Yesterday, the Supreme Court of the United States began hearing arguments for the new year. The 2018 calendars for January and February list 18 cases. Below are two: one centers on the reasonable expectation of privacy and the other about data held abroad.
Today, the court will hear Byrd v. United States. The issue in this case is “whether a driver has a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is not listed as an authorized driver on the rental agreement” or, as stated in the SCOTUSBlog, “For Fourth Amendment purposes, does it matter who is on the car-rental agreement?”
Per the blog’s succinct summary, the case began in September 2014 when Terrence Byrd, of New Jersey, was driving alone in a car rented by his fiancée, Latasha Reed, though a presentencing report lists her as his “former girlfriend,” in Pennsylvania and was pulled over. Two state troopers searched his car without his consent and discovered a laundry bag in the trunk containing a flak jacket and 49 bricks of heroin. He was charged with possession with intent to distribute and possession of body armor after the felony conviction of a violent crime, pleaded guilty and received a 10-year prison term.
The troopers had conducted the initial search without Byrd’s consent because he wasn’t listed on the rental agreement as an authorized driver and, therefore, had “no expectation of privacy” as protected by the Fourth Amendment. Byrd later argued that the troopers lacked probable cause for the search. The district court agreed with the government. The U.S. Court of Appeals for the 3rd Circuit upheld the ruling. Byrd turned to the Supreme Court for their opinion.
Byrd asserts his reasonable expectation of privacy isn’t dependent on whether he owned the car, but whether he was in “possession and control” over the car due to him being a family member of the renter, Reed.
Per the SCOTUSBlog, if “possession and control” were the test for a reasonable expectation of privacy, then Reed’s permission for him to drive the car doesn’t matter.
“Indeed, the government continues, under Byrd’s logic ‘even a car thief would have Fourth Amendment rights’ because he would have possession and control of the car.”
Also per the blog, if the Supreme Court upholds the ruling, then Byrd sees the following problems:
- “Even the driver would not have any reasonable expectation of privacy if he violated the terms of the rental agreement – a common occurrence.
- “Police officers would have an incentive to pull over any rental car they see, in the hope that the driver would not be listed on the rental agreement and they could search the car.
- “It would create additional burdens for police officers, by requiring them to try to figure out exactly what the terms and conditions of the rental agreement are, and whether the driver was complying with them.”
On one side, the American Civil Liberties Union sees a ruling in the government’s favor would unfairly affect lower-income drivers, who depend on car rentals because they cannot afford to purchase a car, and minorities, who also depend on car rentals and are more likely to be pulled over. And on the other side, the State of Arizona view a ruling in Byrd’s favor could have a positive impact on drug couriers, human traffickers and smugglers who also tend to use rental cars.
In several weeks from today, on Feb. 27, the court will hear the case of United States v. Microsoft. As Ars Technica summarizes, the case asks, “Can American law enforcement, with a valid warrant, obtain data physically held abroad by an American company?”
Microsoft says no, an American court order should not have any power abroad, while the Justice Department, yes, because then it would easier for American companies to not have to comply with court orders.
The case involves Outlook email messages in Ireland, which the U.S. government has sought through the Stored Communications Act. As Ars points out, it’s not known what the government hopes to learn by acquiring the messages, whether the email holder is an American citizen or whether he or she has been charged with a crime. Ars adds:
“The US government, could, however, use the Mutual Legal Assistance Treaty process as a way to contact Irish authorities to serve a local warrant upon Microsoft’s Irish subsidiary, which controls the data center, to obtain the data.”
At the end of 2017, literally on Dec. 31, the Republic of Ireland filed an amicus brief arguing that it would comply with an MLAT request “if and when it be made.”
We will follow both these cases and report on the results in a future post.