{"id":6985,"date":"2012-06-10T19:48:47","date_gmt":"2012-04-16T18:25:17","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-04-16T18:25:17","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=6985","title":{"rendered":"CA3: Porn industry stated claim for Fourth Amendment violation for recordkeeping requirement of 28 U.S.C. \u00a7 2257"},"content":{"rendered":"

The Free Speech Coalition\u2019s case against the Attorney General for searches under pornography manufacturer\u2019s recordkeeping requirements under 28 U.S.C. \u00a7 2257<\/a> stated a First and Fourth Amendment claim because of unannounced FBI visits to search records. On remand, the district court should consider the trespass implications of Jones.<\/a> Free Speech Coalition Inc. v. Attorney General of the United States<\/a>, 677 F.3d 519 (3d Cir. 2012):<\/p>\n

There are two ways in which the government\u2019s conduct may constitute a \u201csearch\u201d implicating the Fourth Amendment. First, a Fourth Amendment search occurs when \u201cthe person invoking its protection can claim a justifiable, a reasonable, or a legitimate expectation of privacy that has been invaded by government action.\u201d Smith v. Maryland, 442 U.S. 735, 740 (1979) (citations and quotation marks omitted); see also Kyllo v. United States, 533 U.S. 27, 32-33 (2001) (\u201c[A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.\u201d); Katz v. United States, 389 U.S. 347, 353 (1967) (\u201cThe Government\u2019s activities in electronically listening to and recording the petitioner\u2019s words violated the privacy upon which he justifiably relied … and thus constituted a \u2018search and seizure\u2019 within the meaning of the Fourth Amendment.\u201d). Determining whether one\u2019s expectation of privacy is justifiable involves two separate inquiries: (1) whether the individual demonstrated an actual or subjective expectation of privacy in the subject of the search or seizure; and (2) whether this expectation of privacy is objectively justifiable under the circumstances. Smith, 442 U.S. at 740 (quotation marks omitted); Katz, 389 U.S. at 361 (Harlan, J., concurring); United States v. Ferri, 778 F.2d 985, 994 (3d Cir. 1985). <\/p>\n

Second, as the Supreme Court\u2019s recent decision in Jones makes clear, a Fourth Amendment search also occurs where the government unlawfully, physically occupies private property for the purpose of obtaining information. See 132 S. Ct. at 949-52 (stating that the reasonable-expectation-of-privacy test set forth in Katz was \u201cadded to, not substituted for, the common-law trespassory test\u201d) (emphasis in original). Under this analysis, we must determine whether the government committed common-law trespass when obtaining the information. See Jones, 132 S. Ct. at 949-52; see also Rakas v. Illinois, 439 U.S. 128, 143 (1978) (explaining the common-law-trespass test employed prior to Katz). If such a trespass occurs, then the government\u2019s actions constitute a search implicating the Fourth Amendment. See Jones, 132 S. Ct. at 949-52. <\/p>\n

Here, the District Court erred in dismissing Plaintiffs\u2019 Fourth Amendment claim, as sought to be amended. Courts generally must consider the concrete factual context when determining the constitutional validity of a warrantless search. See Sibron v. New York, 392 U.S. 40, 59 (1968) (declining to hold whether a particular statute was facially invalid under the Fourth Amendment because the \u201cconstitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case\u201d); United States ex rel. McArthur v. Rundle, 402 F.2d 701, 704-05 (3d Cir. 1968) (stating that in the case of warrantless searches, courts are required to consider the concrete factual context); see also United States v. $291,828.00 in United States Currency, 536 F.3d 1234, 1238 (11th Cir. 2008). Plaintiffs\u2019 complaint, as amended, would allege that government officials searched and\/or seized without a warrant\u2014and in violation of the Fourth Amendment\u2014the premises and effects of certain FSC members and others. The record, however, is not clear as to: which specific members of FSC were searched; when and where the searches of the FSC members and others occurred (i.e., offices or homes); and the conduct of the government during the search (e.g., what specific information the government reviewed and whether the government exceeded its authority under the applicable regulations).<\/p>\n

This factual context is necessary for determining whether the government\u2019s conduct was a \u201csearch\u201d under the Fourth Amendment pursuant to either the reasonable-expectation-of-privacy test set forth in Katz or the common-law-trespass test described in Jones. …<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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