Wednesday, May 20, 2020

Do "Fake Friends" Violate the Fourth Amendment? Guest Post by Michael Mills

Note from Sherry F. Colb: When the current public health emergency led law school instruction for the second half of the Spring to shift online, we (Cornell and many other schools) also adjusted our grading policy. Based on principles of compassion, equity, and integrity, we shifted all grading to pass/fail. Everyone who earned a passing grade under these very trying circumstances deserves a great deal of credit, but I also hoped to recognize outstanding performance in some way. Accordingly, I offered to publish two of the top essays for my criminal procedure exam. Below is one of the exam answers of Michael Mills, a law student who has now just completed his second year at Cornell. I have omitted the prompt, because the answer speaks for itself.
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Do "Fake Friends" Violate the Fourth Amendment? 
by Michael Mills

We tell our friends a lot. We turn to them to share our accomplishments when we’re happy. We seek comfort from them when we’re sad. We ask them for advice when we’re conflicted. This tendency is not just a choice we make but a biological imperative. Humans are social creatures that pursue these kinds of interactions to satisfy their psychological needs. But what if this friend that you’ve been confiding in turned out to be a government agent? What if your best friend’s sole purpose in befriending you was to collect information for an investigation? Surely, you would feel that your privacy had been violated. But does the “pretend friend”/government agent's privacy invasion rise to the level of a search under the Fourth Amendment?

The Fourth Amendment protects people from unreasonable searches and seizures. A preliminary question you must ask under the Fourth Amendment is whether the government’s action is a search or seizure; if it is not, the action falls outside the Fourth Amendment’s scope. As a result, if the government’s use of pretend friends is a search, the government must obtain a warrant for it (assuming no warrant exception applies). But if it’s not a search, the government can utilize these pretend friends without a warrant and without probable cause.

To determine whether an action is a search under the Fourth Amendment, we turn to the Supreme Court’s decision in Katz v. United States. The government there recorded the defendant’s conversation inside a telephone booth, without the consent of either party, using an electronic listening device. The Court ruled that this qualified as a search. Under the test Justice Harlan set out in his concurrence, which became the controlling test over time, the defendant had a subjective expectation of privacy for the conversation he had inside the phone booth, and society is willing to accept that expectation of privacy as reasonable.

Applying Justice Harlan’s test, the use of undercover agents posing as pretend friends should qualify as a search under the Fourth Amendment since it violates a reasonable, subjective expectation of privacy. Looking solely at the Katz factors, it is clear that these agents violate our reasonable expectations of privacy. The subjective prong gives little difficulty, since by solely telling something to a friend, and not to the whole world, we are subjectively manifesting an intent not to tell others. There may be cases where this subjective intent is not met (e.g., if you shout a secret across a crowded room to your pretend friend) but in most circumstances you are subjectively intending to talk to your friend in confidence.

The next question is whether this expectation of privacy is something society is willing to accept. The Supreme Court has often taken a descriptive view of this question, meaning the Court asks what possibly could have happened absent government intervention. Because your friends could betray your trust, it is not reasonable to expect privacy.

Yet, this descriptive approach ignores all normative implications. Although your friends may betray your trust, that is not the typical result, and the government’s involvement greatly expands that betrayal’s scope. Obviously, your expectation of privacy in a secret diminishes when you disclose it to others. But the risk you are taking is quite different from the one the State imposes when it gets involved. If you tell your non-agent friend your secret, the typical risk you are taking is that your friend may tell other people that know you.

For example, maybe your friend tells your other friends about your gambling problem (hopefully with the intent of getting you help). Or maybe your friend will encourage your crush to go on a date with you. Or maybe your friend tells your significant other about an affair you're having. Normatively, however, you are not taking the risk that your friend is going to go to the government with your secrets. That result is highly unusual, absent governmental intervention.

Additionally, it seems inconsistent to say that the government violates a reasonable expectation of privacy when it listens into a call without your friend's consent (like what happened in Katz) but doesn't violate it when it becomes your (pretend) friend. The end result is the same in both cases from the speaker's perspective. As a society, we should recognize that there are limits on the risks you are taking by talking to others. Those risks usually don't include the intrusion of the government spying on your life and secrets. Thus, society should recognize the reasonable expectation of privacy in friends.

The Katz test, however, is complicated by the Supreme Court’s precedent in United States v. White. In this case, the Court took a descriptive approach and held that there was no empirically reasonable expectation that no one would listen to your calls with friends when your friend consented to the government's listening. Even assuming this case is rightly decided (which is questionable based on the above Katz analysis), the government action in White was different from the government’s use of pretend friends.

White involved only the government listening in on four conversations between the defendant and his friend. But when a government agent becomes your "friend" with the sole purpose of infiltrating your life, the scope of the privacy violation is much greater. The pretend friend cares nothing about you or the secrets you share. As a result, the pretend friend violates the expectation of privacy for everything that you tell them.

For example, you may tell the friend that you’re getting a divorce. That has nothing to do with the government's investigation, but now they know it. By contrast, your real friend isn't going to share that information with the government if the government is only interested in your criminal wrongdoing. Thus, the use of pretend friends is different from White because the intrusion’s scope is much wider.

We can draw a good analogy  between this situation and the GPS tracker cases. The Court held in United States v. Knotts that a tracker installed in a barrel the defendant bought didn't violate a reasonable expectation of privacy since the defendant had no reasonable expectation of privacy while traveling in public. This was a descriptive approach since anybody could have followed your travels, similar to the tracker. However, compare this result with Justice Alito's concurrence in United States v. Jones. There, a GPS continuously trackedthe defendant's every location for a month. Alito, joined by four Justices (and a fifth, Justice Sotomayor, who agreed with his conclusion but felt it wasn't necessary to reach the issue), argued that this extensive scope violated a reasonable expectation of privacy. Tracking more limited in scope, such as in Knotts, did not violate a reasonable expectation of privacy because of its duration. But Alito argued a month of 24-hour surveillance did violate a reasonable expectation of privacy. This analysis is a normative approach since somebody could follow you every hour of the day for a month, in theory, but they rarely actually do so.

Similarly, here, the government listening in on some phone calls with your friend does not violate a reasonable expectation of privacy. But the government befriending you and taking note of everything you share with your fake friend for an indefinite time certainly exceeds White's scope and violates your reasonable expectation of privacy. For these reasons, White does not preclude the argument that "fake friends" violate a reasonable expectation of privacy. Therefore, since fake friends are searches under the Katz test, the government should have to obtain a warrant before implanting a pretend friend in your life.