May 30, 2025 • 38 mins
June Grasso talks to legal esperts about the top stories of the week.
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Speaker 1 (00:02):
Bloomberg Audio Studios, podcasts, radio news.
Speaker 2 (00:08):
This is Bloomberg Law.
Speaker 3 (00:10):
Congress can have no saying making an office independent. I
think all agencies need a degree of autonomy.
Speaker 4 (00:16):
It really tests whether the amendments to the law.
Speaker 2 (00:19):
Have Keith interviews with prominent attorneys and Bloomberg legal experts.
Speaker 5 (00:23):
Joining me is Constitutional law professor David Super, Bloomberg News,
Supreme Court reporter Greg Store.
Speaker 2 (00:28):
And analysis of important legal issues, cases and headlines.
Speaker 6 (00:32):
Apples of Waltgarden.
Speaker 4 (00:33):
They don't license their technology.
Speaker 3 (00:35):
That is a valid basis to dismiss the case.
Speaker 2 (00:38):
Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 5 (00:45):
Welcome to the Bloomberg Law Show. I'm June Grosso. Ahead
in this hour, the Supreme Court allows Trump to fire
independent agency officials and immigration law roundup from challenges to
ice agents, waiting and Immigration court hallways and do geofence
warrants violate your right to privacy A ninety year old
(01:10):
legal precedent setting up independent agencies isn't dead yet, but
after the Supreme Court's emergency order allowing President Trump to
fire members of two independent agencies, the effect may be
the same The Court's nineteen thirty five ruling in Humphrey's
executor said that Congress in some instances can set up
(01:31):
agencies that are independent from the executive branch and whose
members can only be fired for cause. But in recent
years the Supreme Court has significantly cut back on Humphreys.
Over the dessense of three liberal justices, the Court allowed
Trump to fire National Labor Relations Board member Gwynn Wilcox
and Merits Systems Protection Board member Kathy Harris without cause
(01:56):
as their legal challenges play out. My guest Isauren McFerrin,
senior fellow at the Century Foundation and former chairman of
the NLRB in the Biden administration.
Speaker 4 (02:07):
So what the Supreme Court did was stay and order
of the District Court which had ordered the reinstatement of
Gwynn Wilcox and Kathy Harris. And the removal of Gwynn
and Kathy from office was clearly contrary to statute. The
President is prohibited by both the National Labor Relations Act
and the law governing the Merit Systems Protection Board from
(02:30):
removing people from office except for cause, and no qualifying
cause was given to either of these officials, so the
action was clearly contrary to law, and so the President
kind of took the law into his own hands here
and basically said, I don't care what Congress wanted, and
I don't have to follow Supreme Court precedent, and he
removed them from office anyway. The Supreme Court then stepped
(02:51):
in and on what's called the shadow dockets, which is
supposed to be for emergency relief and emergency orders, indicated
that the President is right to do that, but it
is okay for him to ignore Congress and to ignore
Supreme Court precedent, and kind of went to extraordinary length
to keep that result in place because they basically think
the President took a good gamble about their plans to
(03:11):
revisit precedents. So it was very unusual from a court
process perspective, the so called shadow dock that is supposed
to be used for, like I said, emergencies, it's typically
also used to preserve the doctrinal status quo, not to
overrule it. You're certainly not supposed to use the shadow
docket to effectively change precedent without the benefit of full
(03:33):
briefing and careful consideration, which is what the descent pointed out.
So it was a procedurally very odd thing to do.
But it certainly sent a very strong signal about where
the Supreme Court is headed in terms of whether it
plans to overrule Humphrey's Executor, which is the decision that
had originally upheld Congress's ability to create positions like this
(03:57):
that can only be removed from office by the pre
resident for cause.
Speaker 5 (04:01):
So, according to the dissenting justices, the effect of this
is essentially to overturn Humphrey's Executor.
Speaker 4 (04:09):
I think that will be the practical read that a
lot of people take away from it.
Speaker 7 (04:13):
Now.
Speaker 4 (04:13):
The Majority did ultimately hedge on that question. The Majority
said that they're not ultimately deciding whether these two agencies
fall within the recognized exceptions of Humphrey's Executor. That does
suggest that there still will be some recognized exception, but
they signaled pretty clearly that they didn't think either the
(04:34):
National Labor Relations Board of the Merit Sista's Protection Board
would fall within that exception.
Speaker 5 (04:40):
Tell us about Humphrey's Executor, it's sort of been on
the way out, or people have been calling for its
demise for a long time.
Speaker 4 (04:48):
I mean, Humphrey's Executive. There's no question that it is
still good law. The case that everyone cites for the
proposition that Humphrey's executor is on the way out the
door is a case called steal a law and see
a law. Was very careful to say that Humphreys still
is good law and that they were not revisiting Humphreys.
(05:08):
But what they did was that they certainly said they
were not expanding Humphrey's executor, who encompassed independent agencies that
aren't like the Federal Trade Commission that was the original
subject of Humphrey's itself. So they were unwilling to expand
the reach of Humprey's executor. This exception that allows Congress
(05:28):
to create entities whose leaders can't be removed except for cause.
They were going to expand that exception to a single
headed agency like the Consumer Financial Protection Bureau. But it
is very clear that Humphreys, at this point in time,
or at least until this order issued, that Humphreys itself,
(05:49):
the exception it creates for quasi judicial and quasi legislative
agencies that are structured like a multi member body like
the National Labor Relations Board of the Merit Systems protect
Board still exists, and that exception is still valid.
Speaker 5 (06:04):
The Supreme Court in recent years has cut back on humphries.
I mean, it's still standing, but is it in sort
of chatters.
Speaker 4 (06:12):
I think it's safe to say that the Court has
constrained its reach and has at times, you know, one
or two justices in a separate opinion or indicta in
a majority opinion, have called into question its continuing viability. Basically,
this notion that there can be an entity, even if
(06:35):
it is structured like a multi member body, even if
it is a body of experts that's supposed to make
expert decisions, that there could be an entity like this
that would not be sufficiently executive in the nature of
the powers that it is exercising, such that its leaders
should not be removable by the president. I mean, that's
(06:57):
the core issue here for proponents of the unitary execut
it theory on the Court is that any entity that
is exercising any level of executive power should be removable
from office by the president. And the Court has certainly
set signals in recent years that it thinks the scope
of the universe of agencies that might actually not exercise
(07:17):
any executive power is minimal or not existent.
Speaker 5 (07:23):
The justices took pains to point out that this doesn't
affect the FED. The FED is different.
Speaker 4 (07:30):
Yes, that was a really strange little red flag in
this decision. It kind of comes out of nowhere. In
the decision. They might as well have basically said, oh,
by the way, President Trump, please don't take this order
as a green light that you can fire the chair
of the FED. And they carved out the FED in
like two sentences when it wasn't an issue in the case.
(07:52):
And they carved out the said by making what is
basically a factual observation about the set, which is that
it is uniquely structured and it has a just historical tradition.
That is actually true of many independent agencies right now,
my own agency that I used to work for, the
National Labor Relations for That is certainly true. It is
uniquely structured, and it has a distinct historical tradition. But
(08:14):
that doesn't speak to the reasons why the FED is independent,
which are fundamentally similar to the reasons that other independent
agencies are independent. The reason that Congress chose to create
independent agencies is because it wanted to have entities, even
entities within the executive branch, that made decisions based on expertise,
(08:37):
and that made decisions, and we're capable of making decisions
that might be in the short run politically unpopular, but
in the long run in the best interests of the country.
And it's very easy to see, of course, how that
plays out in the context of the set, and particularly
when the SET is wearing its monetary policy hat, it's
very easy to see why it's going to have to
(08:59):
make this visions that are short term politically unpopular but
long term beneficial to the country. But the FED is
not unique in that regard. And one agency that leads
to my mind, for example, is the Consumer Product Safety Commission.
Sometimes it is very politically unpopular to find a product
to be unsafe, to pull a product off the market,
but it might well be in the long term public interest.
(09:21):
So there's not something that makes the FED distinguishable in
a principled manner from other independent agencies when it comes
to the reason for its independence.
Speaker 5 (09:31):
Let's say the Supreme Court does get rid of Humphrey's executor.
What might the repercussions be, Well, it would depend on
how the Supreme Court did it.
Speaker 4 (09:40):
There's lots of people who predict about these things, and
there's a group of predictors who say that they will
basically get rid of Humphrey's Executor but carve out the set,
or at least the set in its monetary policy role.
I think there's an argument to be made that they
could also kind of split the baby in different ways.
I think one of the most difficult challenges that we
will have in a post Umphrey's Executor world if Humphrey's
(10:01):
Executor is swept off the book, is what to do
with agencies that are primarily adjudicative. You know that do
business as courts basically, and it's very hard to imagine
how an agency that's supposed to function as a court
will function when it's adjudicators can be fired for the
outcome of individual decisions. So I think there's potentially a
(10:22):
chance that the court could also look at the various
functions that agencies are performing and say these are executives
and these are not executives. And this order, being a
preliminary order, doesn't delve into that at all. But you
could have a course that says, well, if an agency
is making rules, it is by nature executive because rulemaking
is an executive function. But leave open the question, for example,
(10:44):
of whether if an agency was truly just a court system,
you know, like tax courts or something like that, whether
that potentially could be treated differently. So I think it's
a question of whether the court will just wipe Humpter's
executor off the books altogether with some possible car about
for the fact and monetary policy, or if it will
kind of pick and choose which agency functions. It seems
(11:06):
to be so executive in nature that the president must
be able to control them.
Speaker 5 (11:12):
And as far as your old agency, the NLRB, what
effect would it have if the president is able to
fire board members without cause.
Speaker 4 (11:22):
I think it's really hard to overstate how different that
would be from the way that the agency operates now.
The NMRB and many other adjudicative agencies. Like I said,
the nb does business primarily by deciding cases like a court,
and we as judges never had to worry about whether
(11:42):
our decisions were going to be politically popular or politically unpopular,
or whether we were deciding a case in favor of
somebody that the president was friendly with or someone that
the president was not friendly with. I think you can
see this playing out totally differently in a world where
board members I need these the judges could be fired
for the outcome of a particular case. You can very
(12:05):
much have a system where entities that are closely allied
with the president, certain very powerful companies, etc. Were effectively
exempt from the law because adjudicators would fear for their
jobs if they found against them. Conversely, if the shoes
on the other foot, and you have a president in
office who's extremely pro union and very closely allied with
many labor organizations, there are provisions of the National Labor
(12:27):
Relations Acts that are enforceable against unions, and you could
see that type of enforcement basically fall by the wayside
if you have a president that super union friendly. So
it will go from being an adjudicator that jealously guards
the integrity of its adjudicative process to being a fundamentally
different and political entity where judges are making decisions at
(12:50):
the peril of their job based on their predictions about
whether they'll face backslash for them or not.
Speaker 5 (12:56):
Thanks for joining me, Lauren. That's Lauren McPherrin, senior fellow
at the Entry Foundation. Coming up, we'll look at the
latest immigration disputes. I'm June Grosso and you're listening to Bloomberg.
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Speaker 5 (13:45):
The Trump administration is once again appealing to the Supreme
Court as it tests the boundaries of the government's power
to deport migrants. The Department of Homeland Security is asking
the court to block a judge's order that requires the
government to give people ten days notice and an opportunity
to object before they're deported to places other than their
(14:07):
home countries. Joining me is immigration law expert Leon Fresco,
a partner at Holland and Knight and a former head
of the Office of Immigration Litigation in the Obama administration. Leon,
a Massachusetts federal judge, ordered the government last month to
give people ten days notice and an opportunity to object
(14:28):
before they are sent to a country which is not
their home country. And he said last week that the
administration violated his earlier decisions.
Speaker 7 (14:38):
Well, what happened was, this is a case where there
are a number of foreign nationals who did commit sometimes
very heinous crimes, and they're from Laos, Vietnam and some
other places that don't really accept people that the US
is trying to deport bax of those countries, and so
the US tried to arrange a scenario whereby it could
(14:59):
deport those people to South Sudan as part of a
diplomatic arrangement it was having with South Sudan to free
up some issues because earlier in the year, South Sudanese
people couldn't get visas to travel to the United States,
and so this was part of a global arrangement where
that would be fixed, and that also South Sudan would
agree to accept people that the United States was trying
(15:22):
to deport to other countries, not South Sudan. The people
who were going to be deported to South Sudan heard
about this and said, well, wait a second, I can't
be deported to South Sudan. I'm not from there. That's
very dangerous. It's a country in the middle of a
civil war, and so they tried to file convention against
torture claims. There was actually this case filed in the
(15:46):
District of Massachusetts, which was a habeas claim saying I
can't be deported without being given the opportunity to have
an adjudication as to whether the conditions in South Sudan
are tent amount to torturing me, because if you just
drop me off there, what am I supposed to do?
I'm going to start to that because you know, it's
not a place where you could just go and get
a job and start working. And so that was the claim,
(16:10):
and at that time the district court, at the US government,
we're arguing about, well, how do you do these claims?
Can you do them where these people were, which is
at the moment they're being detained in Djibouti, a different
African country where it's just sort of a military operation
and there's not really this ability to long term have
(16:32):
these folks there. There was this debate about where do
these convention against torture claims get decided or do you
have to bring the people back to the United States.
The federal government didn't want to bring back the people
to the United States. It asked that they'd be allowed
to make these adjudications in Djibouti. The judge said, okay, fine,
I will let you do that. And then after that
(16:54):
the government said, no, wait a second, this is way
too complicated. We actually can't do it in Djibouti. And
so now the government has gone to the Supreme Court
and said, just let us do these deportations. The judge
shouldn't be allowed to prevent us from doing this.
Speaker 5 (17:11):
The Supreme Court has said that the government has to
give people a reasonable amount of time in order to
challenge their deportations, but it hasn't spelled out exactly what
that means, how much time even. But is this situation
different from the cases that the Supreme Court has dealt
with because these migrants have already been through the immigration
(17:33):
system and there are orders of deportation against them.
Speaker 7 (17:37):
Correct. The problem is here, these individuals have an order
of deportation that can be executed at any point to
their home country, whether it's Allows or Vietnam or whatever,
and it can also be executed to any other country.
So long as in any of those other countries, there's
not a likelihood that these individuals will be tortured. The
(18:00):
question is, well, can these individuals make that claim, where
can they make that claim, When can they make that claim,
how long do they have to make that claim, and
does the district court have the ability to interrupt that
when a person has already been moved outside of the
United States. And I think that's what the debate is
(18:21):
going to be, because I think where the federal government
is concerned is what are we supposed to do now
that these individuals are in Africa? How do we deal
with this? Are we going to be forced to bring
them back to the United States or will we be
forced to actually adjudicate these cases inside of Djibouti, which
is where the people are now, or can we finalize
(18:43):
our intentions to deport them to South Sudan? And will
there just be prophylactic language in the future about what
is required in the future if they're going to do
one of these third country deportations. But really we're in
uncharted territory here, and the Supreme Court is going to
have to set some standards and some guidelines because if
the federal government really is focused on these third country deportations,
(19:07):
then they're going to need to be done in a
manner that everybody's comfortable with. And the complication with South
Sudan is just imagine any of us. I mean, if
any of us get dropped off in South Sudan, what
do we do next? If there's no food, there's no job.
You know, if you end up being deported to a
place where you know that the solution is just the starvation,
(19:28):
does that end up violating the Convention against torture?
Speaker 5 (19:31):
So how do you think the Supreme Court will approach this?
Given how it's handled the other deportation cases.
Speaker 7 (19:38):
The Supreme Court is going to have to decide where
can these individuals make these claims? Are they allowed to
make these claims at all? What district court jurisdiction exists here?
And I don't necessarily think that the Supreme Court, given
what we've seen so far, is going to be too
friendly toward this concept of not being able to give
(19:59):
people opportunity to make a claim that a deportation Assab
Sudan is tent amount to torturing.
Speaker 5 (20:06):
That okay, So turning two other cases, ICE appears to
be employing a new strategy that it used in arresting
a high school student in New York City. Government attorneys
are asking judges to dismiss cases against migrants who are
there for scheduled hearings and then waiting ICE agents arrest
(20:27):
the migrants and put them in expedited removal proceedings. That's
what reportedly happened to a New York City high school
student from Venezuela Leon. So, this Venezuelan high school student
was in immigration court for a regularly scheduled hearing, and
after the case against him was dismissed, ICE agents arrested him.
(20:49):
His lawyer says he's here legally seeking asylum, but the
Trump administration says he's here illegally. And apparently this is
not an isolated scenario happening.
Speaker 7 (21:00):
Is this? So the Biden administration had this program called
the CBP one app parole program, which what it said
was don't just cross the border illegally. That's creating a
lot of chaos on the southern border. We can't have
it go to a port of entry. Get an appointment
(21:21):
to go to a port of entry under the CBP
one app and then if we think that you're a
legitimate asylum seeker, will parole you into the country legally,
so you have a legal status while you're here trying
to get asylum, and you'll go through the asylum case.
So what's happening now is that the Trump administration is saying,
(21:41):
for all those people who have been led in legally
to do an asylum case and immigration court, we are
going to cancel your legal admission. We're going to close
that case, and we're going to pretend like none of
that had happened, and we're going to put you in
expedited removal, which says that if you are here for
(22:06):
less than two years and you never had a legal
basis for coming, you can be removed on an expedited basis.
But what that requires is for the person to be
arrested and then they have to have a new adjudication
as to whether they have a credible asylum case, and
if they don't, they can immediately be removed. But if
they do, then they're basically back in square one, which
(22:28):
is the same immigration court hearing that they were arrested
at minutes ago. So this BRONXE student was exactly this
situation where they were let in legally under the CBP
one parole app but now they're arrested, placed in expedited
removal proceedings, and.
Speaker 5 (22:49):
This type of scenario is being played out in immigration
courts across the country.
Speaker 7 (22:54):
So there's basically three goals of this. Number one is
maybe twenty percent of the people that they're going to
do this too won't actually be able to show that
they have a credible asylum claim, and so with that
group they can just remove them outside of the United States,
and so that increases the removal numbers. So that's goal
(23:17):
number one. Goal Number two is to the extent people
are now scared to go to immigration court. When you
don't show up the immigration court, you get what's called
an in absentia removal order, which is you basically lose
by default. You get ordered deported and that's the end
of it. And as long as the government can show
that you had notice of the hearing, then that did
(23:38):
you know, unless there was some earthquake or some bridge
collapse or something and that prevented you from going to
the hearing that day, you're pretty much in a bad
position there. But the government, then if they get these
in absentia removal orders, can also try to execute those
and that also is easier than trying to win a
removal order in a hearing. Well, that's the second reason
(24:01):
to do this is people stop going to court, they
get in upset to removal orders, you can deport them
more easily. And then the third is people will be
so afraid about finishing this process they'll just take matters
into their own hands and go home. And so that's
really the purpose of this is to create this level
of fear that people either don't show up to court
(24:22):
and they get ordered to port it or they go home.
But if they do go to court, they're going to
get arrested. If you haven't been in this country for
more than two years, what will happen is you will
be arrested and put into these expedited removal proceedings. And
what that will do is for some segment of the people,
they will be deported immediately. For a larger segment, let's
(24:45):
say seventy to seventy five percent, they will be placed
back into the same proceeding they were supposed to go
to court for that day. But after having been arrested
and detained and having to pay out a bond and
so all of this is very scary and unsettling, and
that's part of the strategy is to impose those kinds
(25:06):
of conditions to make it as older as as possible
for the people here without status to remain here.
Speaker 5 (25:11):
So then will this student definitely get a hearing.
Speaker 7 (25:15):
Well, so they will first have to show that they
have a credible asylum playing and of course, because the
student is from Venezuela, probably will not be that difficult
because Venezuela does crack down on political dissident and this
person can show that they had some political oppression in
the past or they have some political issue, they can
(25:35):
clear that threshold and then they'll actually have an asylum hearing,
which was the whole purpose of why they went the
court in the first place.
Speaker 5 (25:43):
Thanks so much as always, Leon. That's Leon Fresco of
Honden Knight. Coming up next. The courts are split on
geofans warrants. I'm June Grosso and you're listening to.
Speaker 1 (25:54):
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This is the Bloomberg Green Report. The World Meteorological Organization
is downbeat. It predicts human made climate change will continue
to warm the planet and we'll see new temperature highs
over the next five years. Furthermore, the WMO sees an
eighty percent chance that at least one of the next
five years will be hotter than twenty twenty four, which
(26:45):
was the hottest year ever for planet Earth. The report
says the world's average temperatures will be between one point
two and one point nine degrees celsius higher than the
average in pre industrial times, and the warming will increase
extreme weather events that will impact ecosystems, societies, economies, and
people's daily lives. Coberrett, the WMO's Deputy Secretary General, says, Unfortunately,
(27:10):
the report sees no sign of respite over the coming years.
Forecasts say every fraction of a degree of warming will
lead to more intense, frequent and harmful heat waves, extreme rain,
and drought. Jeff Bellinger, Bloomberg Radio.
Speaker 2 (27:27):
This is Bloomberg Law, with June Grossel from Bloomberg Radio.
Speaker 5 (27:34):
Geofence warrants are relatively new. Google received its first in
twenty sixteen, but the use of such warrants has proliferated,
as have court cases challenging them. Unlike a warrant authorizing
surveillance of a known suspect, geofencing is used to identify
would be suspects. Google has been the primary recipient of
(27:58):
these warrants due to its extensive location history database. Federal
courts have split on whether these geofence warrants are constitutional,
but now New Jersey State Court has ruled that police
use of geofence warrants does not violate constitutional privacy protections
and is not an impermissible general warrant. Joining me is
(28:22):
Alex Ebert, Bloomberg Law correspondent, So, Alex tell us what
a geofence warrant is.
Speaker 3 (28:29):
A geofence warrant is a broad warrant that allows police
to find out who may have been in a certain
location at a given time. So imagine you're the police
and you're looking for people, let's say at the Capitol
riot on January sixth, and you want to find out, hey,
whose cell phones might have been present around the Capitol
(28:53):
when things started going down. Or let's say there was
another event where we have a ride after there's a
police shooting. Aesthetically, police officers could find out who was
in the vicinity of building when it got broken into.
That's the sort of information that police officers can.
Speaker 2 (29:09):
Be looking for.
Speaker 5 (29:10):
So what is the question when using a geofence warrant?
Is it privacy concerns? What are the constitutional concerns?
Speaker 7 (29:19):
That's right?
Speaker 3 (29:19):
So this all boils down to privacy, and there's two
sort of big questions that courts are grappling with. One
is this a general warrant that would violate the Fourth
Amendment protections we have against the police invading our privacy?
And two would this be considered the stuff that we
don't really have an entitlement to protect because it's held
(29:41):
by third parties. This is an issue that courts have
grappled with for decades and it gets only more complex
as more of our data is being given to third
party tell us what.
Speaker 5 (29:52):
Happened in this case? What you know the facts of
the case.
Speaker 3 (29:55):
Sure, So, this case involves a Milltown robbery. What happens
is someone came into a convenience store gas station late
at night and the clerk who got assaulted hurt someone
talking on the phone. That was really all the police
had to go off of in this case. And so
because they knew there was a phone conversation going on,
(30:18):
they went to Google and said, Hey, was there anyone
in this particular area. Usually it's a couple of blocks
that was making a phone call or accessing their phone
at this given time period. They went to Google and
Google found only one identifiable person that was there, and
from there the police officers were able to request from
(30:39):
Google demand that they provide the identification of that Google.
Speaker 5 (30:45):
User and so explain what the court found here.
Speaker 3 (30:49):
Sure So, the New Jersey Court of Appeals was extremely divided,
as other courts have been in recent times on this issue.
The majority found that this is okay, that there's a
process through which the police here are requesting information from Google,
and they're narrowing it down based on the location and
(31:10):
the time period that they're seeking pings on people's cell phones,
and from there it's fine, it's articulable suspicion. We've got
the probable cause necessary to get this information in a warrant.
But the descent here is.
Speaker 7 (31:25):
Saying, no way.
Speaker 3 (31:27):
What we're asking for here is to hoover up all
this information and you're able to tap into whomever might
be in this location at a given time, whether or
not they might be related to this crime or not.
Speaker 5 (31:40):
This New Jersey case is a case in state court,
but the federal courts are split on this. The Fourth Circuit,
sitting on Bank couldn't produce a majority opinion explaining why
they allowed the geofence warrant, so it issued eight separate
concut ccurrences.
Speaker 3 (32:01):
It is such a messchoon. So we have that court
going that direction, and then we have the Fifth Circuit,
what we would consider to be extremely conservative, going to
complete other routes. So we have this circuit split, where
we have a court that says this isn't a search
at all, This is information held by third parties. The
(32:21):
defendants aren't entitled to protection over right. Then we've got
the Fifth Circuit saying this isn't just a search, this
is an unconstitutional general warrant. You know, this is the
thing that you know, we created the Fourth Amendment to stop.
We don't want the British officers coming in and ransacking
our houses just generally looking for stuff. And that's what
(32:41):
you're trying to do here with these general warrants of
disinformation to Google users and just pulling it back. We're
talking about hundreds of millions of devices in the United States.
You know, hundreds of millions of people have access to
just Google's accounts. And so if you're looking at the
split here, the difference between can we get at that
(33:02):
private information that's held by these service providers, by these
apps or is that just too much data? Do we
have an updated sense of privacy that is being invaded here?
Speaker 5 (33:16):
Do you have any idea how many of these GEO
warrants are issued in a year.
Speaker 3 (33:22):
I haven't been able to find information how many it is. However,
when I've spoken with attorneys off the record, they've told
me that it's increasing again and again and again because
it's becoming more valuable information. We also have other courts
considering this issue right now. Just last month, the Texas
Criminal Court of Appeals, which is their highest level of
(33:43):
criminal courts they allowed the geofense warrants, and the Minnesota
Supreme Court is considering right now a case on the
constitutionality of geofense warrants. So this is bubbling up across
the country.
Speaker 5 (33:56):
Could this be appealed to the New Jersey Supreme Court?
Speaker 3 (34:00):
Indeed, so, because this is a divided decision in the
Court of Appeals, the New Jersey Supreme Court will automatically
grant review if the loser wants it. That is a
certainty here. This is going to be a huge case
and you're going to see, you know, amachist briefs from
all over the country pour in on this thing because
(34:21):
there's so few of these decisions that are either bubbling
up or at that highest core level. And in particular,
New Jersey is extremely strong in Fourth Amendment terms, and
it has interpreted both the national the federal Fourth Amendment
and its own privacy protections broadly for criminal defendants.
Speaker 5 (34:41):
Google is implementing changes to encryption. Explain what they're trying
to do, that's right.
Speaker 3 (34:47):
Yeah, So it's been over a year now since Google
has announced that it's going to be implementing changes to
encryption that would prevent somewhat you know, some of these
broader geofense warrants we're talking about. Instead of Google storing
this information, it will be stored on a local device,
or it will be you know, encrypted in such a
(35:08):
way that giving Google can't read it and so it
can't turn over account information to police officers. But that's
not necessarily going to stop, either for Google or for
other apps. If you think about it, there's other warrants
that you know, could function well beyond this. Right, So
if you're taking an uber somewhere, why can't the police say, hey, Uber,
(35:30):
give me all of the rides that you know came
into this block, right, or this series of blocks within
the you know, three hours the night of April twenty fifth,
or Facebook or Apple, you know, were there any location
tags or people that bought things, you know, using Apple
pay or whatever within certain radius around here. It's not
(35:51):
just Google that you know, defendants might have to worry about.
And beyond that, you could even think of ways where
you can get at this sort of information without really
looking at you know, pinging from someone's location through geolocation.
What if you could go to Google and say, hey,
give me anyone that's searched for you know, the victim's
(36:12):
house or areas around there in a certain time period.
So you can think of creative ways where the police
could really use an expansive access to these geofence warrants
to look for information, you know, even outside of what
Google is trying to prohibit.
Speaker 5 (36:28):
Has the Supreme Court taken up any case that's similar
to these geo warrants?
Speaker 3 (36:34):
Not exactly on point tune. So over the course of
my lifetime, the Supreme Court has gone from a more
favorable access to third party data to a less favorable
access to third party data framework and stamp. In twenty eighteen,
we had a Carpenter case, which is about the pinging
of cell phone towers right, and there the Supreme Court
(36:57):
made sort of a great ruling for or defendants that hey,
police have to get a warrant to get access to this.
You can't just hoover in this information. But there's nothing
that's on this level that involves this kind of technology
and this kind of warrant.
Speaker 5 (37:15):
And how's the privacy bar taking this case?
Speaker 3 (37:18):
Privacy rights attorneys are really up in arms about this
because of the huge implications here, and you know, for
the creative ways that it could be used. You know,
oftentimes these sort of maneuvers aren't really discovered until, you know,
months or years after. You know, police are looking for
this information. But at the same time, police officers say, hey,
(37:38):
we didn't have anything on this guy, you know that
committed this robbery. You know, there's no CCTV, there's nothing
really that would have given us this lead. And so
on one hand, you have this extremely powerful tool for
police officers, and then the other you have this really scary,
sort of invasive ability to look into what we're doing
(38:01):
on our phone.
Speaker 5 (38:02):
I'm sure we're going to hear more about these Warrens.
Thanks so much, Alex. That's Bloomberg Law correspondent Alex Ebert
and that's it for this edition of The Bloomberg Law Show.
Remember you can always get the latest legal news by
listening to our Bloomberg Law podcast wherever you get your
favorite podcasts. I'm June Grosso. Stay with us. Today's top
(38:22):
stories and global business headlines are coming up right now.
Bloomberg Audio Studios, podcasts, radio news.
Speaker 2 (00:08):
This is Bloomberg Law.
Speaker 3 (00:10):
Congress can have no saying making an office independent. I
think all agencies need a degree of autonomy.
Speaker 4 (00:16):
It really tests whether the amendments to the law.
Speaker 2 (00:19):
Have Keith interviews with prominent attorneys and Bloomberg legal experts.
Speaker 5 (00:23):
Joining me is Constitutional law professor David Super, Bloomberg News,
Supreme Court reporter Greg Store.
Speaker 2 (00:28):
And analysis of important legal issues, cases and headlines.
Speaker 6 (00:32):
Apples of Waltgarden.
Speaker 4 (00:33):
They don't license their technology.
Speaker 3 (00:35):
That is a valid basis to dismiss the case.
Speaker 2 (00:38):
Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 5 (00:45):
Welcome to the Bloomberg Law Show. I'm June Grosso. Ahead
in this hour, the Supreme Court allows Trump to fire
independent agency officials and immigration law roundup from challenges to
ice agents, waiting and Immigration court hallways and do geofence
warrants violate your right to privacy A ninety year old
(01:10):
legal precedent setting up independent agencies isn't dead yet, but
after the Supreme Court's emergency order allowing President Trump to
fire members of two independent agencies, the effect may be
the same The Court's nineteen thirty five ruling in Humphrey's
executor said that Congress in some instances can set up
(01:31):
agencies that are independent from the executive branch and whose
members can only be fired for cause. But in recent
years the Supreme Court has significantly cut back on Humphreys.
Over the dessense of three liberal justices, the Court allowed
Trump to fire National Labor Relations Board member Gwynn Wilcox
and Merits Systems Protection Board member Kathy Harris without cause
(01:56):
as their legal challenges play out. My guest Isauren McFerrin,
senior fellow at the Century Foundation and former chairman of
the NLRB in the Biden administration.
Speaker 4 (02:07):
So what the Supreme Court did was stay and order
of the District Court which had ordered the reinstatement of
Gwynn Wilcox and Kathy Harris. And the removal of Gwynn
and Kathy from office was clearly contrary to statute. The
President is prohibited by both the National Labor Relations Act
and the law governing the Merit Systems Protection Board from
(02:30):
removing people from office except for cause, and no qualifying
cause was given to either of these officials, so the
action was clearly contrary to law, and so the President
kind of took the law into his own hands here
and basically said, I don't care what Congress wanted, and
I don't have to follow Supreme Court precedent, and he
removed them from office anyway. The Supreme Court then stepped
(02:51):
in and on what's called the shadow dockets, which is
supposed to be for emergency relief and emergency orders, indicated
that the President is right to do that, but it
is okay for him to ignore Congress and to ignore
Supreme Court precedent, and kind of went to extraordinary length
to keep that result in place because they basically think
the President took a good gamble about their plans to
(03:11):
revisit precedents. So it was very unusual from a court
process perspective, the so called shadow dock that is supposed
to be used for, like I said, emergencies, it's typically
also used to preserve the doctrinal status quo, not to
overrule it. You're certainly not supposed to use the shadow
docket to effectively change precedent without the benefit of full
(03:33):
briefing and careful consideration, which is what the descent pointed out.
So it was a procedurally very odd thing to do.
But it certainly sent a very strong signal about where
the Supreme Court is headed in terms of whether it
plans to overrule Humphrey's Executor, which is the decision that
had originally upheld Congress's ability to create positions like this
(03:57):
that can only be removed from office by the pre
resident for cause.
Speaker 5 (04:01):
So, according to the dissenting justices, the effect of this
is essentially to overturn Humphrey's Executor.
Speaker 4 (04:09):
I think that will be the practical read that a
lot of people take away from it.
Speaker 7 (04:13):
Now.
Speaker 4 (04:13):
The Majority did ultimately hedge on that question. The Majority
said that they're not ultimately deciding whether these two agencies
fall within the recognized exceptions of Humphrey's Executor. That does
suggest that there still will be some recognized exception, but
they signaled pretty clearly that they didn't think either the
(04:34):
National Labor Relations Board of the Merit Sista's Protection Board
would fall within that exception.
Speaker 5 (04:40):
Tell us about Humphrey's Executor, it's sort of been on
the way out, or people have been calling for its
demise for a long time.
Speaker 4 (04:48):
I mean, Humphrey's Executive. There's no question that it is
still good law. The case that everyone cites for the
proposition that Humphrey's executor is on the way out the
door is a case called steal a law and see
a law. Was very careful to say that Humphreys still
is good law and that they were not revisiting Humphreys.
(05:08):
But what they did was that they certainly said they
were not expanding Humphrey's executor, who encompassed independent agencies that
aren't like the Federal Trade Commission that was the original
subject of Humphrey's itself. So they were unwilling to expand
the reach of Humprey's executor. This exception that allows Congress
(05:28):
to create entities whose leaders can't be removed except for cause.
They were going to expand that exception to a single
headed agency like the Consumer Financial Protection Bureau. But it
is very clear that Humphreys, at this point in time,
or at least until this order issued, that Humphreys itself,
(05:49):
the exception it creates for quasi judicial and quasi legislative
agencies that are structured like a multi member body like
the National Labor Relations Board of the Merit Systems protect
Board still exists, and that exception is still valid.
Speaker 5 (06:04):
The Supreme Court in recent years has cut back on humphries.
I mean, it's still standing, but is it in sort
of chatters.
Speaker 4 (06:12):
I think it's safe to say that the Court has
constrained its reach and has at times, you know, one
or two justices in a separate opinion or indicta in
a majority opinion, have called into question its continuing viability. Basically,
this notion that there can be an entity, even if
(06:35):
it is structured like a multi member body, even if
it is a body of experts that's supposed to make
expert decisions, that there could be an entity like this
that would not be sufficiently executive in the nature of
the powers that it is exercising, such that its leaders
should not be removable by the president. I mean, that's
(06:57):
the core issue here for proponents of the unitary execut
it theory on the Court is that any entity that
is exercising any level of executive power should be removable
from office by the president. And the Court has certainly
set signals in recent years that it thinks the scope
of the universe of agencies that might actually not exercise
(07:17):
any executive power is minimal or not existent.
Speaker 5 (07:23):
The justices took pains to point out that this doesn't
affect the FED. The FED is different.
Speaker 4 (07:30):
Yes, that was a really strange little red flag in
this decision. It kind of comes out of nowhere. In
the decision. They might as well have basically said, oh,
by the way, President Trump, please don't take this order
as a green light that you can fire the chair
of the FED. And they carved out the FED in
like two sentences when it wasn't an issue in the case.
(07:52):
And they carved out the said by making what is
basically a factual observation about the set, which is that
it is uniquely structured and it has a just historical tradition.
That is actually true of many independent agencies right now,
my own agency that I used to work for, the
National Labor Relations for That is certainly true. It is
uniquely structured, and it has a distinct historical tradition. But
(08:14):
that doesn't speak to the reasons why the FED is independent,
which are fundamentally similar to the reasons that other independent
agencies are independent. The reason that Congress chose to create
independent agencies is because it wanted to have entities, even
entities within the executive branch, that made decisions based on expertise,
(08:37):
and that made decisions, and we're capable of making decisions
that might be in the short run politically unpopular, but
in the long run in the best interests of the country.
And it's very easy to see, of course, how that
plays out in the context of the set, and particularly
when the SET is wearing its monetary policy hat, it's
very easy to see why it's going to have to
(08:59):
make this visions that are short term politically unpopular but
long term beneficial to the country. But the FED is
not unique in that regard. And one agency that leads
to my mind, for example, is the Consumer Product Safety Commission.
Sometimes it is very politically unpopular to find a product
to be unsafe, to pull a product off the market,
but it might well be in the long term public interest.
(09:21):
So there's not something that makes the FED distinguishable in
a principled manner from other independent agencies when it comes
to the reason for its independence.
Speaker 5 (09:31):
Let's say the Supreme Court does get rid of Humphrey's executor.
What might the repercussions be, Well, it would depend on
how the Supreme Court did it.
Speaker 4 (09:40):
There's lots of people who predict about these things, and
there's a group of predictors who say that they will
basically get rid of Humphrey's Executor but carve out the set,
or at least the set in its monetary policy role.
I think there's an argument to be made that they
could also kind of split the baby in different ways.
I think one of the most difficult challenges that we
will have in a post Umphrey's Executor world if Humphrey's
(10:01):
Executor is swept off the book, is what to do
with agencies that are primarily adjudicative. You know that do
business as courts basically, and it's very hard to imagine
how an agency that's supposed to function as a court
will function when it's adjudicators can be fired for the
outcome of individual decisions. So I think there's potentially a
(10:22):
chance that the court could also look at the various
functions that agencies are performing and say these are executives
and these are not executives. And this order, being a
preliminary order, doesn't delve into that at all. But you
could have a course that says, well, if an agency
is making rules, it is by nature executive because rulemaking
is an executive function. But leave open the question, for example,
(10:44):
of whether if an agency was truly just a court system,
you know, like tax courts or something like that, whether
that potentially could be treated differently. So I think it's
a question of whether the court will just wipe Humpter's
executor off the books altogether with some possible car about
for the fact and monetary policy, or if it will
kind of pick and choose which agency functions. It seems
(11:06):
to be so executive in nature that the president must
be able to control them.
Speaker 5 (11:12):
And as far as your old agency, the NLRB, what
effect would it have if the president is able to
fire board members without cause.
Speaker 4 (11:22):
I think it's really hard to overstate how different that
would be from the way that the agency operates now.
The NMRB and many other adjudicative agencies. Like I said,
the nb does business primarily by deciding cases like a court,
and we as judges never had to worry about whether
(11:42):
our decisions were going to be politically popular or politically unpopular,
or whether we were deciding a case in favor of
somebody that the president was friendly with or someone that
the president was not friendly with. I think you can
see this playing out totally differently in a world where
board members I need these the judges could be fired
for the outcome of a particular case. You can very
(12:05):
much have a system where entities that are closely allied
with the president, certain very powerful companies, etc. Were effectively
exempt from the law because adjudicators would fear for their
jobs if they found against them. Conversely, if the shoes
on the other foot, and you have a president in
office who's extremely pro union and very closely allied with
many labor organizations, there are provisions of the National Labor
(12:27):
Relations Acts that are enforceable against unions, and you could
see that type of enforcement basically fall by the wayside
if you have a president that super union friendly. So
it will go from being an adjudicator that jealously guards
the integrity of its adjudicative process to being a fundamentally
different and political entity where judges are making decisions at
(12:50):
the peril of their job based on their predictions about
whether they'll face backslash for them or not.
Speaker 5 (12:56):
Thanks for joining me, Lauren. That's Lauren McPherrin, senior fellow
at the Entry Foundation. Coming up, we'll look at the
latest immigration disputes. I'm June Grosso and you're listening to Bloomberg.
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Context changes everything. This is Bloomberg Law with June Grosso
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Speaker 5 (13:45):
The Trump administration is once again appealing to the Supreme
Court as it tests the boundaries of the government's power
to deport migrants. The Department of Homeland Security is asking
the court to block a judge's order that requires the
government to give people ten days notice and an opportunity
to object before they're deported to places other than their
(14:07):
home countries. Joining me is immigration law expert Leon Fresco,
a partner at Holland and Knight and a former head
of the Office of Immigration Litigation in the Obama administration. Leon,
a Massachusetts federal judge, ordered the government last month to
give people ten days notice and an opportunity to object
(14:28):
before they are sent to a country which is not
their home country. And he said last week that the
administration violated his earlier decisions.
Speaker 7 (14:38):
Well, what happened was, this is a case where there
are a number of foreign nationals who did commit sometimes
very heinous crimes, and they're from Laos, Vietnam and some
other places that don't really accept people that the US
is trying to deport bax of those countries, and so
the US tried to arrange a scenario whereby it could
(14:59):
deport those people to South Sudan as part of a
diplomatic arrangement it was having with South Sudan to free
up some issues because earlier in the year, South Sudanese
people couldn't get visas to travel to the United States,
and so this was part of a global arrangement where
that would be fixed, and that also South Sudan would
agree to accept people that the United States was trying
(15:22):
to deport to other countries, not South Sudan. The people
who were going to be deported to South Sudan heard
about this and said, well, wait a second, I can't
be deported to South Sudan. I'm not from there. That's
very dangerous. It's a country in the middle of a
civil war, and so they tried to file convention against
torture claims. There was actually this case filed in the
(15:46):
District of Massachusetts, which was a habeas claim saying I
can't be deported without being given the opportunity to have
an adjudication as to whether the conditions in South Sudan
are tent amount to torturing me, because if you just
drop me off there, what am I supposed to do?
I'm going to start to that because you know, it's
not a place where you could just go and get
a job and start working. And so that was the claim,
(16:10):
and at that time the district court, at the US government,
we're arguing about, well, how do you do these claims?
Can you do them where these people were, which is
at the moment they're being detained in Djibouti, a different
African country where it's just sort of a military operation
and there's not really this ability to long term have
(16:32):
these folks there. There was this debate about where do
these convention against torture claims get decided or do you
have to bring the people back to the United States.
The federal government didn't want to bring back the people
to the United States. It asked that they'd be allowed
to make these adjudications in Djibouti. The judge said, okay, fine,
I will let you do that. And then after that
(16:54):
the government said, no, wait a second, this is way
too complicated. We actually can't do it in Djibouti. And
so now the government has gone to the Supreme Court
and said, just let us do these deportations. The judge
shouldn't be allowed to prevent us from doing this.
Speaker 5 (17:11):
The Supreme Court has said that the government has to
give people a reasonable amount of time in order to
challenge their deportations, but it hasn't spelled out exactly what
that means, how much time even. But is this situation
different from the cases that the Supreme Court has dealt
with because these migrants have already been through the immigration
(17:33):
system and there are orders of deportation against them.
Speaker 7 (17:37):
Correct. The problem is here, these individuals have an order
of deportation that can be executed at any point to
their home country, whether it's Allows or Vietnam or whatever,
and it can also be executed to any other country.
So long as in any of those other countries, there's
not a likelihood that these individuals will be tortured. The
(18:00):
question is, well, can these individuals make that claim, where
can they make that claim, When can they make that claim,
how long do they have to make that claim, and
does the district court have the ability to interrupt that
when a person has already been moved outside of the
United States. And I think that's what the debate is
(18:21):
going to be, because I think where the federal government
is concerned is what are we supposed to do now
that these individuals are in Africa? How do we deal
with this? Are we going to be forced to bring
them back to the United States or will we be
forced to actually adjudicate these cases inside of Djibouti, which
is where the people are now, or can we finalize
(18:43):
our intentions to deport them to South Sudan? And will
there just be prophylactic language in the future about what
is required in the future if they're going to do
one of these third country deportations. But really we're in
uncharted territory here, and the Supreme Court is going to
have to set some standards and some guidelines because if
the federal government really is focused on these third country deportations,
(19:07):
then they're going to need to be done in a
manner that everybody's comfortable with. And the complication with South
Sudan is just imagine any of us. I mean, if
any of us get dropped off in South Sudan, what
do we do next? If there's no food, there's no job.
You know, if you end up being deported to a
place where you know that the solution is just the starvation,
(19:28):
does that end up violating the Convention against torture?
Speaker 5 (19:31):
So how do you think the Supreme Court will approach this?
Given how it's handled the other deportation cases.
Speaker 7 (19:38):
The Supreme Court is going to have to decide where
can these individuals make these claims? Are they allowed to
make these claims at all? What district court jurisdiction exists here?
And I don't necessarily think that the Supreme Court, given
what we've seen so far, is going to be too
friendly toward this concept of not being able to give
(19:59):
people opportunity to make a claim that a deportation Assab
Sudan is tent amount to torturing.
Speaker 5 (20:06):
That okay, So turning two other cases, ICE appears to
be employing a new strategy that it used in arresting
a high school student in New York City. Government attorneys
are asking judges to dismiss cases against migrants who are
there for scheduled hearings and then waiting ICE agents arrest
(20:27):
the migrants and put them in expedited removal proceedings. That's
what reportedly happened to a New York City high school
student from Venezuela Leon. So, this Venezuelan high school student
was in immigration court for a regularly scheduled hearing, and
after the case against him was dismissed, ICE agents arrested him.
(20:49):
His lawyer says he's here legally seeking asylum, but the
Trump administration says he's here illegally. And apparently this is
not an isolated scenario happening.
Speaker 7 (21:00):
Is this? So the Biden administration had this program called
the CBP one app parole program, which what it said
was don't just cross the border illegally. That's creating a
lot of chaos on the southern border. We can't have
it go to a port of entry. Get an appointment
(21:21):
to go to a port of entry under the CBP
one app and then if we think that you're a
legitimate asylum seeker, will parole you into the country legally,
so you have a legal status while you're here trying
to get asylum, and you'll go through the asylum case.
So what's happening now is that the Trump administration is saying,
(21:41):
for all those people who have been led in legally
to do an asylum case and immigration court, we are
going to cancel your legal admission. We're going to close
that case, and we're going to pretend like none of
that had happened, and we're going to put you in
expedited removal, which says that if you are here for
(22:06):
less than two years and you never had a legal
basis for coming, you can be removed on an expedited basis.
But what that requires is for the person to be
arrested and then they have to have a new adjudication
as to whether they have a credible asylum case, and
if they don't, they can immediately be removed. But if
they do, then they're basically back in square one, which
(22:28):
is the same immigration court hearing that they were arrested
at minutes ago. So this BRONXE student was exactly this
situation where they were let in legally under the CBP
one parole app but now they're arrested, placed in expedited
removal proceedings, and.
Speaker 5 (22:49):
This type of scenario is being played out in immigration
courts across the country.
Speaker 7 (22:54):
So there's basically three goals of this. Number one is
maybe twenty percent of the people that they're going to
do this too won't actually be able to show that
they have a credible asylum claim, and so with that
group they can just remove them outside of the United States,
and so that increases the removal numbers. So that's goal
(23:17):
number one. Goal Number two is to the extent people
are now scared to go to immigration court. When you
don't show up the immigration court, you get what's called
an in absentia removal order, which is you basically lose
by default. You get ordered deported and that's the end
of it. And as long as the government can show
that you had notice of the hearing, then that did
(23:38):
you know, unless there was some earthquake or some bridge
collapse or something and that prevented you from going to
the hearing that day, you're pretty much in a bad
position there. But the government, then if they get these
in absentia removal orders, can also try to execute those
and that also is easier than trying to win a
removal order in a hearing. Well, that's the second reason
(24:01):
to do this is people stop going to court, they
get in upset to removal orders, you can deport them
more easily. And then the third is people will be
so afraid about finishing this process they'll just take matters
into their own hands and go home. And so that's
really the purpose of this is to create this level
of fear that people either don't show up to court
(24:22):
and they get ordered to port it or they go home.
But if they do go to court, they're going to
get arrested. If you haven't been in this country for
more than two years, what will happen is you will
be arrested and put into these expedited removal proceedings. And
what that will do is for some segment of the people,
they will be deported immediately. For a larger segment, let's
(24:45):
say seventy to seventy five percent, they will be placed
back into the same proceeding they were supposed to go
to court for that day. But after having been arrested
and detained and having to pay out a bond and
so all of this is very scary and unsettling, and
that's part of the strategy is to impose those kinds
(25:06):
of conditions to make it as older as as possible
for the people here without status to remain here.
Speaker 5 (25:11):
So then will this student definitely get a hearing.
Speaker 7 (25:15):
Well, so they will first have to show that they
have a credible asylum playing and of course, because the
student is from Venezuela, probably will not be that difficult
because Venezuela does crack down on political dissident and this
person can show that they had some political oppression in
the past or they have some political issue, they can
(25:35):
clear that threshold and then they'll actually have an asylum hearing,
which was the whole purpose of why they went the
court in the first place.
Speaker 5 (25:43):
Thanks so much as always, Leon. That's Leon Fresco of
Honden Knight. Coming up next. The courts are split on
geofans warrants. I'm June Grosso and you're listening to.
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This is Bloomberg Law, with June Grossel from Bloomberg Radio.
Speaker 5 (27:34):
Geofence warrants are relatively new. Google received its first in
twenty sixteen, but the use of such warrants has proliferated,
as have court cases challenging them. Unlike a warrant authorizing
surveillance of a known suspect, geofencing is used to identify
would be suspects. Google has been the primary recipient of
(27:58):
these warrants due to its extensive location history database. Federal
courts have split on whether these geofence warrants are constitutional,
but now New Jersey State Court has ruled that police
use of geofence warrants does not violate constitutional privacy protections
and is not an impermissible general warrant. Joining me is
(28:22):
Alex Ebert, Bloomberg Law correspondent, So, Alex tell us what
a geofence warrant is.
Speaker 3 (28:29):
A geofence warrant is a broad warrant that allows police
to find out who may have been in a certain
location at a given time. So imagine you're the police
and you're looking for people, let's say at the Capitol
riot on January sixth, and you want to find out, hey,
whose cell phones might have been present around the Capitol
(28:53):
when things started going down. Or let's say there was
another event where we have a ride after there's a
police shooting. Aesthetically, police officers could find out who was
in the vicinity of building when it got broken into.
That's the sort of information that police officers can.
Speaker 2 (29:09):
Be looking for.
Speaker 5 (29:10):
So what is the question when using a geofence warrant?
Is it privacy concerns? What are the constitutional concerns?
Speaker 7 (29:19):
That's right?
Speaker 3 (29:19):
So this all boils down to privacy, and there's two
sort of big questions that courts are grappling with. One
is this a general warrant that would violate the Fourth
Amendment protections we have against the police invading our privacy?
And two would this be considered the stuff that we
don't really have an entitlement to protect because it's held
(29:41):
by third parties. This is an issue that courts have
grappled with for decades and it gets only more complex
as more of our data is being given to third
party tell us what.
Speaker 5 (29:52):
Happened in this case? What you know the facts of
the case.
Speaker 3 (29:55):
Sure, So, this case involves a Milltown robbery. What happens
is someone came into a convenience store gas station late
at night and the clerk who got assaulted hurt someone
talking on the phone. That was really all the police
had to go off of in this case. And so
because they knew there was a phone conversation going on,
(30:18):
they went to Google and said, Hey, was there anyone
in this particular area. Usually it's a couple of blocks
that was making a phone call or accessing their phone
at this given time period. They went to Google and
Google found only one identifiable person that was there, and
from there the police officers were able to request from
(30:39):
Google demand that they provide the identification of that Google.
Speaker 5 (30:45):
User and so explain what the court found here.
Speaker 3 (30:49):
Sure So, the New Jersey Court of Appeals was extremely divided,
as other courts have been in recent times on this issue.
The majority found that this is okay, that there's a
process through which the police here are requesting information from Google,
and they're narrowing it down based on the location and
(31:10):
the time period that they're seeking pings on people's cell phones,
and from there it's fine, it's articulable suspicion. We've got
the probable cause necessary to get this information in a warrant.
But the descent here is.
Speaker 7 (31:25):
Saying, no way.
Speaker 3 (31:27):
What we're asking for here is to hoover up all
this information and you're able to tap into whomever might
be in this location at a given time, whether or
not they might be related to this crime or not.
Speaker 5 (31:40):
This New Jersey case is a case in state court,
but the federal courts are split on this. The Fourth Circuit,
sitting on Bank couldn't produce a majority opinion explaining why
they allowed the geofence warrant, so it issued eight separate
concut ccurrences.
Speaker 3 (32:01):
It is such a messchoon. So we have that court
going that direction, and then we have the Fifth Circuit,
what we would consider to be extremely conservative, going to
complete other routes. So we have this circuit split, where
we have a court that says this isn't a search
at all, This is information held by third parties. The
(32:21):
defendants aren't entitled to protection over right. Then we've got
the Fifth Circuit saying this isn't just a search, this
is an unconstitutional general warrant. You know, this is the
thing that you know, we created the Fourth Amendment to stop.
We don't want the British officers coming in and ransacking
our houses just generally looking for stuff. And that's what
(32:41):
you're trying to do here with these general warrants of
disinformation to Google users and just pulling it back. We're
talking about hundreds of millions of devices in the United States.
You know, hundreds of millions of people have access to
just Google's accounts. And so if you're looking at the
split here, the difference between can we get at that
(33:02):
private information that's held by these service providers, by these
apps or is that just too much data? Do we
have an updated sense of privacy that is being invaded here?
Speaker 5 (33:16):
Do you have any idea how many of these GEO
warrants are issued in a year.
Speaker 3 (33:22):
I haven't been able to find information how many it is. However,
when I've spoken with attorneys off the record, they've told
me that it's increasing again and again and again because
it's becoming more valuable information. We also have other courts
considering this issue right now. Just last month, the Texas
Criminal Court of Appeals, which is their highest level of
(33:43):
criminal courts they allowed the geofense warrants, and the Minnesota
Supreme Court is considering right now a case on the
constitutionality of geofense warrants. So this is bubbling up across
the country.
Speaker 5 (33:56):
Could this be appealed to the New Jersey Supreme Court?
Speaker 3 (34:00):
Indeed, so, because this is a divided decision in the
Court of Appeals, the New Jersey Supreme Court will automatically
grant review if the loser wants it. That is a
certainty here. This is going to be a huge case
and you're going to see, you know, amachist briefs from
all over the country pour in on this thing because
(34:21):
there's so few of these decisions that are either bubbling
up or at that highest core level. And in particular,
New Jersey is extremely strong in Fourth Amendment terms, and
it has interpreted both the national the federal Fourth Amendment
and its own privacy protections broadly for criminal defendants.
Speaker 5 (34:41):
Google is implementing changes to encryption. Explain what they're trying
to do, that's right.
Speaker 3 (34:47):
Yeah, So it's been over a year now since Google
has announced that it's going to be implementing changes to
encryption that would prevent somewhat you know, some of these
broader geofense warrants we're talking about. Instead of Google storing
this information, it will be stored on a local device,
or it will be you know, encrypted in such a
(35:08):
way that giving Google can't read it and so it
can't turn over account information to police officers. But that's
not necessarily going to stop, either for Google or for
other apps. If you think about it, there's other warrants
that you know, could function well beyond this. Right, So
if you're taking an uber somewhere, why can't the police say, hey, Uber,
(35:30):
give me all of the rides that you know came
into this block, right, or this series of blocks within
the you know, three hours the night of April twenty fifth,
or Facebook or Apple, you know, were there any location
tags or people that bought things, you know, using Apple
pay or whatever within certain radius around here. It's not
(35:51):
just Google that you know, defendants might have to worry about.
And beyond that, you could even think of ways where
you can get at this sort of information without really
looking at you know, pinging from someone's location through geolocation.
What if you could go to Google and say, hey,
give me anyone that's searched for you know, the victim's
(36:12):
house or areas around there in a certain time period.
So you can think of creative ways where the police
could really use an expansive access to these geofence warrants
to look for information, you know, even outside of what
Google is trying to prohibit.
Speaker 5 (36:28):
Has the Supreme Court taken up any case that's similar
to these geo warrants?
Speaker 3 (36:34):
Not exactly on point tune. So over the course of
my lifetime, the Supreme Court has gone from a more
favorable access to third party data to a less favorable
access to third party data framework and stamp. In twenty eighteen,
we had a Carpenter case, which is about the pinging
of cell phone towers right, and there the Supreme Court
(36:57):
made sort of a great ruling for or defendants that hey,
police have to get a warrant to get access to this.
You can't just hoover in this information. But there's nothing
that's on this level that involves this kind of technology
and this kind of warrant.
Speaker 5 (37:15):
And how's the privacy bar taking this case?
Speaker 3 (37:18):
Privacy rights attorneys are really up in arms about this
because of the huge implications here, and you know, for
the creative ways that it could be used. You know,
oftentimes these sort of maneuvers aren't really discovered until, you know,
months or years after. You know, police are looking for
this information. But at the same time, police officers say, hey,
(37:38):
we didn't have anything on this guy, you know that
committed this robbery. You know, there's no CCTV, there's nothing
really that would have given us this lead. And so
on one hand, you have this extremely powerful tool for
police officers, and then the other you have this really scary,
sort of invasive ability to look into what we're doing
(38:01):
on our phone.
Speaker 5 (38:02):
I'm sure we're going to hear more about these Warrens.
Thanks so much, Alex. That's Bloomberg Law correspondent Alex Ebert
and that's it for this edition of The Bloomberg Law Show.
Remember you can always get the latest legal news by
listening to our Bloomberg Law podcast wherever you get your
favorite podcasts. I'm June Grosso. Stay with us. Today's top
(38:22):
stories and global business headlines are coming up right now.
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