professor at LeMoyne College in Syracuse, NY.

This essay addresses gaps between studies of terrorism and infrastructure resilience to explore “terrorist critical infrastructures” (TCIs) as one critically missing framework to understand the rise of terrorist political violence globally. This approach to global terrorism maximizes core perspectives common in resilience and safety research and uses comparative analyses from terrorism studies, systems engineering, and infrastructure protection.

The authors develop a topology of terrorist infrastructures, introduce the concepts of “enabling” and “coopted” TCIs, and contrast characteristics of TCIs with those of conventional infrastructures. They argue that the organizational intelligence that comes from aligning strategic goals with infrastructural capacity is critical to explaining the prevalence, durability, and resilience of many terrorist organizations (as well as their increasing use of violence).

“We can understand these emerging organizational forms by their design and development, often flat, mobile, and flexible ‘networks of networks’ themselves,” the authors explain.

Article Highlights
  • Analysis used a systems-based interdisciplinary approach to terrorism.
  • Informal, illicit non-state groups, such as terrorist organizations, build and design critical infrastructures to effect terrorist aims and goals, including targeting soft targets.
  • The types of TCIs can be categorized according to terrorist organizations’ strategic targeting priorities; interface with existing context-specific civilian infrastructure systems; and their need to design, build, and engineer new infrastructure systems particular to illicit organizations.
  • Such TCIs involve formal and informal, legitimate and illegitimate, and physical and virtual systems.
  • TCIs often interface with criminal networks and low-governance.
  • Results show the need for more research and a targeted, infrastructure based approaches to combating terrorism.\
  • Practical implications for governments and security sectors are discussed.

 

Statement by William C. Snyder on SCOTUS Carpenter vs. US Decision

Read the opinion

The Supreme Court’s Carpenter vs. US decision today will have far-reaching impacts, because it extends constitutional protections to cell site location information and not just to the actual content or words and sounds of a cellphone call or text message. The government now needs a warrant issued by a judge in order to obtain long-term, detailed records of the location of a cell phone.

The ruling also is significant because the Court reasons that constitutional protections against unreasonable searches and seizures must change as technology advances, surely a sign that more change will come. Furthermore, the Court struck down Congress’s protections for cell site location information. That is, the FBI fully complied with the Stored Communications Act and obtained federal court orders requiring Sprint and another carrier to turn over the geolocation information. Those orders are less difficult for police to obtain than are search warrants. Now, more stringent search warrants are required.

Nevertheless, the Court affirmed that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties … even if the information is revealed on the assumption that it will be used only for a limited purpose.”

The so-called “Third Party Records Doctrine” survives; the Court found that it does not apply to long-term “encyclopedic” geographic information generated by cell phones. Striking down this doctrine would have had enormous implications for government investigations, both for law enforcement and intelligence agencies.

The Court not only did not go that far, but it reaffirmed the basic principle that the Constitution does not protect evidence a person voluntarily provides to someone else.

These matters are complex. The justices wrote 119 pages to explain their reasoning. Also, the decision was 5-4, decided by just one vote. Today’s decision is, in the words of the Court, “a narrow one.” It is a step toward extending Constitutional protections in the cyber age, but only a step. It points a direction, but the Court is proceeding one step at a time.

Professor William C. Snyder

 

David M. Crane Testifies About Postconflict Justice Options for Sri Lanka

INSCT Faculty Member David M. Crane testified in front of the US House Committee on Foreign Affairs Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations on June 19, 2018. The hearing, chaired by Rep. Christopher H. Smith (R-NJ), investigated postconflict justice options and human rights issues related to the long Sri Lankan Civil War, which lasted from 1983 to 2009.

Joining Crane as witnesses were J.S. Tissainayagam, journalist and human rights advocate;
Michael Jerryson, Ph.D., Associate Professor of Religious Studies, Youngstown State University; and John Sifton, Asia Advocacy Director, Human Rights Watch.

In his statement, Crane told the committee that, “I approach this issue as a neutral, someone who stands for the rule of law, particularly on the battlefield and for the protection of noncombatants. We live in an age of extremes. Dirty little wars arise across the globe. Parties to the conflict pay little heed to the laws of armed conflict. Many of these largely non-international armed conflicts see civilian casualties mount, most of
them women and children. The conflict in Sri Lanka was one such dirty little war, which saw the death and destruction of tens of thousands of human beings on both sides.”

Crane was a member of a panel of experts advising the Commission of Missing Persons set up by the Sri Lankan government in 2014. “I spent days walking the battlefields of the conflict in Sri Lanka, particularly of the final campaign in the Winter of 2009.”

Crane enumerated several humanitarian and war crimes issues that arose from the conflict and that have yet to be properly reconciled. These include violations of international humanitarian law committed by all sides, the intentional targeting of civilians in a campaign of terror to seek a military and political conclusion, and a brutal final campaign in the winter of 2009 that was exacerbated by an increasingly desperate Liberation Tigers of Tamil Eelam army (the LTTE, or “Tamil Tigers”).

Noted Chairman Smith, “Although the civil war ended almost 10 years ago, important work remains to make sure basic human rights are being respected in Sri Lanka. The resurgence of Buddhist Sinhalese nationalism poses a particular challenge to ethnic reconciliation. It is imperative for Congress to exercise leadership on this issue and ensure that a country as strategically located as Sri Lanka doesn’t collapse again.”

 

Corri Zoli Discusses North Korea Summit with WSYR

Speaking to WSYR’s Dave Allen on June 12, 2018, Director of Research Corri Zoli analyzes the summit between President Donald Trump and North Korean President Kim Jong-un and the fate of the verbal de-nuclearization agreement between the two leaders. While cautioning some skepticism, Zoli says Kim’s action’s before and after the summit offer some amount of hope that a lasting nuclear and peace deal can be reached and that the Western-educated dictator might be a “change agent” for the hermit nation.

David M. Crane to Discuss Yemen Crisis at Stimson Center Discussion

The conflict in Yemen is currently one of the world’s worst humanitarian crises, yet is often forgotten by the international community. It is reported that close to 6,000 civilians have been killed in the conflict and almost 9,000 wounded as a result of indiscriminate and disproportionate airstrikes, artillery fire, and rocket launches. Many civilians languish and are tortured in secret prisons. The suffering of ordinary citizens is exacerbated by blockades of humanitarian aid and food.

On June 26, 2018, INSCT Faculty Member David M. Crane will join other distinguished speakers at a Stimson Center event to explore how war crimes, crimes against humanity, and the most egregious human rights violations can be addressed via international law to promote accountability, uphold fundamental humanitarian standards, and obtain reparations for the countless victims of the Yemen crisis.

Crane will lead the discussion with former Ambassador-at-Large for War Crimes Stephen Rapp. Discussants will be Amanda Catanzano, Senior Director for International Program, Policy, and Advocacy, International Rescue Committee; Waleed Al Hariri, Director of US Office, Sana’a Center for Strategic Studies; Raed Jarrar, Advocacy Director, Middle East and North Africa, Amnesty International; Kate Kizer, Policy Director, Win Without War; Don Picard, Chief Legal Advisor, Yemen Peace Project; and Sarah Leah Whitson, Executive Director, Middle East and North Africa Division, Human Rights Watch.

Learn more about the event.

 

INSCT Hosts State Board of Elections Cybersecurity Tabletop Exercise

On June 7, 2018, the Institute for National Security and Counterterrorism (INSCT) hosted one of a series of statewide exercises that focus on cybersecurity preparedness and response to threats to New York State election systems. These first-of-their-kind tabletop exercises are sponsored by NYS Board of Elections (BOE) and US Department of Homeland Security (DHS) in partnership with the NY Division of Homeland Security and Emergency Services, NY State Police, and the NYS Intelligence Center.

Taking place in the College of Law, the Onondaga County tabletop exercise–like the other five regional exercises–was designed to identify areas for improvement in cyber incident planning, preparedness, and response through realistic scenarios that simulate the undermining of voter confidence, voting operations interference, and attacks on the integrity of elections.

State and local officials, led by the BOE and DHS Cyber Incident Response Team, will utilize information gleaned from these tabletop exercises with state, local, and federal stakeholders to identify risks and develop necessary steps to safeguard the election process.

Contoured for each region, the scenarios are based on a combination of real world events and potential risks facing election infrastructure. These threats include possible social media manipulation, disruption of voter registration information systems and processes, attacks on voting machines, and the exploitation of board of elections business networks.

The tabletop exercises are part of a BOE cybersecurity plan that was approved on May 3, 2018, to further strengthen cyber protections for New York’s elections infrastructure through the Secure Elections Center.

NYSBOE_Tabletop_Exercise