FISA and the USA PATRIOT Act: Reforms and Legal Implications

Lizzie Evanko

Congress passed the Foreign Intelligence Surveillance Act (FISA) in 1978, in an effort to establish a legal framework for the physical and electronic surveillance of foreign entities. FISA allowed the federal government to collect intelligence on any foreign power (or agent of a foreign power) suspected of terrorism or espionage. The act in turn created the Foreign Intelligence Surveillance Court (FISC, or FISA courts, colloquially) to supervise the requests and uses of federal surveillance warrants. The FISA court established judicial review of the covert surveillance activities being carried out, but due to the sensitive nature of intelligence collection methods and information, these courts maintain a high level of secrecy to protect national security.

Congress passed FISA in response to the uncovering of government surveillance abuses (many of which occurred under the Nixon administration). The act made many surveillance practices legal and created a system to oversee the process of surveillance. However, FISA has been repeatedly amended, most notably following the attacks on September 11, 2001. One of the major amendments to FISA was the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, or simply, the Patriot Act. While FISA limited the federal government’s surveillance capabilities to foreign actors, the Patriot Act vastly expanded surveillance permissions, establishing the ability to surveil US persons. Specifically, Section 215 of the Patriot Act, colloquially known as the “business records” provision, allows for investigative agencies to obtain secret court orders which require third parties (like telephone companies and other businesses) to hand over records and any other “tangible things” deemed relevant to a national security investigation. In most criminal cases, the burden of proof for a search warrant typically requires probable cause, which is based on an “officer’s reasonable belief, based on circumstances known to that officer, that a crime has occurred or is about to occur.” However, Section 215 remains particularly controversial, because some “thing” being relevant to a national security investigation is an extremely low burden of proof for the government to be able to secretly obtain records of virtually any kind. There does not need to be probable cause regarding a specific crime that has occurred or is about to occur for a warrant to be granted.

While many people would oppose government surveillance for the most part, there are arguments to be made in its favor. First, surveillance allows the federal government to develop intelligence and protect the American people from a large number of national security threats, like intellectual property theft, espionage, or terrorism. By using surveillance, the government is able to effectively target and incarcerate foreign agents that wish to do the United States harm, and the known possibility of surveillance may deter these agents from following through with their potential hostilities. Second, FISA and other surveillance acts create legal, transparent pathways for the government to eliminate investigatory barriers to gaining intelligence and building cases. Whereas other governments may keep their surveillance capabilities secret, FISA and the Patriot Act clearly outline what the federal government is allowed to do. Additionally, these acts allow the government to gain intelligence and build cases in legal ways. Lastly, one of the major arguments in favor of acts like FISA and the Patriot Act is that government surveillance will not directly affect most law-abiding citizens. In other words, “if you haven’t done anything wrong, you have nothing to fear,” so, unless one is a threat to national security (in which case we should hope such a threat is being surveilled), surveillance cannot pose a direct threat.

While these arguments stress the importance of FISA, there are similarly many arguments to be made against it. For one, even though FISA and the Patriot Act may make certain forms of surveillance legal, it is questionable whether or not the Patriot Act, in particular, violates some constitutional rights. For example, in Brandenburg v. Ohio, the Supreme Court of the United States determined that the First Amendment protects speech advocating for illegal activities, unless said language is intended and likely to incite “imminent lawless action.” This precedent established that even if one were to only speak about illegal activities, they may not necessarily be charged with illegal incitement. However, with the Patriot Act, free speech is significantly less protected, as the standard of probable cause for surveilling a subject is much more vague, and thus more easily met. For example, a surveillance order may be issued based on a person’s internet activity, book purchases, or published writings. These actions should fall under their First Amendment right to freedom of speech, but the Patriot Act allows for surveillance based on these actions, which is arguably violating their freedom of speech. Furthermore, recipients of search orders are prohibited from notifying others of the search, which further hinders their First Amendment rights.

The Patriot Act also violates aspects of the Fourth Amendment, which establishes that the government cannot “conduct a search without obtaining a warrant and showing probable cause to believe that the person has committed or will commit a crime.” However, under the Patriot Act, the government can conduct secret searches without showing probable cause that the subject has committed or will commit a crime. The Fourth Amendment also guarantees notice to a person whose privacy has been violated by a search or seizure, whereas the Patriot Act does not guarantee notice, even after a subject has been investigated. Such notice is also a part of the Fifth Amendment’s guarantee to due process, so the lack of required notice by the Patriot Act could also be interpreted as a violation of the Fifth Amendment. The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury… and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor…” However, because almost all FISA information is classified, including its collection methods, many defendants are denied these important Sixth Amendment rights. Confidential informants’ identities are not revealed, refusing the defendants’ rights to confront their witnesses, and they are furthermore barred from accessing much of the information that led to their arrest in the first place. Moreover, the only people allowed to review FISA information are those with security clearances, so any details about collection methods are kept secret, making it impossible for a defendant to face a jury of their peers. Subjects of national security investigations or trials are thus left in the dark, which could be a violation of the Sixth Amendment.

There are other objections to FISA and the Patriot Act as well. For instance, some argue that the secret nature of surveillance proceedings leaves the federal government with too much unchecked power. With the secret nature of FISA information, witnesses, and collection methods, there is little supervisory oversight, and there is even less judicial oversight. The only judges and attorneys that are able to review FISA information are those with security clearances, and none of that information can surface in front of a jury or open courtroom. This leaves the information to be reviewed by a select few who are responsible for the entire proceeding. Judges of the FISA Court are hand-appointed by the Chief Justice of the Supreme Court with no say from Congress, and hearings are entirely closed to the public. How judges make decisions in these backroom discussions is entirely unknown to defendants and juries. A telling statistic about the decision-making of the FISA Court is that from the Act’s passing in 1979 to 2012, the court signed off on 33,942 warrants and denied only 12. This rate is significantly higher than similar warrant passage rates seen in the federal court system. Furthermore, FISA allows (in some cases) for warrantless search and seizure, making the nature of prosecutions that use information gained without a warrant more suspect. It has also been proven that FISA and the Patriot Act have, in fact, been overused. In 2013, whistleblower Edward Snowden leaked information “about the NSA’s ‘PRISM’ and ‘Upstream’ programs, which involve the NSA working closely with companies like Google, Facebook, AT&T, and Verizon to conduct warrantless surveillance of Americans’ international communications on a massive scale.” This evidence proved that the surveillance capabilities granted by FISA and the Patriot Act were being abused.

The courts have addressed some of these issues. Antoine Jones was convicted of drug-trafficking conspiracy, based on information collected by a GPS device that was put on his car, 24 hours after the warrant to place the device had expired. The Supreme Court, in United States v. Jones, rejected the lower court’s claim “that there is no reasonable expectation of privacy in a person’s movement on public thoroughfares,” and it held that the surveillance on Jones’s vehicle was a violation of his Constitutional rights. The case demonstrated that, again, the federal government had infringed upon the Constitutional rights of investigation subjects, and the Court set the precedent that, even when a crime has been committed, the rights of the accused take priority over law enforcement concerns. Another major case regarding the Constitutional violations of FISA and the Patriot Act is ACLU v. United States, in which the ACLU filed a motion following the Snowden documents’ release in June 2013. The motion requested the FISA Court “publish its opinions on the meaning, scope, and constitutionality of Section 215,” but was subsequently denied. The ACLU filed several other motions for review, all of which were denied. The ACLU then “filed a petition for writ of certiorari in the Supreme Court, challenging these rulings and asking the court to recognize a First Amendment right of public access to the FISC’s opinions—ensuring that the opinions are released with only those redactions necessary to prevent genuine harm to national security.” The Supreme Court denied the petition for writ of certiorari, arguing that not only should the lower court’s rulings be upheld because they were correct, but that the Supreme Court is also powerless to review the lower court’s decisions, even if they were found to be incorrect. In Justices Sotomayor and Gorsuch’s dissent, they state, “On the government’s view, literally no court in this country has the power to decide whether citizens possess a First Amendment right of access to the work of our national security courts.”

These cases all demonstrate a connecting theme: there is extremely little oversight or public understanding of FISA and the Patriot Act, and yet, there continue to be dangerous implications and failures of these acts. Especially going forward, since we live in an increasingly online society, these acts must be reconsidered. It is clear that the practices of government surveillance have implications that threaten the Constitutional rights of the American people. Regardless of FISA and the Patriot Act’s successes, the presence of so many examples of misconduct prove that a tool as powerful (and useful) as these acts needs to have more safeguards in place, and more information needs to be made publicly available for people to know to what risks these acts expose them.

Affirmative Action’s Strict Scrutiny Revisited: Creating Meaningful Compelling Interests

David Chau

Introduction:

The current national fabric of the United States is a colorful one. However, to reach that level of inclusivity, it took mass grievances demanding change and slow government acquiescence, creating a more equal, equitable representation in government to “form a more perfect union.”^[1] Some of these calls for reform moved their way up the judicial branch. And, 45 years ago, in Regents of the University of California v. Bakke, the Supreme Court attempted to answer the legal questions regarding race-conscious admissions policies in higher education. But the Court has inadequately decided Bakke, resulting in the presumptive downfall of affirmative action that we see when the Roberts Court announces its decisions in two cases it heard this term: SFFA v. Harvard and SFFA v. UNC.

Ever since Bakke, proponents of affirmative action have had to fight for its legitimacy with “one hand tied behind” their backs,^[2] clinging onto an unworkable justification for its existence. Although the Court upheld some forms of affirmative action in Bakke, its justification for doing so effectively sentenced affirmative action to death. It reaffirmed this death sentence again in 2003 and will declare affirmative action effectively dead in June of 2023. A small change to include considering “past societal discrimination” as a justification for affirmative action back in Bakke would likely provide a more robust and effective framework for admissions policies that are in line with the requirements of the Equal Protection Clause.

Historical Background:

Race-conscious affirmative action belongs to the legacy of the Civil Rights Movement and the Civil Rights Act of 1964. In a speech at Howard University in 1965, President Lyndon B. Johnson said:^[3]

“You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others,’ and still justly believe that you have been completely fair…Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.”

These political remarks reflected the attempts of education and employment institutions across the country to implement their own affirmative action policies.^[4] However, the initial implementation of these policies also kickstarted flurries of opposition with legal strategies, such as claiming reverse discrimination, or most recently in SFFA, the victimization of a racial minority—Asians. As these claims rose to the Supreme Court, posing equal protection questions, the Court began to dismantle the policy that has helped undo decades of inequality in the United States.^[5] Moreover, revisiting the diverse national fabric of America, no two lives are the same. Hence, as we discuss the issue of affirmative action and the general doctrines of antidiscrimination law, it is of the utmost importance that the conversation stays at the individual level, since it is easy to conflate an individual, who is part of a category—which may or may not be a defining part of their identity—to a generalization of a collective group. This form of conflation was and still is the misconception that frames the conversations in political discourse, where rhetorics of reverse discrimination and mass victimization are invoked.^[6] Nonetheless, the true definition and constraints of policies surrounding the practice of race-conscious affirmative action dictate that any consideration of race—as with all factors of admissions—must be considered only on an individual level.^[7]

First, through Bakke in 1978, a split Court (4–1–4) decided that all racial distinctions, even including the classification of the racial majority, are protected categories under the Constitution. Hence, it held race-conscious admissions policies to strict judicial scrutiny, where only Justice Powell took the deciding vote on outlining the Court’s affirmative action that persevered until today. Since Bakke, there has been only one justification for affirmative action that rises to a compelling state interest: the attainment of a “diverse student body” and the academic benefits that flow from such a population.^[8] Bakke set the foundation for an unworkable narrow tailoring of the policy, effectively banning all quantitative measures that can be employed by universities to reach their goals of diversity.^[9] Later on, via Grutter in 2003, the Court continued to uphold Bakke’s restriction while adding a “sunset clause” of 25 years, declaring affirmative action’s death in 2028. However, six years before society reaches that point in time, the Court once again decided to jeopardize its fate.

Court cases involving affirmative action have long established the jurisprudence of using strict scrutiny because it is an issue related to a protected category of race. In Bakke, UC Davis, the Petitioner, argued that because Bakke was a white man, he is part of the white racial majority, and the case did not merit strict scrutiny under the definition of “discrete and insular” minorities outlined in Carolene Products Footnote 4.^[10] However, the Court went further to make a jurisprudential claim that as long as a policy involves race, it must be subject to the most “rigid scrutiny.”^[11] Interestingly, to justify this point, Powell quoted Hirabayashi and Korematsu, which were two of the worst and most infamous precedents that subjected Japanese Americans to second class citizenship and ultimately interment.^[12] Regardless, with strict scrutiny applied for affirmative action, Powell opened up the conversation to the larger, more diverse national fabric that is inclusive of all races and ethnicities, which was prevalent back in the 1970s and is forever more so in the present: “The Fourteenth Amendment is not directed solely against discrimination due to a ‘two-class theory’—that is, based upon differences between ‘white’ and Negro.”^[13] With this conception of strict scrutiny over a suspect category of race, Powell removed the binary narrative of a world of white and Black. The use of strict scrutiny has been important to protect the interest of everyone. Nonetheless, this Court’s definition of affirmative action that satisfied its view of strict scrutiny has left the policy without any sustainable means to survive.

Re-examining the current compelling interest:

Contrary to many beliefs about affirmative action being one of the tools to remedy the country’s long history of inequality and injustice, the Court has never held remedying past societal discrimination as a constitutional justification.^[14] The only acceptable reasoning for a compelling state interest that the Court upheld ever since Bakke is that it helps foster “the attainment of a diverse student body.”^[15] The justices have not changed their holding since. Justice Powell, the author of Bakke, reasoned that creating a diverse educational environment at the university level will allow students to gain exposure to a wide range of different views and ideas. Acting as platforms for scholarly discussions to thrive, universities require voices from all walks of life to be represented because these institutions are the leaders in fostering meaningful changes in society. For one, they are pipelines of the nation’s decision-makers—even more so at the top universities, which employ more of these policies compared to community colleges. If these graduates were to be making decisions, then they would be better off being conscious of the diverse national fabric of modern America.^[16] As long as the current government is unrepresentative of the American population, affirmative action—in universities and the workplace alike—may be employed to create a strong foundation for more representation in leadership.^[17] And, this question may as well apply to the Court’s current composition.

Moreover, one must always note that the idea of using race as a factor to admit someone does not negate any other factors that bolster the consideration of diversity, such as “academic interest, belief systems, political views, geographic origins, family circumstances, and racial identities.”^[18] In 2021, two writers for the Princeton Legal Journal contended that race-conscious admissions mean that “you opt for a scheme that deliberately favors applicants from some minority groups by applying different standards of admissions to students on the basis of their racial identities.”^[19]

This form of characterization of race-conscious admissions policies is the manifestation of the misconceptions of the system that opponents to affirmative action have leveraged for decades (from Grutter and Gratz in 2003 to Fisher in 2016): there is a separate track of admissions for certain racial groups while other groups are subject to more stringent academic standards when considering them for admission, be it Asian Americans or white applicants. However, this is not the sort of system the Court approved of in Bakke in 1978. The Court has ordered multiple times that any consideration of race in admissions must be done on an individual level that is holistic. There is not only the consideration of race but also other factors such as geography, religious beliefs, academic performance, family circumstances, etc. Ever since this 1978 decision was handed down, all forms of separate admissions tracks—especially those with special, lower standards for minority groups—have been outlawed and found unconstitutional.^[20] This means that each applicant is individually held to certain standards that are based on the context of the person’s profile. Every individual is unique and different in their sense, thereby demanding an accordingly individualized consideration for admissions.

Nonetheless, there is still merit to the authors’ argument critiquing the Court’s decision in 1978 about the sole compelling state interest. The authors, quoting Justice Clarence Thomas, argued that current race-conscious admissions policies are singling out race as a special category of admissions to supposedly attain the educational benefits that flow from certain “‘classroom aesthetics.’”^[21] While that is difficult to prove quantitatively, if we were to take it as true, we could see how Thomas’s critique details how the sole compelling interest creates flaws within the admissions systems. The current idea that the sole purpose of implementing race-conscious admissions is to attain diversity among the student body only considers the interest of the university and the enrolled students. The legal position that the Court adopted in Bakke did not allow for the interest of the applicants to be considered. In fact, the current compelling interest allows universities to have expansive discretion to practice either “egalitarian” or “exploitative” affirmative action to attain diversity without any mechanism to prevent performative affirmative action.^[22] Because of the Court’s refusal to consider remedying past discrimination a compelling interest, the benefits of race-based affirmative action only impact students who are admitted rather than truly providing equitable opportunities to applicants with less access to high-quality education.^[23] This is, though, a matter of policy. Simply put, the current constraint of only operating within the silo of “attaining diversity” lacks the ability to differentiate whether universities are carrying out race-conscious admissions as a way to offer true diversity of thought or as a way to create “classroom aesthetics.” Had the Court included the consideration “past societal discrimination” as a compelling interest for affirmative action, there might be a mechanism to protect individuals from the possibilities of such exploitative admissions schemes, which will be proved in the next section. Throwing affirmative action out the window simply is not the answer.

Past Societal Discrimination: A Necessary, Compelling State Interest

Understanding the systemic and structural inequalities of American history, especially U.S. legal history, a consideration of past societal discrimination as a new compelling interest might be necessary to carry out affirmative action equitably without allowing for negative action and exploitative practices of these policies to affect other applicants. This paper only argues for the consideration of past societal discrimination, not remedying these instances of discrimination like the original case in Bakke discussed. Universities are foundations for societal change, not direct means for change. “Remedying” past societal discrimination insinuates that these academic institutions are agents that actively work to mend the evils of society. But, they do not have that responsibility—namely to actively seek disadvantaged groups for them to qualify for race-conscious admissions programs.^[24] Universities only need to take a passive stance in considering one’s background of past societal discrimination. That aside, affirmative action is not a panacea to solve all of these inequalities; it has to work in conjunction with comprehensive legislation in other facets. Affirmative action alone does no direct good. Before continuing on to forming constructive arguments, let us examine Powell’s reasoning for not allowing the consideration of past societal discrimination as a compelling state interest.

In Bakke, Powell claims that the idea of societal discrimination is too nebulous and unstable to have a concrete, distinct classification for groups of people. Even the white racial majority can be broken down into smaller affiliated groups that might have been victims of discrimination in the past:^[25]

“[T]he white ‘majority’ itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals. Not all of these groups can receive preferential treatment and corresponding judicial tolerance of distinctions drawn in terms of race and nationality, for then the only ‘majority’ left would be a new minority of white Anglo-Saxon Protestants. There is no principled basis for deciding which groups would merit ‘heightened judicial solicitude’ and which would not. Courts would be asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classifications at the expense of individuals belonging to other groups.”

Powell imagined a world where, once we started considering past discrimination, everyone would start claiming that they were structurally discriminated against—no matter how far back that discrimination occurred. To Powell, this would open the floodgates to a slew of litigation seeking remedies from the Court, and he did not think it proper for courts to decide which groups have suffered discrimination worthy of remedying. However, if affirmative action policies can employ both interests simultaneously—considering past societal discrimination and attaining a diverse student body—universities would be able to set limitations to prevent random claims of past discrimination writ large. There is no empirical evidence to back up his fear, but let us use his example to test the consideration of past societal discrimination as it works in tandem with the school’s interest to attain a diverse body of students.

He mentioned that if the “white majority” is divided into smaller groups, everyone would be able to claim to be victims of societal discrimination—except for white Aglo-Saxon Protestants. This is true, especially when we examine the political situation of national affiliation during the early days of white settlers in the “New World.” There were strong divisions among Irish, French, Dutch, and English groups of immigrants in these new lands.

With that said, would the descendants of these groups be able to make a claim of past societal discrimination to qualify under affirmative action? Maybe. However, if the consideration of “past societal discrimination” works in tandem with the universities’ interests in attaining diverse bodies of students, the answer would be: not so fast. The schools’ interests in gaining diversity among the student body would be the filter to sift out who can bring a different point of view to the table. For instance, an applicant of Irish descendent—who is white—can still make a claim to qualify under race-conscious admissions policies if their circumstances inform the admissions officer that that their family is structurally disadvantaged by past societal discrimination and that they would be able to bring their own unique point of view to the civil discourse on campus because of this part of their identity. With this framework, affirmative action will not be just for racial minorities, but rather for students who truly need to have representation on campus. And, although these groups usually tend to be racial minorities, this method will not preclude groups of racial majorities that are marginalized. This issue is particularly important when we consider the influx of international students. According to one New York Times article, which examined whom affirmative action truly benefited among the Black racial minority, the majority of Black students at Harvard and Cornell Universities are international or first-generation immigrants, who usually arrive in the States as highly skilled workers.^[26] This may as well be evidence for “exploitative” affirmative action policies, since they benefited mostly Black students who are not structurally disadvantaged compared to the multi-generation African Americans who survived slavery, Jim Crow, and other forms of societal discrimination. If these universities are bound to consider if these applicants have been affected by past societal discrimination, the composition of students who benefit from these race-conscious policies might have been different. Once again, universities are not agents to remedy past societal discrimination. They are not agents for change. They do not need to go on a hunt for students who are part of a group that suffered from past societal discrimination. Their only duty is to consider this factor among other considerations for admissions.

Furthermore, Powell argued in Bakke that if the Court were to take into account remedying “past societal discrimination” as a compelling state interest, it would endorse a “constitutional principle” that varies “with the ebb and flow of political forces,” which would “exacerbate racial and ethnic antagonisms rather than alleviate them.”^[27] Powell was imagining a world of political chaos that would increase racial animus and destabilize the constitutional principle. That assumption is quite true with the current politicization of racial issues and affirmative action. However, once again, if these two government interests can work in conjunction with each other, i.e., considerations of past societal discrimination and attaining a diverse body of students, these two justifications for affirmative action would maintain the stability of the policy. The universities’ interest to attain diverse and robust civil discourse among the student population would remain constant. If one group claims the political majority over the other, universities would still want to have fair representation of both groups in the unchanging interest of diverse discourse on campus.

Once the factor of disadvantaged groups is considered, universities can now admit a more representative student population that speaks to the colorful and vibrant national fabric of America. No longer can affirmative action be carried out exploitatively to attain “classroom aesthetics” under these new constraints. Furthermore, Powell’s concern that this government interest would lead to further racial antagonism should not lie with the existence of affirmative action. This race-conscious policy is not a panacea to all societal inequities. Addressing the issue of racism and racial animus must be done holistically through careful legislating. Hence, instead of striking down a workable standard for this policy, Powell could have noted the need for Congress to consider these more nuanced questions to assess societal issues related to race.

Let us return to the current cases in front of the Supreme Court, SFFA v. Harvard and SFFA v. UNC, which claim Asian Americans are victims of affirmative action.^[28] Unlike what SFFA contends, there propositions are sample cases of generalizing the diversity of different ethnic and racial groups under an umbrella term of “Asian Americans.” There are groups within the Asian community that earn and are more educated than the white racial majority, while there are specific ethnicities that constantly live below the poverty line and struggle to have their youth graduate high school.^[29] Using the new addition to the compelling state interest would allow universities to look into the larger picture and parse the massive generalization that America has done to the Asian American community. Even the idea of grouping everyone under the term Asian may be problematic: for one it does not usually represent all populations in Asia, and two, it is Eurocentric and is a product of imperialism.^[30]

Therefore, unlike what Powell imagined, adding this new compelling state interest would not create a chaotic situation where everyone would grab onto a claim to qualify under affirmative action. But in fact, it would benefit those who need benefiting, especially giving the platform to uplift those who need the space to represent not only themselves but also their identities, so that the decisions and the thoughts that undergird these processes are representative of all walks of life.

Concluding thoughts:

Affirmative action was made complicated, convoluted, and politicized through decades of racial animus. Bakke never gave the policy the ability to defend its legitimacy. Now, with affirmative action’s fate set to be decided in front of the Court, we might as well consider if it had lived a different life—the life that would open possibilities to a more equitable and representative future. With the meaningful compelling interests, the addition of the consideration of past societal discrimination fills in the gaps that the current system has. Nonetheless, the policy’s defenders have fought hard for its existence through the last 50 years. And, with its presumed death, new opportunities await for other means of change to form equity and equality.

^[1] U.S. Constitution, preamble.

^[2] Emily Bazelon, “Why Is Affirmative Action in Peril? One Man’s Decision,” The New York Times, last modified March 4, 2023, https://www.nytimes.com/2023/02/15/magazine/affirmative-action-supreme-court.html.

^[3] Lyndon B. Johnson, “Commencement Address at Howard University: “To Fulfill These Rights.”,” The American Presidency Project, last modified June 4, 1965, https://www.presidency.ucsb.edu/documents/commencement-address-howard-university-fulfill-these-rights.

^[4] Barbara A. Perry, The Michigan Affirmative Action Cases (Lawrence, Kansas: University Press of Kansas, 2007), 14-15.

^[5] This paper believes in the benefit of race-conscious admissions/hiring policies. Although it will not go into proving how affirmative action is beneficial, it believes that with the right combination of policies alongside affirmative action, the government can effectively reduce the level of income disparity among racial lines across locales and states. Affirmative Action on its own will not be able to tackle the multilayered, structural inequality among racial and class lines.

^[6] Garriy Shteynberg, Lisa M. Leslie, Andrew P. Knight, and David M. Mayer, “But Affirmative Action hurts Us! Race-related beliefs shape perceptions of White disadvantage and policy unfairness,” Organizational Behavior and Human Decision Processes 115, no. 1 (May 2011), 1-12. doi:10.1016/j.obhdp.2010.11.011.

^[7] Grutter v. Bollinger, 539 US 306 (2003).

^[8] Regents of the University of California v. Bakke, 438 US 265 (1978).

^[9] Bakke and later Grutter banned racial quotas and any forms of numerical bonus points based on someone’s race. This created a system that is forced to use qualitative measures to prove their goal of diversity, which by all means demands a quantitative answer of numbers and percentages.

^[10] Bakke. United States v. Carolene Products Co., 304 U.S. 144 (1938).

^[11] Bakke.

^[12] Ibid.

^[13] Ibid.

^[14] Cynthia Chiu, “Justice or Just Us?: SFFA v. Harvard and Asian Americans in Affirmative Action,” Southern California Law Review 92 (2019): 447.

^[15] Bakke.

^[16] Grutter.

^[17] This is not to say that affirmative action is the ultimate answer to create a more representative government. It must work in tandem with other policy that would allow for an informed, transparent, and fair democracy to thrive. Issues, such as gerrymandering, misinformation, disinformation, etc., are also barriers to reaching the goal of a representative government.

^[18] Student for Fair Admissions v. President and Fellows of Havard College, Merit Brief from the Respondent, 3.

^[19] Myles McKnight and Benjamin Edelson, “Affirmative Action Admissions Regimes Are Unconstitutional: Strict Scrutiny Should Mean Something,” Princeton Legal Journal, last modified May 5, 2021, https://legaljournal.princeton.edu/affirmative-action-admissions-regimes-are-unconstitutional-strict-scrutiny-should-mean-something/.

^[20] Bakke outlawed the quota system, where racial minorities compete for 16% of the slots and the racial majority compete for the other 84%. And, Grutter outlawed the points system, where racial minorities were awarded 20 points extra for their race.

^[21] Myles McKnight and Benjamin Edelson, “Affirmative Action Admissions Regimes Are Unconstitutional: Strict Scrutiny Should Mean Something.”

^[22]Cynthia Chiu, “Justice or Just Us?” In this article, an “egalitarian” system of affirmative action will help the school body attain a more representative population, where educational benefits are attained from the diverse pool of opinions and life experiences. On the other hand, an “exploitative” scheme of affirmative action is the scheme that the PLJ article and Justice Clarence Thomas claimed to be. That schools will just consider race for its end goal of creating “classroom aesthetics.” An egalitarian system centers itself in the means of achieving diversity while an exploitative system focuses on the ends of achieving diversity regardless of whatever means the institution takes. Institutions, even elite ones, may be both exploitative and egalitarian at the same time. These two concepts are not mutually exclusive.

^[23] Ibid, 450.

^[24] While actively seeking candidates that can qualify for affirmative action policies are not discussed in this paper, it may be a potential for a problematic characterization of ethnic and racial groups in society.

^[25] Bakke.

^[26] Jay C. Kang, “Where Does Affirmative Action Leave Asian-Americans?,” The New York Times, last modified July 29, 2021, https://www.nytimes.com/2019/08/28/magazine/where-does-affirmative-action-leave-asian-americans.html.

^[27] Bakke.

^[28] Student for Fair Admissions v. President and Fellows of Harvard College. Student for Fair Admissions v. University of North Carolina.

^[29] Pew Research Center, “Key Facts About Asian Americans, a Diverse and Growing Population,” Pew Research Center, last modified October 10, 2022, https://www.pewresearch.org/short-reads/2021/04/29/key-facts-about-asian-americans/.

^[30] Erika Lee, The Making of Asian America: A History (New York: Simon & Schuster, 2015).

Social Media Platforms as Publishers: Evaluating the First Amendment Basis for Content Moderation

Jimmy Fraley

Introduction:

In recent years, many Republican politicians have become increasingly vocal about the content censorship imposed by social media companies. These Republicans are concerned that social media companies have taken actions to censor conservative speech and have engaged in a type of viewpoint policing. This concern has turned into action, with Jim Jordan, Chairman of the U.S. House Committee on the Judiciary, subpoenaing the heads of several large companies, including Apple and Meta, to testify on what he calls “the federal government’s reported collusion with Big Tech to suppress free speech.” On the state level, several Republican-controlled legislatures have attempted to handle the issue. Notably, Texas and Florida have both passed laws restricting social media companies’ ability to censor content in an attempt to prevent viewpoint-based censorship.

Since their passing, both of these laws have faced legal challenges in federal court. These challenges revolve around the notion that social media platforms have the First Amendment right to censorship and content restriction. Specifically, challengers of the Constitutionality of the two laws argue that platforms exhibit editorial control of the content hosted on their sites, and thus should be granted rights similar to those of a newspaper, or similar publisher of content. This idea has created contradictions in federal court rulings and presented an issue ripe for the Supreme Court’s guidance. In this article, I argue that social media platforms do not exhibit editorial control on their platforms, do not serve as the publishers of online content, and do not have the First Amendment right to restrict speech.

Texas HB 20 and Florida SB 7072:

Texas House Bill 20 was signed into law in September of 2021. The bill, which only applies to companies with more than 50 million active users each month, aims to protect the First Amendment rights of Texas citizens. It requires companies to disclose information about their moderation process and search algorithms and to create clear usage policies detailing what qualifies as prohibited content. Most importantly, the law prohibits companies from censoring users based on viewpoint or geographic location.

Florida Senate Bill 7072 was signed in May of 2021 and is similar in substance to the Texas law. The law is aimed specifically at large social media companies, through a provision that only applies the law to platforms with more than 100 million global monthly users, and establishes a hefty fine structure for social media companies that deplatform candidates for local and statewide office. Like in Texas, the recent Florida law prohibits viewpoint-based restrictions on online platforms. Unlike in Texas, the censorship prohibitions in the Florida law are afforded exclusively to journalistic enterprises and candidates for public office, as well as posts about candidates for public office.

Legal Challenges:

Soon after Texas and Florida passed these laws, NetChoice, a trade association advocating for limited government regulation on the Internet, filed legal challenges to them. With members such as Twitter, Google, Meta, and TikTok, NetChoice represents the interests of a number of today’s largest technology and social media companies. The Computer & Communications Industry Association, another trade association representing social media platforms’ interests, joined NetChoice in its legal efforts. NetChoice filed lawsuits against both the Texas and Florida laws (NetChoice v. Paxton and NetChoice v. Moody, respectively).

In both cases, the NetChoice argued that the laws infringed on their First Amendment rights. In doing so, they claim that the amendment grants platforms the right to censor. They argue that because they exhibit editorial control over the content of the platform, akin to a publisher, they have the right to choose what kinds of content are displayed on their platform. In both cases, the petitioners also argued that the reporting and disclosure requirements implemented by both laws constitute an undue burden on their companies. The respondents disagreed with this analysis, arguing that social media companies are not the publishers of the speech users post on their platforms, meaning that the companies do not have the First Amendment right to censor and restrict content posted online.

Paxton was heard by the Fifth Circuit Court, and Moody was heard by the Eleventh Circuit Court. Both circuit court panels were comprised of three Republican-nominated judges. Despite their similar fact patterns, the circuit court panels decided Moody and Paxton in contrasting ways. In Paxton, the court found in favor of the respondents, upholding the Texas law. On the other hand, in Moody, the court found partially in favor of NetChoice, striking down the component of the Florida law prohibiting viewpoint-based censorship, while still allowing the law’s reporting and disclosure requirements to stand. These different decisions have created a court split, making the Supreme Court more likely to grant review. Indeed, the Court has already reached out to the federal government for their opinion on the matter.

In Paxton, the Fifth Circuit found in favor of the Texas law, overturning the lower court’s ruling. While the court cited several prominent and novel arguments that aided in their judgment, central among those was their conclusion that the law “protects other people’s speech and regulates the Platform’s conduct.” The court ruled that social media companies are not the publishers of content posted on their platforms, and thus have no First Amendment claim, which would have protected their right to engage in censorship. Central to the court’s rejection is Section 230 of the Communications Decency Act, passed in 1996 and a key factor in modern cases involving digital speech. Specifically, the Act states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Per the Fifth Circuit’s interpretation, Section 230 means that social media companies are not the publishers of content posted on their platforms, and thus are not afforded the same First Amendment protections as other publishers.

However, in Moody, the Eleventh Circuit found that the Florida law’s censorship restrictions are unconstitutional, since “Social-media platforms like Facebook, Twitter, YouTube, and TikTok are private companies with First Amendment rights.” Citing previous cases (Miami Herald, Pacific Gas & Electric Co., Hurley), the court reaffirmed that the First Amendment protects editorial discretion and that private entities have the right to exclude speech based on its content. The court found, among other arguments, that social media companies possess editorial discretion, and therefore, that any restriction of their content moderation efforts is a First Amendment violation. This ruling in Moody creates a contradiction with the ruling in Paxton, leaving the subject ripe to be taken up by the Supreme Court, with the states arguing that social media companies are not publishers, and the companies arguing that they act as publishers.

Resolution:

To resolve this contradiction in court rulings, it is important to determine whether social media companies should be treated as the publishers of the content posted on their platforms. Traditionally, editorial discretion and the rights of publishers were privileges afforded to more standard media, such as newspapers, or even TV broadcasts. With the advent of social media, it is unclear where platforms fall on an editorial spectrum. On one hand, they use algorithms to recommend and sort content. On the other hand, they don’t produce their own content, and organize content in a content-neutral manner.

Yet, while platforms exhibit some characteristics that suggest they serve as publishers of content, a common-sense approach to the issue reveals that platforms are nothing like newspapers and television channels. If an offensive Tweet were to be widely shared, the Tweet would be attributed to the user who created the Tweet and would never be attributed to Twitter in any way. In contrast, an offensive news article, or parade float, would be attributed to the editor or organizer in at least a minimal capacity. Facebook and the New York Times are not viewed or treated the same way by their users, or society as a whole, and should not be conflated in First Amendment cases. Indeed, an offensive news article written by a journalist at the New York Times would be attributed to the paper, since the paper employs the journalist, edited the offensive article, and chose to publish it on their website. In this situation, the New York Times exhibits editorial control over the offensive article. On the other hand, an offensive Tweet would not come from someone with a professional affiliation with Twitter, would not have been edited by Twitter, and would not have been selected for publication by Twitter. Thus, the company demonstrates no editorial control over the content posted on its platform. The 5th Circuit’s argument more aptly reflects the nature of the cyber landscape, while the 11th Circuit fails to acknowledge the novelty of digital content hosting by treating these companies as publishers. Social media platforms should not be treated as publishers of content. Platforms and publishers are not the same thing.

This argument is supported by the argument of social media companies themselves in other recent cases. Argued on February 21st, 2023, Gonzales v. Google LLC. dealt with Google’s recommendation of ISIS recruitment and fundraising videos before a 2015 terror attack. In this case, the petitioner argues that Section 230 of the Communications Decency Act does not protect all content recommendation practices, while Google argues Section 230 shields them from liability, claiming that “Section 230 flows from Congress’s recognition that today’s internet could not exist if the law treated every website and user as the publisher or speaker of the third-party content they disseminated.” In Gonzalez, Google is using the regulations and statutes laid out by Section 230 to protect them from liability, claiming that they should not be held responsible as a publisher of content. In contrast, NetChoice, of whom Google is a member, is arguing in Paxton and Moody that, because of the content organization practices of large platforms such as Google’s YouTube, they are the publishers of content and have First Amendment rights.

It appears that social media companies want to have Section 230 both ways; they wish to be afforded the First Amendment rights of a publisher, claiming that they hold editorial discretion over the content that appears on their platforms. Yet, at the same time, they want to be immune from liability based on the content posted to their platforms. The arguments made by these platforms in different cases are inconsistent with one another. The Supreme Court’s rulings in the upcoming cases should do much to clarify the issue and resolve the numerous contradictions present in the recent group of First Amendment cases.

The Supreme Court’s recent interest in Section 230 illustrates the growing importance of the statute in internet litigation and reveals the challenge the novelty of the Internet provides to lawmakers and judicial bodies. Until Congress acts to reform Section 230, it is up to the Court to shape the rules that govern the digital landscape. The Court should hold that internet platforms are not publishers or editors of the content hosted on their platforms.

Justice Until Death: The Necessity of Swift and Good-Faithed Capital Punishment

Justin Murdock

Abstract

There are two factions when it comes to the debate over capital punishment: one believes it is legitimate retribution for heinous criminal acts, while the other believes it is the epitome of archaic punishments which violate the principles of the Eighth Amendment. Capital punishment in the United States is limited to five main methods: lethal injection, electrocution, lethal gas, hanging, and firing squad. Lethal injection remains the most popular method of the death penalty. Consequently, in states that continue to employ lethal injection, cases of botched execution have long posed issues. One such example is the recent botched lethal injection of Kenneth Eugene Smith. I argue that given these instances of negligence in applications of capital punishment, more states should use newly-available alternative methods, such as nitrogen hypoxia, when administering capital punishment.

Background

The case study of focus sparked one of the greatest, most drawn-out legal fights pertaining to capital punishment. Kenneth Eugene Smith was convicted of murder in 1989 by a jury vote of 10-2 and sentenced to death row for grotesquely killing Elizabeth Dorlene Sennett in a murder for hire. Smith appealed his case for a retrial through Kenneth Eugene Smith v. State (2000), which resulted in a jury vote of 11-1 to sentence him to life without parole. However, the judge invoked §13A-5-47(e) of the 1975 Alabama Code, which allowed him to overrule the jury’s recommendation, and sentenced Smith to death. In 2017, however, Alabama introduced a statute to abolish the ability for judges to override a jury’s decision. Nevertheless, the law was not retroactive, so when Smith appealed to the Federal Supreme Court, he was denied review.

Smith argued in the same appeal that the Alabama Department of Corrections violated his due process rights under the Fourteenth Amendment since he was not accordingly notified of a nitrogen hypoxia alternative when made available in 2018 in Alabama. Following his final unsuccessful objection to his capital sentence, Smith later had his execution administered. Smith was strapped into a gurney and not fully anesthetized, resulting in the jabs in his limbs and groin feelings “like a knife”. This execution was administered quite late, and since the death warrant restriction expired at midnight, the process had to be called off. Smith’s failed execution is just another piece in Alabama’s history of botched executions: the state also botched the executions of Alan Miller and Doyle Lee Ham, with officers sleeping on their jobs and the inmates suffering from delays and chemical burns resulting from improper injections. All these cases have been united in their application of the Eighth Amendment based on their grotesque execution.

The final court decision in Smith’s case accords with the national precedent on capital punishment but opens interesting nuances to the penal issue. The reigning District Judge R. Austin Huffaker Jr. dismissed the appeal, stating that the violations alleged against the Alabama Department of Corrections (ADOC) should not pose a constitutional issue according to the Eighth Amendment—specifically its prohibition on “cruel and unusual punishment.” Past plaintiffs such as Miller and Ham have also cited a violation according to the Eighth Amendment, showing that based on precedent, the negligence of ADOC raises the question of constitutionality of the method of capital punishment rather than the practice of capital punishment itself. Essentially, the intended punishment inherently is not deemed a constitutional violation, but the actual application raises questions into the viability of the action.

Given the facts of Smith’s case and prior cases demonstrating consistent problems of negligence and inefficiency, this article brings two claims about the motive behind capital punishment and the future regarding lethal injection practices. To clarify, this article is not intended to discuss the merits of the death penalty as a whole. This concept has been disputed many times in court, often siding with its federal legality, so arguing against it in this piece would be futile. Instead, this article breaks apart specific kinds of capital punishment. In particular, the death penalty should be administered both swiftly and in good faith. If the accessory pain associated with the method of capital punishment goes beyond and impairs the ability to administer a swift execution, it could rise to cruel and unusual punishment. Since lethal injections are prone to failures that can lead to violations of the Eighth Amendment, courts should instead open viable, convenient alternatives such as exploring the safer nitrogen hypoxia execution method to accomplish the motives of the death penalty.

Legal Bases

Two parts of two amendments are fundamental to determining the legality of the punishments Smith, and others like him, suffered: the Eighth Amendment’s prohibition on “cruel and unusual punishment” and the Fourteenth Amendment’s prohibition on the abridgement of “due process.” Especially when alternatives are available but not fully delineated to the defendant, like Smith, the Fourteenth Amendment is crucial in piecing together the defendant’s rights against government punishment. If the purpose of these amendments is to protect minorities and the vulnerable by ensuring equal rights for all, any mishandled implementation of this measure could be viewed as the government exceeding its due authority to administer fair punishment. Therefore, this shows that the administration of botched lethal injection procedures, at least by the ADOC, should search for viable alternatives to avoid remaining within the bounds of the Eighth and Fourteenth Amendments.

While justices have typically sided with the government in capital punishment cases, key insights have nevertheless been shed about the merits of certain procedures, such as Smith’s botched lethal injection. For instance, in a 7-2 decision in Baze v. Rees (2008), the Supreme Court addressed the constitutionality of a four-drug lethal injection. While the Court concluded that the lethal injection as a concept did not violate the Eighth Amendment, members of the Court suggested that if states consistently utilize methods without sufficient justification compared with better alternatives, that may amount to cruel and unusual punishment. Additionally, Bucklew v. Precythe (2018), decided 5-4, involved an appeal in which Bucklew argued that his pre-existing medical condition of blood-filled tumors subjected him to excessive pain when receiving a lethal injection, culminating in “cruel and unusual punishment.” Again, the Court did not find the death penalty to amount to an unconstitutional punishment. However, Justice Gorsuch’s remarks do hint at this article’s claims of swift and good-faithed execution practices. Saying that the punishment should not provide “superadd[ed] . . . terror, pain, or disgrace,” he wrote that the death penalty should ideally be quick, but is not guaranteed to be entirely pleasant or easy. While there will undoubtedly be some degree of pain associated with the highest level of punishment there is in the country, inmates do still have rights that are supposed to prevent the administration of that punishment from being unnecessarily painful. ADOC’s negligence, however, caused it to infringe upon these rights.

Conclusions

Given the history of repeated botches and potential alternatives, insights from concurring and dissenting opinions should be kept in mind when witnessing this persistent negligence in capital punishment. If developments in nitrogen hypoxia make it a reasonable alternative, like in Alabama in 2018, defendants should be informed of such rights. Even if this novel practice has just surfaced in the realm of capital punishment, it should still be explicitly available if the state deems it to be safe. Even if nitrogen hypoxia is not safe according to other states’ laws, it is still abundantly clear that the ADOC failed its procedure and demonstrated incapability in administering lethal injection. If states still stalwart this process and refuse to provide viable alternatives, as even Supreme Court justices have opined, states will unfortunately continue to find themselves in a flurry of contested Eighth and Fourteenth Amendment violations.

Electronic Surveillance, the Fourth Amendment, and the NYPD’s “Muslim Surveillance Program”

Annie Akbar

In a letter to James Madison after the French Revolution had begun, Thomas Jefferson wrote, “The earth belongs always to the living generation… Every constitution, then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force and not of right.” Here, Jefferson is advocating for a periodic revision of the Constitution, one in which the citizenry rethinks its guiding document in light of the circumstances of a new era. When comparing our age to that of our Founding Fathers, it is not difficult to understand Jefferson’s sentiment. The advancement of our society, especially in terms of technology, has significantly affected the ways in which civil rights (and their infringement) appear. This is especially true when examining electronic surveillance and its implications for Americans’ constitutional liberties. For example, in Hassan v. City of New York (2015), the United States Court of Appeals for the Third Circuit held that, under the First and Fourteenth Amendments, the New York City Police Department’s “Muslim Surveillance Program,” in which electronic surveillance was used to “infiltrate and monitor Muslim life in and around New York City,” was unlawful. While this decision undoubtedly finds legitimacy in the aforementioned amendments, I contend that applying a modern interpretation of the Fourth Amendment—one rooted in “living constitutionalism,” or the idea that “constitutional law can and should evolve in response to changing circumstances and values”—can also prove the program’s illegality.

In Hassan v. City of New York (2015), lead plaintiff Syed Faraj Hassan and others associated with Islam testified that, since January 2002, the New York City Police Department (NYPD) used what was informally known as the “Muslim Surveillance Program” (also called “the Program”) to monitor the lives of Muslims and their businesses, mosques, organizations, and schools in New York City and neighboring cities and states. The Court of Appeals found that the plaintiffs—“persons associated with Islam who claimed to be targets of police surveillance program”—had standing to sue in federal court to “vindicate their religious-liberty and equal-protection rights” and that their claims were justified under the First and Fourteenth Amendments. It is clear why the Program, which “targeted Muslim American communities in New York, New Jersey, and beyond,” would violate the First and Fourteenth Amendments. However, employing the Fourth Amendment to assess the Program’s “sprawling and secretive human mapping and suspicionless surveillance program” may provide an additional legal foundation for the decision.

The Fourth Amendment affirms that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” In short, the Fourth Amendment outlaws unreasonable searches and seizures. The NYPD’s participation in the Program, though, constitutes an unreasonable search and seizure of data on Muslims in the greater New York area via electronic surveillance.

The plaintiffs in Hassan argued that the NYPD monitored Muslims in several ways, such as by taking pictures, shooting videos, and gathering license plate information of mosque attendees. Officers also pointed surveillance cameras at mosques, which they could then control remotely. Furthermore, the plaintiffs asserted that the NYPD would send undercover cops into mosques, student organizations, businesses, and neighborhoods that it characterized as “heavily Muslim” to listen in on sermons and conversations before reporting back to their department. These surveillance methods were not solely concentrated in New York City—they extended into New Jersey, Connecticut, Pennsylvania, and other areas of New York state. In addition, the NYPD collected information on the locations of religious schools, the religious affiliations of certain public establishments, the number of businesses operated or visited by Muslims, and the names of people involved with Muslim Student Associations (MSAs) in the area. The NYPD also “compile[d] databases of new Muslim converts who [took] Arabic names, as well as Muslims [who took] names that [were] perceived to be ‘Western.’”

The plaintiffs declared that the intelligence gathered by the NYPD through the Program was compiled into many reports. Such reports included information on Newark’s Muslim population, over 20 precinct maps of Newark showing the locations of mosques and Muslim businesses and the ethnic composition of the Muslim population, and “analytical report[s] on every mosque within 100 miles of New York City.”

From this, it is obvious that the NYPD’s program was meant to target Muslims and their daily activities, indicating religious discrimination that the Court of Appeals affirmed in its ruling. However, I assert that the Program’s electronic surveillance to collect an expansive collection of data by itself is sufficient to warrant a contravention of the Fourth Amendment.

Regarding the Fourth Amendment, the Court of Appeals utilizes Justice Scalia’s point in Whren v. United States (1996) about selective enforcement of the law: “[T]he Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.” While I agree with the appellate court’s reasoning, I believe that the Program’s methods of collecting people’s information, regardless of their religion, can be considered a Fourth Amendment infraction.

But first, does electronic surveillance even fall under the jurisdiction of the Fourth Amendment? In Katz v. U.S. (1967), a case involving electronic surveillance, the Supreme Court held that the Fourth Amendment protects “any place where an individual maintains a reasonable expectation of privacy.” In his concurring opinion, Justice Harlan stated that “a person has a legitimate expectation of privacy if he honestly and genuinely believes the location under surveillance is private.” Due to the separation of church and state found in the Constitution, places of worship are commonly regarded as private institutions—institutions in which a person “has a reasonable expectation of privacy.” Under this ruling, the Fourth Amendment prohibits unreasonable searches and seizures involving data collection through electronic surveillance—precisely the sort of search and seizure in which the NYPD engaged.

Now that this has been established, I will use the Fourth Amendment to provide further support for the decision in Hassan. According to the federal courts, the Fourth Amendment prohibits unreasonable searches and seizures by the government (and government agencies like police departments), but only those that are perceived as unreasonable from a legal standpoint. This is referred to as the reasonability requirement. Judges are to consider the main factors when determining whether or not a search was reasonable: the search’s infringement on a person’s Fourth Amendment rights and compelling interests that may allow for such an infringement. For an interest to be compelling, the government must use the “strict scrutiny test” to show that the interest is “important enough that it justifies infringing on a fundamental right, and [that its] infringement on rights is done in ‘the least restrictive’ or most careful way possible.” However, in Hassan, the Court of Appeals held that the “municipality’s assurance that police surveillance was justified by national-security and public-safety concerns did not satisfy its burden of producing evidence to overcome heightened scrutiny’s presumption of violation of equal protection.” Because the NYPD failed to prove that electronically surveilling Muslims was a compelling interest, the “Muslim Surveillance Program” fails to fulfill the reasonability requirement. Moreover, “least restrictive means” refers to a method that places “the least possible restriction on personal liberty and the exercise of rights.” While public safety and thus crime prevention are certainly compelling interests, the NYPD’s surveillance program is clearly not the least restrictive means possible to achieve its desired ends. This is due to its surveillance of basically all Muslims in the greater New York area, rather than just those on watchlists or things of that nature.

Though Fourth Amendment jurisprudence is beginning to incorporate electronic surveillance threats to privacy, an obstacle to this development may arise from originalists who disagree with applying the Fourth Amendment to this issue. These individuals proclaim that the “original meaning of search seems to be the ordinary meaning at the time [of the Fourth Amendment’s adoption] of ‘looking over or through’ or ‘examining by inspection’” and that an unreasonable search is only one that “violate[s] the common law rules for searches at the time of the Fourth Amendment.” However, taking into account the privacy and “search and seizures” problems that are related to electronic surveillance is crucial to upholding the protections of the Fourth Amendment. According to the Brennan Center for Justice, as cell phones, watches, cars, and other electronic devices become “smarter,” they “create detailed records about our private lives, potentially revealing not only where we have been but also our political viewpoints, consumer preferences, people with whom we have interacted, and more.” This information can be used by “law enforcement for use in investigations and prosecutions, and much of it is currently available without a warrant.” Thus, establishing legal limits to such electronic collection of data is a worthwhile endeavor to maintain the sanctity of our rights.

The idea of electronic surveillance and its potential infringement of people’s Fourth Amendment rights is one that warrants attention because, as technology continues to progress in terms of its abilities, so will the means by which data is collected. Without implementing proper legal restrictions on the use of data collection, the privacy of American citizens under the Fourth Amendment may be in danger.

The Content-Specific Doctrine: The Right to be Secure in Digital Effects

Xander de los Reyes

Amendment IV, US Constitution

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

INTRODUCTION

The Fourth Amendment’s original intent was to protect Americans from unreasonable searches and seizures. At the time they were drafting the Constitution, the Founding Fathers remembered these violations of privacy as physical trespasses committed by British officials against colonists. This raises the question: Were the seizures of letters from a desk drawer or the broad searches of one’s coat pockets unreasonable searches and seizures because they were physical in nature? Or were they violations of privacy because of the content searched and seized?

I argue that unreasonable searches and seizures can occur without physical intrusion. As technology becomes increasingly prevalent, violations of privacy can occur in non-physical realms (i.e., “cyberspace”). Although these violations lack the physical dimension that characterized early-American conceptions of Fourth Amendment violations, they can nonetheless rise to a level of invasiveness that can be seen as functionally equivalent and can thus fall within the scope of the Fourth Amendment’s prohibitions.

This piece proceeds in the following manner. First, I briefly outline the history of the Fourth Amendment and its original intent, which was to protect Americans’ privacy from improper searches and seizures. Next, I outline twentieth-century case law that has shaped modern understandings of the Fourth Amendment. In this section, I also introduce the third-party doctrine, a legal doctrine that is troubling given society’s contemporary dependence on technology. Then, I discuss technological consent—or the lack thereof. Finally, I introduce a new legal framework, the content-specific doctrine. Instead of focusing on the physical nature of a search or third parties involved, this doctrine considers the content of effects (personal belongings) seized to be the highest-order consideration. The content-specific doctrine can protect privacy, digital civil liberties, and Fourth Amendment rights in this technological age.

HISTORY

Under British rule, colonists were subject to documents known as writs of assistance or general warrants. Authorized by these documents, British authorities could enter colonists’ homes without probable cause. They could search homes indiscriminately for prohibited items and seize them. Even worse for the colonists, these writs lasted throughout the ruling king’s life and six months past their death. These documents flagrantly subjected the colonists to unreasonable searches and seizures.

When King George II died in 1760, an opportunity to protest the warrants arose. An advocate General from Boston, James Otis, rose to the occasion. Otis resigned his post and opposed the writs’ renewal in court in February of 1761. He could have merely objected to renewal, but went further. He argued that the writs were incompatible with the English constitution and went on to say that the only valid writs were “special writs.” (These were analogous to today’s specific and narrow search warrants.) Otis’s argument in court was one of the first formal colonial challenges to British authority. Scholars have also cited it as one of the earliest instances of colonial inclinations toward independence.

Otis lost the case, but his passionate argument left impressions on attendees and those who later learned of the event. One of the audience members would recall Otis’s speech fifty-six years later in a letter to a friend:

Every Man of an immense crowded Audience appeared to me to go away, as I did, ready to take Arms against Writs of Assistants. Then and there was the first scene of the first Act of opposition to the Arbitrary claims of Great Britain. Then and there the Child Independence was born.

These are the words of John Adams, America’s first vice president and second president. For him, the colonial conception of privacy was not just something of value—it was the very thing that set the pursuit of independence in motion.

This incident demonstrates the tremendous extent to which the colonists and Founding Fathers valued privacy. The writers of the Constitution—as survivors of British rule and its indiscriminate supervision—knew the importance of individual privacy and sought to protect people against unreasonable searches and seizures.

Since the ratification of the Constitution, determining violations of the Fourth Amendment has been complicated. As the nation aged, new circumstances and considerations arose. The invention of new technologies like telephones and computers, in addition to the Americans’ increasing dependency on business and service providers, has complicated Fourth Amendment jurisprudence. A synopsis of how courts have responded to these changes will prove useful.

TWENTIETH-CENTURY CASE LAW

Unreasonable searches and seizures were inherently physical in nature during British colonial rule and the early generations of the United States. This remained the case until the late nineteenth century when the invention of the telephone allowed for non-physical violations of privacy. Today, with the internet and interconnected world, physicality is not a requirement for a violation of privacy. This transition has created an entirely new subset of privacy rights: digital civil liberties. Next, I briefly outline case law of the twentieth century to show how courts responded to these technological changes.

Olmstead v United States (1928)

During Prohibition, federal law enforcement was investigating Roy Olmstead, a suspected bootlegger. Agents installed wiretaps on his telephone without a warrant. The agents installed the wires in the basement of the building Olmstead resided in and dug up phone wires underneath the nearby sidewalk. Because no physical intrusions occurred against Olmstead, the government felt it did not need a warrant. Olmstead countered that the warrantless searches violated his Fourth and Fifth Amendment rights.

In a 5-4 decision, the Supreme Court ruled against Olmstead. Chief Justice William Howard Taft authored the majority opinion. In it, he stated that “unless there has been an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house” then no violation of the Fourth Amendment occurred. This ruling created a precedent that reemphasized the Fourth Amendment’s focus on physical intrusions. For nearly four more decades, as technology developed and spread, this precedent would stand.

Katz v United States (1967)

Federal law enforcement was investigating Charles Katz, a man suspected of illegal gambling. Knowing Katz used public phone booths, the government, acting without a warrant, utilized devices capable of eavesdropping and added them to the exterior of a phone booth. After they collected incriminating evidence, agents charged Katz with eight counts of illegal transmission of wagering information across state lines. After being convicted, he appealed his conviction and argued that the warrantless monitoring of his phone call violated the Fourth Amendment.

Reversing course from Olmstead, the Court ruled 7-1 in favor of Katz. Delivering the opinion of the Court, Justice Potter Stewart stated that the Fourth Amendment, “protects people, not places.” The ruling also created the reasonable expectation of privacy test, which has two requirements:

The person whose Fourth Amendment rights have supposedly been violated must have had a subjective expectation of privacy.
That expectation must be one that society can recognize as reasonable.

An individual’s Fourth Amendment rights are thought to have been violated if both conditions are affirmatively met. Failure to satisfy either condition would result in the determination that privacy rights were not violated.

The Katz ruling overturned the decision in Olmstead. It became the first landmark Supreme Court case that extended Fourth Amendment rights beyond physical intrusions, and its reasonable expectation of privacy test is still used today.

Third-Party Doctrine

Two cases in the 1970s, United States v. Miller and Smith v. Maryland, created a legal framework known as the third-party doctrine. In both of these cases, the petitioners claimed that their Fourth Amendment rights were violated. The searches and seizures of each case lacked a physical component and involved a third-party, such as a phone company or bank. These circumstances forced the Court to confront when individuals’ expectations of privacy were reasonable.

In United States v. Miller, the government accused Mitch Miller of not paying a liquor tax on distillation equipment. To investigate, federal law enforcement subpoenaed two of Miller’s banks. Without a warrant, they obtained records of his accounts. These documents were subsequently used against Miller in court, where he was convicted. Miller appealed and argued that his Fourth Amendment rights were violated when his bank records were obtained without a warrant.

In Smith v. Maryland, Michael Lee Smith was believed to have robbed a woman. Law enforcement also suspected that he was continuously calling the victim to harass her about the robbery. To investigate, the government asked Smith’s phone company to install a “pen register,” or a device that captures numbers dialed but none of the content of a phone call. When records indicated that Smith dialed the victim’s phone number, law enforcement was able to get a search warrant to find further evidence. Smith was later identified by the victim in a line-up and then convicted of robbery. He argued that the pen register violated his Fourth Amendment rights and appealed.

The Supreme Court ruled against the petitioners in both Miller and Smith. According to the Court, both men voluntarily gave their information to third parties (Miller and his bank; Smith and his phone company). Doing so, in the Court’s view, undermines the first requirement of the reasonable expectation of privacy test. When individuals provide information to third parties, they abandon any subjective expectation of privacy.

Taken together, the decisions in Miller and Smith created the third-party doctrine. Under it, the government’s acquisition of information from third parties does not require a warrant. The soundness of this ruling was debatable in the 1970s. Today, however, society relies deeply on many more third-party services—many of them related to technology and the internet. Therefore, the third-party doctrine exposes Americans to significant intrusions of privacy.

TECHNOLOGY & CONSENT

With each passing day, technology becomes more interwoven into life. Many Americans use some form of instant messaging like iMessage, WhatsApp, or Facebook Messenger to communicate with family, friends, and coworkers. Some utilize navigation applications like Google Maps, Apple Maps, and Waze. When the COVID-19 pandemic began to shut down daily operations in 2020, workplaces, academic institutions, and other organizations moved to video-conferencing services like Zoom, Google Meet, and Microsoft Teams. All of these aforementioned services—whether they are used to video-call with grandparents or to navigate to a political rally—require the consent of users. Recalling the third-party doctrine, the proliferation of technology seems thorny at best and dire at worst.

A concerning fact is that most individuals do not attentively read the terms of service for these services. (User agreements such as “terms and services” go by other names: terms and conditions, terms of use, end-user license agreement, service terms, etc. While some lawyers may say there are slight variations between these definitions, they all functionally refer to a contract between a user and a provider of some service. Within this legal article, all of these terms are used synonymously.) Clicking or tapping the “I agree” box or button is, in the most literal sense, a check in the box for many people. This fact is tacitly, and sometimes explicitly, recognized by service providers. Amazon Web Services (AWS), for example, has included a clause referring to a zombie apocalypse in §42.20 of its service terms. They state that a previously mentioned restriction shall not apply in the situation of:

[A] widespread viral infection transmitted via bites or contact with bodily fluids that causes human corpses to reanimate and seek to consume living human flesh, blood, brain or nerve tissue and is likely to result in the fall of organized civilization.

AWS’s inclusion of zombies in a legally-binding contract implies that many people do not read these terms. It is an “Easter egg” for some vigilant users—or scholars examining contractual consent and relationships—to find.

Other services have left even more ridiculous statements in their terms of service. Purple, a wireless network company in Manchester, UK, embedded a clause within their terms of service that bound those who agreed to 10,000 hours of community service. 22,000 people consented. A European security firm, F-Secure, created a publicly available wireless hotspot for people and included in its terms of service that “the recipient agreed to assign their firstborn child to us for the duration of eternity.” GameStation, a UK video game retailer, included in their terms of service that users’ agreement gave the company ownership of each user’s “immortal soul.” In 2019, a high school teacher in Georgia won $10,000 when she read the terms of service for travel insurance from Squaremouth, which stated that the company would provide a reward to the first person who contacted the company in response to reading their terms of service. These are half-comical, half-frightening examples of the lack of awareness that most users have about the contents of terms of service.

There are strong implications when the third-party doctrine, legally-binding terms of service, and users’ failure to read those terms are considered together. Most users of a service are required to agree to terms of service—i.e., contracts—to use said service. Thus, they have consented to give information to a third party, thereby rendering that information subject to the third-party doctrine. With humanity’s increasing dependence on technology and its abundance of terms of service, there must be a new legal framework for determining privacy rights and digital civil liberties.

THE CONTENT-SPECIFIC DOCTRINE

A doctrine that best protects Americans’ privacy is one that I call the content-specific doctrine. This framework emphasizes consideration of the content being searched and seized by the government. How information is obtained—be it physically or digitally—and a third party’s role are both considerations secondary to the content of a search. The doctrine’s primary concern is the qualitative features of the effects to be searched—the pages in a journal, the audio of a phone call, or the metadata of one’s social media account.

Content as Primary Focus

First, an example may elucidate why content is more important than physical circumstances or whether information was given to a third party. Consider the example of a “peeping Tom.” John is sexually interested in his coworker, Jane. Motivated by voyeurism, he hopes to obtain nude photos of Jane by standing outside her residence and covertly taking photos. Because modern cell phones are capable of capturing high-quality images—some of which are now capable of 100x zoom—John knows that he can easily capture these photos from outside Jane’s curtilage; he need not physically intrude.

Although no physical trespass may occur, this act is clearly immoral. The reason rests solely on the content of the information acquired: Jane, in her home, nude, and with an incredibly reasonable expectation of privacy. Normative judgments are independent of whether the trespass was physical in nature. Although this example does not involve the government, it is a clear example of why the content of what is obtained is more important than the physical circumstances of the acquisition.

Doctrine Use

Consider an example of law enforcement using the third-party doctrine to surveil an individual suspected of aiding women in getting abortions in a state where they have been banned or heavily restricted.¹ Sarah, a resident of Texas, has publicly posted on social media that she wholeheartedly believes in bodily autonomy and would offer to drive women in need of an abortion to a provider. County sheriff’s deputies suspect Sarah of following through on her statements and driving low-income women in Houston to and from illegal abortion providers. They are able to see through Texas Department of Transportation records that she drives a Toyota Camry. Deputies find out that Toyota’s end user license agreement and privacy notice inform users that the company’s “ConnectedServices” collects data on vehicle owners, including location and voice recordings. Whether or not Sarah knows what she gave the car manufacturer permission to collect, deputies obtain records of her location and any voice recordings without a warrant.

In ascertaining whether Sarah’s Fourth Amendment rights were violated, the content-specific doctrine first considers the qualitative nature of the effects obtained by police—driving location data and audio recordings. This information can be incredibly personal to an individual. In daily life, most people assume that their whereabouts are not being tracked by others. Similarly, the conversations had in cars are assumed to be private in nature. The primary focus of the doctrine considers these features. In this instance, both categories of information are intimate and personal.

To help understand the content searched and seized, physically analogous scenarios can be helpful. Without technology, deputies would need to do at least one of two things to track Sarah’s whereabouts to the extent that Toyota’s data is functionally capable of doing: affix a GPS device to her vehicle or physically follow her whereabouts. Likewise, to record the conversations inside her vehicle, law enforcement would need to install a microphone inside the cabin of her Camry. In the absence of a warrant, these actions violate the Fourth Amendment.

Bringing these two ideas together yields an answer. The contents of the effects that deputies seek to obtain from Toyota—location and audio—are deeply personal. In physical circumstances, the search would be unreasonable without a warrant. Because the doctrine considers content as its primary focus, an answer is revealed: the government’s warrantless acquisition of Sarah’s location and voice recordings violated her Fourth Amendment rights.

The content-specific doctrine would not, however, protect the searches of Sarah’s public social media posts. The content, publicly available speech, is not as personal of information as location or audio recordings. Just as Sarah cannot reasonably expect that the words she utters in a grocery store aisle are private, she cannot expect posts on public social media to be free from government observation.

Carpenter v. United States (2018)

An excellent example of actual legal thinking akin to the content-specific doctrine is the majority ruling in Carpenter v. United States. Suspecting Timothy Carpenter of robbery, the government obtained information from Carpenter’s cell phone service provider. Federal agents obtained “cell site location information” (CSLI) data that spanned 127 days. Over this duration, they collected 2,898 location points on Carpenter. This is an average of 101 data points per day. It can also be thought of as, on average, having one’s location documented and retroactively collected every 14 minutes and 15 seconds from August 20 until Christmas. The matter of the case focused on whether the acquisition of CSLI, without a warrant, violated Carpenter’s Fourth Amendment rights.

Fortunately for digital civil liberties, the Court ruled in favor of Carpenter. The majority opinion, authored by Chief Justice John Roberts, focused on the character of CSLI data and its investigative potential for law enforcement. The Chief Justice noted: “Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection.” He further states that cell phone tracking is even more invasive than GPS-tracking a vehicle because individuals often leave their vehicles but most keep their cell phones on them at all times.² He emphasizes this habitual proximity by noting that 12% of surveyed Americans confess to using their phones in the shower. The Chief Justice also notes that previous attempts by the government to recreate suspects’ past physical movements were limited by the sheer quantity of records and its ability to collect them. With CSLI, however, the government can achieve near-perfect surveillance. The Chief Justice states that: “Only the few without cell phones could escape this tireless and absolute surveillance.”

In ruling in Carpenter’s favor, the majority opinion functionally used the content-specific doctrine. Rather than determining the warrantless acquisition of Carpenter’s CSLI to be legal based on the third-party doctrine, the majority examined the content of the government’s search and seizure. The content, Carpenter’s whereabouts over a period of 127 days, was extremely sensitive information. The Court recognized this sensitivity and duly considered it to fall under the protections of the Fourth Amendment. In Carpenter, legal thinking similar to the content-specific doctrine recognized that the essence of information collected by the government was more important than the manner in which it was obtained.

It should be noted that the Court’s ruling in Carpenter was split: it was a 5-4 decision. Authoring the dissent, Justice Anthony Kennedy argued that CSLI data is no different than other business records that a third party maintains, and as such, the third-party doctrine should apply in Carpenter. This dissent was joined by Justices Alito and Thomas. The latter Justice filed an additional dissent that emphasized focusing on the physical nature of searches. In it, Justice Thomas discusses other Fourth Amendment precedents. He references a pre-Katz case where a “spike mike” (a microphone that can be physically driven through walls and other barriers for the purpose of eavesdropping) was inserted by federal agents into an individual’s home, without a warrant, which was clearly a physical violation of privacy. Justice Thomas makes this reference to support his disagreement with the Court’s decreased emphasis on physical circumstances since Katz.

Both dissents are grounded in reasoning that the content-specific doctrine would address. It would focus on the content obtained by the government. In this case, nearly 13,000 pieces of location information spanning a period longer than four months and documenting an individual’s physical movements. The content-specific doctrine would acknowledge the intimacy of this information and recognize that its warrantless seizure functionally creates an Orwellian surveillance state. Regardless of whether Carpenter consented to give this information to a third party (Justice Kennedy’s dissent) or the physical circumstances of the search and seizure (Justice Thomas’s dissent), the content-specific doctrine would find such government actions to violate the Fourth Amendment.

Opponents of the content-specific doctrine may say that it weakens the government’s ability to investigate crime. I acknowledge the government’s need to do so in order to maintain order. However, order can be maintained, and crime investigated, through legally granted search warrants. The Fourth Amendment states that, although people are free from unreasonable searches and seizures, they are not absolutely free from reasonable searches and seizures. Presumably, what constitutes a reasonable search is described in the amendment: those conducted with a warrant based on probable cause that “particularly [describes] the place to be searched, and the persons or things to be seized.” This wording was an attempt to prevent broad searches like those conducted under general warrants and writs of assistance.

In the digital age, such a warrant could coexist with the content-specific doctrine. Investigators’ efforts to obtain very specific information—say, a suspect’s whereabouts in a two-hour window on a specific date—could be seen as narrow enough to constitute a reasonable search and seizure. Of course, some privacy rights advocates may disagree (and I myself have hesitations). However, I acknowledge that the law must always seek to prioritize individual liberties while also conceding that some circumstances exist where those liberties can be narrowly encroached upon. Therefore, the content-specific doctrine is not at odds with the government’s acquisition of narrow and specific search warrants. Rather, it seeks to prevent, minimize, and rectify broad and warrantless searches in cyberspace—in other terms: unreasonable digital searches and seizures.

CONCLUSION

This article began with a question about the Founding Fathers’ conceptions of privacy: “Were the seizures of letters from a desk drawer or the broad searches of one’s coat pockets unreasonable searches and seizures because they were physical in nature? Or were they violations of privacy because of the content searched and seized?” After examining the Founding Fathers’ proclivities for privacy, it should be clear the transgressive character of unreasonable searches and seizures rested not on their physicality but on the government’s capture of private belongings and information. Privacy, for colonists and the Founding Fathers, was revered.

Knowing that non-physical violations of privacy exist, this article then considered twentieth-century Fourth Amendment case law, the third-party doctrine, and the implications of new technology. Taken together, they showed exploitative potential. In response, I provided a new legal framework for Fourth Amendment rights in cyberspace: the content-specific doctrine. Above physical circumstances or the role of third parties, the doctrine considers the content of information obtained by the government.

This doctrine will not magically settle all debates on privacy. It does, however, provide jurists with a way to consider Fourth Amendment rights in cyberspace. As technology becomes unavoidably interwoven into society, the content-specific doctrine can help protect Americans’ digital civil liberties. The people have a right to be secure in their digital effects.

¹Given how recent the overturn of Roe v. Wade 410 US 113 (1973) is, whether abortion-restricting states will explicitly ban aiding and abetting abortions is a matter of debate. However, because states generally make aiding and abetting other crimes illegal, it is not unreasonable to think such policies will exist, be they de jure or de facto.

²A relevant and recent case involving the warrantless GPS tracking of a vehicle is Jones v. United States, 565 US _ (2012)

BIBLIOGRAPHY

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Allen, William B., and Jonathan Gienapp. “Against Writs of Assistance (1761).” National Constitution Center. https://constitutioncenter.org/the-constitution/historic-document-library/detail/james-otis-against-writs-of-assistance-february-24-1761

“AWS Service Terms.” Amazon Web Services. https://aws.amazon.com/service-terms/

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Farrell, James M. “The Writs of Assistance and Public Memory: John Adams and the Legacy of James Otis.” The New England Quarterly 79, no. 4 (December 2006): 535–536, https://www.jstor.org/stable/20474493

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Hern, Alex. “Thousands sign up to clean sewage because they didn’t read the small print.” The Guardian (July 14, 2017). https://www.theguardian.com/technology/2017/jul/14/wifi-terms-and-conditions-thousands-sign-up-clean-sewage-did-not-read-small-print

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“Privacy and protection,” Toyota, April 11, 2022. https://www.toyota.com/privacyvts

Schwartz, Matthew S. “When Not Reading The Fine Print Can Cost Your Soul.” National Public Radio. March 18, 2019. https://www.npr.org/2019/03/08/701417140/when-not-reading-the-fine-print-can-cost-your-soul

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A Plea to Act in Good Faith: How Two State Laws Challenge Social Media Platforms’ Editorial Practices

Tori Tinsley

Recent controversy surrounding the constitutionality of two state laws regulating social media platforms reveals that modern technology is presenting unprecedented challenges for the legal system. Two laws passed in Texas and Florida in 2021, HB 20 and SB 7072 have raised questions about whether states can make laws that regulate social media platforms’ free speech policies. Tech advocacy groups Net Choice and Computer & Communications Industry Association filed a joint lawsuit against Texas and Florida, arguing that the states’ bills unconstitutionally violated first amendment protections for online platforms. The U.S. Court of Appeals for the Fifth Circuit vindicated Texas’ law, which prohibits social media platforms from engaging in viewpoint based censorship¹ and requires platforms to be transparent in their policies. Contrarily, the U.S. Court of Appeals for the Eleventh Circuit struck down Florida’s law, which restricts platforms from unfairly censoring users and deplatforming political candidates.

Despite the similarities in Texas’ HB 20 and Florida’s SB 7072, the courts have handed down two very different rulings. Because of this, both bills have now been brought to the attention of the Supreme Court–a move which The Washington Post claims will bring “the most controversial debates of the internet age to the country’s highest court.”¹While the Supreme Court has vacated the Texas case, there is no update as to whether the Court will hear the Florida one.

But, a question currently pervading the legal sphere is: how do two courts rule differently on two nearly identical state bills? A look at the Fifth Circuit and Eleventh Circuit rulings reveal that differing legal interpretations of intermediate scrutiny and editorial discretion led to different outcomes for Texas and Florida’s legislation. As such, the rulings raise the following questions: to what extent do social media platforms have immunity in editorial discretion? And, do Texas and Florida have a legitimate state interest for regulating the free speech practices of social media platforms?

Let us first address the question of editorial discretion. Section 230 of the United States Communications Decency Act is referenced in both the Fifth and Eleventh Circuit court cases. It grants online services immunity in how they choose to moderate their content. It reads:

(1) No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. (2) No provider or user of an interactive computer service shall be held liable on account of— (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

It is evident in both rulings that Section 230 of the United States Communications Decency Act has strong implications when determining the extent to which social media companies can exercise editorial discretion. In the Eleventh Circuit court opinion, the judges argued against Florida, claiming that a social media company’s “‘content-moderation’ decisions constitute protected exercises of editorial judgment.” In the court’s perspective, Florida’s law would restrict a platforms’ “content moderation” rights. Implied in the court’s argument is the expectation that social media platforms properly and fairly moderate content on their platforms. The court wrote:

The platform will have exercised editorial judgment in two key ways: First, the platform will have removed posts that violate its terms of service or community standards—for instance, those containing hate speech, pornography, or violent content…Second, it will have arranged available content by choosing how to prioritize and display posts—effectively selecting which users’ speech the viewer will see, and in what order, during any given visit to the site.

Florida and Texas find a problem with these two so-called exercises of editorial judgment: social media companies have unclear community standards and inconsistently “prioritize and display posts.” Recognizing this, the Fifth Circuit came to a conclusion contrary to the Eleventh Circuit: that corporations do not “have a freewheeling First Amendment right to censor what people say.”

The good faith stipulation in Section 230 2(A) would be beneficial in clarifying the confusion surrounding editorial discretion. While the Fifth Circuit briefly referenced the “good faith” stipulation in Section 230, the Eleventh Circuit did not. According to the Congressional Research Service (CRS), Section 230 (1) offers online platforms immunity when providing content, but Section 230 (2) offers online platforms immunity when regulating content only when their regulation practices are conducted in good faith. Thus, the good faith stipulation is a limitation placed on social media platforms to ensure platforms engaged in fair and reasonable practices. Section 230 2(A) states that “no provider or user of an interactive computer service shall be held liable on account of—(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” If an action by a social media provider is not “taken in good faith,” then ought not the provider be held liable?

A “good faith” test ought to be applied when determining whether a platform is properly exercising its editorial discretion. The fact that both Texas’ HB 20 and Florida’s SB 7072 articulate that social media companies are not currently engaging in good faith practices should call into question platforms’ editorial practices. SB 7072 states that “social media platforms that unfairly censor, shadow ban, deplatform, or apply post-prioritization algorithms to Florida candidates, Florida users, or Florida residents are not acting in good faith.” And, Texas’ HB 20 mentions that platforms should actively “make a good faith effort to evaluate the legality of the content or activity.” So, if platforms are engaging in bad faith practices by favoring some views over others and applying their policies unfairly, then this calls back into question a key consideration in the appellate court rulings: do states then have a legitimate interest in ensuring platforms act in good faith?

Florida and Texas argued that they had legitimate state interests in regulating social media platforms’ free speech policies, yet only Texas’ law was upheld by the Courts. Texas argued that it had a “fundamental interest in protecting the free exchange of ideas and information,” which the Fifth Circuit affirmed. Florida’s argument that it had “a substantial interest in protecting its residents from inconsistent and unfair actions by social media platforms,” however, was not a substantial reason for the Eleventh Circuit. The Eleventh Circuit upheld the decision of the district court, arguing that “there’s no legitimate—let alone substantial—governmental interest in leveling the expressive playing field.” Florida’s law, which aimed to ensure that social media companies treat conservatives and liberals fairly on their platforms, was considered unconstitutional.

In part, the district and appellate court rejected Florida’s claims to a substantial state interest since the bill was advertised by the state’s governor as an attack on big tech bias. As such, both courts came to the conclusion that the bill was nothing more than a scheme to advance conservative ideology. The Eleventh Circuit court claimed that the district court found “the entire bill was motivated by the state’s viewpoint-based purpose to defend conservatives’ speech from perceived liberal ‘big tech’ bias.” Both courts focused on the potential agenda behind the bill that they seemed to miss the relevance of the bill.

Florida’s law held social media companies accountable for their unfair practices. So did Texas’ law. As the Fifth Circuit recognized, Texas’ law could “make censors think twice before removing speech from Platforms in a viewpoint-discriminatory manner.” Both HB20 and SB 7072 were aimed at preventing censorship, ensuring fairness, and maintaining transparency on social media platforms. When social media companies cannot ensure good faith practices and apply their own policies without discrimination, states should have a legitimate interest to intervene and ensure private companies treat their citizens’ viewpoints with equal dignity and respect.

These two state laws have several implications for future congressional action, as the CRS notes. But there are also considerations for the Supreme Court. If the Florida case makes its way to the Supreme Court, justices will have to clarify what constitutes editorial judgment, what the apparent implications of Section 230 are, the relevance of the “good faith” clause, and whether states have a substantial interest in regulating the private sphere of online communications. As Supreme Court justices have noted in review of Texas’ HB 20, these issues concerning state regulations and digital speech rights are unprecedented “issues of great importance.”