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March 3 — Privacy rights in everything from retail sales records to user information of Internet service providers could be affected by the questions the justices of the U.S. Supreme Court considered during oral argument March 3.
Confusion reigned as the justices confronted whether Los Angeles hotels have an expectation of privacy in their guest registries when city law requires hotels to collect guest information and the statute authorizes police to inspect the registry without a warrant or subpoena.
Underlying that question is whether facial challenges to statutes are permitted under the traditionally fact-specific Fourth Amendment to the U.S. Constitution.
A ruling upholding the searches with no judicial preclearance could affect privacy rights in other contexts such as retail sales records or Second Amendment rights of hunting lodge guests, Justices Sonia Sotomayor and Elena Kagan speculated.
An amicus curiae brief filed by Google Inc. argued that private user information held by Internet service providers could also be affected.
Arguing for the hotel owners, Thomas C. Goldstein of Goldstein & Russell, Bethesda, Md., said, “The government can require any business to keep track of all its transactions and all of its customers.”
The problem is, “if the government can then just say, all right, now, give us all that information, then they've reduced the Fourth Amendment to a nullity,” Goldstein argued.
Goldstein conceded that the hotels aren't entitled to the full protections of the Fourth Amendment, which prohibits unreasonable searches and seizures.
Even so, a simple “one-page” administrative subpoena, to which the hotel could object, should be required to search the registries, even though a formal warrant supported by probable cause isn't necessary, he argued.
But “a subpoena is worthless when what is sought is something that can be easily destroyed, hidden or falsified,” as the hotel registry could be, Justice Samuel A. Alito Jr. pointed out.
“No one issues a subpoena for the murder weapon,” Alito said.
If a hotel owner objects to the subpoena and the police officer has to “go somewhere” to get approval from an administrative judge, “during that time doesn't the hotel clerk just take his pen” and alter the registry? Chief Justice John G. Roberts Jr. asked.
No, Goldstein said, because as Kagan pointed out, the police “can sequester” or “freeze” the records first.
But “that's a seizure,” Alito pointed out. “Why is that justified but looking at the information is not?” he asked.
“That seems much more intrusive than the scheme you're objecting to,” Justice Anthony M. Kennedy said.
Justice Antonin Scalia said he thought the hotel owners' objection would be “to keeping books at all.”
“They're not entirely private records,” he said. “They're records required by law to be kept and you're not objecting to that at all,” he told Goldstein.
“I'm just puzzled by this case,” Kennedy said.
Arguing for the city of Los Angeles, E. Joshua Rosenkranz of Orrick, Herrington & Sutcliffe LLP, New York, said that “everyone knows that these registers have been reviewed by the police for 115 years.”
“No one goes into the hotel business unaware” of a duty to keep these records about their guests, so there is no reasonable expectation of privacy, he said.
But Sotomayor observed that “the early information was basically somebody's name and—I'm not even sure—their address.”
Yet “today's registry and requirements have information that federal law doesn't permit to be disclosed, like driver's license, credit card information,” she said.
Scalia pointed out, however, that it's the privacy interest of the hotel, not its guests, that is at issue in the case.
“If the problem is license plates and credit card information and all of that,” it's “up to the guests” to complain, Scalia said.
So does the court need to discuss “reasonable expectation of privacy” in its opinion, “or do we just forget that phrase?” Kennedy wanted to know.
“In a way, as we all know it's circular, that if we say there is a reasonable expectation, then there is,” he said.
Rosenkranz said that the court could look at the statute and ask, “Is this a closely regulated business? Was it necessary? Is it a legitimate non-law enforcement purpose, and so forth.”
“Is closely regulated another way to talk about reasonable expectation of privacy?” Kennedy asked.
“Yes, indeed it is,” Rosenkranz responded.
The purpose of the statute is to make sure hotel owners are complying with the registration requirements, not to give law enforcement officers a tool to harass them or gather criminal evidence, Goldstein said.
Realistically, hotel owners will almost never object to having their registry reviewed, Goldstein said.
“But it is the prospect that we can go to a judge that tells the beat cop that he needs to behave” and would deter officers from abusing their power, he said.
“You're saying, they can keep the books in order to detect criminal activity, but if they request the book in order to detect criminal activity, it's bad?” Scalia wondered.
“That doesn't make any sense at all,” Scalia said.
But the city's defense of the statute is not that the records are used to detect crime, “it's they're used to deter crime,” because criminals don't want to have to register, Goldstein argued.
“They don't look at the records to find criminals. All they do is look at the records to make sure we're keeping records,” he said.
“The fact that they have an underlying administrative scheme doesn't mean that they can investigate crimes through using this evidence,” Goldstein said.
An officer needs probable cause to say, “I think there's a prostitute in room three,” and to check and “see if that person's name matches up as a prostitute.” That's “criminal law enforcement,” and the hotel owners need a way to object to that, Goldstein said.
But “you concede the records have to be kept. There are very few reasons for keeping those records other than law enforcement,” Kennedy said.
Goldstein disagreed. “We use these records for very different purposes. They are every record of our business transactions. We use this information to keep in touch with our customers. Every business does. It's quite proprietary information,” he said.
“The Fourth Amendment protects our sense of tranquility,” Goldstein said multiple times during the argument.
“Have we used that phrase before?” Roberts asked. “We talk about privacy and all that, but I'm not sure the Fourth Amendment should be expanded to protect the sense of tranquility,” he said.
Kennedy wasn't convinced that a facial challenge to the statute on Fourth Amendment grounds was appropriate.
“The complexity of the answers and, frankly, the surprise I have at some of your answers may indicate that this is not a basis for a facial attack,” Kennedy told Goldstein.
“Seems to me we have to go back and decide these issues on a case-by-case basis,” Kennedy said.
On the other hand, “we've always looked at a lack of procedural protection under a facial challenge,” Sotomayor said.
Goldstein argued that an “under-appreciated” point in the case is that the hotel owners' complaint does “assert an as-applied challenge,” and “there was a trial on the as-applied challenge.”
“We pursued our facial challenge only” after the city “before the second trial” stipulated “that they only had facial defenses of the statute. That's the reason we have this oddity that we're here on a facial challenge,” he said.
Rosenkranz agreed. If the “only objections that are going to be raised are harassment and whether this is for a legitimate purpose,” that's “a classic as-applied challenge.”
“I'm still very confused about this,” Sotomayor said, circling back to her observation that the court looks to procedural protections under facial challenges.
“There is always a potential exception to a warrant, even a Fourth Amendment warrant of going into the home,” but “that doesn't eliminate the need for a warrant. It's not a tell-us-later issue,” she said.
“Police can't just keep going in and then fish around for an excuse. That's a process issue,” Sotomayor said.
Arguing for the federal government in support of the city, Deputy Solicitor General Michael R. Dreeben of the Department of Justice, Washington, said the court could decide the case on the narrow grounds that the search doesn't “involve an entry into the nonpublic working places of a business.”
It involves only an entry “into the public area of a motel and a brief inspection of the registry of the motel,” he said.
“You're saying that it makes a difference constitutionally whether you keep the registry at the front desk or in the back office?” Kagan asked.
“That doesn't seem very significant,” Roberts said. “Our rule is not simply because you can get into a house, for example, that you're free to rummage through desks,” he said.
But “we're dealing here with businesses which have reduced expectations of privacy,” Dreeben said.
“There's no record in this case about what kind of privacy expectations actually exist with respect to hotel registries. It's largely a matter of conjecture, speculation and everybody's intuition,” Dreeben said.
But “why do they have to prove more?” Sotomayor wanted to know.
All the court has ever required is “a person to say, this is my business record.” Are they supposed to prove “that they don't show it to anyone else? We've never required that,” she said.
Dreeben argued the hotel owners should be required to show “that there's a certain degree of confidentiality associated with it.”
But Sotomayor said, “There is today, when the federal law requires that you not disclose credit card information and driver's license information and these registries contain that information. You can't have it both ways.”
To contact the reporter on this story: Jeffrey D. Koelemay in Washington at firstname.lastname@example.org.
To contact the editor responsible for this story: Jessie Kokrda Kamens at email@example.com
A transcript of the argument is at http://pub.bna.com/lw/131175US_argued.pdf.
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