Scalia's Fourth Amendment Voice Will Be Missed

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By Donald Aplin

Feb. 16 — The recent death of U.S. Supreme Court Associate Justice Antonin Scalia leaves the court without one of its strongest voices against alleged government overreach in Fourth Amendment settings. But his legacy of hewing jurisprudence to the original intent of the founders may also cut against privacy in emerging technologies, attorneys tell Bloomberg BNA.

“Justice Scalia’s influence will no doubt echo in the Supreme Court’s approach to privacy and many other issues for decades to come. His jurisprudence shifted the terms of the debate, and advocates for new privacy rights will need to acknowledge his admonitions against creating new rights from whole cloth,” Edward R. McNicholas, partner and global leader for privacy and data security at Sidley Austin LLP in Washington, said.

Melissa J. Krasnow, partner with Dorsey & Whitney LLP, in Minneapolis, said President Barack Obama's choice to fill Scalia's seat may face scrutiny over their grasp of digital technologies.

“In vetting a nominee, the topic of government surveillance, including the Fourth Amendment and privacy, likely will come up. It will be interesting to see if the nominee’s background in terms of technology is taken into account,” Krasnow, said.

Fourth Amendment Issues

“A new justice could usher in a dramatic expansion in 4th Amendment protections against government surveillance,” Daniel J. Solove, the John Marshall Harlan research professor of law at George Washington University Law School, predicted in a recent blog post. “Will the next justice also have a narrow version of originalism or will he or she have a more progressive approach? If the latter, we might see some dramatic shifts in 4th Amendment protection of government surveillance,” he wrote.

“Justice Scalia’s influence will no doubt echo in the Supreme Court’s approach to privacy and many other issues for decades to come. His jurisprudence shifted the terms of the debate, and advocates for new privacy rights will need to acknowledge his admonitions against creating new rights from whole cloth.”

Edward R. McNicholas, Partner,Sidley Austin LLP, Washington

Scalia's history of scepticism over search and seizure power includes Kyllo v. United States, 533 U.S. 27 (2001), one of the seminal police authority cases where Scalia wrote for the majority in a 5-4 decision holding that the 4th Amendment required a warrant to use thermal sensors to detect heat patterns emanating from inside a home .

More than a decade later, Scalia wrote the majority opinion in United States v. Jones, 132 S. Ct. 945 (2012), where the court held that law enforcement officers must obtain a warrant to attach a geolocation tracking device to a vehicle .

McNicholas said “Justice Scalia’s opinions in Kyllo and Jones marked particularly significant adaptations of the Founder’s concerns to modern privacy cases.”

In both cases, “Scalia relied upon his signature perspective of interpreting issues in light of their original meaning at the time of the Framing,” he said. “For him, neither case defined new privacy rights. Kyllo was about the protections traditionally afforded houses, and Jones was about the property protections traditionally afforded chattel—albeit a type of chattel with an internal combustion engine unknown to the Founders,” McNicholas said.

In April 2014, Scalia said during oral arguments over the extent that police should be allowed to search the contents of an arrestee's cell phone said, it seemed “absurd that you should be able to search that person's iPhone” if they were pulled over for a seatbelt violation .

Third Party Doctrine

Under the third party doctrine, the Supreme Court has held there is no reasonable expectation in privacy for information known or exposed to third parties. That doctrine is a central reason the 4th Amendment is often seen as having less relevance for digital data.

Some courts have held that even broad federal government surveillance, including some NSA programs, are outside the coverage of the 4th Amendment because of the third party doctrine.

“A new justice replacing Justice Scalia might be the vote tipping the scales and leading to the demise of the third party doctrine, a controversial doctrine that has dramatically limited the scope of the 4th Amendment in the Digital Age,” Solove said.

McNicholas said that “Justice Scalia’s passing may create more room to reconsider the judge-made third party doctrine” and there “may now be more direct openness in reconsidering the reasonableness of that key doctrine in light of the pervasive dependency of citizens on third parties who hold most of their personal electronic data—despite the absence of a ready analog to modern information systems in the pre-Internet era.”

Damages and Standing

Scalia has been strict in requiring digital age plaintiffs to demonstrate harm in order to establish standing.

“Justice Scalia took a narrow view of standing to sue both in cases involving challenges to government surveillance and in class actions,” Jim Halpert, a partner with DLA Piper LLP in Washington, said.

In Clapper v. Amnesty International, Scalia joined the five-justice majority in finding that plaintiffs lacked standing to challenge surveillance by the National Security Agency because they couldn't demonstrate that they were actually being surveilled .

The Clapper holding that plaintiffs must show an “objectively reasonable likelihood” of harm has been oft-cited to hold back the tide of data breach consumer class actions .

“In the immediate term, his death might have some effect on the decision in this term's Spokeo case” , which concerns whether plaintiffs may sue for statutory damages without showing actual injury, Halpert said.

Although it is a Fair Credit Reporting Act case, Spokeo may have a big effect in how damages in privacy and data security class action cases are evaluated.

McNicholas said that as SCOTUS “confronts cases concerning standing to challenge surveillance and computerized decisions where it is difficult for any particular individual to prove that they were even subject to such actions, much less that they were harmed by them, the evolving issue of whether non-pecuniary, dignitary harms to privacy are to be recognized will also loom large.”

Justice “Scalia’s passing may shift the Court’s balance on these issues, and it make become more likely that the Supreme Court will recognize new privacy harms from pervasive surveillance and automated decisions, regardless of whether the Founders confronted similar concerns,” McNicholas said.

By Donald Aplin

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To contact the editor responsible for this story: Jimmy H. Koo at

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