Erwin Chemerinsky on Privacy and the Supreme Court

Uploaded by GonzagaSchoolofLaw on 22.03.2012

[ Applause ]
>> Dean Chemerinsky: Judge, thank you so much for that incredibly kind introduction. Thank
you for the warm welcome. It's truly an honor and a privilege to be here to deliver the
Quackenbush lecture. Judge Quackenbush is nationally renowned as a jurist. So it's a
great personal pleasure to deliver a lecture that is named after him. In 1928, the Supreme
Court considered Olmstead versus the United Sates. The issue was whether wiretapping as
a search within the meaning of the Fourth Amendment. The wiretap was placed on the phone
outside the home. It was attached to the wire that brought the phone into the home, and
the United States Supreme Court said that, therefore, if there wasn't a physical trespass,
it wasn't a search within the meaning of the Fourth Amendment. This is the case that Justice
[Inaudible] a very famous event, where among other things, he said, "The right to be let
alone is one of the most fundamental rights we all possess." Quite stunning to think that
holding Olmstead was the governing law of the Fourth Amendment for almost forty years.
It wasn't until 1967 in Katz versus the United States that the Supreme Court took a different
approach with regard to the Fourth Amendment. Katz involved somebody who was making a phone
call from a telephone booth. The government tapped that phone. The question is should
that be regarded as a search regarding the Fourth Amendment? And the Supreme Court found
that it was a search. And the Supreme Court said, "No longer does it have to be a physical
trespass in order to trigger the Fourth Amendment." The key is, is there a reasonable expectation
of privacy? We are now forty five years since Katz. The methods of communication have changed
so dramatically. The ways in which people can communicate to one another have increased
so dramatically. The ways that the government can eavesdrop and intercept those communications
have also radically increased. And I think the question that we have to face, it's one
that touches all of us, is can the Supreme Court deal with technology of the twenty-first
century? Can a Fourth Amendment that was adopted in 1791 really be adapted for the technology
of the twenty-first century? I want to make three points this afternoon in trying to assess
this question. First, I'm going to argue that the recent Supreme Court cases about this
voted quarterly trying to predict whether the Supreme Court can deal effectively with
the technology and the Fourth Amendment. Second, I want to argue to you that the conceptual
frameworks that have been developed so far are not going to be effective in dealing with
privacy and Fourth Amendment issues that are likely to arise. And third, I want to conclude,
but offer some tender suggestions about the laws that we need to develop if the Fourth
Amendment is going to deal with privacy technology for the twenty-first century. So, let me begin
then by making a really bold claim that the recent Supreme Court decisions vote poorly
predicting the ability of the court to deal with technology in the Fourth Amendment. There
have been two Supreme Court cases about this the last few years. I want to tell you about
them. One was a couple of years ago in a case called City of Ontario versus Quon. It involves
the SWAT team of the Ontario police department in Ontario, California, not far from Los Angeles
and very close to where Judge Quackenbush regularly sits, and the Ontario police department
gave to its officers squawkers, text pagers, and each officer was given a message allotment
with regards to the use of the text pager. The officers were told though that if they
went over their allotment, it wouldn't be a problem so long as they paid for overuse.
Now, each of the officers who previously signed an agreement that with every issued city electronic
equipment there'd be no expectation of privacy. Also, they signed an agreement that they would
not send sexually explicit messages. We'll you have to remember that the Lieutenant said,
"So as long as you pay your overuse, no one's going to read your text messages." Jeffrey
Quon was an officer of the SWAT team in the city of Ontario police department. He went
way over his message allotment each month. For the first several months, he was maybe
over use, but nobody bothered him. But then the Lieutenant got tired of dealing with [Inaudible]
and asked the wireless provider, Arch Wireless, to write a transcript of Quon's on the job
text messages. He wasn't concerned with what Quon was doing with his text pager off the
job, but he wanted to see how often the on the job text messages really were job related.
Well, it turns out that only a very small percentage of them were job related. Quon
was regularly texting to his wife, he was regularly texting to his mistress, who was
a officer of the department, and he was regularly texting some friends. The Lieutenant seeing
that Quon was regularly violating the rule that the text pager was used only for job
related purposes disciplined Quon. Quon filed a lawsuit. He was joined as co-plaintiffs
by his wife and his mistress. [Laughter] Imagine everyone's imagination and coordination that
went on in filing that lawsuit and [Inaudible] who is now his ex-wife. And they claimed a
violation of their Fourth Amendment rights. They claimed that this infringed their reasonable
expectation of privacy. It was tried to a jury, Riverside, California. Judge Stephen
Larson presided, and the Judge, based on the jury verdict, ruled against the plaintiffs.
The Ninth Circuit opinion by Judge Kim Wardlaw reversed. Judge Wardlaw writing for the Ninth
Circuit said that Quon and the other plaintiffs had a reasonable expectation of privacy. The
Lieutenant had specifically said, "No one would read the text messages so long as the
overage was paid." The Supreme Court [Inaudible] This poses so many important issues. They
were all agreed through the Supreme Court. How is the reasonable expectation of privacy
determined for purposes of the Fourth Amendment? Is it controlling that Quon signed a statement
that it had no expectation of privacy in using city owned electronic equipment? Or is it
determinative that the Lieutenant told him, no one would read his text messages if he
paid the overuse. What's the expectation of privacy of the third parties, the wife and
the girlfriend? I know when I send somebody a letter the recipient might post it on his
or her door for all to see. But I know if I'm in a phone conversation, I have a reasonable
expectation of privacy. But where does text paging, all this new technology, fit into
that matrix? The Supreme Court decided none. They just briefly argued, but the Supreme
Court ruled very narrowly. The court was in the and [Inaudible] and he said, "Whenever
we are dealing with new technologies we should be cautious about issuing legal rules." Justice
Scalia concurred, and he disagreed as to that. He quoted Bob Dylan, "The times are a changing."
I like the Supreme Court quoting Bob Dylan. [Laughter] And he said, "We should face the
hard questions that are presented." But instead the Supreme Court said it wouldn't decide
whether there was a reasonable expectation of privacy. The Court just polled that what
the Lieutenant did in reading the text messages was reasonable. The Lieutenant had a reasonable
interest in knowing if the text messages were job related and that decided the case. The
court listed none of hard issues regarding the Fourth Amendment dealing with technology.
I think the most recent case voted more poorly the likelihood of the Court's being able to
deal with new technology in the Fourth Amendment. The case is the United States versus Jones
was decided a couple of months ago. Police in Washington D.C. suspected Antoine Jones
was engaged in cocaine trafficking. They went to a Judge and they got a warrant. The warrant
authorized tapping Jones' phone. The warrant also authorized putting a GPS device on Jones'
car and tracking his movements. But, the Judge issuing the warrant said that the GPS device
had to be planted within ten days of the warrant's issuance and that the GPS device be placed
on the car but was in the jurisdiction of the court within the District of Columbia.
The police waited until the eleventh day to put the GPS device on the car. It was explicable
that they didn't do so with the terms of the court. So, they put the GPS device on the
car when it was in Maryland. So, there's no dispute whatsoever there was not a valid warrant.
For twenty-eight days the police tracked the movements of Antoine Jones. When he ultimately
got prosecuted for cocaine trafficking the logs of the GPS were key evidence against
him. He was convicted. He was sentenced to life in prison. He was ordered to pay a large
fine. On Appeal he argued that putting the GPS on his car and following him for twenty-eight
days was a violation of the Fourth Amendment since there wasn't a valid warrant. The United
States Court of Appeals for the District of Columbia Circuit agreed. The Douglas Ginsberg
wrote to the court. He said, "That Jones had a reasonable expectation of privacy that the
Government could not follow his movements for twenty-eight days without a warrant."
There was a strong descent from the denial [Inaudible] Chief Judge David Sentel said,
"We have no expectation of privacy. We're on public streets." Judge Sentel said, "The
police could have had an undercover car follow Jones at all times he was out on the streets."
No expectation of privacy then. Why then is GPS tracking any different?" The Supreme Court
unanimously affirmed, D.C. Circuit, held that planting and following Jones with the GPS
device violated the Fourth Amendment, but wasn't unanimous regarding the GPS. Justice
Scalia wrote to the majority and he said, "That under an English law decision from 1765,
planting the GPS device on the car should be regarded as a search." Justice Scalia said,
"The Fourth Amendment means the same thing today as it did when it was adopted in 1791.
In planting the device on the car under the 1765 English precedent would be regarded as
a search with the meaning of the Fourth Amendment." I always find it at least anomalous when the
court says, "The Fourth Amendment means the same thing today as it did when it was adopted
in 1791." That was not talking about GPS devices on cars. [Laughter] Indeed Justice Oledo wrote
an opinion recurring in the judgment saying just that. His opinion was joined by Justices
Ginsberg, Bryer and Kennedy. Justice Oledo said, "It makes no sense to decide what's
a search and the meaning of the Fourth Amendment when dealing with electronic equipment to
look at English law from the eighteenth century. Justice Oledo said, "We should focus on the
reasonable expectation of privacy." He said, "We don't have a reasonable expectation that
the police won't track our movements for twenty-eight days without a warrant." Justice [Inaudible]
wrote a curious concurring opinion. She says, "She agrees with Justice Oledo more than Justice
Scalia, but she is joining Justice Scalia's opinion to make it the majority opinion."
Had she joined Justice Oledo's opinion, his would have been the majority opinion. And
she said, "Neither Justice Scalia nor Justice Oledo really provides a framework for doing
all of the hard issues." What if, for example, we hooked up the GPS device on the under carriage
of Jones' car; what if this was a satellite that just tracked Jones' movements? Would
that be a search under the meaning of the Fourth Amendment?" How could we decide when
there's a reasonable expectation of privacy? And surely a trespass isn't the key any longer
for there to be a Fourth Amendment issue. Katz rejected that in 1967. As I read the
opinions in these two cases, Quon and Jones I go away with the conclusion that the Court's
not thinking about, not even able to do with technology in the Fourth Amendment. Well let's
think about the second thing that I want to talk about. I think that the conceptual frameworks
that exist are ill-suited at dealing with privacy issues in the twenty-first century.
So, let's just seem that I am just criticizing these justices and how they wrote their opinions,
but what I want to argue is there's a larger, more systemic problem in the law, that the
way in which the law is developed concerning privacy is ill-suited to deal with the issues
[Inaudible] and identify. I think part of the problem is that the term privacy is used
in so many different ways by the Supreme Court and by academic and commentators that currently
leads to confusion. The first mention of privacy in a Supreme Court opinion doesn't happen
until the twentieth century. And with that everyone knows the word privacy nowhere appears
in the Constitution. The word wasn't used in the Constitutional convention until Philadelphia
in 1787. So, as far as we know, it wasn't used until the State Ratifying Conventions.
And discussions of the Fourth Amendment, not very many prior to its adoption, no one spoke
in terms of privacy. Many trace the modern use of the word Privacy to an article by Brandeis
and Warren in the Harvard Law Review in 1895 entitled, "The Right to Privacy." When one
reads that article though, it's not about privacy as I talk about it today in the Fourth
Amendment context. What Brandeis and Warren were concerned about was public disclosure
of private facts. They were complaining about the media. They were too obsessed with celebrity
and both of them revealing scoreless details. Now one could read the introductory concluding
paragraphs in that article and think it was written in 2012 not the 1890's. But their
focus had nothing to do with the Fourth Amendment, nothing to do with eavesdropping or electronic
surveillance. They said they we didn't deal with that until 1928 and we did so poorly
at the time. Over the years, the Supreme Court has come to use the term privacy in a very,
very different context. One concerns intrusion, especially by the government. Obviously, the
Fourth Amendment is limited to state action so that's what we mean when we talk about
privacy in the Fourth Amendment context, intrusion by the police [Inaudible] There's also a tort
of intrusion that would imply a private comment. An example here again using new technology
is about a case from a decade ago and it's called Kilo versus the United States. Kilo
involved the thermal imaging of a home search within the meaning of the Fourth Amendment.
The ladies had suspicion there was a marijuana growing operation in the home. They went and
took a thermal picture of the house. I think just seeing that photograph it just looks
like a house with bright lights on in the attic. Well, those lights in the thermal picture
were showing heat watts and consumption of energy consistent with a marijuana growing
operation. What the Supreme Court has to decide is a thermal image of a home a search within
the meaning of the Fourth Amendment. Is it an intrusion? The Supreme Court in an opinion
by Justice Scalia said yes. He stressed that homes are specially protected under the Fourth
Amendment. He said that the police now or soon be able to learn about internet activities
like looking at the thermal images of bodies and what they're doing in the home. In this
sense to him, this was an intrusion. There is a second sense in which the word privacy
is used by the Supreme Court and others and this concerns control over information. That
concern here we've got the police who come into our home, physically, electronically
but instead there's information that all of us want to hold and keep private. This information
might be revealed by the Government. It might be revealed by others. Again it's the government
doing so and then talking about privacy, not in the Fourth Amendment sense, reasonable
liberty with due process clause. If it's private revealing information, it would be a tort,
concerns over [Inaudible]. It is really a concern over control over information. The
word in grandiose, the right to privacy, it's this that they were focusing on, informational
privacy. But there's a third way in which the Supreme Court has used privacy and that's
in a sense of personal autonomy. In Griswald versus Connecticut in 1965, the Supreme Court
specifically used the phrase the right to privacy in discussing how Connecticut law
for the purchase or use of contraceptives violated the Constitution. Justice Douglas
looked at and had an opinion and talked about privacy. And that was his word; it was protected
by the number of the Bill of Rights. So, even though privacy isn't mentioned in the Constitution
there are aspects of privacy protected in the First Amendment, the Second Amendment,
Third Amendment, Fourth Amendment, Fifth Amendment. One commentator said that Douglas was like
a cheerleader skipping through the Bill of Rights and saying, "Give me a P, give me an
R, give me an I" for privacy. [Laughter] I think that Justice Douglas and Griswald contributed
greatly to the confusion with regard to the right to privacy. Now in part is I think that
this last notion isn't really privacy, but autonomy. But by using the word privacy instead
of autonomy the court creates confusion. Also, if you remember since Douglas and Griswald
said it that it was [Inaudible] by Connecticut law is, I'm going to quote his words, "That
we wouldn't want research in the marital bedroom for tell-tale signs of the use of contraceptives."
In other words, he didn't say it's your right to use contraceptives, but there's a right
to reproductive autonomy. You need to talk about the concern about researches in bedrooms,
finding information about contraceptives and is that intrusion on informational privacy.
And I think that this and other pieces the Supreme Court is aiding confusion by not separately
dealing with intrusion, informational privacy and autonomy. And also I would suggest that
with each of these three concepts the Supreme Court has done a poor job of developing a
conceptual framework dealing with issues, especially those with technology in the twenty-first
century. Let me focus first on the intrusion notion. Katz was seeing such tremendous improvement
over old set. Reasonable expectation of privacy seems far better deciding what to search with
them then trespassing. Once police could gather information without needing a physical trespass,
surely there would be a way to protect us until the police gather information about
us that used to require a physical trespass. Reasonable expectation and privacy seems so
inherently flawed as an approach to dealing with intrusion, especially intrusion by technology.
At the very least it's the ability to be self-defeated. Does this then mean that the government can
keep us from having any Fourth Amendment rights just by saying we have no expectation of privacy
at this time? Is the government going to announce to everybody we have the ability to listen
to your cell phones at any time? Does that mean no Fourth Amendment protection because
we have no reasonable expectation of privacy? And there are a number of cases recently that
involve at least looking at the contents of laptop computers with individuals across the
border. There's some cases where police literally will turn on the laptop to look at all of
the contents of the laptop, like child pornography and then prosecute the individual. I mean
the issue has not come to the Supreme Court, but to support the men of protection does
that constitute laptops [Inaudible]. If the Ninth Circuit ruled and the Supreme Court
has denied the review, then you should have a reasonable expectation of privacy when you
cross the border, because the government tells us that we don't have any expectation of privacy
when we cross the border. Can the government always take away our Fourth Amendment rights
just by telling us? Here you don't have any reason for expectation of privacy. I think
the problems of reasonable expectation of privacy standards go beyond that. The reasonable
expectation for privacy seems to be a descriptive statement. Do people in the particular context
expect privacy? I mean naturally the only way to deal with it equitably would be do
a search and then ask them in this context, do you have an expectation of privacy? But
shouldn't the expectation of privacy be determined normatively and not descriptively? Is it really
the underlying issue is when people should be protected, not when they actually expect
to be protected? I think this is an issue that was identified long ago by just morally
explaining the confusion that comes with the statement of reasonable expectation of privacy
that seems to focus on expectations rather than moral considerations. The second kind
of privacy that I'm going to talk about is informational privacy. And I think the Supreme
Court has done even a worse job in this area then it has in regard to intrusion. There
is no Supreme Court case in history that has ever found that informational privacy is protected
by the Constitution. There are two cases where the Supreme Court said it would assume without
deciding that informational privacy is protected, because the court then ruled against the claims
of informational privacy. There is no [Inaudible]. One was a cased called Whalen versus Roe.
New York had a law that required that doctors and pharmacists provide copies of prescriptions
for certain particularly dangerous controlled substances. And then these prescriptions were
compiled in a central data bank in New York. An objection was brought that this would violate
people's right to privacy, that somehow if they could get access to this information,
others would learn of personal use of drugs, prescription drugs, medical conditions and
the like. But the Supreme Court said that they would assume there was the right to informational
privacy but it wasn't going to decide the question and then it upheld the New York law
where it said that the state has an important interest in monitoring controlled substances,
so this kind of central database doesn't violate anybody's constitutional rights. The only
Supreme Court case dealing with informational privacy was just last term was a case called
NASA versus Nelson. It involves a jet propulsion laboratory of the Federal government, which
is also part of Cal Tech University in Pasadena California. It seemed that individuals for
most positions there didn't need to go through a background check. However, pursuant to an
order by President Bush after September 11th, the government now requires that all the employees
there undergo a thorough background check. As part of the background check they have
to list whether or not they ever dealt or used drugs, whether they've undergone counseling
for the use or dealing of drugs and the like. And any employee there brought a lawsuit saying,
"It violates my rights of privacy if they ask this information." He said, "There's nothing
about my job at JPL that in any way relates to national security. I don't have any access
to classified information. I'm not working on projects where I can compromise the United
States to have this kind of background check. To learn for example what kind of psychological
counseling I've undergone violates my right to privacy." The Supreme Court ruled against
Nelson and this is a similar pattern that the District Court initially ruled for the
government in the Ninth Circuit Court and then the Supreme Court [Inaudible] Justice
Oledo wrote his opinion to the court and he said, "In Whalen versus Roe we assumed there
was a right to informational privacy, but we don't need to decide that because we believe
the government's actions are reasonable requiring background checks", okay. Interesting that
Justice Oledo used the word "reasonable" in upholding the government's actions. Doesn't
that assume that there's not a fundamental right. We usually use in constitutional law
to determine reasonable when we're discussing rational basis review, the lowest level of
review. That's not the language for fundamental rights. The court said they were assuming
some right, but in reality they weren't providing much protection at all for [Inaudible] Justice
Scalia wrote an opinion concurring with opinion wrote by Justice Thomas when he said flat
out, "There is no right to informational privacy under the Constitution." So, when you think
of protection of information, when you think of all these missions the government has for
all of us, there's no protection under the law or these couple of statements in the Supreme
Court that assume such a right without deciding it. The third aspect of privacy concerns autonomy.
Here are there are far more in the way of Supreme Court decisions. The Supreme Court
has been safeguarding aspects of autonomy under the liberty of the due process cause
for almost a century. I can list for you the many rights that were protected with regard
to this aspect of privacy. The Supreme Court has set, for example, that there's a right
to marry that's protected of the liberty of the due process clause. There's a right to
procreate, a right to custody of one's children, a right to keep the family together, a right
for parents to control the upbringing of their children. I mentioned Griswald versus Connecticut.
The right to purchase and use contraceptives, the right to abortion, the right to engage
in private consensual adult same sex sexual activity, the right to refuse any medical
care. And yet what's missing from all of this is an underlying theory of how does a court
decide what aspects of human behavior are protected as fundamental rights under autonomy
in which the government can regulate. Let me give you an example, one of those recent
decisions concerning privacy in the sense of autonomy. It was a decision from 1997,
it's a case called Washington versus Welksburn. It involved a challenge for the state of Washington
law that permitted aiding or abetting suicide. There's a lawsuit brought by a terminally
ill patients in Washington arguing the right to privacy should include such a liberty.
The District Court, Judge Barbara Rolfstein found in favor of such a right relying on
the liberties that I just mentioned. The Ninth Circuit initially reversed and then it was
set before an [Inaudible] decision and Judge Steven Rhinehardt [Assumed spelling] found
that the right to privacy does include a right to physician assisted death. The United States
Supreme Court unanimously reversed. Chief Justice Rehnquist wrote to the court and said,
"There is not such a right protected under the Constitution." But why shouldn't there
be such a right once the Supreme Court says that there's a right to refuse medical treatment?
Well, those on life support could order their doctor to turn it off and thus have a right
to physician assisted death but what about those who weren't on life support? Even at
the point of [Inaudible] those dealing with abortion can refuse medical care or right
of bodily autonomy or rights to make crucial decisions regarding one's life, why doesn't
it extend to a right of physician assisted death? Some principles to think of there;
what's missing with the [Inaudible] life's autonomy is any conceptual framework occurring?
What are other steps of human behavior are fundamental rights and what is not? So, these
are the reasons that I think that the analytical approaches used by the court with regard to
privacy are so ill suited to the twenty-first century. Well this brings me to the third
and final part of my remarks. I want to point to directions that need to be taken with regard
to privacy. And I think it follows so much of what I've already said. I think that it's
essential that the Supreme Court be much clearer in separating the different aspects of privacy.
I would prefer than rather than just using the ambiguous word privacy, we develop a much
more particularized vocabulary speaking of privacy in terms of intrusion, privacy in
terms of control over information, privacy in terms of autonomy. I think it's that essential
in each of these areas to develop a conceptual framework to deal with the enormous number
of issues that can occur due to new technology in the twenty-first century. We need to develop
normative approach to determine when there is expectation of privacy. I don't think we
should talk about reasonable expectation of privacy in terms of people asking for respect.
Instead we need to develop a theory about when do we want people to be able to expect
privacy from government intrusion? The keys to society by the Supreme Court don't even
begin to point in that direction. We need to develop a conceptual framework for what
is that information about a person that a person should be able to believe that it's
not going to be revealed in [Inaudible]. Each of us, there are facts, think of them, that
we don't want others to know. There's a way of conceptualizing this in terms of concentive
circles. There's things that I've never shared with anybody. There's things that only my
wife knows about. There's things my wife and children know. There's things my best friends
know. There's things that the world knows, but we need to develop a way in determining
what's the constitutional protection for information? In a world of [Inaudible] in a world that
knows everything about us we can easily learn by the government priorities we can develop
a better way of approaching informational privacy. And it's the kind of a thing for
constitutional scholars to develop an underlying theory with regard to autonomy, how to separate
the behaviors that the government can regulate, which are those that are truly part of autonomy.
To me this really seems the roadmap to privacy in the twenty-first century. I began by quoting
Justice [Inaudible] opinion from Holmstead. And the sense most famous is another quote
from it. Anicus said, "That the greatest threat to liberty will come from people acting for
beneficial purposes. He said, "People born to freedom know the resistant maturity of
destiny." He said, "The insidious threat to liberty will come from well-meaning people
of zeal with no understanding of what the Constitution is about." Now Lewis Grandise
couldn't imagine the technology of the twenty-first century. And I don't think there are better
words more threatening in our face, but privacy.
[ Applause ]
>> Dean Chemerinsky are you willing to take a couple of questions? Questions?
>> I have a question? The quandary that I think about a lot is my twenty year old has
no compunction in giving Google the right to privacy on the computer, his phone, his
sister's phone and probably mine [Laughter] why is the generational attitude of privacy
so different than those we had and probably our predecessors?
>> Dean Chemerinsky: I was very careful to speak of the privacy in the Constitutional
sense relative to the government. There's a whole set of other issues that arise with
regard to privacy relative to private entities and especially privacy with regard to the
internet. I've often spoken on that topic and I have said over and again to audiences,
you should have no expectation of privacy at all when you're using the internet. And
I'll give an example of one that relates to the administration of a law school. At the
end of last week I said to my director of IT, "Is there any way to find out who's visiting
our website so as to be able to decide how we want to redesign it?" She came to me yesterday
with a multipage printout that disclosed what state each visitor was from, what country
each visitor was from, how long they came, where they first went, what page they exited
from. It was unbelievable the amount of information we gained very quickly and how much more sophisticated
those could be analyzed. Some of the-- I'll tell one other story about this. This is a
story now from eighteen years ago. I received a call from Nightline. Remember the Ted Koppel
show saying they wanted to do a program on how much information can be found on somebody
if they really wanted to learn that. And they said, "We're going to hire an information
broker to look for the information." And I said, "I don't know." And they said, "Hey,
what's your social security number?" And as I began, I said, "Why do you need my social
security number?" Because they don't pay to go on a show like that, so we let this information
broker learn as much about me. I said, "I don't want to do this without checking with
my wife to make sure it was okay." [Laughter] I don't do anything that would really be embarrassing
to find out. So, they found a tremendous amount of information, nothing embarrassing about
me but it was astounding what they could learn about me; the size of my house, my political
affiliation, things about my family, all of this is just out there. Now, I can get to
your question. There's no doubt that people who have grown up in such a world are much
more accustomed to not having privacy then those who are older. To me that fits with
what I was saying that it can't be that private with the reasonable expectation of privacy
based on what people actually expect. It has to be normative what we want people to have
by the way of privacy. Because otherwise, it becomes ever less just to become accustomed
to ever less in the way of privacy.
>> Other questions? Yea?
>> You talk about -- it sounds like you're saying in order to answer this question we
need to just change the language that is used in order to come up with kind like [Inaudible].
How would this improve or how does that begin?
>> Dean Chemerinsky: I believe that words really matter and I think that a great deal
of the problem with regard to dealing with privacy is because of a language problem.
I think Justice Douglas and Griswald did a tremendous disservice to the law here for
the reasons I said by calling autonomy privacy and focusing on the privacy in the marital
bedroom and whether people have the right people decide whether or not to have a child.
So I think it's important for scholars to say to the Judges and to the court, let's
be more precise in our language. And then I think it's important to say let's for each
of the categories begin to develop a conceptual framework that doesn't now exist. I don't
have that conceptual framework and I don't pretend to come here to identify one for you.
I just want to say that I think there's a really serious problem and the start I do
think is having a much better vocabulary to deal with it.
>> One more question. [Indaudible]
>> Dean Chemerinsky: Okay. Please.
>> Dean we have been well aware that since 9/11 the government has been surveiling potential
terrorists for our own personal safety and I suppose we should all be grateful for that.
What about when the government starts using these techniques for ordinary criminal investigations.
You mentioned [Inaudible] that searches be conducted on everyone anywhere and like satellites
or whatever. So, does that mean that right now there's no limitations on the governments'
ability to do that or do we need statutory change in order to get this done?
>> Dean Chemerinsky: I'm going to start with the end. All of what I talked about will be
dealt with by statutory protection. And Katz congress passed The Amish [Inaudible] Act
in 1968, entitled, Read, providing rules for [Inaudible] modified by the Foreign Intelligence
Surveillance Act for the category, but certainly we don't need to turn to the court for solutions
to all of this. However, [Inaudible] that really does send them down [Inaudible] but
in terms of where you began I think that the Fourth Amendment framework can work, but I
think it's used nearly enough. When you're alluding to say for example, when the [Inaudible]
are infiltrating lawful civilian groups or religious groups, I think that the law should
be hearing the conversation and we shouldn't fire a warrant based on probable cause who
did this? I'm very concerned about police infiltration and civil groups and religious
groups having a chilling effect on speech. I think there is a [Inaudible] we don't want
to trust the police on our own. Let's get the police and the independent Judges and
let them decide whether or not there's a basis for an intrusion. Infiltration of civilian
groups, religious groups is often a center for [Inaudible] but there's got to be some
check on the police.
[ Inaudible background question ]
>> This triggers some of those privacy issues, not privacy but the behavior of individuals
has surrendered their right to autonomy [Inaudible]
>> Dean Chemerinsky: That's a terrific question and it touched on exactly what I'm talking
about. You couldn't hear, it's about issues where people who are arrested have to give
a DNA sample by a swab of their cheek or is a condition for bail having to give a DNA
sample? First, I think we do believe that we should have privacy with regard to our
DNA. So much can be learned about us by analyzing our DNA and analogy goes forward so more can
be learned. So the idea of the government having this where they learn more about me
is [Inaudible] but there's also an informational privacy concern. Once there's this DNA data,
who has access to it? Now, the law here is clearly not about technology and the law is
something that exactly what you say. You don't have to get bail, but if you want bail a condition
is you've got to give a DNA sample. They want to put together a DNA database and be able
to track criminals. Well, this reminds of the unconstitutional condition doctrine; that
the government can't condition that given right with any benefit of doubt. I think it's
unconstitutional that somebody can't have it without giving up a DNA sample. But we
identify this huge issue with any example is a good example and good one to end what
I'm saying. Look at how we don't have the conceptual framework to deal with what the
Judge has identified either in terms of intrusion, or informational privacy or autonomy. We just
don't have the framework to deal with this issue and that's what court's are struggling
with. And I don't think the Supreme Court is going to do better when it gets to them.
>> Thank you.
[ Applause ]
>> And now we're going to hear from Judge Quackenbush after whom this lecture is named.
>> Judge Peterson: I'm going to take the prerogative of introducing Judge Quackenbush.
>> Oh, okay. Thank you.
>> Judge Peterson: Two prerogatives as a Federal Judge one of the deficits is being privy to
interesting lectures like this one by Dean Chemerinsky. Another prerogative is having
a fascinating, intelligent and very good mentors to work with as colleagues. Certainly Judge
Quackenbush is the epitome of a good mentor and as Dean Chemerinsky pointed out a Jurist
with a very good national reputation. One of the reasons for our holding this lecture
series is to make sure that Judge Quackenbush is recognized in this district as well as
he is recognized outside of this district. We would not want to let this profit go unknown
in this land. He is currently working on his thirty-third year on the bench. And as such,
he has presided in the East Street district of Washington longer than any other District
Court Judge. His connection with Gonzaga goes back a long ways. He is, in fact, a Gonzaga
grad. He was appointed to the Federal bench in 1980. He served as chief Judge for a number
of years and he achieved peer status in 1995, but that has not deterred him from carrying
a very heavy load of cases, not only here in Eastern Washington but in those districts
have not been fortunate to have new Judges appointed, especially central district of
California, southern district of California and Arizona where there are judicial crises.
I believe next week are sixty-five sentencings in Arizona. His personality, his brilliance
as a Jurist and his good common sense has made him a leader in our district, somebody
who I personally admire a great deal and today, for instance at trial, an attorney tried to
convince me the Judge Quackenbush reasonable doubt instruction. [Laughter] Judge Quackenbush.
[ Applause ]
>> Judge Quackenbush: Thank you very Rosanna. I want to ask you for the rest of the story
[Laughter] whether or not it was given. You've honored us, our court and Gonzaga and myself
personally by being here today and your presentation. This is by far the largest turnout in the
three years of these lectures and I think that speaks for itself. I'm sure next year,
whoever the speaker may be, will have an equally large turnout because there will be talk and
continued discussion of your presentation here today. So, thank you very much. Now,
about the Gonzaga connection; there are now two living Federal district Judges with degrees
in Gonzaga. Until recently, there was only one. Now with Judge Rice on board we have
two. But we also have other Judges who have Gonzaga connections. Judge Embronio and Magistrate
Judge Embronio, my first law clerk is a Gonzaga graduate, [Inaudible] Judge Hutton who sits
in Yakima is a Gonzaga graduate and Judge Patricia Williams, our bankruptcy Judge is
also a Gonzaga Law School graduate, so there is the connection. This all started in the
late 20's or early 1930's when my father, then the football coach at Hilliard High School,
predecessor of John Rogers High School started law school at night with a fellow Hilliard
guy who was working in the service station of Hilliard. His name was Ralph Foley. They,
of course, both successfully graduated, both became Superior Court Judges. When I having
been called back in the Grand War and finished that service, came to Gonzaga to finish my
legal education I had the opportunity to spend two years as Judge Ralph Foley's courtroom
deputy invaluable training and with Father Cogman's assistance of course on the campus
we have the Ralph Foley and Ellen Foley building. He also had a son, Thomas Foley, who became
a deputy prosecutor with myself, William Driscoll, Dick McWilliams and I had the opportunity
of being Tom Foley's first campaign manager and of course, we now have the Thomas S. Foley
United States Courthouse. So, there is the connection between the court and Gonzaga University.
And I'd like to acknowledge Father Cogman, retired President of Gonzaga and my good friend
and my good friend on the left, Father Costello. We have regular meetings, my good friends
along with Mr. Werkland, is he here or is he sitting in the Werkland conference room
next to the Dean's office? Oh yeah, Mr. Werkland [Laughter] on my right. The opportunity to
join with Father Cogman and Father Costello is something that's very dear to me and I
thank you both for being here today. I want to thank Judge Shay who really started this
lecture series. I did protest to some extent saying I wasn't that old yet, but Judge Shay
convinced me that I was [Laughter] and he then started these lectures and once again
Dean Chemerinsky we thank you very much for taking your valuable time. Federal Judges
throughout the country have benefitted for years from the presentations such as this
that the Dean has made going back to my first days of Ninth Circuit meetings when we were
much smaller. The Dean was younger as we all were and he just has been an invaluable asset
to the Federal judiciaries of all, so I thank you very much. And I thank you all for your
[ Applause ]
>> That concludes the program today. Please join me again in thanking Dean Chemerinsky
and the Federal Judges for making this wonderful event possible.
[ Applause ]