Wednesday, November 22, 2017

Against the positive law model in the Carpenter cell-site case

The U.S. Supreme Court building in Washington, D.C. (Carlos Barria/Reuters)

My friend and colleague Will Baude blogged yesterday about the positive law model of the Fourth Amendment and its possible role in the Carpenter Supreme Court case. I thought I would chime in on why I disagree. In my view, Will’s positive law approach is seriously flawed as a method of interpreting the Fourth Amendment.

Let me start with some context. In 2007, I wrote an article, “Four Models of Fourth Amendment Protection,” on how courts interpret the “reasonable expectation of privacy” test. I found that, as a descriptive matter, the Justices mixed and matched among four different and often contradictory models for what makes an expectation of privacy “reasonable.” In some cases, they looked to a probabilistic model and considered the likelihood of a privacy invasion. In some cases, they looked to a private facts model and considered whether the outcome of the conduct was acquisition of particularly private information. In some cases, they looked to a positive law model and considered whether the government violated a law other than the Fourth Amendment. And in some (most) cases, they looked to a policy model and considered whether it was desirable to regulate the government practice. Most Supreme Court opinions mixed and matched among the models, sometimes invoking multiple models and sometimes rejecting others.

I argued in my “Four Models” article that this pluralism was desirable. In applying the reasonable expectation of privacy test, the court was trying to distinguish less invasive practices from more invasive practices. But there was no universal method to do that. The court had naturally developed proxy tests for distinguishing more invasive practices that accurately tracked invasiveness in some cases but not all cases. Because no one test accurately distinguished more and less invasive practices, the court couldn’t adopt any one model. Instead, it had developed localized models to guide lower courts: The Supreme Court tended to use whatever model(s) accurately divided less from more invasive practices in that kind of case, and then lower courts would reason by analogy and apply those same models to similar cases. The result was a relatively clever way to distinguish less from more invasive police practices in a decentralized system in which there are thousands of lower court decisions and few Supreme Court rulings.

In their article, “The Positive Law Model of the Fourth Amendment,” Baude and our mutual friend James Stern take one of the four models and say it should be the exclusive test for what is a search. From their abstract:

The touchstone of the search-and-seizure analysis should be whether government officials have done something forbidden to private parties. It is those actions that should be subjected to Fourth Amendment reasonableness review and the presumptive requirement to obtain a warrant. In short, Fourth Amendment protection should depend on property law, privacy torts, consumer laws, eavesdropping and wiretapping legislation, anti-stalking statutes, and other provisions of law generally applicable to private actors, rather than a freestanding doctrine of privacy fashioned by courts on the fly.

At the outset, it’s worth noting that this is a pretty radical theory. The court has looked to positive law in some cases, primarily in the context of property law. But I believe the new theory would expand the positive law focus from property law to any law so long as it is “generally applicable to private actors.” Off the top of my head, I’m not sure which existing Supreme Court precedents on Fourth Amendment search doctrine could survive that revolutionary standard.

The broader conceptual problem with a universal positive law model is that it has no connection to what the Fourth Amendment search test is trying to do. Although positive law accurately tracks notions of invasiveness in some contexts, often positive law has nothing whatsoever to do with anything relevant to Fourth Amendment concerns. Laws are enacted for an extraordinary range of reasons, and a universal positive law model would have to give Fourth Amendment relevance to all of them.

Here’s what I wrote about this in “Four Models” in 2007:

The positive law model has … flaws as a universal guide. Like the probabilistic model, the positive law model provides an accurate proxy for the reasonableness of police practices in many cases. Positive law that restricts access to information and places often reflects widely shared notions of which accesses cause significant harms and which do not. Courts, legislatures, and agencies will tend to promulgate rules restricting access to a person’s private material when unfettered access will be harmful, which is a major factor in determining whether a particular government practice is reasonable per se or reasonable only in context. This means that government practices that violate positive law will often be reasonable only in context, and those practices that do not will often be reasonable per se.

Physical intrusions into the home provide an obvious example. Breaking into to your house interferes with your property rights; it also reflects a deeply invasive affront to your privacy and security. On the other hand, watching your house from a public street does not violate positive law; while it may be a bit creepy, it does not amount to a severe invasion of your privacy. In this context, positive law nicely matches our intuitions as to which kinds of police practices should be permitted without a warrant. The positive law model provides a useful proxy to determine when a government invasion violates a reasonable expectation of privacy.

But much like the probabilistic model, the positive law model does not work in every case. In many circumstances, positive law will not accurately capture whether police practices are per se reasonable. This is true for two primary reasons. First, positive laws are enacted for a wide range of reasons that may have nothing to do with whether access by criminal investigators would be reasonable per se. Consider the FAA regulations analyzed in Florida v. Riley, the helicopter flyover case. The FAA presumably drafted those regulations to minimize noise and deter accidents, not to limit the police. Whether the police happened to fly over or under FAA airspace limits has no significant connection to whether particular police flyovers are reasonable only if justified by a warrant. Similarly, imagine a person lives on a 100-acre farm with their small house in the center. Trespassing a few feet onto that person’s property will violate his property rights but not infringe on his privacy. In that setting, positive law does not accurately track the reasonableness of the government’s investigation.

The positive law model may also be insufficient when technology or social practice changes rapidly. The story is a familiar one, as it tracks the standard explanation for the move from Olmstead to Katz. Technology tends to shift the privacy implications of different law enforcement steps. New technologies can divorce privacy and social norms from property law and other statutory and regulatory protections. New technological surveillance tools make it possible to invade privacy without interfering with property or other laws, and they can also make it possible to establish privacy without harnessing positive law. As a result, technological change can make the function of positive law largely arbitrary; it no longer serves the same function it might if the technology remained stable. A test that focuses entirely on positive law such as property will be underprotective with technological surveillance techniques and may prove overprotective with other techniques.

Like the probabilistic model, positive law accurately distinguishes per se and contextually reasonable practices in some cases but not others. As a result, it cannot provide an exclusive guide to what makes an expectation of privacy reasonable.

Baude’s and Stern’s particularly severe version of the positive law model would create some startling results. For example, imagine a police officer sees a car driving at 70 miles per hour in a 40-miles-per-hour zone. The officer, wanting to catch up to identify the car and driver, and write a ticket or make an arrest, speeds at 80 miles per hour to catch the speeder. Under the positive law model, I gather, the officer’s speeding would be a “search” that would presumptively require a warrant.

But this seems entirely arbitrary. The purpose of speeding laws is to ensure safe driving. And the purpose of allowing the officer to speed to catch the speeder is also to ensure safe driving, as an officer can’t stop speeding if the officer can’t speed himself to catch speeders. It seems odd to say that the enactment of speeding laws should make the officer’s chasing after the speeder a “search.” It doesn’t seem to have anything to do with any traditional concerns of the Fourth Amendment.

A second problem with the universal positive law model is that it would become the tail wagging the dog. I wrote about this at length in my recent article, “The Effect of Legislation on Fourth Amendment Protection, 15 Mich. L. Rev. 1117 (2017).” Here’s the problem. If you say that Fourth Amendment law hinges on positive law, then debates over positive law will become proxy battles for the Fourth Amendment. Consider the law, 47 U.S.C. § 222(a), that Baude suggests may create Fourth Amendment rights in cell-site records. If anyone knew, at the time 47 U.S.C. § 222(a) was enacted, that it would have the Fourth Amendment consequence that Baude thinks it should have, then the Justice Department would have fought the passage of that statute just as hard as it fought amendments to the Stored Communications Act that would have imposed a warrant standard for cell-site records.

Put another way, the only reason 47 U.S.C. § 222(a) even exists is that no one thought it had any Fourth Amendment relevance when it was being considered. At time, it didn’t occur to anyone that passing 47 U.S.C. § 222(a) could secretly invalidate 18 U.S.C. § 2703©, the law that Congress thought was the governing rule on law enforcement access to historical cell-site records. (I had never heard the argument that the statute was relevant to the Fourth Amendment until Richard Re’s blog post in July 2017, and I have been studying and writing about the legal framework for government access to cell-site records since the late 1990s.) If the theory existed at the time, and had been adopted by courts, you wouldn’t have the positive law that is driving the claim. And ex ante, the legislature could no longer provide the benefits of those other laws, because their enactment would be overshadowed by the Fourth Amendment consequences.

Here’s how I summarized the problem of hinging Fourth Amendment interpretation on positive law in “The Effect of Legislation on Fourth Amendment Protection:

Displacement and independence risk losing the benefits of a dual system of search and seizure in two ways that the independence approach preserves. First, the prospect that legislation will influence Fourth Amendment rulings under influence or displacement can limit the legislature’s ability to enact helpful statutory protections beyond the Fourth Amendment. Influence and displacement take away control from the legislature, either forcing it to enact constitutional-style rules or else making the effect of its statutory design uncertain. Independence frees the legislature to impose whatever rules appear best.

Second, the prospect that legislation will influence the Fourth Amendment creates an incentive to manipulate investigative legislation. Because the executive branch both has veto power over investigative legislation and litigates Fourth Amendment cases, it would likely coordinate the two roles. Legislative debates could become a proxy for Fourth Amendment litigation, with legislative attention turned away from enacting the best statutory rule and towards what state of statutory law might set up the most advantageous constitutional case. Independence cuts the feedback loop and allows the legislative process to proceed without constitutional interference.

A final problem with applying the positive law model in Carpenter is that, like other third-party doctrine cases, it’s properly understood as a case about exhibiting subjective expectations. That is, it’s a case about whether you can maintain Fourth Amendment rights based on how you expose information, not whether you can have Fourth Amendment rights in the first place. Whatever one thinks of the merits of applying a positive law model to what is a search generally, it’s particularly hard to see why it should apply to a case that is about the consent-based concerns of the exposure doctrine and not the search-based concerns driving the four models. For more on this, see Part IV of my amicus brief.

For those reasons, I don’t think the positive law approach is helpful in Carpenter.

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‘What does consent on the dance floor look like?’

Here, I thought it looked like people dancing, but Princeton University’s Sexual Harassment Assault/Advising, Resources & Education (SHARE, you know) passed along this other view:

Created by Princeton UMatter.

Because apparently Princeton students have to be told — frequently — that it’s okay for them to stop dancing if they aren’t into it any more. (But what do I know? I never consent to dance.)

Campus Reform has more.

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‘Disgorgement’ and the restitutionary remedies

Law and economics scholars and scholars in the field of remedies do not talk to each other very much. That is bad for both fields. I make that argument in detail in an article forthcoming in the Oxford Journal of Legal Studies: “Remedies, Meet Economics; Economics, Meet Remedies.” (For a law and economics scholar’s take on the argument, see Tom Cotter’s discussion on his Comparative Patent Remedies blog.) What I want to do in this post is pull out one part of the argument that will be of particular interest to lawyers and judges — to anyone who has to make sense of restitutionary remedies.

In the article I write:

[O]ne reason that restitutionary remedies have received less careful attention in the economic literature is the tendency to invoke a generic remedy of “disgorgement”—which has no basis in the common law or equity—instead of more specific and well-established restitutionary remedies. For American lawyers, these remedies include accounting for profits, constructive trust, equitable lien, rescission in equity, rescission at law, recovery in quasi-contract and so on. Different restitutionary remedies have different requirements, limitations, strengths, and implications for bankruptcy and for the jury trial right. By ignoring their existence, economic scholars are missing the granularity of the law.

You may find yourself wondering about the support for these claims. If so, here’s the fine print, adapted from the footnotes to the article:

First, for examples of economic sources invoking a generic remedy of “disgorgement,” see Yehonatan Givati & Yotam Kaplan, “Over-Reliance Under Contractual Disgorgement,” Am. L. & Econ. Rev. (forthcoming 2017); Bert I. Huang, “The Equipoise Effect,” 116 Colum. L. Rev. 1595 (2016). More circumspect usage is found in Daniel B. Kelly, “Remedies for Breach of Trust,” SSRN Working Paper (2017), where “disgorgement” is an umbrella term for “any remedy that allows a plaintiff to strip a defendant’s ill-gotten gains, including legal restitution, accounting for profits, the constructive trust, and equitable lien.” Nevertheless, the term “disgorgement” is a source of pervasive confusion. Except where authorized by statute, it should be retired in favor of more specific categories such as (in U.S. law) “accounting” and “quasi-contract.”

Second, on the lack of any basis for “disgorgement” as a remedy in the common law or equity, cf. Stephen M. Bainbridge, “Kokesh Footnote 3 Notwithstanding: The Future of the Disgorgement Penalty in SEC Cases,” Wash. U. J. L. & Pol’y (forthcoming) (noting the U.S. Supreme Court’s recent skepticism of disgorgement where not authorized by statute); George P. Roach, “A Default Rule of Omnipotence: Implied Jurisdiction and Exaggerated Remedies in Equity for Federal Agencies,” 12 Fordham J. Corp. & Fin. L. 1, 49 (2007) (“As applied in any context, ‘disgorgement’ was used in less than a dozen federal or state case opinions from 1800 to 1960. Perhaps more startling is the fact that the term was used so often between 1960 and 2000 even though the first proposed definitions only began to appear around 2000. The term was not used or defined in the Restatement First and was only defined in a draft of the Restatement Third as of 2000. Black’s Law Dictionary only offered a definition after 2000”).

Third, for summaries of the restitutionary remedies there are several good sources. For U.K. law, see Graham Virgo, Principles of the Law of Restitution 18–23 (3d ed., 2015). For U.S. law, an overview of the terms and contours of the legal and equitable restitutionary remedies can be found in Emily Sherwin & Samuel L. Bray, Ames, Chafee, and Re on Remedies (2nd ed., forthcoming 2017). The leading authority on restitutionary remedies in U.S. law is, of course, the Restatement (Third) of Restitution and Unjust Enrichment (2011), and an excellent primer is Ward Farnsworth, Restitution: Civil Liability for Unjust Enrichment (2014). Note, however, that the Restatement (Third) follows the prevailing doctrinal categories more closely in its sections on the equitable remedies of constructive trust, equitable lien and subrogation than it does when only reluctantly distinguishing legal and equitable remedies and when lumping together all cases of conscious wrongdoing (equating for this purpose the equitable remedy of “accounting” with “disgorgement” in section 51(4)). To an extent not apparent from the Restatement (Third), U.S. courts continue to distinguish between the legal and equitable restitutionary remedies, and continue to use traditional terminology (e.g., accounting, rescission at law, rescission in equity, quasi-contract, quantum meruit, money had and received). See Sherwin & Bray; Samuel L. Bray, “The System of Equitable Remedies,” 63 UCLA L. Rev. 530, 553–6 (2016).

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Tuesday, November 21, 2017

The American Indian foundation of American gun culture

Firearms Specialist Richard Vasquez is surrounded by a cache of firearms in the gun vault at the Bureau of Alcohol, Tobacco, Firearms and Explosives National Tracing Center in Martinsburg, W.Va., in 2010. (Ricky Carioti/The Washington Post)

This essay is based in part on Nicholas J. Johnson, David B. Kopel, George A. Mocsary & Michael P. O’Shea, “Firearms Law and the Second Amendment: Regulation, Rights, and Policy,” 2nd edition (Aspen Pub. 2017).

It is widely agreed that the United States has an exceptional gun culture. Although Great Britain is America’s “mother country,” the two nations have very different arms cultures. Why so? Historically, two reasons were especially important in the early colonial period:

1. The practical differences between conditions in America and in Great Britain.
2. The influence of American Indians.

What today is called “American gun culture” is founded on American Indian arms culture. The convergence of Europeans and American Indians produced a new, hybrid arms culture. Although that culture has changed over the centuries, we can still find in 21st century arms culture the influence of the Anglo-Indian convergence along the 17th century Atlantic seaboard.

The English

Let’s start with the English immigrants, who began settling in Virginia in 1607 and in New England in the 1620s.

In England, there was no written, express guarantee of a right to arms until 1689, when Parliament enacted the English Bill of Rights. In America, arms rights were recognized in the Virginia Charter of 1606 and by the New England Charter of 1620. Geographically, the two charters covered all the future English colonies in what would become the United States of America. According to the charters, the colonists had the perpetual right to import arms, ammunition and other goods for their “Defence or otherwise.”

The Virginians and New Englanders also had an express guarantee of the right to use their arms at ‘‘all times forever hereafter, for their several Defences,’’ to “encounter, expulse, repel and resist’’ anyone who attempted ‘‘the Hurt, Detriment, or Annoyance of the said several Colonies or Plantations.’’ In practice, the colonists’ right of self-defense against invaders and criminals would need to be exercised through the collective action of the colonists, there being no British army anywhere near.

As history turned out, the willingness of Americans to be subjects of the British crown ended when the crown began violating its guarantees of American arms rights. The American Revolution began when Americans used their firearms to resist house-to-house gun and powder confiscation at Lexington and Concord on April 19, 1775. The attempted confiscation was part of a royal plan to disarm America, set in motion by King George III’s October 1774 embargo on the shipment of firearms and gunpowder to America. (By that point, Americans considered their arms rights to have been guaranteed by the 1689 Bill of Rights, because the 1606 and 1620 charters had long since been replaced.)

Although Anglo-Americans of the early 17th century had a right to arms, the arms proficiency of those first immigrants was usually poor. In the 14th and 15th centuries, the English had been the greatest longbowmen in the world. But English archery had long since decayed.

Likewise, the quality of the English militia was uneven, at best. The despotic Stuart kings ruled England from 1603 to 1688. They were terrified of popular revolution and worked hard to disarm most of the population. Even under Queen Elizabeth I (who reigned from 1558 to 1603), militia training and practice were often desultory.

In the early 17th century, many English militia arms were centrally stored rather than kept at home. There were muster days, when a community would have to demonstrate that it had arms for its militia. But practice days were fewer. When trained, English militia were taught to fire in the general direction of the enemy rather than taking an aimed shot.

For European battles, this was no problem. Because armies fought in tightly packed formations, aiming at a particular target was unnecessary.

In Great Britain, there was little opportunity for commoners lawfully to develop hunting skills. In the British Isles in the 17th century, hunting was very strictly regulated by the bewilderingly complex Game Laws. These laws even differentiated the rules of hare-hunting from rabbit-hunting.

In general, anyone could kill “vermin” — which to the English meant rats, otters and certain other animals. For everything else, hunting was allowed only for persons of a certain socioeconomic level. In the 14th century, most middle-class people were allowed to hunt. But in the 17th century (when America was being colonized), the Stuart monarchs in England tried to impose much tighter restrictions.

To the extent that the English did try to hunt with firearms, their firearms were ill-suited for the job. In England and the rest of Europe in the early 17th century, the predominant firearm was the matchlock. It was ignited by lowering a slow-burning cord into a pan of gunpowder. To keep the matchlock ready to fire on a moment’s notice, the cord had to be kept burning.  A hunter could hardly have the element of surprise if he were approaching while carrying something that was burning. Until nearly the end of the 17th century, matchlocks were the predominant militia and army firearms in England.

Matchlocks were adequate for European warfare. Battles were generally known in advance. When lines of soldiers fired in each others’ general direction, no one was trying to be concealed.

But conditions in North America demanded a change. First of all, the early settlers had a greater need to hunt for survival. This is one reason that Anglo-Americans — far sooner than the English still in England — shifted from matchlocks to flintlocks. The flintlock’s ignition is much simpler than a matchlock’s: When the flintlock user pulls the trigger, a piece of flint is struck against a piece of steel, producing a shower of sparks that ignite the gunpowder. So a flintlock could be kept permanently loaded and always ready to fire in an instant. In ready mode, it does not reveal the user’s location. The flintlock was more reliable in damp or windy conditions. It was also simpler and faster to reload than a matchlock. It had obvious superiority for hunting in the forests of North America. Captain Myles Standish, an early leader of the Plymouth Colony, was America’s first famous flintlock user. A flintlock was three times more expensive than a matchlock, and in America, the extra price was well worth it.

Unlike England, America had no class-based hunting restrictions. The presumption was that everyone could hunt. Whatever restrictions might be imposed would apply to everyone equally.

An example of a neutral law was the Plymouth Colony’s statute against firing a gun after sunset. This was because when there was an emergency (e.g., an Indian attack), guns would be fired to raise the alarm. (That was how Paul Revere’s news that “The British are coming” was broadcast beyond the sound of his voice, on the night of April 18, 1775.) So Plymouth said that target practice, hunting and so on should be conducted in daylight and not when they might create a false alarm. An exception to the sundown law allowed shooting a wolf.

Since the days of Henry VIII, England had various laws that restricted firearms ownership by economic class — particularly, a minimum income level for handgun ownership. Although these laws were widely evaded in England, there is no evidence (as far as I know) of any attempt to impose or enforce such laws in America. (Race-based laws against arms possession by enslaved Africans and Indians, and occasionally against free blacks, did exist in some 17th century American colonies, and became more common in the 18th and 19th centuries, in the South).

In short, the conditions of settlement began to create a divergence between English arms culture and the emerging American arms culture: written rights, wide-open hunting, and an early transition to better guns that could fire reliably and rapidly.

The trans-Atlantic divergence was greatly accelerated by the example and influence of the Indians.

The Indians

American Indians got nearly all of their protein from hunting. Although the Anglo-Americans (English in America) did hunt, they were not as dependent on hunting because the Anglo-Americans had cattle-raising and Atlantic fishing as fairly reliable protein sources.

Not surprisingly, the Indians were highly proficient with bows (as the English had been long before). They could shoot accurately at moving targets and could shoot while moving.

Indian warfare was very different from European warfare. Whereas European battles were usually known in advance to both sides, Indians fought primarily with surprise attacks and small-scale raids. The European infantryman was trained to be an automaton, absolutely obedient to his officers; he had to stay standing in line, reloading his matchlock, while lines of enemy soldiers fired at him. The Indians, however, extolled individual valor in combat. In battle, each man was his own commander.

So for European warfare of the 17th century, mass, unthinking, unaimed fire was the correct doctrine. But for Indian warfare in the dense woods near the Atlantic seaboard, individual marksmanship and initiative were essential.

The Anglo-Indian Encounter

In the Western Hemisphere, just as in the Eastern Hemisphere, the control of territory was based on right of conquest. Whoever could take and hold territory by force of arms could keep that territory as long as they could defend it. To be sure, the various groups in both hemispheres made treaties and alliances, and often managed to resolve territorial disputes without resorting to force. But when push came to shove, possession was at least 9/10th of the law and possession was based on armed victory. None of this changed when Europeans began arriving in America. Indian territories, such as the lands of the Powhatan Confederation in Virginia, that had been conquered from  other Indians came under pressure from the Europeans. Warfare was endemic, with many shifting alliances between various colonies and various tribes.

Trade was also endemic. The Anglo-Americans had plenty of high-quality trade goods. For Indians, the most desired of these were firearms, right from the start of the early days in Virginia. (See Frederick Fausz’s “Fighting ‘Fire’ with Firearms: The Anglo-Powhatan Arms Race in Early Virginia.”)

Desire for the best European guns, the flintlocks, compelled Indians to develop a sophisticated and large-scale trade economy, according to Patrick A. Malone in “The Skulking Way of War: Technology and Tactics Among the New England Indians.” Eventually, the Indian fur trade economy would bring fur pelts from the trans-Mississippi, through a network of tribes, to Euro-American traders near the Atlantic seaboard. Whereas European colonists in some other parts of the world could get away with selling primitive firearms, the Indians quickly became sophisticated arms consumers, knowing and demanding quality.

The Anglo-Americans faced a dilemma in their Indian trade. On the one hand, firearms sales were often a sine qua non for trade relations with any tribe of unconquered friendly Indians. On the other hand, the colonists were desperate to keep firearms out of the hands of hostile Indians. The colonists enacted many laws to attempt to control the Indian arms trade, but they were exercises in futility. To the limited extent that the laws deterred Anglo-Americans from selling arms to the Indians, Indians could acquire arms from trade networks linked to New Netherland (Delaware to Albany) or New France (Canada down to New Orleans, via the Mississippi River). Indian wars continued until the late 19th century, and nobody’s policies, including those of the U.S. government, managed to prevent Indians from acquiring arms. (See David J. Silverman’s “Thundersticks: Firearms and Violent Transformation of Native America.”)

Especially in frontier regions, many colonists lived in a state of constant peril from Indian raids. Even when there were formal treaty relations with the most proximate Indians, the Indians might change their minds and launch a surprise attack. For example, Virginia was nearly wiped out by the Powhatan in the Second Anglo-Powhatan War, which began in 1622.

To defend families and communities, the colonists were on their own. The general 17th century model of Spanish and French colonialism centered on trade outposts run by the central government in Europe and protected by that government’s standing army and navy. The English approach, though, was usually to grant a charter to a joint stock company or to a proprietor, to create some basic rules for colonial governance and relations with the mother country, and mostly  to leave the colonists to fend for themselves. The English policy reduced the central government’s burden of expense for the colonies and forced the colonists to provide for their own defense.

Accordingly, most colonies enacted strict laws to instill and foster a firearms culture. This required changing the habits of some of the immigrants from Europe, most of whom came from places with much weaker arms cultures.

Of course the colonial laws included mandatory participation in the militia by able-bodied males and mandatory personal arms ownership for such participation. That part of the story is well-known. But the colonial laws went further.

Many laws required firearms ownership by any head of a household, even if the head were not militia-eligible (e.g., the head of the household was a woman or an old man.) Heads of households had to ensure that there was at least one firearm for every male in the household age 16 or over. This included free servants and indentured servants. Some colonies required that when a male indentured servant completed his term of service, his “freedom dues” (goods given by the master, so that the former servant could live independently) had to include a firearm.

To encourage settlement, the Carolina colony (today, North Carolina, South Carolina and Georgia) induced immigration by offering immigrants freehold land ownership, along with strong guarantees of religious liberty. To receive the land grant, an immigrant had to bring six months worth of provisions to take care of his family while his farm was being cleared and cultivated. Also required: ‘‘provided always, that every man be armed with a good musket full bore, 10 pounds powder and 20 pounds of bullet.’’ (See “A Brief Description of the Province of Carolina” (London 1666), a pamphlet by proprietors encouraging immigration, reprinted in “9 English Historical Documents: American Colonial Documents to 1776,” David C. Douglas gen. ed., Merrill Jensen ed., 1955).

The Massachusetts Bay Colony ordered parents to arrange for arms training for all their children aged 10 or above, both boys and girls. Conscientious objectors were exempt.

Arms carrying was often mandatory for travel outside of towns and for attendance at large public events, particularly church services. Then, as now, unarmed church services were favorite targets for attack, because there would be lots of people gathered in a small space.

So one effect of the Anglo-Indian encounter was to foster a culture of widespread household gun ownership and widespread arms carrying. This was very different from conditions back in England, where the government was certainly not ordering people to always carry guns to the weekly (and mandatory) Church of England services.

Today, when we think of the ideal armed American, we think of a person ready to act responsibly without waiting for orders from above. He or she doesn’t stand in place, but instead can move and can engage mobile threats. Another aspect of the ideal is what one writer calls “the cult of accuracy.” (See Alexander Rose’s “American Rifle: A Biography”.) Such accuracy can include slow fire from a difficult distance — perhaps an arrow against a bison many yards away — or a Chris Kyle sniper shot from 600 yards. Rose traces the origins of the cult of accuracy to the popularity of the Pennsylvania-Kentucky rifle, which was first produced in the early 18th century by German and Swiss immigrants near Lancaster, Pa. They modified the traditional rifles of central Europe to meet American conditions and produced an astonishingly accurate, lightweight rifle perfectly suited for dense forests of the American colonies.

Yet the first Americans to participate in the cult of accuracy weren’t the 18th-century hunters of Kentucky. They were Indians of the previous century, who quickly transferred their traditional bow and arrow skills to the newfangled flintlocks.

Two volunteer units proved exceptionally able at finding and engaging King Philip’s very mobile warriors. Benjamin Church’s volunteers were 70 percent Indian. Moseley’s rangers were all from the social periphery: apprentices, servants, prisoners and Indians. Even when the volunteer units could not catch King Philip’s forces, they kept up a fast pursuit, so that the camps of King Philip and his allies had to be abandoned quickly. Stores of food, ammunition, gunpowder and other supplies had to be left behind. The war of attrition gradually deprived the Wampanoag and their allies of supplies and destroyed their morale, leading eventually to surrender.

Not until the New Englanders learned to fight like Indians could they defeat the Indians.

Colonial Massachusetts never repeated its error from the first phase of King Philip’s War. Thereafter, military responsibility within the colony was more equally shared. To the extent that armies for extended operations could be raised by paying well for volunteers, they were. As the English militia theorists (e.g., James Harrington, “The Commonwealth of Oceana,” 1656)  had predicted, a genuine people’s militia served the people. ‘‘A survey of Massachusetts records reveals no instance in which the colony’s rulers attempted to employ the militia as a police force, as a tax collector, or as an instrument of social control.’’ (See Timothy Breen, “Persistent Localism: English Social Change and the Shaping of New England Institutions,” 32 Wm. & Mary Q. 3d ser. 3, 23 (1975).)

A wider view of the history of American arms culture

American legal history of the right to arms has always paid attention to English legal history, especially the 1689 English Bill of Rights. Sometimes, efforts have been made to draw one-to-one comparisons, to assume that English law and practice about the right to arms must have been fully transposed to America. To the contrary, Anglo-American arms culture began diverging from English arms culture starting in 1606 and continuing ever since. The different environmental conditions in America were one cause; another was the distance from London and the necessity that the colonists take care of themselves. Accomplishing the opposite of what the despotic Stuart monarchs were attempting to impose on England, the Anglo-Americans developed a culture of near-universal armament, with a preference for guns that were more reliable, easier to conceal, faster to shoot, and quicker to reload.

The American colonists of the 17th century moved away from the European model that civic virtue in use of firearms meant standing in line, blindly obeying your social superiors and shooting with minimal skill a gun you didn’t even own. The American model was responsible individual initiative, widespread personal ownership of high-quality arms and proficient accuracy. The divergence between English and American arms ideals was a cause and an effect of similar divergences in social and political life, including a broader electoral franchise and less rigid class distinctions in America compared with England.

The colonists’ new arms culture was profoundly influenced by Indian arms culture, which the colonists imitated in many respects. Perhaps this weekend you may practice precise riflery on a 200-yard range. Or you may take a defensive handgun class that trains you to make quick individual decisions under pressure. Whether or not you like American arms culture, you shouldn’t think of it as something that was brought across the Atlantic Ocean by European immigrants. It’s true that those immigrants brought the firearms. Yet those firearms were quickly integrated into an arms culture that had already existed in America for centuries and that would eventually become the arms culture of American of all races. That was the arms culture founded by the first Americans, the American Indians.

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Qatar prince, anti-Islam site, defamation law and WordPress: The future of libel litigation?

Hamad bin Abdullah bin Khalifa al Thani is a member of the royal family of Qatar, and co-owner and chief executive of Qatar Investment & Projects Development Holding Co. (QIPCO). He is not Hamad bin Abdallah bin Thani al Thani, who was apparently convicted in Czech court of sexually abusing underage girls. (For the rest of the post, I’ll call the two Khalifa and Thani.)

In 2015, though, an anti-Islam blog called the Muslim Issue, hosted on, and allegedly having 15,000 to 35,000 visitors per day, erroneously included Khalifa’s picture, together with his title as CEO of QIPCO, in an article about Thani. (I’ll call this “the connection to Khalifa,” since this controversy isn’t about the post as such, but rather about the post’s erroneously linking the Thani conviction to Khalifa.) The blogger quoted an article from the Prague Daily Monitor, which just referred to a “Prince Thani,” but then added the wrong picture and professional title. Some late 2015 comments to the post noted the mistake, though it’s not clear whether the site operators saw the comments then.

This year, Khalifa’s lawyers sent a takedown demand to the (unidentified) blogger, and when that didn’t yield results, sued the blogger for libel (QIPCO v. Doe (W.D. Wis.)). And indeed falsely suggesting that X committed a serious crime that was really committed by Y can be defamation (especially once the speaker is on notice of the error).

The question is what remedies Khalifa would have. The most familiar remedy is to sue for damages and use the threat of massive liability to pressure the defendant into removing any connection to Khalifa from the story. But the defendant might feel secure about his anonymity or lack assets and thus not worry about the enforceability of the damages award.

Another possible remedy is an injunction against the defendant requiring the defendant to remove the connection to Khalifa, following a trial at which the connection was proven false and defamatory. But that might take many months or even years, during which Khalifa’s reputation would be unfairly damaged and the injunction might not be easily enforceable, if the defendant remains anonymous. To quote one of plaintiff’s papers,

It will no doubt take many more months for Plaintiffs to identify Defendant, if they are able to do so at all. In the meantime, Plaintiffs have high profile events and media coverage occurring, which have already prompted individuals to research Plaintiffs online, resulting in the discovery of the defamatory article at issue in this case. Most urgently, Plaintiffs will be loaning priceless art and jewelry to a well-renowned museum in Venice for a five month exhibit. Plaintiffs are concerned that this high profile exhibit and related media will result in more research into His Highness personally and QIPCO, and will falsely link their good reputations with heinous crimes they are not associated with in any way. The harm created by this false connection will be immediate, irreparable, immeasurable and, frankly, catastrophic for the Plaintiffs.

Instead, Khalifa opted for a combination of two remedies which I’ve noticed emerging as a new trend in a good deal of libel litigation. First, he sought a temporary restraining order and a preliminary injunction, to be issued before trial. (I’ll discuss the temporary restraining order and the preliminary injunction together, just referring to both as “preliminary injunctions.”)

Second, he argued that the order should be legally binding on Automattic (which runs WordPress) and not just on the defendant. Automattic, as I understand it, will usually remove material that had been specifically found to be defamatory by a court, just as a matter of its own ethical and business judgment; but Khalifa sought to compel Automattic to do that.

And on both points, the district court has agreed with Khalifa, at least so far. Let me discuss each item in turn, and then turn to a third question (why Wisconsin?).

1. Preliminary injunctions in libel cases. Throughout much of American history, dating back at least to Brandreth v. Lance, an influential 1839 New York decision, injunctions in libel cases have been seen as unconstitutional “prior restraints” on speech. In recent decades, the tide had shifted in some measure, and most courts that have considered the matter have upheld injunctions that (a) are issued after a trial on the merits, and (b) specifically prohibit just the statements found to be libelous at trial. If speech is found to be unprotected against a damages award — and even against criminal liability, in those states that have criminal libel laws — then it’s unprotected against an injunction as well.

But, generally speaking, courts have refused to allow preliminary injunctions. Such injunctions might seem narrower, because they are temporary, lasting only until trial. Yet they are also based not on a final finding on the merits by a factfinder (often a jury), but just on a preliminary decision by a judge, based on mere anticipated likelihood of success on the merits. Thus, for instance, the California Supreme Court in Balboa Island Village Inn, Inc. v. Lemen (2007), concluded:

We hold that, following a trial at which it is determined that the defendant defamed the plaintiff, the court may issue an injunction prohibiting the defendant from repeating the statements determined to be defamatory. (Aguilar v. Avis Rent A Car System, Inc. (plurality opinion) [“Once a court has found that a specific pattern of speech is unlawful, an injunctive order prohibiting the repetition, perpetuation, or continuation of that practice is not a prohibited ‘prior restraint’ of speech…”].) Such an injunction, issued only following a determination at trial that the enjoined statements are defamatory, does not constitute a prohibited prior restraint of expression. “Once specific expressional acts are properly determined to be unprotected by the first amendment, there can be no objection to their subsequent suppression or prosecution.” (Tribe, American Constitutional Law; Redish, The Proper Role of the Prior Restraint Doctrine in First Amendment Theory [“in certain instances prior restraints are appropriately disfavored … because of the coincidental harm to fully protected expression that results from the preliminary restraint imposed prior to a decision on the merits of a final restraint…. Such interim restraints present a threat to first amendment rights … that expression will be abridged … prior to a full and fair hearing before an independent judicial forum to determine the scope of the speaker’s constitutional right.”].)

Likewise, the Kentucky Supreme Court held in Hill v. Petrotech Resources Corp. (2010), that “defamatory speech may be enjoined only after the trial court’s final determination by a preponderance of the evidence that the speech at issue is, in fact, false, and only then upon the condition that the injunction be narrowly tailored to limit the prohibited speech to that which has been judicially determined to be false.”

The district court, nonetheless, has issued a preliminary injunction, ordering the removal of “any text or photos that insinuate that plaintiffs Qatar Investment & Projects Development Holding Company W.L.L. (QIPCO) and His Highness Sheikh Hamad bin Abdullah bin Khalifa al-Thani are connected to the charges against Hamad bin Abdullah bin Thani al-Thani.” This isn’t the only court to have done so, to be sure; and I should also note that so far, nobody seems to have raised to the court the objection to preliminary injunctions that I outline above. (The defendants haven’t yet filed any papers on the merits, and the arguments raised by Automattic deal with other matters.) Still, I assume that the court must be aware that injunctions in libel cases are at least highly controversial, and raise potential First Amendment problems.

My guess is that the court wasn’t much detained by the problems here, because there is so little controversy about the facts: The connection drawn by the post between Khalifa and Thani seems clearly wrong. And perhaps the Balboa and Hill courts’ concerns about speech-restrictive orders entered before a “final determination” “that the speech at issue is, in fact, false” are less serious where there appears to be no real dispute that the speech is indeed false. Maybe that’s sensible on facts such as these, given the plaintiff’s interest in protecting his reputation (which libel law is supposed to substantively respect). Still, this development seems worth further thought, especially since approval of preliminary injunctions in libel cases can easily slip down to much more controversial factual disputes.

2. The injunction also binds Automattic, Tumblr and Twitter. (The posts from the Muslim Issue was also reposted on the Muslim Issue Tumblr and Twitter accounts.) But Automattic, Tumblr and Twitter aren’t listed as defendants — and, to my knowledge, weren’t served with the complaint before the injunction was issued, and thus had no real opportunity to intercede beforehand and object to the injunction. Automattic had indeed learned of the case because they had been subpoenaed to provide any contact information for the Muslim Issue blog; but they assert that they weren’t properly informed about at least some of the proposed orders in time to object to them.

Moreover, the plaintiff’s position seems to be that the injunction requires Automattic to remove all blog posts that repeat the allegations, including posts on other blogs (What Is Islamophobia And Is It Real? and Lake Malaren) that copied the post from the Muslim Issue. The authors of those blogs likewise haven’t been listed as defendants, and to my knowledge weren’t served. (I’ve seen no record of such service in the court docket; I e-mailed plaintiff’s lawyer to ask about that, but haven’t heard back.)

Now I appreciate the plaintiff’s view of this: Once the post is found to be libelous (setting aside the preliminary injunction concerns I discussed above in item 1), why not order everyone to remove it? Maybe the plaintiff won’t be able to track down the author’s identity (at least for a long time), and thus won’t be able to force the plaintiff to promptly remove the material — but why not require the hosting companies to remove all copies of the material?

The problem, I think, is that Automattic, Tumblr and Twitter have their own First Amendment rights to distribute material, and the two other blogs have their own First Amendment rights to reprint material. Before those rights are cut off, they have a First Amendment and due process clause right to themselves be heard on the matter.

A bookstore can’t be ordered to remove an allegedly obscene book, and an art gallery can’t be ordered to remove an allegedly obscene painting, without an opportunity to first challenge the finding of obscenity. See Quantity of Copies of Books v. Kansas (1964) (plurality op.) (“in not first affording [the bookstore] an adversary hearing, the procedure leading to the seizure order was constitutionally deficient”). Likewise, a hosting company can’t be ordered to remove an allegedly defamatory post without an opportunity to first challenge whether it is indeed defamatory. And a court can’t order the removal of a post on blog B (here, for instance, Lake Malaren) without giving that blogger an opportunity to first challenge that proposed removal.

The district court’s position here appears to be that Automattic, Twitter and Tumblr are “aiders and abettors” of the original blogger’s defamation, because their platforms are used to publish it. But such arms’ length relationships generally shouldn’t qualify as aiding and abetting, I think, especially when it comes to free speech cases — intermediaries should indeed have their own day in court, rather than be treated as mere aiders and abettors of the original author. (Readers who follow Internet law will recognize that this is the very issue now before the California Supreme Court in Hassell v. Bird.)

Indeed, the district court’s position seems particularly inapt in the U.S. Court of Appeals for the 7th Circuit (where this case is being litigated), which considered the issue in Blockowicz v. Williams (7th Cir. 2010). As Automattic argued in trying to free itself from the injunction,

In Blockowicz v. Williams, 630 F.3d 563, 568 (7th Cir. 2010), the court examined exactly the situation at issue here: whether a nonparty internet host could be required by an injunction to take down website content of a third party. The Blockowicz trial court refused to enforce an injunction against Xcentric, the website [RipOffReport] host. The ruling was upheld on appeal. The court found that Xcentric did not fall within Rule 65. “Actions that aid and abet in violating the injunction must occur after the injunction is imposed for the purposes of Rule 65(d)(2)©, and certainly after the wrongdoing that led to the injunction occurred.” With respect to Xcentric’s post-injunction actions, the court found that “the fact that Xcentric is technologically capable of removing the postings does not render its failure to do so aiding and abetting.”

Although it is true that Xcentric was not named in the injunction at issue in Blockowicz, and non-party Automattic has been named here, the critical holding of Blockowicz is directly on point: Rule 65 can only enjoin non-parties in certain limited situations. Simply, Automattic does not fit into any of the limited exceptions to this rule.

Plaintiffs here, as in Blockowicz, have not alleged any post-injunction activity by Automattic that would indicate “active participation.” Automattic has removed posts three times pursuant to the TRO and has complied with two subpoenas issued by Plaintiffs. Automattic’s actions have been and continue to be independent of defendant and do not constitute aiding and abetting. See Regal Knitwear Co. v. NLRB (1945) (“The courts … may not grant … an injunction so broad as to make punishable the conduct of persons who act independently and whose rights have not been adjudged according to law.”).

Plaintiffs also have not alleged that Automattic is in privity with defendant. Indeed, Automattic is not an officer, employee, or attorney for defendant, and has never represented itself as or acted as defendant’s agent or servant. Like Xcentric in Blockowicz, Automattic has done nothing “since agreeing to the Terms of Service with [defendant], which [Automattic] did before the injunction was issued and before the statements at issue were even posted.”

The district court disagreed, reasoning that Blockowicz doesn’t apply when the injunction expressly names the third party (here, Automattic); but I think Automattic is right that this is a misreading of the logic of Blockowicz. Automattic appears willing to remove material voluntarily, out of respect for the court order — but I think it’s right that it shouldn’t be legally bound to do so, in a case where it has not been made a defendant. (Even if it is made a defendant, an injunction against it might be precluded by the federal 47 U.S.C. § 230 intermediary immunity statute, but that’s a separate argument.)

3. Why Wisconsin? Finally, why is this case being litigated in federal district in Wisconsin? There’s no reason to think that the author of the Muslim Issue is in Wisconsin, and plaintiff has no special connection to Wisconsin, either. In the words of the judge,

As [Magistrate] Judge Crocker previously noted, “plaintiffs have pled the most tenuous of possible connections by the Doe defendant(s) to this district.” So far, plaintiffs’ investigation has unearthed two possible locations for defendant, neither of which
are in this district: New York and the United Kingdom. So it appears that venue is likely improper here. But it is not clear where proper venues lies, so the court will not order plaintiffs to show cause why this case should not be transferred to a proper venue — yet. Plaintiffs are forewarned that the court is likely to issue such an order in the future.

Here’s my guess, and it’s only a guess: The lawsuit was brought a year and nine months after the original post. That is within the Wisconsin three-year statute of limitations for defamation, but outside the New York one-year statute of limitations. That would explain why the lawsuit wasn’t brought in New York; and of the states that have a two-year-or-longer statute of limitations, Wisconsin might have been the most convenient for the lawyers for various other reasons.

* * *

So an interesting case, I think — not just on its own facts, but because it seems to follow a new template for libel litigation, quite different from the familiar “sue them for damages” tradition in libel lawsuits against the established media. Maybe this is good and maybe it’s bad, but if it’s allowed it’s likely to become even more common.

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What landmark event occurred May 24, 1844, in the U.S. Supreme Court?

I suppose I should have known this, but I just learned it yesterday, and thought I’d mention it.

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Carpenter v. United States and the positive law model

WASHINGTON, DC – JUNE 16: The Supreme Court of the United States building on June 16, 2017 in Washington, DC. (Photo by Jonathan Newton / The Washington Post)

A Supreme Court case I’ve been following this fall is co-blogger Orin Kerr’s favorite, Carpenter v. United States. As folks will know from reading Orin’s blog posts or his superb amicus brief, the case asks whether it is a search for the government to obtain historical cell-site location data from your wireless provider. His most recent post, over at Lawfare, criticizes both Timothy Ivory Carpenter’s heavy reliance on the “mosaic theory” and some relatively arbitrary line-drawing required by that theory.

So I thought I would pop in to emphasize that there is an alternative theory that Carpenter has put forward, one that may avoid a lot of line-drawing problems and also has deep grounding in the history, structure and purpose of the Fourth Amendment. That theory is the Positive Law Model of the Fourth Amendment, which I wrote about (with my co-author James Stern) last year in the Harvard Law Review. (Our friend Richard Re has also put forward a related theory, the Positive Law Floor.)

In a nutshell, under the positive law model, it is a search for the government to gather information in a way that a similarly situated private party would not be allowed to do. This, we argue, is why government trespasses into the home are such paradigmatic examples of a Fourth Amendment search — the Fourth Amendment requires the government to justify itself before it can transgress generally applicable positive law rights.

With that, I just wanted to make three quick points about the positive law model and the Carpenter case.

1. The positive law model is a plausible alternative to both the absolutist third-party doctrine and the mosaic theory. Many people, and I suspect quite a few of the justices, seem to have the intuition that there is something unsatisfying about current precedents on the third-party doctrine, especially if they are extended into the modern digital realm. At the same time, I can see why they might be worried about replacing the third-party doctrine with a judicial line-drawing approach, such as the mosaic theory.

The positive law model can provide an attractive alternative to both. The positive law model provides limits to the government’s ability to warrantlessly gather electronic information held by telecommunications companies and other third parties. But the court won’t need to engage in endless and arbitrary line-drawing exercises to figure out what those limits are. They will be the very same limits that already apply to everybody else. Using positive law as a baseline could assuage a lot of worries about line-drawing and what comes next.

2. Under the positive law model, Carpenter should probably win. As Richard Re has explained at his blog, Re’s Judicata, the activity in this case does seem to violate Carpenter’s generally applicable positive law rights:

Congress has provided that “[e]very telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to, … customers.” 47 U.S.C. § 222(a); § 222©. And the WCPSA defined “customer proprietary network information” to include “information that relates to the … location … of use of a telecommunications service subscribed to by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship.” § 222(h). The WCPSA also established a special “express” consent requirement specifically for disclosure of customer location information. § 222(f).

There are certain statutory exceptions to these protections, see § 222© & (d), but the only one that seems applicable in Carpenter is a general reference to disclosure “as required by law.” In several cases, the government has argued that that exception allows for disclosure orders like the one in Carpenter. See 2012 WL 604860 at 29-30 (discussing 18 U.S.C. § 2703). But that kind of government-only exception is precisely what triggers the positive law model or floor: the point of those approaches is to provide a constitutional check on the government’s access to information that is denied to similarly situated private parties.

Further, the WCPSA is linked to a cause of action for individuals. See 47 U.S.C. § 207. That provision is important because government exceptionalism may not be enough to secure protection under the positive law model or floor: in addition to violating laws applicable to similarly situated private parties, the government may have to violate a personal legal right of the defendant himself. By treating locational information as a customer’s “proprietary information” and affording customers a cause of action, Congress seems to have signaled that the defendant did indeed have a personal right to locational privacy.

The government’s main response to this point in its brief (at p. 42-43) is that the statute gives the government certain powers to compel disclosure. That is true, but non-responsive. As Re points out, under the positive law model, what matters is precisely whether the government is availing itself of some government-specific power as against the generally applicable law. If a state enacted an amendment to trespass law that allowed police to come into your house without a warrant, that wouldn’t change the baseline for constitutional searches. The same is true here.

3. You don’t have to commit to one precise version of the positive law model to use it in this case. There are several different theories of how exactly Fourth Amendment doctrine should avail itself of the positive law model. James and I put forward one theory; Re put forward a different one, in which positive law is a presumption rather than a rule and serves as a floor to Fourth Amendment rights but not a ceiling. One could also filter the positive law model through the “reasonable expectation of privacy” test more generally, or through the Jones and Jardines trespass cases in particular.

But in Carpenter, all of these roads lead to the same place, and the court doesn’t really have to commit itself to any one of them in particular. All it would have to say is that in this case, a reason not to apply the third-party doctrine is the strength of Carpenter’s positive law rights. And/or it could say that the trespass principle of Jones and Jardines generalizes beyond the physical objects (the car and the house) at issue in those cases, to include, in the electronic realm, the equivalent violations of positive law. It could even, as in Jones and Jardines, assemble a coalition of justices that combines those who emphasize the importance of the positive law/trespass principle and those who emphasize the importance of Katz v. United States and their view of reasonable expectations.

This would open up the basic inquiry that the third-party doctrine has been thought to close off and provide guidance about the basic framework to the lower courts but still leave some issues for further percolation. While of course I would love to see widespread agreement with my own version of the theory, this might nonetheless be the most judicious course.

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