Vol. 97, No. 3 Archives – Southern California Law Review

Slouching Towards San Francisco: Opioid Addiction as Public Nuisance

July 2024July 2024Andrew B. Workman*

INTRODUCTION

The opioid epidemic has afflicted Americans for twenty years, from California to the New York island. What began as an idealistic effort to alleviate chronic pain turned into a national nightmare: powerful, FDA-approved painkillers, liberally prescribed in the late 1990s and early 2000s, unleashed a Pandora’s box of dependance and demand that south-of-the-border cartels have answered with heroin and fentanyl.¹ In 2021, more than 107,000 Americans died of drug overdoses, and an astounding 71,000 of these deaths involved fentanyl and other synthetic opioids.² The economic costs have been staggering: in 2020 alone, the opioid epidemic cost the United States an estimated $1.5 trillion.³

To help redress this catastrophe, every state in the Union, along with countless localities and tribes, has sued opioid manufacturers, distributors, and dispensers.⁴ These public plaintiffs have pursued multiple claims, but public nuisance is “a central feature of the litigation and a key to its momentum.”⁵ To establish a public nuisance, plaintiffs must demonstrate an unreasonable interference with a right common to the public.⁶ A typical interference in the early days of public nuisance consisted of blocking a highway or waterway,⁷ but in the twentieth and twenty-first centuries, plaintiffs have argued that mass harms from products such as tobacco, lead paint, and handguns also interfere with public rights.⁸ In these actions, the alleged interference with public rights enables states or localities to sue on behalf of the public.⁹

But while these suits have generated billions of dollars in settlements,¹⁰ some courts have rejected these claims on the basis that any harms caused by a legal product interfere with private rights rather than public rights.¹¹ These courts cite previous attempts to characterize handguns and lead paint as public nuisances to conclude that the misuse of a product rarely interferes with the public rights traditionally protected by the doctrine, such as the right to use a public highway without interference.¹² Moreover, these courts portend a flood of lawsuits concerning legal products should public nuisance provide a valid basis of recovery against product manufacturers for harms that should instead be redressed under product liability law.¹³

However, a successful public nuisance action brought by the City Attorney of San Francisco against Walgreens in federal district court counters the claim that legal products can cause only private harms. In August 2022, Judge Charles Breyer entered judgment in a bench trial against Walgreens for substantially contributing to a public nuisance in San Francisco by failing to comply with federal regulation in filling opioid prescriptions.¹⁴ While California has a broader view of public nuisance than other states, the evidence at trial presented in compelling detail the social havoc that opioid addiction has inflicted on the city.¹⁵

To my knowledge, this Note is the first to examine this trial in detail, and I do so to demonstrate how opioid addiction interferes with public rights traditionally protected by common law public nuisance. Specifically, I examine how opioid addiction interferes with public space and public morals, forcing local governments to incur abatement costs and exposing residents to offensive activity in broad daylight. Because of this interference, courts should not categorically dismiss public nuisance claims against product manufacturers in the name of tradition.

This Note complements the scholarship of Professors Leslie Kendrick and David Dana, who have both argued that the opioid epidemic has interfered with public rights,¹⁶ by examining this interference with public rights in greater detail. In making this argument, this Note urges skeptical courts to adopt a middle-road doctrinal approach between the broad, inclusive understanding of public nuisance in California and the narrow, traditionalist understanding in states such as Oklahoma. This middle-road approach should be more amenable to states in the traditionalist camp because it retains public nuisance’s common law contours but maintains its flexibility to protect public rights from novel interferences caused by harmful products that bypass regulatory oversight.

Part I will provide a brief history of public nuisance in England, the United States, and California. Part II will discuss the opioid epidemic and the litigation it has spawned. Part III will review the evidence submitted at the successful bench trial in California to highlight how opioid addiction has affected San Francisco. Lastly, Part IV will argue that opioid addiction interferes with public rights traditionally protected by common law public nuisance and address various counterarguments.

I. PUBLIC NUISANCE: A BRIEF HISTORY

A. Common Law Origins in England

Nuisance developed in the English common law as a non-trespassory tort against the land, or more specifically, an interference with the use or enjoyment of land, or with a right of easement or servitude over the land.¹⁷ This remedy allowed private parties to seek relief from non-trespassory interferences with the use and enjoyment of their land and is the origin of the law of private nuisance today.¹⁸ An interference with the property of the King also constituted a nuisance, and hence public nuisance was born.¹⁹ The earliest cases concerned obstructing the King’s road—a criminal infringement on the rights of the Crown and redressable by a suit brought by the King’s justices—thereby interfering with a public right of way.²⁰ By the same reasoning, blocking a waterway constituted a public nuisance.²¹ By the mid-1300s, public nuisance extended more broadly to other infringements on public rights, such as “interference with a market, smoke from a lime-pit, and diversion of water from a mill.”²²

While obstructing a public road or waterway remains the canonical example of public nuisance, the doctrine eventually encompassed “a large, miscellaneous and diversified group of minor criminal offenses, all of which involved some interference with the interests of the community at large.”²³ For example, a description of “common nuisances” (later referred to as public nuisances) by William Sheppard in the 1660s included “pollution from noxious trades,” “victuallers who [sell] unwholesome food,” and “lewd ale-houses.”²⁴ Similarly, William Blackstone’s 1769 catalogue of common nuisances included “the keeping of hogs in any city or market town,” “[c]ottages . . . erected singly on the waste, being harbours for thieves and other idle and dissolute persons,” the “making and selling of fireworks,” and “[a]ll disorderly inns or ale-houses, bawdy-houses, gaming-houses, stage-plays unlicensed, booths and stages for rope-dancers, mountebanks, and the like.”²⁵

Another significant feature of public nuisance in the English common law was the relator action. Public nuisances had traditionally been prosecuted in the courts of leet, local criminal courts that handled “public welfare offences.”²⁶ But by the late eighteenth and early nineteenth centuries, people began seeking injunctions on behalf of the Attorney General in civil court.²⁷ Plaintiffs sought this civil remedy because “irreparable damage” might occur by the time lengthier criminal proceedings concluded and also because of the difficulty in prosecuting corporations responsible for pollution.²⁸ Accordingly, by the end of the nineteenth century, civil actions replaced criminal prosecutions in standard public nuisance cases concerning “general health hazards” and highway obstructions.²⁹ Separately, private citizens could also sue for damages if they received a “special injury” from a public nuisance.³⁰

B. Public Nuisance in the United States

American courts inherited public nuisance from their English forebears, and the doctrine continued to evolve to address changing social conditions. The early American cases largely fell into two groups: obstruction of public highways and navigable waterways, and a “loose amalgamation of minor offenses involving public morals or the public welfare,” including gambling, “keeping a disorderly house or tavern,” and “enabling prostitution.”³¹ But as the economy industrialized, courts applied public nuisance to new conditions such as air and water pollution.³² In the late nineteenth and early twentieth centuries, state legislatures responded to this changing landscape by adopting statutes that defined public nuisance in broad language or enumerated activities constituting a public nuisance.³³ These statutes enabled public authorities to use public nuisance as a “stopgap measure” and abate unforeseen activities that “might injure or annoy the general public.”³⁴ However, beginning in the Progressive Era, state governments adopted comprehensive statutes and regulations that diminished their reliance on public nuisance as a stopgap measure, thus resulting in fewer public nuisance actions.³⁵

By the early twentieth century, individual states as parens patriae—“parent of the country”—sued parties in federal court to enjoin or abate public nuisances.³⁶ Parens patriae standing rests on a state’s “interest in the abatement of public nuisances, instances in which the injury to the public health and comfort [is] graphic and direct.”³⁷ Parens patriae standing later provided the “architecture” of the tobacco litigation in the 1990s and the opioid litigation in the twenty-first century, with “an official (such as a state’s attorney general or a locality’s district attorney) suing on behalf of the public.”³⁸

In 1979, the American Law Institute published the influential Restatement (Second) of Torts (“Second Restatement”), which included a comprehensive overview of public nuisance.³⁹ Section 821B states:

(1) A public nuisance is an unreasonable interference with a right common to the general public.

(2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:

(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or

(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or

(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.⁴⁰

The Second Restatement further defines a “public right” as a right “common to all members of the general public. It is collective in nature and not like the individual right that everyone has not to be assaulted or defamed or defrauded or negligently injured.”⁴¹ Scholars have criticized the Second Restatement’s definition of public nuisance as overly broad, vague, and partially responsible for the subsequent increase in public nuisance lawsuits involving novel harms, such as those caused by products.⁴²

In the decades that followed the Second Restatement and in the backdrop of a burgeoning environmental movement,⁴³ some states successfully sued defendants under a public nuisance theory for creating an injurious and ongoing condition even though the defendants no longer contributed to the condition or, because they had sold the land, could no longer abate it.⁴⁴ In one prominent case, United States v. Hooker Chemicals & Plastics Corp., a federal district court ruled that a chemical company’s formerly owned toxic-waste dump, from which hazardous chemicals later seeped into surrounding surface and groundwater, was a public nuisance and that the company was liable to the State of New York for abatement costs.⁴⁵ The court rejected the chemical company’s argument that upon its sale of the property to the City of Niagara Falls Board of Education—which included notice of the waste in the deed—its liability ended.⁴⁶ The court instead adopted a rule that the creator of a harmful condition cannot evade restitution liability for abatement costs simply by selling the land.⁴⁷ Hooker II and its progeny gave states a framework to recover public health expenditures, incurred to abate an alleged public nuisance, as damages.⁴⁸

Hooker II also exemplifies how damages, as opposed to an injunction, emerged as a viable remedy in public nuisance actions brought by states. At the common law, only plaintiffs who suffered “harm [from a public nuisance] of a kind different from that suffered by other members of the public” could recover damages.⁴⁹ In the nineteenth and twentieth centuries, some courts did allow government entities to recover damages by demonstrating “peculiar and special damage” from a public nuisance.⁵⁰ Kendrick has argued that these earlier cases seem “analogous to contemporary courts allowing governmental entities to pursue damages for the extensive funds that they have spent on treating and seeking to remediate harms such as opioid addiction and tobacco-related illnesses.”⁵¹

Public nuisance famously provided a breakthrough in twentieth-century tobacco litigation. After four decades of unsuccessful personal injury suits brought by individual plaintiffs,⁵² the tide turned when state attorneys general sued tobacco companies on a variety of claims, including public nuisance, to recoup public health costs.⁵³ These suits survived early dismissal and got to discovery, unearthing incriminating evidence of Big Tobacco’s dishonest marketing practices.⁵⁴ As a result, the tobacco companies first settled individually with four states, and then in 1998, collectively settled with the remaining forty-six states—known as the Master Settlement Agreement—for $206 billion.⁵⁵ While the public nuisance claims were not tried on the merits in these suits, their success incentivized states to pursue similar claims against companies that make and sell handguns, lead paint, carbon-emitting energy, and opioids.⁵⁶

C. Public Nuisance in California

California’s expansive view of public nuisance can be traced to the broad definition of “nuisance” in its 1872 statute:

Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway . . . .⁵⁷

Section 3480 further defines a “public” nuisance as one that “affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.”⁵⁸ To establish a public nuisance in California, a plaintiff must prove that a defendant knowingly created or assisted in the creation of a substantial and unreasonable interference with a public right.⁵⁹

In 1997, the California Supreme Court clarified the meaning of a “public right” by quoting the Second Restatement’s five categories that are protected from interference: “[T]he public health, the public safety, the public peace, the public comfort or the public convenience.”⁶⁰ In upholding an injunction against disruptive gang activity in a San Jose neighborhood, the court articulated the purpose of public nuisance: “[T]o protect the quality of organized social life.”⁶¹ The gang activity at issue included open drug use and dealing, loud music, appropriation of public space, vandalism, and violence.⁶²

This understanding of public rights underpins the enduring use of public nuisance in California to abate problem properties. In 2015, the Second District Court of Appeals affirmed the classification of a restaurant as a public nuisance because of ongoing loitering, drinking, drug dealing, prostitution, and violence that occurred on the property.⁶³ The court dismissed the owner’s argument that he should not be held responsible for the crimes of third parties in a high-crime area because the owner failed to make reasonable operational changes to discourage such activity.⁶⁴ In other words, the owner was liable for the blighted condition of his property since it attracted morally offensive and dangerous behavior that degraded the quality of life of the surrounding community.

California’s broadly worded nuisance statute and expansive understanding of public rights set the stage for successful public nuisance suits involving products. In People v. ConAgra Grocery Products Co., the Sixth Court of Appeals held that three companies created a public nuisance by promoting lead-based paint in the past and remanded the case to the trial court to recalculate abatement damages.⁶⁵ Looking exclusively to California’s public nuisance statute and prior precedent, the court was not persuaded by the defendants’ argument that lead-paint poisoning causes “private harm” that, even in the aggregate, does not interfere with public rights.⁶⁶ Rather, the court held that lead paint interferes with the “community’s ‘public right’ to housing that does not poison children,” and that “[r]esidential housing, like water, electricity, natural gas, and sewer services, is an essential community resource.”⁶⁷ The defendants ultimately settled for $305 million.⁶⁸

Other states have refused to follow California in holding that lead paint poisoning is a public nuisance. In 2008, the Rhode Island Supreme Court reversed a trial court judgment against lead paint manufacturers and a trade association, holding that, among other reasons, the Attorney General had failed to prove that lead poisoning interferes with a public right.⁶⁹ In the court’s view, lead poisoning harms a private right rather than public right, which it defined as a right to “indivisible resources shared by the public at large, such as air, water, or public rights of way.”⁷⁰ The court reasoned that to conclude otherwise would be antithetical to the common law, extend liability to any legal product that interferes with a private right, and blur the boundaries between public nuisance and product liability law.⁷¹

Commentators also share this traditionalist stance and find support in the Second Restatement’s description of a public right as “collective in nature and not like the individual right that everyone has not to be . . . negligently injured.”⁷² Thus, some scholars contend that a product might violate a person’s right to not be negligently injured, but this harm cannot, in aggregate, violate a public right.⁷³ More fundamentally, they view these public nuisance claims involving products as democratically illegitimate attempts to bypass state product liability law, which state legislatures have set forth in statutes.⁷⁴ The Restatement (Third) of Torts similarly states that mass harms caused by dangerous products should be redressed through the law of product liability.⁷⁵

II. THE OPIOID EPIDEMIC

A. A Brief History

The origin of America’s opioid epidemic can be traced to 1995 when the FDA approved OxyContin, a powerful prescription painkiller made by Purdue Pharma L.P. (“Purdue”).⁷⁶ In the late 1980s, Purdue began developing a replacement for its successful painkiller MS Contin, a morphine pill with a patented controlled-release mechanism that was soon to expire.⁷⁷ Purdue’s chemists applied this controlled-release mechanism to oxycodone, an opioid twice as powerful as morphine, and named the resulting pill OxyContin.⁷⁸ The delayed-release feature enabled Purdue to sell the pill in high dosages and convince the FDA to allow a package insert suggesting OxyContin was less prone to abuse.⁷⁹ Following FDA approval, Purdue launched an unprecedented marketing campaign that successfully persuaded doctors to prescribe OxyContin as a general treatment for chronic pain.⁸⁰ Colossal returns followed: annual sales of OxyContin reached $1 billion within five years and ultimately generated $35 billion for the company.⁸¹

But Purdue’s bonanza birthed a national catastrophe. OxyContin initiated an epidemic of addiction from the hollers of West Virginia to the hills of San Francisco. Patients prescribed OxyContin soon learned that its advertised twelve-hour relief lasted eight hours, causing them to experience withdrawal symptoms and seek more pills at higher doses.⁸² The pills could also be crushed into powder, removing their delayed-release coating, that could then be ingested or, when mixed with water, intravenously injected for an immediate, euphoric high.⁸³ As a result, OxyContin made many unsuspecting patients addicted and was widely abused.⁸⁴

In response, Purdue ultimately reformulated the drug in 2010 to make it nearly impossible to crush, and doctors reversed their liberal prescribing habits, but this did little to ameliorate the damage done: users turned to illicit alternatives such as heroin and fentanyl for their fix. Even though opioid prescriptions from retail pharmacies fell from a peak of 255 million in 2012 to about 143 million in 2020,⁸⁵ overall opioid overdoses increased, first with heroin,⁸⁶ and then to a much greater degree with fentanyl.⁸⁷ In total, from 1999 to 2021, nearly 645,000 people died from overdoses involving prescription and illicit opioids.⁸⁸

B. The Opioid Litigation

Opioid litigation has followed a similar trajectory to tobacco litigation. Individual plaintiffs pursued the first claims against Purdue, alleging the company breached its duty of care in deceptively promoting a drug with inadequate warnings and defective design, but these suits rarely survived summary judgment.⁸⁹ In contrast, public nuisance claims fared much better. West Virginia’s Attorney General brought the first public suit alleging multiple claims, including public nuisance, that induced Purdue to settle for $10 million in 2004.⁹⁰ Purdue settled similar suits in 2007, paying $19.5 million to twenty-six states and the District of Columbia, and $24 million to Kentucky.⁹¹

Starting in 2014, a new wave of litigation ensued against a wider group of defendants—other opioid manufacturers, distributers, and retail pharmacies—and filed by a more diverse group of public plaintiffs—cities, counties, states, and tribes.⁹² This litigation has occurred in both federal and state courts and features a range of claims, including public nuisance and violations of the Controlled Substances Act (“CSA”).⁹³ In federal court, three thousand federal lawsuits were consolidated into a multidistrict litigation (“MDL”) in Ohio.⁹⁴ The magnitude of potential liability facing these defendants has encouraged many to settle. Drugmaker Johnson & Johnson and distributors AmerisourceBergen, Cardinal Health, and McKesson finalized a nationwide settlement in February 2022.⁹⁵ Purdue, which has since declared bankruptcy, and its owners, the Sackler family, reached a nationwide settlement in March 2022.⁹⁶ And lastly, Walgreens, Walmart, and CVS agreed to a nationwide settlement in November 2022.⁹⁷

For the few cases that have gone to trial, courts have disagreed on whether the opioid epidemic constitutes a public nuisance. For example, following a bench trial in Oklahoma that resulted in a $465 million judgment against Johnson & Johnson, the Supreme Court of Oklahoma reversed, holding that the district court erred in extending Oklahoma’s public nuisance statute to harms from prescription opioids.⁹⁸ Likening opioids to lead paint and handguns (the subjects of previous public nuisance litigation), the court explained that the harm from a legal product does not interfere with a public right, which it defined as a “right to a public good, such as ‘an indivisible resource shared by the public at large, like air, water, or public rights-of-way.’ ”⁹⁹ Rather, the court viewed the essence of the state’s claim as “a private tort action for individual injuries sustained from use of a lawful product and in providing medical treatment or preventative treatment to certain, though numerous, individuals.”¹⁰⁰ The court also expressed concerns that if it affirmed the trial court, then the misuse of any prescription medicine or legal product could give rise to a public nuisance claim.¹⁰¹

Following the decision in Oklahoma, two bench trials also held defendants not liable for public nuisance. In a bellwether bench trial in the Ohio MDL,¹⁰² a federal district court in West Virginia followed the traditionalist reasoning of the Oklahoma Supreme Court in finding that the distribution of prescription opioids does not interfere with a public right.¹⁰³ Similarly, a state court in California entered judgment in favor of various opioid manufacturers but did so because the People did not present evidence that the manufacturer’s allegedly false marketing caused medically inappropriate prescriptions.¹⁰⁴ But unlike the district court in West Virginia, the court made clear that the opioid epidemic was a substantial interference with “collective social interests” and that a showing of unreasonable conduct could constitute a public nuisance.¹⁰⁵

However, two other bellwether MDL cases succeeded on the merits: City & County of San Francisco v. Purdue Pharma L.P., discussed in Part III, and County of Lake, Ohio v. Purdue Pharma L.P.¹⁰⁶ In the former, Walgreens was found to have substantially contributed to an opioid epidemic in San Francisco,¹⁰⁷ and in the latter, CVS, Walmart, and Walgreens were found liable for contributing to an opioid epidemic in Ohio.¹⁰⁸

III. THE OPIOID EPIDEMIC IN SAN FRANCISCO

The San Francisco City Attorney filed claims in the U.S. District Court for the Northern District of California against dozens of opioid manufacturers, distributors, and dispensers, and by the trial’s close in July 2022, only Walgreens remained.¹⁰⁹ The city pursued a single public nuisance claim at trial.¹¹⁰ Judge Charles Breyer held that the city proved by a preponderance of the evidence that Walgreens knowingly engaged in unreasonable conduct that was a substantial factor in creating an opioid epidemic in San Francisco.¹¹¹ A subsequent remedies trial was scheduled to begin on November 7, 2022, but Judge Breyer vacated this date after Walgreens announced a tentative nationwide opioid settlement for nearly $5 billion.¹¹² Separately, Walgreens settled with the city for $230 million to be paid across fifteen years.¹¹³

Judge Breyer’s lengthy opinion described a city under siege from opioid addiction. The epidemic in San Francisco unfolded in three waves.¹¹⁴ The first wave, from 2000 to 2010, consisted of an increase in opioid addiction and overdose deaths following a rise in opioid prescriptions.¹¹⁵ By 2010, San Francisco’s rate of opioid overdoses was 2.23 times the national average despite the city’s “significant investment in public health programs designed to combat opioid abuse.”¹¹⁶ In the second wave, beginning in the early 2010s, prescriptions declined while heroin use and overdose deaths increased.¹¹⁷ The city had faced a heroin problem in the late 1990s, but in this second wave, the problem became “significantly worse.”¹¹⁸ Evidence suggests heroin returned to the city because of prescription-opioid addiction. The Chief of Emergency Medicine at Zuckerberg San Francisco General Hospital testified that “approximately two-thirds of the patients who present[ed] to the [emergency department] with an opioid-related medical condition report[ed] that their addiction started with pills.”¹¹⁹ The third wave began in 2015 with the arrival of fentanyl, a dangerous synthetic opioid fifty times more potent than heroin.¹²⁰ All in all, the demand for prescription opioids, heroin, and fentanyl caused deaths to skyrocket: from 2015 to 2020, opioid-related emergency room visits tripled, and overdoses increased 478%, from 101 in 2015 to 584 in 2020.¹²¹

The evidence at trial revealed the epidemic’s tremendous toll on city workers and resources. The Fire Department’s Emergency Medical Services (“EMS”) team received so many overdose calls that it created a special response team to answer them.¹²² Encountering unconscious individuals on the streets, many of whom were “frequent callers who rotate from the street to the emergency room and back to the street,” became the “new normal” for EMS.¹²³ Similarly, Public Works faced a “significantly more challenging” job cleaning streets and sidewalks because of the large number of opioid users who “often vomit, have diarrhea, and leave used needles in public right of ways.”¹²⁴ These crews collected 95,000 used syringes annually in recent years, often encountered people experiencing overdoses, and sometimes came across deceased opioid users on their rounds.¹²⁵

The epidemic especially impacted San Francisco’s public parks. The Recreation and Parks Department (“RPD”) created special teams to respond to the harms caused by opioid use in the city’s parks.¹²⁶ Its outreach team engaged with homeless individuals living in parks, and according to Sergeant Maja Follin, a Head Park Ranger in RPD, the “vast majority” of these individuals suffer from substance abuse.¹²⁷ Meanwhile, RPD’s environmental services team removed biohazards such as used syringes and human feces.¹²⁸ In 2019, the team recovered 10,360 syringes from Golden Gate Park.¹²⁹ Their work could be high-stakes and laborious: at Dolores Park, needles were thrown into a children’s play area, requiring RPD to “sift through the sand” and recover them.¹³⁰ Because of these biohazards, RPD regularly closed off sections of parks.¹³¹ And at Jose Coronado Park, so many people “obstruct[ed] the sidewalk using drugs and spending the day . . . lying across the sidewalk and making it impossible for people to . . . access the park or . . . walk down the sidewalk” that the city had to install barricades to create safe passage for park goers.¹³²

The San Francisco Public Library (“SFPL”) system also faced “serious health and safety risks for library visitors and staff” due to the opioid epidemic.¹³³ Library staff routinely discovered patrons using and overdosing on opioids outside the building, in the stacks, and in the bathrooms.¹³⁴ Similarly, staff found needles in the stacks, in bathrooms, on shelves, inside of books, and in children’s reading areas.¹³⁵ On occasion, staff were even stuck with used syringes.¹³⁶ Damage to plumbing from flushed syringes caused multiple library closures and cost tens of thousands of dollars to fix.¹³⁷ Because of the epidemic, SFPL incurred additional expenses, such as hiring a full-time social worker to connect those suffering from opioid addiction with support services.¹³⁸ SFPL also contracted with the San Francisco Police Department to provide officers to patrol the libraries and help respond to the proliferation of drug use and overdoses.¹³⁹

At the trial, the aforementioned evidence demonstrated that the opioid epidemic, defined as “high rates of opioid abuse, addiction, and overdoses,” constitutes a public nuisance that interferes with all five categories of public rights recognized by the California Supreme Court: the public health, the public safety, the public peace, the public comfort, and public convenience.¹⁴⁰ The city also successfully proved that Walgreens had knowledge that its unreasonable conduct caused the nuisance.¹⁴¹ As the “last line of defense” against the diversion of controlled substances,¹⁴² the pharmacy failed to perform due diligence on over 1.2 million red flag prescriptions in a fifteen-year period.¹⁴³ Large volumes of these prescriptions came from “rogue pain clinics and rogue doctors”: from 2006 to 2020, Walgreens pharmacies in the Bay Area filed 161,696 prescriptions from prescribers who later “faced discipline for their prescribing practices and several of whom lost their medical licenses.”¹⁴⁴ This failure to perform due diligence violated CSA regulation, so the court concluded this failure was unreasonable.¹⁴⁵ Moreover, the CSA’s regulatory scheme was sufficient to demonstrate that Walgreens “must have known” about the harms of opioid diversion, notwithstanding external Drug Enforcement Agency (“DEA”) investigations and internal correspondence among executives that revealed Walgreens executives had actual notice of harms from prescription-drug abuse.¹⁴⁶

The court also held that the evidence proved factual and proximate causation. “[C]ircumstantial evidence of sufficient substantiality”—namely that Walgreens, the largest dispenser of opioids in San Francisco, had failed to perform due diligence on thousands of suspicious prescriptions from 2006 to 2020 as the city experienced an opioid epidemic—satisfied causation in fact.¹⁴⁷ And the “cycle of addiction,” and its downstream burden on the city and the public, was foreseeable.¹⁴⁸ As a part of its proximate cause analysis, the court concluded that extending liability to Walgreens would not open the “floodgates” of litigation against any seller of a product with a known risk of harm because Walgreens’s liability stemmed from its unique fifteen-year failure to comply with federal regulation.¹⁴⁹

IV. OPIOID ADDICTION INTERFERES WITH PUBLIC RIGHTS

The decision in City & County of San Francisco v. Purdue Pharma L.P. rebukes the traditionalist, categorical stance that public nuisance should not be extended to products. As demonstrated in San Francisco, opioid addiction interferes with public rights because addiction drives behavior that obstructs public space, forcing local government to incur substantial abatement costs. Moreover, this behavior can essentially turn entire neighborhoods into dangerous public drug dens featuring behavior that is offensive to witness.

Because California broadly defines public nuisance and public rights, the court did not base its judgment on a finding that Walgreens’s conduct interfered with public rights as traditionally understood in the common law.¹⁵⁰ This Note seeks to do so in order to demonstrate how products such as opioids can interfere with traditionally protected public rights in the hopes that states that have rejected public nuisance suits against product-caused harms in the name of tradition might be persuaded otherwise.

A. Opioid Addiction Interferes with Public Space

Courts have refused to extend public nuisance liability in the opioid epidemic because opioids, like lead paint, do not interfere with public rights. For example, the Supreme Court of Oklahoma viewed the state’s public nuisance claim as a “private tort action for individual injuries sustained from use of a lawful product.”¹⁵¹ This rationale largely stems from the Second Restatement’s definition of a public right as “collective in nature and not like the individual right that everyone has not to be assaulted or . . . negligently injured.”¹⁵²

But the opioid epidemic cannot be reduced to individual cases of private injury. It is frequently observed that a public nuisance is a condition rather than conduct,¹⁵³ so it should be emphasized that, here, the condition is opioid addiction. Addiction inflicts private harm, especially in instances of overdose and death, but as demonstrated in San Francisco, it also inflicts substantial civic harm.

An aspect of opioid addiction’s civic harm resembles a classic common law public nuisance. The archetypal public nuisance is obstruction of a highway,¹⁵⁴ and this is often referred to as an interference with the “public convenience” because the highway’s purpose is to improve travel for the public.¹⁵⁵ Similarly, municipalities set aside space for the public convenience: sidewalks make it easier to walk around town safe from motor vehicles; parks provide a place of respite and leisure from concrete city blocks; and libraries facilitate free access to information in a quiet environment.

Opioid addiction interferes with the public’s right to use these spaces as intended. In San Francisco, residents must navigate sidewalks strewn with health hazards, such as feces and needles, and obstructed with the bodies of individuals who are unconscious, and sometimes deceased, from opioid use.¹⁵⁶ Similarly, the prevalence of biohazards in parks impacts the safety of residents, especially infants.¹⁵⁷ This is not an abstract danger: in November 2022, a ten-month-old toddler was hospitalized after being exposed to fentanyl in a San Francisco park.¹⁵⁸ Moreover, these biohazards cause closures until they can be removed.¹⁵⁹ People addicted to opioids can also obstruct access while in an opiated stupor, as shown in one park where the city built a barricade to provide safe access for parkgoers because of the number of opioid users lying about.¹⁶⁰ And in libraries, visitors who seek quiet access to books and computers must contend with people overdosing outside the building, in the stacks, and in the bathrooms; needles left everywhere from bookshelves to children’s reading areas; and closures due to plumbing damage from flushed syringes.¹⁶¹

1. Opioid Addiction and Homelessness

Opioid addiction’s interference with public space stems from, at least in part, its significant relationship with homelessness. In making this connection, I do not intend to dehumanize homeless individuals; I simply point out the obvious impact a substantial, concentrated homeless population can have on a city’s public space and resources. While homelessness has many causes, the evidence at trial made clear that many of San Francisco’s homeless residents suffer from addiction. RPD’s outreach teams submitted that the vast majority of the homeless people living in San Francisco’s parks struggle with substance abuse.¹⁶² Similarly, the Fire Department’s EMS team described “frequent callers who rotate from the street to the emergency room and back to the street,” also suggesting that many of those suffering from opioid addiction are homeless.¹⁶³ The EMS team further noted that a majority of individuals who die of overdose deaths in the city had prior contact with EMS.¹⁶⁴ This underlines the terrifying power that opioids hold over the addicted when one considers that repeated overdose emergencies failed to stop these individuals from abusing opioids.

Unsurprisingly, the opioid epidemic in San Francisco corresponded with an increase in its homeless population. Between 2005 and 2020—the same period of time in which Walgreens’s conduct was examined at trial—the estimated homeless population in San Francisco rose from 5,404 to 8,124, and the unsheltered homeless population rose from 2,655 to 5,180.¹⁶⁵ And between 2010—the year of OxyContin’s reformulation, which contributed to an increase in heroin use¹⁶⁶—and 2020, the number of calls to the city’s 311 line complaining about used hypodermic needles rose from 224 to 6,275.¹⁶⁷ Assuming that housed opioid users would not be discarding needles in public spaces, this increase in 311 complaints may indicate greater opioid use among the homeless population. Similarly, from 2013 to 2016, complaints about homeless encampments also increased from two per day to sixty-three per day.¹⁶⁸ While correlation does not equal causation and many persuasively argue that the primary driver of homelessness in California is a lack of affordable housing,¹⁶⁹ it cannot be disputed that a relationship exists between the city’s visible increase in homelessness and drug use, as addiction can cause a person to spurn employment, housing, and family assistance.

Moreover, homelessness has become one of California’s top issues among voters, reflecting, at least in part, a public exasperated with ubiquitous encampments that feature harrowing spectacles of suffering and depravity. In a 2021 poll conducted by Los Angeles County—before the pandemic and then inflation became top concerns—94% of respondents said homelessness was “a serious or very serious problem.”¹⁷⁰ And in a 2022 survey asking California voters to rank the top issue in California, 13% selected homelessness, just below the 15%—the largest cohort in the study—who selected “inflation or the rising cost of living.”¹⁷¹ The fact that voters expect the government to take greater action on homelessness highlights the issue’s public impact, much like a traditional public nuisance.¹⁷²

2. Opioid Addiction and Methamphetamine Use

One might counter that the increase in homelessness in cities such as San Francisco owes more to the concurrent rise in street use of the psychostimulant methamphetamine. Beginning in the mid-2000s, DEA chemists noticed a new form of street methamphetamine, one made with phenyl-2-propanone (“P2P”), which can be created in a lab using variety of legal, cheap chemicals that have various industrial uses.¹⁷³ An unlimited supply of P2P spurred industrial-scale production by Mexican cartels, making this new form of methamphetamine plentiful and cheap across America.¹⁷⁴

Alarmingly, this new methamphetamine is far more debilitating to the mental health of its users: professionals who work with recovering addicts and homeless people have noticed a startling spike of severe, methamphetamine-induced psychosis, even in those with no prior history of mental illness.¹⁷⁵ Methamphetamine also causes paranoia and antisocial behavior that might explain the visible increase in tent encampments in San Francisco and Los Angeles, since tents provide privacy.¹⁷⁶ As a result, this new methamphetamine has presented difficulties for homeless-service workers and has thus complicated city efforts to abate the obstruction of public space caused by encampments.

However, “the increases in methamphetamine availability and harms are intertwined with the ongoing opioid overdose crisis.”¹⁷⁷ Opioid involvement in psychostimulant overdoses increased from 34.5% of overdose deaths in 2010 to 53.5% in 2019.¹⁷⁸ Surveys of recovering addicts reveal that methamphetamine, a stimulant, is often used with opioids, a depressant, to achieve a synergistic high and counteract the negative effects that arise once the opioid high subsides.¹⁷⁹ Thus, the rise in methamphetamine use and its severe mental health effects, at the least, cannot be understood independent of the opioid epidemic and, at the most, can be understood as a direct outgrowth of the epidemic. In either interpretation, opioid addiction has played a significant role in the recent increase of homelessness and the related rise in methamphetamine use that has made government efforts to convince people to accept services and leave encampments a Sisyphean challenge.

3. Opioid Addiction and the High Cost of Abatement

Because of the opioid epidemic and the related interference with public space and rise in homelessness, San Francisco has incurred significant abatement costs. In 2019, the city spent nearly $100 million on street cleaning—an amount four times more than Chicago, which has 3.5 times as many people and a surface area 4.5 times as large.¹⁸⁰ Opioid related conditions “overwhelm the city’s hospitals” and “tax[] the city’s emergency service teams.”¹⁸¹ San Francisco’s Fire Department, Public Works, Recreation and Parks, and Public Library all have created special teams and allocated resources to respond to the unique challenges presented by the epidemic.¹⁸² Additionally, the city has made a “significant investment in public health programs designed to combat opioid abuse.”¹⁸³ Moreover, because of the link between opioid addiction and homelessness in San Francisco, the staggering $367.7-million budget for the city’s Department of Homelessness and Supportive Housing for 2019–2020 also reflects some of the costs of the opioid epidemic.¹⁸⁴

Because of this significant investment, the opioid epidemic also underlines the enduring, important role of public nuisance as a stopgap measure when regulation fails to protect the public. Scholars have argued that public nuisance no longer serves an important stopgap measure in an era of comprehensive regulation.¹⁸⁵ But, as Dana has noted, “[t]he administrative state has never been perfect at protecting the public from harm, but we do appear to be living in a time when notable regulatory failure and inaction is becoming more, not less, common.”¹⁸⁶

The opioid epidemic thus reveals the important role of public nuisance in the event of such regulatory failure:

[I]n opioids, an alphabet soup of federal governmental agencies (including the FDA, DEA, and Department of Justice) had significant authority to address the burgeoning opioid problem. In creating a comprehensive regulatory scheme, the legislative branch seemingly did its work. But numerous agencies nevertheless stood by, even as pill mills proliferated, the death toll spiked, and millions of painkillers were pumped into, and decimated, certain communities.¹⁸⁷

Even though Walgreens paid $80 million to settle investigations brought by the DEA and Department of Justice for CSA violations at a distribution center and six retail pharmacies in Florida,¹⁸⁸ the company failed to adequately reform its operations and prevent opioid diversion.¹⁸⁹ In other words, despite extensive regulation, Walgreens’s San Francisco pharmacies, more likely than not, failed to conduct due diligence on red flag prescriptions from 2006 to 2020, an oversight that forced San Francisco to foot the bill.¹⁹⁰

B. Opioid Addiction Interferes with Public Morals

Opioid addiction also interferes with community interests in a manner that resembles problem properties, which were traditionally treated as public nuisances in England and America. William Sheppard identified “lewd-ale houses” as a common nuisance in the 1660s,¹⁹¹ and William Blackstone in 1769 listed as public nuisances “all disorderly inns or ale-houses, bawdy-houses, gaming-houses” and “cottages . . . erected singly on the waste, being harbors for thieves and other idle and dissolute persons.”¹⁹² Similarly, early public nuisance cases in America addressed not only obstructions of highways and waterways but also a “loose amalgamation of minor offenses involving public morals or the public welfare.”¹⁹³ William Prosser, who served as reporter of the Second Restatement, categorized problem properties—“houses of prostitution, illegal liquor establishments, [and] gaming houses”—as interfering with public morals.¹⁹⁴ Thus, the common law in England and America treated properties that attracted illicit, immoral behavior as public nuisances because they were offensive and disruptive to the surrounding community.

California courts have long abated the type of immoral, illicit activity associated with problem properties in public nuisance claims. In 1997, the California Supreme Court upheld an injunction against a San Jose gang for open drug use and dealing, loud music, appropriation of public space, vandalism, and violence.¹⁹⁵ Despite widespread criticism of the case among academics,¹⁹⁶ the court persuasively articulated that the purpose of public nuisance is to “protect the quality of organized social life.”¹⁹⁷ This principle justified the abatement of problem properties in the days of Sheppard and Blackstone and thus marks a common law continuance, not a departure. And in 2015, the Second District Court of Appeals in Benetatos v. City of Los Angeles affirmed the classification of a restaurant as a public nuisance because its operation created a condition of lawless blight that attracted loitering, drinking, drug dealing, prostitution, and violence on the property.¹⁹⁸

Opioid addiction has similarly ravaged the quality of organized social life in cities by turning parks and neighborhoods into lawless dens of drug use, petty crime, and antisocial behavior. In San Francisco, open-air drug markets have taken over the Tenderloin neighborhood and United Nations Plaza, exposing local residents and visitors to blatant drug deals and drug use in streets strewn with garbage, feces, and needles.¹⁹⁹ Judge Breyer even noted that “outside this courthouse, people suffering from severe opioid addiction buy, sell, and use opioids in plain sight.”²⁰⁰ At United Nations Plaza, street vendors sell allegedly stolen goods on the sidewalk,²⁰¹ and some commentators have attributed San Francisco’s increase in property crimes such as larceny, beginning in 2012, to people seeking money to purchase drugs.²⁰²

Opioid conditions thus interfere with the public morals by facilitating the type of petty criminality and vice that justifies the abatement of problem properties. One might criticize a common law conception of “public morals” as antiquated in the twenty-first century; certainly, public sentiment is far more understanding and lenient towards drug use and prostitution and far more critical of moralistic judgment. But even so, people still seem to respond negatively to illicit behavior in public. To provide just one example, in Benetatos v. City of Los Angeles, the record included a citizen’s declaration from nearby residents and business owners lamenting the violence and prostitution outside the restaurant.²⁰³ In fact, the Los Angeles Police Department launched its nuisance investigation in response to “recent complaints,”²⁰⁴ presumably from neighbors. And in San Francisco, the successful recall in June 2022 of progressive San Francisco District Attorney Chesa Boudin, who was criticized as being soft on crime, suggests an increasing frustration among residents with quality of life and lawless behavior that the government has failed to address.²⁰⁵

C. Distinguishing Opioids with Other Products

The courts and critics that categorically refuse to apply public nuisance to products might be right to note that California’s recognition of a public right “to housing that does not poison children”²⁰⁶ is essentially the same as a right to not be negligently injured, which the Second Restatement explicitly characterizes as a private, rather than public, right.²⁰⁷ This reasoning adheres to a traditionalist understanding of public nuisance and distinguishes it from legislatively authorized product liability law.

Other critics have argued the history of public nuisance paints a more complicated picture. Kendrick has looked to the “common nuisances” William Sheppard listed in the 1660s—“victuallers, butchers, bakers, cooks, brewers, maltsters and apothecaries who sell products unfit for human consumption”—and questioned whether “there [is] some fine distinction between the activity of selling products and products themselves.”²⁰⁸ And Dana has argued that while product liability law has been legislatively authorized, it is also a “common law creation of the courts,” so courts should have the authority to “interpret it to leave space for products-based public nuisance claims.”²⁰⁹

But this Note primarily argues that opioid addiction has obstructed public space much like the canonical highway blockage and offended public morals much like the canonical problem property. Opioids can therefore be readily distinguished from other products such as lead paint. The former causes tangible harm to the public square, while the latter causes harm within the privacy of the home. The condition of opioid addiction, not unlike the toxic waste in Hooker II, has spilled over onto public sidewalks, parks, and libraries, requiring expensive clean up, emergency response, and social services to abate. And as in Hooker II, in which the chemical company was still liable after selling the toxic dump site, those responsible for the opioid epidemic should not escape liability on the basis that they no longer control the condition that gave rise to the nuisance. Accordingly, the categorical stance against products fails to protect long-recognized public rights from interference.

Thus, the California court of appeal holding in ConAgra Grocery Products, that lead paint interferes with a public right “to housing that does not poison children,”²¹⁰ is incongruous with the common law understanding of public nuisance. But California’s flexible treatment of public rights should not encourage other states to dismiss public nuisance claims concerning products if those products interfere with traditionally recognized public rights, as opioids do.

D. Addressing Counter Arguments

This Section will address three counterarguments²¹¹: (1) opioid defendants are not the proximate cause of the interference with public rights, (2) misguided city policy, rather than opioid addiction, is responsible for the public nuisance in San Francisco, and (3) a flood of litigation will ensue if public nuisance is extended to harms caused by legal products.

1. Proximate Cause Objection

This Note argues that opioid addiction interferes with public rights; nonetheless, even accepting that such an interference has taken place, one might counter that defendants such as Walgreens are not the proximate cause of the interference. In California, proximate causation is an element of a prima facie public nuisance claim,²¹² and in a typical action, the causal chain is quite clear: a defendant’s unreasonable conduct creates a harmful condition, and that condition interferes with public rights. For example, a man who digs a ditch in a road has created a condition that interferes with public convenience. However, a defendant’s conduct in opioid cases—whether that be misleading advertising by manufacturers or negligent supervision of red-flag prescriptions by pharmacies—results in an interference with public rights only because of the intervening action of opioid users. The principle of novus actus interveniens would suggest that opioid manufacturers and pharmacies could not be held liable for the behavior of opioid users because their independent wrongdoing marks a break in the causal chain.

However, the stranglehold of opioid addiction can cause a person to spurn employment, family, shelter, and ultimately life itself, distinguishing opioids from other products such as guns that bear no influence over the free will of their user. As Judge Breyer noted, opioids can ensnare even unsuspecting patients into helpless addiction, making downstream consequences such as “crime, homelessness, and destruction of city property” foreseeable.²¹³ Moreover, just as the crimes of intervening third parties did not absolve the restaurant owner in Benetatos v. City of Los Angeles of public nuisance liability because the owner failed to ameliorate the blighted condition of his property, here, the intervening behavior of opioid addicts should not absolve manufacturers, dispensers, and pharmacies from contributing to the underlying condition that perpetuates this behavior.

2. The Role of Public Policy

One could also argue that progressive policies, rather than manufacturers and pharmacies, are the cause of the interference with public rights in San Francisco. At least since the Summer of Love in 1967, San Francisco has earned a worldwide reputation for being tolerant towards drug use and homelessness.²¹⁴ But following the punitive and, in retrospect, controversial state response to the 1980s crack-cocaine epidemic and the violence it generated, California voters embraced policies more lenient towards drug possession and use. In 2000, voters passed Proposition 36, which required that “people convicted of the possession, use, or transportation of controlled substances and similar parole violations, except sale or manufacture of drugs, receive probation and drug treatment, rather than incarceration.”²¹⁵ Similarly, in 2014, voters passed Proposition 47, which recategorized a variety of nonviolent crimes, including personal use of most illegal drugs and shoplifting of property less than $950, as misdemeanors.²¹⁶ And beginning in 2009, cities such as Los Angeles and San Francisco implemented a “Housing First” approach to homelessness that offers housing with no condition on sobriety.²¹⁷ Critics of these policies argue that it has prevented law enforcement from compelling drug treatment for offenders and from policing crimes such as shoplifting and petty theft that provide those suffering from addiction with the cash to fund their drug use.²¹⁸

While these policies have likely exacerbated the opioid epidemic’s impact on civic order, evidence suggests that opioid addiction has inflicted similar community harm in other states. For example, in the red state of Kentucky, a “county-level survey commissioned by Purdue . . . revealed that ‘[9] out of 10 [people surveyed] agreed that OxyContin had a ‘devastating effect’ on the community.’ ”²¹⁹ Thus, it would be inaccurate to categorically claim that opioid addiction does not interfere with public rights.

3. Concerns About a Flood of Litigation

Many critics contend that if courts extend public nuisance to opioids, then courts would be flooded with product liability suits disguised as public nuisance suits for potentially any legal product that, when misused, causes harm. The middle-road understanding of public nuisance that this Note champions recognizes two primary constraints that should assuage this concern.

First, a product must interfere with a public right to create a public nuisance. As Dana has noted, this requirement distinguishes public nuisance from product liability law because the latter is “focused on the harms specifically borne by discrete individuals, such as individual loss of earning power, medical expenses, and pain and suffering.”²²⁰ By categorically refusing to apply public nuisance to harms from products, courts may hamper government ability to counteract actual infringements on public rights.

Opposing this categorical view, some critics argue that a dogmatic, traditionalist understanding of public nuisance inhibits the doctrine’s potential as a stopgap measure when regulation fails to protect the public. Kendrick has stated that courts and scholars should “interpret the concept of ‘public rights’ more loosely” and believes that an aggregation of a large number of private harms from products should support a public nuisance claim.²²¹ Citing early common law cases and broadly worded public nuisance statutes in America, she argues “contemporary formalist tendencies have gone too far.”²²² California’s statute supports her view.²²³

Kendrick’s approach, while persuasive, would likely not convince skeptical courts concerned about a flood of litigation. Such concerns are warranted: in the decades following the successful Master Settlement Agreement with tobacco companies, public nuisance claims have proliferated against companies for harms the doctrine has not traditionally redressed.²²⁴ Take opioids: the consolidated MDL litigation in federal court consists of 3,000 lawsuits brought by tribes, municipalities, counties, and states as of October 2022 while separate actions have been brought in state court.²²⁵ Unlike the tobacco litigation, in which the attorneys general of all fifty states sued tobacco companies and coordinated an all-encompassing settlement, the opioid litigation features a far greater number of plaintiffs and defendants, complicating an efficient pathway to settle all future claims. Understandably, this litigation presents a “genuinely terrifying” prospect for defendants.²²⁶

The public nuisance litigation against Juul Labs Inc., which allegedly marketed its e-cigarette and fruit-flavored vapor to youth and downplayed the vapor’s high nicotine content, is another example. Even though these lawsuits have garnered over $1 billion in settlements with forty-seven states and territories and more than five thousand individuals, school districts, and local governments, once Juul withdrew many of its popular flavors in response to regulatory and public pressure, competitors swarmed the market with fruit-flavored alternatives, presenting “an enforcement dilemma” for the FDA, which has only authorized “fewer than two dozen vaping products.”²²⁷ Unlike the centralized state-led tobacco litigation, plaintiff lawyers representing school districts joined the fray and shared in the settlements under a tenuous public nuisance theory, and now these plaintiff lawyers and school districts are bringing similar actions against social media companies.²²⁸

Thus, critics hold legitimate concerns that public nuisance gives plaintiff lawyers “the ability to intimidate market participants and reshape the economy without ever scoring a conclusive win in a courtroom (never mind a legislature).”²²⁹ Indeed, the uncoordinated nature of the opioid and Juul litigation and the substitution of prescription opioids and Juul e-cigarettes with alternatives that evade a similar state crackdown raise important questions about whether these suits are more about abatement or more about sharing in the spoils of a company’s downfall, like some communal feast on the savanna after a large lion is outnumbered and slain. Because a public nuisance doctrine in which a large number of private injuries could satisfy the public rights element might result in even more litigation, public nuisance should only redress harms that interfere with traditional public rights.

Second, the other elements in a prima facie public nuisance claim should prevent a flood of litigation against makers of legal products. For example, in California, public nuisance claims require a showing that a party has “knowledge that its unreasonable conduct caused a substantial interference with a right common to the public.”²³⁰ Even if a state can prove a defendant interfered with a public right, the state still must demonstrate the defendant’s conduct was unreasonable and the cause of the interference. For example, a California state court held that opioid manufacturers were not liable for creating a public nuisance because the state’s evidence of a statistical increase in statewide prescriptions did not prove that false marketing caused medically inappropriate prescriptions.²³¹ With no evidence of inappropriate prescriptions, the court found that the marketing was reasonable because the social utility of medically appropriate prescriptions outweighs any harm they might cause.²³² The Second Restatement and many states also require, at a minimum, knowledge of unreasonable risk for a defendant to be liable for public nuisance, so this same burden of proof applies elsewhere.²³³ Therefore, if a product has social utility and is sold legally, then a plaintiff must satisfy a high burden of proof to show a defendant acted unreasonably.

CONCLUSION

A daunting drug epidemic confronts the United States and its institutions. Drug overdose deaths are at historic highs, and more than four out of five Americans who need treatment for illicit drug use do not receive it.²³⁴ Voracious demand for drugs has poured billions into coffers of drug traffickers, who internationally “threaten[] global stability” and domestically “contribute to public health challenges and violence.”²³⁵ City & County of San Francisco v. Purdue Pharma L.P. provides an indelible account of the impact of addiction on civic order. Those who argue that legal products cannot interfere with public rights need only visit San Francisco’s sidewalks, parks, and libraries. There, opioid addiction interferes with public rights by obstructing public space and exposing residents to illicit behavior that, at the least, is offensive to witness in broad daylight and, at the most, poses a legitimate threat to safety and health.

While the opioid litigation appears to be in its final phase,²³⁶ public nuisance should have the flexibility to address infringements on traditional public rights—even if caused by a legal product. Future products may pose novel threats to public rights and, like opioids, may require action from all branches of government. The middle-ground approach to public nuisance outlined in this Note would achieve this end.

97 S. Cal. L. Rev. 767

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Andrew B. Workman*

* University of Southern California Gould School of Law, Class of 2024. I am grateful to Professor Gregory C. Keating for his excellent seminar on public nuisance and for his personal guidance and feedback on this Note. I am also grateful to my fellow members of the Southern California Law Review, especially Jack Frisbie, Class of 2023, who provided helpful feedback on early drafts, and the editors on Volume 97 who helped edit and refine this Note for publication.

“Bob Jones University” in the 21st Century: An Examination of Charitable Tax-Exempt Status and Religious Exemption from Title IX for Religious Colleges That Discriminate Against LGBTQ+ Students

July 2024July 2024Sydney Smith*

INTRODUCTION

On March 30, 2021, the Religious Exemption Accountability Project (“REAP”) filed a historic class action lawsuit with the goal of challenging the abusive conditions that many private religious colleges and universities have created for LGBTQ+ students. These unsafe conditions have been permitted for decades by the U.S. Department of Education’s policies surrounding religious freedom.¹ In the complaint, plaintiffs criticize the privileges—tax-exempt status and government funding—that are bestowed upon these institutions despite their discriminatory practices, denouncing the special treatment they receive simply for shrouding their behavior in religious justifications for protection. The complaint went on to criticize the religious exemption to Title IX, alleging that it “permits the Department to breach its duty as to the more than 100,000 sexual and gender minority students attending religious colleges and universities where discrimination on the basis of sexual orientation and gender identity is codified in campus policies and openly practiced.”²

There are many documented cases in which private religious institutions have engaged in discrimination against LGBTQ+ students without legal repercussions—often involving the enforcement of an “honor code” that prohibits certain types of gender and sexuality expression. For example, one student was expelled from Southwestern Christian University—a semester shy of graduation—when school officials discovered that she was married to a same-sex partner; the school pointed to a “lifestyle covenant” that prohibited “Lesbian, Gay, Bi-sexual and Transgender (LGBT) behavior or acts” to justify its decision.³ Another student, who is transgender, was expelled from California Baptist University after the school alleged that she committed fraud on her school application by listing her gender as “female.”⁴ Another student, after it was revealed that she was in a same-sex relationship, was barred from enrolling in her final semester at Grace University; she was told that she could re-enroll only “if she went through a restoration program involving mandatory church attendance, meetings with counselors and mentors, and regular communication with a school dean.” She was eventually expelled for continuing to date women, and the school demanded that she return thousands of dollars in federal financial aid money.⁵ The complaint filed by REAP alleged dozens of additional acts of discrimination against LGBTQ+ students. The named plaintiff on the lawsuit, Elizabeth Hunter, was subject to discipline from Bob Jones University after posting online about LGBTQ+ issues, including “her posts about reading a book with a lesbian main character, and about writing a book including a lesbian relationship.”⁶ Another plaintiff, Victoria Joy Bacon, alleged that school officials at Lipscomb University directed homophobic and transphobic statements against them, including slurs, and that resident advisors witnessed them being called slurs and refused to intervene.⁷ Nathan Brittsan only attended Fuller Theological Seminary for a few days before being expelled for being homosexual and married to a same-sex partner.⁸ Scott McSwain was told by Union University that he was “going to hell” and that he would be expelled if he did not attend sexual conversion therapy.⁹ These examples represent only a fraction of the reported discrimination that LGBTQ+ students have been subjected to by private religious institutions.

In the REAP lawsuit, plaintiffs argued that it is constitutionally impermissible for government funding to be distributed to private educational institutions that engage in discrimination against students, either through official policies and honor codes or unofficially through other channels. However, I argue that a bright line rule consistent with this position would be difficult to implement in any practical sense—not only because it is virtually impossible for schools to operate without any government funding at all, but also because taking any legislative action to restrict funding to these schools would be extremely unpopular in the current political environment. Under current IRS tax policies, it is unlikely that private religious institutions could have their tax-exempt status revoked for engaging in discrimination on the basis of gender identity or sexual orientation. The most promising route for holding schools responsible for such behavior by revoking tax-exempt status is the IRS promulgating a new regulation forbidding organizations that discriminate on the basis of gender identity or sexual orientation from being categorized as “charitable” for the purpose of tax exemption. The Court should then uphold this new policy by extending the holding of Bob Jones University v. United States beyond just racial discrimination. This order of operations is crucial, as it seems unlikely that a potential extension of Bob Jones University would be effective if not preceded by a new IRS policy. Congress, as the ultimate source of authority for the IRS, has the power to modify those policies which it considers improper. However, it seems likely that independent agency action coupled with judicial review would be more successful than getting the legislative branch to make the politically-unpopular decision to threaten the tax-exempt status of a large number of private religious colleges and universities. Even when Bob Jones University was engaging in blatant racial discrimination to such an extent that the majority of the public did not approve, it was the IRS and Supreme Court that took action, not Congress.

All of the schools mentioned above claim to be exempt from Title IX for religious reasons, and none has ever been subjected to substantive investigations or discipline from the federal government for civil rights violations against LGBTQ+ students. In the REAP lawsuit, plaintiffs argue that the religious exemption to Title IX, to the extent that it allows institutions to discriminate against students on the basis of gender identity and sexual orientation, is a violation of the Equal Protection Clause of the Fourteenth Amendment. However, I am highly skeptical that the Court would issue a holding consistent with this position any time in the foreseeable future. Thus, some practical stop-gap solutions are necessary. First, there needs to be a dramatic reconfiguration of the religious exemption to Title IX. At the very least, the current process of automatically granting religious exemption to any religious educational institution leaves a lot of ambiguity about what protections exist for students and what remedies are available; moreover, it gives implicit permission to such institutions to engage in more and more discriminatory behavior because they were given no conditions on which their exemption would be granted and they have no fear of losing the exemption. Beyond this, the enforcement mechanisms behind Title IX need to be bolstered so that schools operate with a more legitimate fear of negative consequences if they break the law. Currently, the Office for Civil Rights’ (“OCR’s”) only real enforcement mechanism is the threat of cutting off federal funding, but since this has never been done, it is a hollow threat.

There is an infinite number of questions that could be explored in relation to private religious colleges and universities and their religious free exercise rights. In this Note, I seek to limit my focus to just the issue of discrimination against members of the LGBTQ+ community—those who are gender-identity or sexuality minorities. For example, although Title IX governs the way that school administrations respond to sexual assault and sexual harassment allegations made by members of the campus community, this Note does not seek to address this facet of the Act’s effects other than to the extent that such actions (or lack of action) constitute sex-based discrimination (for example, failure to respond to sexual assault allegations made by LGBTQ+ students). I am aware of recent high-profile scandals at certain private religious institutions involving sexual assault and failure to follow proper reporting and investigation procedures laid out by Title IX; although important, addressing these systematic failures would distract from the religious exemption to Title IX and the disparate treatment that LGBTQ+ minority students are subjected to. Furthermore, this Note does not directly address discrimination perpetrated by primary or secondary schools; rather, the focus is placed on post-secondary educational institutions. Despite this narrow focus, the information and analysis provided in this Note will hopefully prove useful to other scholars who seek to apply my argument to a broader array of educational settings.

Scholarly literature has already examined the tax-exempt status question to a certain extent regarding the history and potential application of the Bob Jones University case. Some articles, like The Story of Bob Jones University v. United States: Race, Religion, and Congress’ Extraordinary Acquiescence, take the position that the case only came out the way it did because race is treated much differently than other protected categories.¹⁰ This is somewhat contrary to the argument of this Note: the holding in Bob Jones University should be extended to protect students against discrimination beyond that which is solely on the basis of race. Other articles criticize the Court’s holding in Bob Jones University as overly broad and failing to take into consideration the school’s viable religious liberty claims. One such article, Bob Jones University v. United States: A Political Analysis, highlights what it refers to as the “hazards” of the Supreme Court getting involved in such questions, holding out free exercise of religion as an important principle. Despite this article’s fundamental disagreement with my proposal that the holding in Bob Jones University be extended, the article contributes a great amount of political analysis of the history of tax-exempt status for religious institutions and the cases that have developed the Court’s jurisprudence on the issue.¹¹ This information allowed me to more fully understand how policy and jurisprudence might most effectively evolve in the future. Some articles, such as The Sexual Integrity of Religious Schools and Tax Exemption, touch on the Obergefell v. Hodges decision and how the recognition of same-sex couples’ fundamental right to marry may impact the civil rights owed to them in educational contexts. The aforementioned article notably takes the position that the Court’s decision in Obergefell is explicitly inconsistent with “applying Bob Jones to the disadvantage of religious schools that maintain sexual conduct policies”—which is at odds with the central position of this Note.¹² Other articles, such as Discrimination in the Name of the Lord and Discriminatory Religious Schools and Tax-Exempt Status, offer relevant analysis of the interaction between free exercise by religious universities and the civil rights protections afforded to students; however, their decades-old perspectives require updating in light of relevant legal and political developments.

Scholarly literature has also explored the issue of religious exemption from Title IX. One article, Should Religious Groups Be Exempt from Civil Rights Laws?, delves deeply into the issue, examining civil rights protections for race, sex, and sexual orientation.¹³ However, there is a gap in this article, written in 2007, which does not account for new developments in the law surrounding the definition of discrimination “on the basis of sex,” especially in the context of civil rights laws like Title IX and Title VII. This has important implications for what is thus categorized as discrimination on the basis of sex. In the U.S. Supreme Court’s October 2019 term, the Court released an opinion in Bostock v. Clayton County that held, “[a]n employer who fires an individual merely for being gay or transgender violates Title VII.”¹⁴ This opinion relies on a new (to the Supreme Court’s jurisprudence) definition of discrimination on the basis of sex. If this definition is applied to Title IX as well, there may be implications for how colleges and universities must act in order to remain in compliance with Title IX.

One work of scholarship stands out in particular for its similarity to this Note’s contribution to the debate. In 2022, the Brigham Young University Prelaw Review published an article entitled The Constitutionality of the Title IX Religious Exemption. This article responds to the Hunter v. Department of Education lawsuit, but its author, Madelyn Jacobsen, makes the opposite argument from mine by arguing that the religious exemption to Title IX is “crucial for maintaining [religious] diversity in higher education” and that restricting or eliminating the religious exemption to Title IX would necessarily constitute a restriction on free exercise of religion.¹⁵ Jacobsen mimics the language often used in legal disputes surrounding free exercise of religious “closely held beliefs.” This Note contributes a much-needed alternative perspective on the debate where the Jacobsen article left a clear gap. Another work of scholarship stands out in particular for the similarities that the author brings in personal background that contribute to the article’s perspective. The author of Loving the Sinner: Evangelical Colleges and Their LGB Students notes that she attended Wheaton College, a private Christian college that is one of the many targets of the Hunter v. Department of Education lawsuit, and reflects on this experience as being “encased in a protective coating of ignorance and denial” about her homosexuality.¹⁶ Because of this background, the author homes in on the personal experiences of LGBTQ+ students at private religious colleges and carefully considers the stakes of all major actors: the religious institution’s interest in maintaining the pure religious character of its student body and minority students’ interest in expressing themselves fully while still attending the college in question. The author conducts analysis through a framework of “institutional religious freedom,” focusing mainly on sexual codes of conduct, voluntary association, and third-party burdens. This Note adopts a similar perspective, due to my similar personal upbringing, but shifts the analytical angle from the religious freedom owed to institutional actors to the civil rights owed to minority students.

I. BACKGROUND

A. Government Funding and Tax-Exempt Status for Private Religious Colleges

Public institutions have historically provided the setting for legal challenges to laws that involve education; colleges like the University of Michigan and University of Texas have famously been involved in litigation over segregation and affirmative action because of their receipt of significant funds from state and federal sources. There is a bit more uncertainty surrounding the applicability of such laws to private institutions. Although private religious colleges may not be fully state sponsored like public institutions, almost none of them operate entirely independently from the government. Federal funds are given to private religious colleges through a variety of means, including loans and grants for construction and renovation of campus facilities;¹⁷ noncategorical state “capitation grants”¹⁸; Medicare reimbursements for campus medical centers; National Institute of Health (“NIH”) grants for science departments; and Health Resources and Services Administration grants to medical, dental, or nursing programs.¹⁹ Federal student loans, tuition tax credits, and federal Pell Grants allow colleges to be able to raise tuition rates without lowering enrollment.²⁰ Beyond direct grants and loans, private religious colleges also receive a tremendous amount of assistance from the savings received through tax-exempt status.²¹ Furthermore, gifts to religious colleges are treated as charitable deductions for income-tax purposes, which incentivizes giving.²² Thus, the perception that private educational institutions are independent from the public sphere is a myth.

An oft-repeated argument about the private sector (including privately-owned businesses and private colleges and universities) is that it should be subject to fewer government restrictions and regulations because of its independence from the public sector. However, since the vast majority of private religious colleges accept millions of dollars of public funds each year, plaintiffs in the Hunter lawsuit argued that there are constitutional restrictions on how those funds may be used. Plaintiffs acknowledge that the receipt of public funds is permissible; “[h]owever, when the government provides public funds to private actors . . . the Constitution restrains the government from allowing such private actors to use those funds to harm disadvantaged people.”²³ In light of this, it would be inconsistent to allow institutions that receive public funds or that benefit from tax-exempt status to discriminate against sexual and gender minority students.

This stance represents a logical extension of the U.S. Supreme Court’s 1983 opinion in Bob Jones University v. United States, in which the Court held that Bob Jones University (“BJU”), a private religious college, did not qualify as a tax-exempt organization under §501(c)(3) of the Internal Revenue Code because of its racially discriminatory policies.²⁴ In 1980, the IRS had issued a ruling providing that a private school with a racially discriminatory policy does not qualify as “charitable” within the common law concepts reflected in the Internal Revenue Code. The Court held that “an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy.”²⁵ BJU continued to enforce its policy of denying admission to applicants who engaged in interracial marriage or applicants who were known to advocate for interracial marriage. In light of this discriminatory policy, the IRS revoked BJU’s tax-exempt status. The university was asked to pay a portion of federal unemployment taxes for a year, and then filed a refund action in federal District Court; the IRS filed a countersuit claiming millions of dollars in unpaid taxes.²⁶

The Court analyzed Internal Revenue Code (“IRC”) §501(c)(3)—the portion of the Internal Revenue Code that sets forth regulations that apply to charitable organizations—against the backdrop of the congressional purpose, which was to give preferential treatment to charities in exchange for the benefit that they provide to society, and their relationship with the public interest.²⁷ The Court invoked the history of charitable tax-exempt status; the status was originally conceived as similar to charitable trusts, which could not “be illegal or violate established public policy.”²⁸ In light of this purpose, the majority held that in order to qualify for tax-exempt status, an institution must “demonstrably serve and be in harmony with the public interest,” and that “[t]he institution’s purpose must not be so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred.”²⁹ Indeed, any institution that engaged in racial discrimination was excluded from the category of those that confer a public benefit and could thus be excluded from the charitable category and stripped of the accompanying tax-exempt status. Therefore, the IRS’s action stripping BJU of its charitable tax-exempt status was a valid exercise of its congressionally-granted authority.

One portion of the Bob Jones University decision that is potentially relevant to the question before us is which level of scrutiny the court should apply. It is worth noting that this analysis should not be interpreted to mean which level of scrutiny should be applied when sex is involved—a question that would involve its own analysis of what is included in the definition of “sex discrimination.” Indeed, the Court did not craft its ruling in Bob Jones University based on whether race is a suspect classification that triggers the application of strict scrutiny. Rather, the question is how closely the Court should scrutinize government policies that implicate religious freedom. In Bob Jones University, the Court applied strict scrutiny to the potential burden that the IRS rule placed on religious freedom for the university. Thus, this means that the relevant balancing test that the Court would have to consider in judicial review of a new IRS rule would be whether there is an overriding interest in protecting the LGBTQ+ community from discrimination that outweighs the religious freedom of private religious universities. In engaging in this examination, the Court should come to the same conclusion as the similar question, from Bob Jones University, regarding racial discrimination.³⁰

The First Amendment provides a baseline level of protection for religious freedom, providing that the government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”³¹ The Court’s jurisprudence regarding the Free Exercise Clause has evolved over time, beginning with a compelling interest test and eventually departing from it in Employment Division v. Smith.³² In Smith, the majority delivered a scathing criticism of the compelling interest test, claiming that its application would produce a “constitutional anomaly” and “a private right to ignore generally applicable laws.”³³ Smith explicitly rejected the compelling interest test’s expansion of the First Amendment’s protection of religious liberty and asserted that the Free Exercise Clause

does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.³⁴

It may surprise a modern audience to learn that Justice Antonin Scalia wrote the majority opinion in Smith, which places limits on religious freedom when it clashes with a compelling governmental interest.³⁵

Congress reacted explosively to this inflammatory Supreme Court decision, fearful that it may lead to infringement on the free exercise of the religious beliefs of Christians. Shortly after Smith was decided, Congress passed the Religious Freedom Restoration Act (“RFRA”), which expanded the religious freedom protection granted by the First Amendment by legislatively establishing a compelling interest test (a test that had been explicitly rejected by the judicial branch). Under this new law, whenever the government imposes a burden on religious liberty, the courts are required to apply strict scrutiny in their analysis of the government’s justification.³⁶ RFRA prohibits the government from substantially burdening the free exercise of religion, “even if the burden results from a rule of general applicability,” unless the government is able to demonstrate that application of the burden (1) furthers a compelling governmental interest; and (2) does so by the least restrictive means.³⁷ Because of RFRA’s new permissive standard, the Court would be required to analyze any potential burden on the free exercise of religion by private religious institutions under strict scrutiny, using a compelling interest test. This law makes it more difficult to hold religious institutions responsible for engaging in discrimination against LGBTQ+ individuals because it provides such strong protections for religious groups against government intervention.

Government funding and tax-exempt status are one important piece of the puzzle when it comes to protecting LGBTQ+ individuals from experiencing discrimination at the hands of their private religious institutions. The other piece is Title IX, a historic legislative act drafted in the Civil Rights era to prevent discrimination in the realm of education, which applies certain standards to all educational institutions that are the recipients of government funding, including private religious schools. However, the efficacy of the Act is undermined by the blanket exemptions granted to religious organizations. The process for granting religious exemptions to Title IX should either be vastly reworked, or the exemptions should be done away with entirely. I will analyze these options and consider the legality and practicality of each option.

B. Title IX and the Religious Exemption

Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”³⁸ In Cohen v. Brown University, the Court recognized Congress’s dual objectives in passing Title IX: (1) “to avoid the use of federal resources to support discriminatory practices;” and (2) “to provide individual citizens effective protection against those practices.”³⁹ Specifically, Title IX, also known as the Education Amendments of 1972, was intended to update Title VII of the Civil Rights Act, which had been passed in 1964. Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin, but Title IX was intended to expand that prohibition against discrimination to the education system as well.⁴⁰ Without Title IX, the only aspect of the education system in which discrimination on the basis of sex would be prohibited is discrimination against employees of the school; Title VII left students largely unprotected.

Regulations that govern the implementation of Title IX are set forth in the Code of Federal Regulations (“CFR”), and the Office for Civil Rights (“OCR”)—a department within the U.S. Department of Education—has the legal authority to enforce Title IX.⁴¹ The OCR performs invaluable work: investigating complaints, ensuring that institutions are complying with necessary regulations, and even providing technical assistance.⁴² One of the most important tools that the OCR wields is the right to conduct compliance reviews. This provides a significant incentive for schools to comply with its legal obligations because if it is found to violate Title IX, there can be harsh consequences—at least on paper. First, an institution is given the option to voluntarily remedy the violation. If it refuses to do so, OCR may: (1) initiate a termination of the institution’s federal funding, or (2) refer the case to the U.S. Department of Justice to pursue a case in court.⁴³ However, these threats have proven hollow, as no university has yet had its federal funding revoked—a bold move that would send shockwaves through the higher education community in the United States. Separately from federal agency enforcement of Title IX through administrative channels, individuals have the authority to initiate proceedings against allegedly discriminatory institutions. An individual has the right to file a lawsuit in court alleging Title IX violations and to file a complaint with the OCR, but the former is not required to have standing for the latter.⁴⁴ Courts may order specific remedies or may award monetary damages to victims of sex discrimination who file lawsuits. Given that the OCR’s threat of revocation of federal funding is a largely hollow threat, the “implied private right of action” of Title IX has “given Title IX its teeth” and serves as a crucial enforcement mechanism.⁴⁵

Title VII contains a religious exemption section which restricts the protections afforded by the new piece of legislation. Section 2000e-1 states, “[t]his subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such . . . .”⁴⁶ Thus, when Congress recognized that the protections of Title VII were exclusively restricted to the employment sector and set out to expand it to the education sector, Congress inserted a similar section exempting religious organizations from Title IX as well. Despite Title IX’s illusion of broad protection against discrimination, § 106.12 goes on to exempt educational institutions that are controlled by religious organizations, declaring that the act “does not apply to an educational institution which is controlled by a religious organization to the extent application of this part would not be consistent with the religious tenets of such organization.”⁴⁷ In the cases of both Title VII and Title IX, the religious exemption sections were crafted as a part of a political compromise with the religious right to pass the legislation.⁴⁸

For most of the history of Title IX, very few institutions sought religious-based exemptions. However, in 2013, there was a sudden increase in the number of official claims of religious exemption. In fact, between 2013–2021, more than 120 religious institutions claimed exemption from Title IX.⁴⁹ This development can largely be traced back to evangelical fears about the Obama administration—anticipation of a crackdown on religious freedom. Though it was not to the extent that the American evangelical community expected, the Obama administration did seek to expand the protections of Title IX. On October 26, 2010, the executive branch issued guidance to schools to include LGBTQ+ individuals under Title IX protections. The letter defined gender-based harassment under Title IX in a new way, labeling it sex discrimination “if students are harassed . . . for failing to conform to stereotypical notions of masculinity and femininity.”⁵⁰ The letter goes on to explicitly state that “Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) students, from sex discrimination.”⁵¹

The Code of Federal Regulations lays out a very basic framework for how exemptions are to be granted. C.F.R. § 106.12, governing Educational Institutions Controlled by Religious Organization, suggests that no formal process must be followed in order to secure a religious exemption to Title IX..”⁵² The further relevant procedures provided by the Code do not serve to confer exemption on the institutions, but only to reassure the institutions that they are eligible for those exemptions. Indeed, even without such advance assurance of religious exemption, if the Department of Education notifies an institution that it is under investigation for non-compliance with Title IX, the institution may choose to raise its exemption at that time. To do so, the institution shall submit a letter to the Department of Education’s Assistant Secretary, “identifying the provisions of this part which conflict with a specific tenet of the religious organization”—regardless of whether or not the institution already sought assurance before the fact.⁵³ An institution may write to the Department of Education’s Assistant Secretary to seek assurance of their religious exemption. However, “[a]n institution is not required to seek assurance from the Assistant Secretary in order to assert such an exemption.”⁵⁴ Consistent with this interpretation of the automatic triggering of this exemption, in 1976, President Oaks of Brigham Young University wrote a letter to the Department of Education that he clarified was notifying the Department of BYU’s exemption from Title IX (rather than requesting exemption). President Oaks specifically noted that BYU “did not concede that the Department of Health, Education and Welfare has the power to review our claim of exemption on the ground of religion.”⁵⁵ Thus, there is a long history—stretching back almost as far as the origin of the exemption itself—of the automatic triggering mechanism of the religious exemption to Title IX.

Once exemptions started being requested, the Department of Education started approving requests—seemingly indiscriminately: “In the nearly 50 years since the enactment of Title IX, the Office for Civil Rights has never denied a claim to religious exemption. As a result, religious educational institutions decide for themselves whether and to what degree they are exempt from Title IX.”⁵⁶ In 2014, the Department of Education—under the Obama administration—issued guidelines making it clear that transgender students are also protected under Title IX. This guidance, paired with the growing contemporary evangelical panic surrounding transgender people, seems to have drastically increased the number of schools seeking exemptions from Title IX. In response to this avalanche of requested (or declared) exemptions, a number of Democratic Senators asked the Department of Education to publish a list, for the first time, of the colleges that specifically request waivers. In the letter, the Senators cited taxpayers’ “right to know when institutions of higher education—as recipients of tax dollars—seek and receive exemptions under Title IX.”⁵⁷ The Department of Education released the requested list, revealing that at the time 248 schools had been granted exemption to Title IX. Under the Trump administration, new regulations reversed the policy of transparency. However, under the Biden administration, the policy was again reversed; today, an official list is once again maintained by the Department of Education’s Officer for Civil Rights, along with a copy of the office’s response to each request.⁵⁸

Title IX’s private enforcement mechanism was put to use on March 9, 2020, when an individual filed a complaint with the OCR, alleging that Brigham Young University (“BYU”) discriminates against students on the basis of sex. BYU is a private university with enrollment of almost 35,000 students, and is affiliated with the Church of Jesus Christ of Latter-day Saints.⁵⁹ The university is known for its strict honor code, which until recently included a section explicitly titled “Homosexual Behavior” that banned students from “all forms of physical intimacy” with a member of the same sex.⁶⁰ That section was removed in early 2020, inspiring a number of members of the campus community to publicly come out as LGBTQ-identifying. However, the elation sparked by this move was short-lived; shortly after, the Church of Jesus Christ of Latter-day Saints clarified that same-sex romantic behavior remains incompatible with official school rules. In a public letter, Church Educational System Commissioner Elder Paul V. Johnson clarified that “[t]he moral standards of the Church did not change with the recent release of the General Handbook or the updated Honor Code. . . . Same-sex romantic behavior cannot lead to eternal marriage and is therefore not compatible with the principles included in the Honor Code.”⁶¹ This announcement was met with protest, as many students felt like they were experiencing whiplash with regard to the Honor Code—and even felt trapped if they came out while believing themselves to be in a newly-safe environment.⁶² It was in the wake of this policy reversal that an unnamed individual filed a complaint with the OCR, alleging that BYU was engaging in discriminatory behavior.

In response to the complaint, the OCR launched a rare investigation into the private religious university. The complaint specifically alleged that BYU “engages in the different treatment of students who are involved in same-sex romantic relationships by stating that such relationships are not compatible with the principles of the University’s Honor Code.”⁶³ In a letter dated October 21, 2021, the OCR notified BYU that it was opening an investigation into the individual’s complaint. BYU responded on November 19, 2021 by requesting assurance from the U.S. Department of Education that the university is exempt from Title IX and its accompanying implementing regulations.⁶⁴ On January 3, 2022, the Department responded by assuring BYU of its exemption from a number of specific regulations under Title IX “to the extent that application of those provisions would conflict with the religious tenets of the University’s controlling religious organization”—including regulations involving admission, recruitment, housing, counseling, financial assistance, athletics, and comparable facilities.⁶⁵ Thus, in a letter dated February 8, 2022, the OCR concluded that it lacked jurisdiction to address the individual complainant’s allegations. Although it was rare for the OCR to go through the motions of initiating a Title IX investigation into any private religious college for alleged discrimination against LGBTQ+ students, the investigation was ultimately halted prematurely because the religious exemption to Title IX blocked the OCR from exercising jurisdiction over the complaint. If the complaint had been filed against any other educational institution—a public university, or even a private one without a religious affiliation—the OCR would have initiated a fact-finding mission and published the results. This exposes the university to significant liability and serves as a deterrent to the implementation of discriminatory policies that violate Title IX.

Again, the text of the religious exemption to Title IX reads as follows: “[Title IX] does not apply to an educational institution which is controlled by a religious organization to the extent application of this part would not be consistent with the religious tenets of such organization.”⁶⁶ Thus, there are two parts to the religious exemption to Title IX that should be examined separately: (1) Title IX does not apply to an institution “controlled by a religious organization” (with “control” defined very broadly), and (2) institutions are exempt only to the degree that their “religious tenets” conflict with Title IX. Below, I will elaborate on both elements.

1. “Controlled by a Religious Organization”

Title IX does not apply to an educational institution “controlled by a religious organization.” There are six different ways that an educational institution may establish that it is controlled by a religious institution: (1) it is a school or department of divinity; (2) it requires faculty, students, or employees to be members of or espouse personal belief in the religion of the controlling organization; (3) it contains an explicit statement that it is controlled be a religious organization in its charter, the members of its governing body are appointed by the controlling organization, and it receives a significant amount of financial support from the controlling organization; (4) it has a doctrinal statement along with a statement that members of the institutional community must engage in the religious practices of or espouse a personal belief in the statement; (5) it has a published institutional mission that is approved by the governing body of the controlling organization and is predicated on religious tenets; or (6) other sufficient evidence as laid out in 20 U.S.C. § 1681(a)(3).⁶⁷ This inclusive qualifying language is problematic; with “control” defined so broadly, potentially up to 1,000 colleges are encompassed by the words “controlled by a religious organization.”

2. Conflict Between “Religious Tenets” and Title IX

There is an age-old debate in American legal jurisprudence about how to determine whether an action—or inaction—is actually motivated by “religious belief.” This question is especially difficult in the context of an organization, not just an individual. If construed too broadly, there is a risk that a religious organization might simply do anything or discriminate against anyone on any basis and then fall back on a loose claim that the action was based on religious belief. Therefore, it is important to know where the line is drawn. The A.S. Singleton memo, written by the Assistant Secretary for Civil Rights at the U.S. Department of Education in 1985, instructs that religious exemption claims be consistent with the requirements of the First Amendment and the Religious Freedom Restoration Act.⁶⁸ The Office for Civil Rights purports to follow a special procedure to determine whether a provision of Title IX conflicts with religious tenets, requiring that schools submit a statement reflecting either their religious tenets or religious practices.⁶⁹ “A school claiming an exemption may refer to scripture, doctrinal statements, catalogs, statements of faith, or other documents.”⁷⁰

When administration officials from educational institutions write to the Department of Education to formally request a religious exemption from Title IX, the Civil Rights Office writes—and publicly publishes—a response letter. In each letter, they note that the requested exemptions must be based on actual religious tenets, and if the “governing organization” does not agree that those are actual religious tenets, the exemptions may not be valid.⁷¹ This creates the impression that religious exemptions to Title IX must be claimed on the basis of legitimate religious beliefs; however, the reality is that the Court is unwilling to scrutinize such organizational claims. Generally, the Court has thus far shied away from articulating a bright line test for what constitutes a religious belief, seemingly out of fear of being under-inclusive and resulting in the legal condemnation of “religiously-motivated” activities that the Court wishes to protect. This hesitation has had an unfortunate impact on the amount of scrutiny applied to explanations for why religious educational institutions seek to be exempt from Title IX.

II. ARGUMENT AND ANALYSIS

In the following section, I will consider two main aspects of the issue of the constitutionality of discrimination by private religious institutions against LGBTQ+ students: the question of the tax-exempt status of those institutions and the question of those institutions’ religious exemptions to Title IX.

Race permeated the Bob Jones University case so thoroughly that scholars have struggled to extract any universal principles from it that are separate from race.⁷² For one thing, the details of the circumstances surrounding the case involve overt racial discrimination: BJU maintained a policy forbidding interracial dating, a regulation that succeeded an outright ban on African-American students enrolling in the university as a seeming-concession to changing cultural attitudes toward racism.⁷³ The language of the majority opinion makes it hard to ignore the racial elements that motivated the Court’s decision—especially with an eye to the historical effects of the systematic exclusion of African Americans from the educational system in the United States. However, I propose that the Court’s holding in this case is consistent with an extension to include other protected groups of people (specifically, members of the LGBTQ+ community). The most effective way to implement such an extension of legal protection is through the Court granting certiorari for a new case that presents a ripe opportunity and then issuing a holding that clarifies the extent of the application of Bob Jones University. An appropriate case should follow an IRS action, much like the IRS action taken against BJU; absent those circumstances, a lawsuit like the one REAP filed in 2021 is unlikely to be effective. In Bob Jones University, the Court held that as an official extension of Congress’s authority, “the IRS has the responsibility, in the first instance, to determine whether a particular entity is ‘charitable’ for purposes of § 170 and § 501(c)(3). This in turn may necessitate later determinations of whether given activities so violate public policy that the entities involved cannot be deemed to provide a public benefit worthy of ‘charitable’ status.”⁷⁴ It is the duty of the IRS in this instance to recognize the injustice of discriminatory anti-LGBTQ+ policies at educational institutions. The Court noted that these determinations should be made “only where there is no doubt that the organization’s activities violate fundamental public policy.”⁷⁵ Here, this is obviously the case, exemplified by Executive Orders and legislation forbidding discrimination against LGBTQ+ individuals and U.S. Supreme Court decisions like Obergefell and Bostock.⁷⁶

Even assuming that such protections are put into place, might these institutions be allowed to side-step any attempted regulation by opting out of receiving federal funds entirely and agreeing to pay federal taxes? A small number of private Christian colleges in the United States have attempted to opt out of federal funds entirely. Hillsdale College, a private Christian college in Michigan, refuses to accept any federal funds, remaining independent on principle.⁷⁷ Would Hillsdale College or another similar institution thus be allowed to discriminate against their LGBTQ+ students? One of the main arguments of this Note has been that acceptance of federal funding and tax-exempt status creates a legal responsibility for educational institutions to abide by generally-applicable laws, including civil rights laws. But is the inverse true? Does independence from taxpayer dollars immunize an institution from punishment for refusing to follow federal rules? This question forces us to turn to the second major issue of this Note: Title IX.

The complaint filed by REAP in Hunter v. Department of Education suggests that religious exemptions to Title IX are blanketly unconstitutional. However, this stance is unlikely to be adopted in the current political climate, in which religious freedom is highly prized and anti-LGBTQ+ discrimination is not at the forefront of most Americans’ minds. I predict that the Court will be unwilling to find that religious exemptions to Title IX are blanketly unconstitutional and the next step is to challenge the legality of the process by which such exemptions are granted. Automatic exemptions should be presumptively suspect. A better process would be for colleges to be required to request exemptions and have them formally approved. This would place the right to consider the reasoning behind the exemption requests and their validity in the hands of the executive branch—the Department of Justice. Though it is important to consider the applicability of Title IX to institutions that opt out of the public sphere, we must keep in mind the likelihood of many colleges adopting this approach. Even though a small handful of institutions have been able to stay afloat without federal funds—albeit for a short period of time—federal funds still constitute the lifeblood of most educational institutions in the United States. I find it unlikely that this “independence” movement will catch on past the small ranks that it claims today.

As I briefly mentioned above, before any legal action may be taken to protect the vulnerable LGBTQ+ population at educational institutions that are abusing the tax-exempt status they enjoy as charitable organizations, the source that holds the authority to take action must be identified. The Court considered this question in Bob Jones University. Given that Congress is the source of IRS authority, it has the discretion to modify IRS rulings. However, in the “first instance,” the IRS is responsible for construing the IRC, which courts then exercise review over. “Since Congress cannot be expected to anticipate every conceivable problem that can arise or to carry out day-to-day oversight, it relies on the administrators and on the courts to implement the legislative will.”⁷⁸ This proper order of operations is demonstrated in the successful alteration of rules that govern tax-exempt status in the Bob Jones University case. It was the IRS that first acted, modifying the IRC to exclude organizations that discriminate on the basis of race from the definition of “charitable.” This is why I argue that it would be most practical and effective for legal action to start with the IRS and proceed from there with an inevitable challenge before the judicial branch.

The current iteration of the U.S. Supreme Court, the Roberts Court, has skewed dramatically toward religious organizations and the free exercise of religious beliefs. According to a 2022 New York Times article, the Roberts Court “has ruled in favor of religious organizations in orally argued cases 83 percent of the time”—which is far more than any other recent Court.⁷⁹ This trend is especially pronounced when the religious organization in question is Christian, as there is a substantial Christian majority currently sitting on the Court, both Catholic and Protestant. Beyond the Court’s favoring of religion, the U.S. Congress is also very reluctant to take any steps to limit religious freedom or take away power from religious organizations (like powerful private religious educational institutions). Thus, even if the Court were willing to uphold a law seeking to hold private religious educational institutions accountable for discrimination, such a law would likely not even make it through both chambers of Congress in the first place. With regard to religious exemptions to Title IX, the same political forces are likely relevant here, creating another practical roadblock. One potential way that this roadblock may be overcome is a change in the social and political climate in the United States. This was crucial to how the Bob Jones University case ended up with the outcome that it did—the Court was motivated by the confidence that a majority of the American public despised racial discrimination and would support eradicating it from the educational system to whatever extent possible. Though BJU maintained its racially discriminatory policies, it was very much in the minority among its peer institutions. The legality of anti-miscegenation laws was put to the test in 1967, when the Court struck down a Virginia state law that banned interracial marriage.⁸⁰ BJU maintained policies forbidding interracial marriage almost two decades later. The public opinion had reached a tipping point such that religious freedom was not accepted as an excuse for overt racial discrimination and a ban on interracial marriage was much less widely accepted by that time. However, I believe that today, the United States has yet to reach this tipping point regarding religious freedom and LGBTQ+ discrimination.

This unwillingness to protect vulnerable LGBTQ+ individuals from religiously-motivated discrimination is exemplified by some of the Court’s decisions over the past five years. In 2017, the U.S. Supreme Court heard a case called Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the owner of a cake shop refused to make a wedding cake for a same-sex couple. The Court invalidated a ruling by the Colorado Civil Rights Commission that the cake shop had violated the civil rights of the same-sex couple; here, the Court clearly stood on the side of religious liberty and free exercise over the protection of civil rights.⁸¹ In 2021, the Court heard a case called Kennedy v. Bremerton School District, holding that a public school football coach was not prevented by the First Amendment from praying on the field with his players in what the court called “a personal religious observance.”⁸² Here, the Court continued to plow forward in carving out new rights to the free exercise of religious belief, which it had previously not recognized. In 2022, the Court heard 303 Creative v. Elenis, in which an individual Christian business owner challenged a Colorado law that banned businesses from discriminating against LGBTQ+ customers. During oral arguments, Justice Alito drew a distinction between discrimination on the basis of race and on the basis of sexual orientation, which would be consistent with a position that seeks to distinguish the Bob Jones University precedent from the Hunter v. Department of Education case.⁸³ These recent cases are among a series of examples of the Court demonstrating a strong preference for religion over other concerns—civil rights laws, anti-discrimination laws, etc.⁸⁴

One of the reasons that I advocate for either the revocation of tax-exempt status from private religious institutions that discriminate against LGBTQ+ students or the enforcement of Title IX (over claimed “religious exemptions” by those institutions) is that tax-exempt status and government funding should be considered a privilege, not an automatic and irrevocable guarantee. Clearly, charitable tax-exempt status was originally intended to protect the money collected by charities from being reduced through government taxation, thereby increasing the amount of good that a not-for-profit organization may do with it. However, in the modern era, tax-exempt 501(c)(3) status organizations have grown to incredible sizes, with private religious institutions reporting endowments topping $1 billion.⁸⁵ These institutions are able to avoid enormous tax bills through the privilege of tax-exempt status, which is now practically automatic—especially when you combine the status as an educational institution with the almost-untouchable status as a religious institution. Free exercise absolutists in the United States have begun to argue that religious organizations should be completely free from any scrutiny by the government, lest the government be considered to be interfering in religious affairs that it ought not be involving itself in. However, there is a difference between restricting free exercise (through banning a practice or criminally punishing those who engage in a practice) and simply withholding a privilege from those who have proven themselves unworthy of receiving American citizens’ hard-earned tax dollars. The Court made this clear in its holding in the Bob Jones University case, in which a religious institution was stripped of the privilege of tax-exempt status because of its refusal to obey universally applicable civil rights anti-discrimination laws. The Court did not force BJU to integrate or to change its policies on interracial marriage, actions which would be more constitutionally suspect as infringing on the university’s religious freedom. Indeed, the Court did not approve the use of a “stick” as a punishment; rather the Court approved the use of a “carrot” as an incentive. The solution advocated for in this Note is of the same fundamental nature, and thus should pass constitutional muster for the same reasons. Any view that would characterize the Court’s holding as infringing on BJU’s freedom to exercise its religious beliefs is unnecessarily absolutist in nature and sets a far different trajectory for First Amendment jurisprudence than I believe was intended or is practical. The First Amendment to the Constitution is deservedly revered for its guarantee that the free exercise of religion may be protected from government interference, harassment, or persecution; however, it should be correctly interpreted as conferring a negative right (the right to be free from persecution) rather than a positive right (the right to guaranteed access to tax dollars and exemption from taxation).

I have mentioned more than once the practical difficulties of enforcing Title IX over claimed religious exemptions, even of conducting any investigation at all into allegations of misconduct. There are also practical difficulties involved in the revocation of the tax-exempt status of private religious universities that are often wealthy, powerful, and politically well-connected.⁸⁶ Thus, I will briefly address a few solutions beyond what I have proposed as the ideal. For one thing, the recent decision in Bostock may have implications on how sex discrimination is interpreted by both the executive and judicial branches. If the executive branch adopts a definition of sex discrimination that is consistent with the Court’s definition in Bostock—especially if this is paired with public opinion that tilts the scales in favor of civil rights protections for LGBTQ+ people over absolute unchecked rights for religious organizations—this may pave the way for expanded protections. In March 2021, the Civil Rights Division of the U.S. Department of Justice issued a memo explaining the application of the decision in Bostock v. Clayton County to Title IX.⁸⁷ The memo references an executive order issued by the Biden administration—Executive Order 13988—that pairs well with the holding in Bostock, holding that “[a]ll persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.”⁸⁸ The memo indicates that the Civil Rights Division has determined that “the best reading of Title IX’s prohibition on discrimination ‘on the basis of sex’ is that it includes discrimination on the basis of gender identity and sexual orientation.”⁸⁹ On its face, this seems to be a significant civil rights victory for the LGBTQ+ community, ensuring that Title IX includes robust protections for individuals in that community. However, one blatant roadblock stands in the way from this having made much of a measurable impact yet: the religious exemption to Title IX. This is a welcome policy interpretation overall—protecting students at a great number of colleges throughout the United States that are not religiously affiliated; however, given that the religious exemption is so robust and the process so lacking in oversight, even the aforementioned change in how Title IX is interpreted does not protect minority students at private religious institutions, where students are most likely to encounter discriminatory treatment.

Another potential respite for LGBTQ+ students at private religious institutions may be the Equality Act, which “prohibits discrimination based on sex, sexual orientation, and gender identity in areas including public accommodations and facilities [and] education.”⁹⁰ It does so by expanding the definition of “public accommodations,” authorizing the Department of Justice to intervene in equal protection matters in federal court that relate to sexual orientation or gender identity, and amending the Civil Rights Act to include “sex, sexual orientation, and gender identity” in the prohibited categories of discrimination.⁹¹ Notably, the Act explicitly states that it trumps the Religious Freedom Restoration Act (“RFRA”), meaning that an individual or institution sued for discrimination under the Equality Act would be unable to rely on RFRA as a defense. As the bill currently stands, it may provide a cause of action for students; the Religious Education Accountability Project endorses it, stating that it “ensures strong protections for LGBTQ students attending religious colleges—ensuring that no institution is permitted to claim religious exemptions in order to discriminate against its LGBTQ students while still receiving taxpayer money.”⁹² The measure passed in the House of Representatives in February 2021, but has yet to be taken up in the Senate. It faces strong opposition from absolutist proponents of religious liberty, who have even proposed language be inserted into the Act that would explicitly carve out another religious exemption for religious colleges and universities.

Another possibility is private enforcement by large associations or organizations that these private religious institutions are members of and rely on. For example, the National Collegiate Athletic Association (“NCAA”) wields extensive power among colleges that want to participate in competitive athletics—as do the individual conferences that the schools belong to. The Pac-10, a major athletic conference that includes several universities on the west coast, has overlooked Brigham Young University, a private university affiliated with the Church of Jesus Christ of Latter-day Saints, in a number of league expansions over the past few decades. Reportedly, this is because BYU is seen as “not a good cultural fit” for the conference.⁹³ Effective in 2023, BYU will be admitted to the Big 12 conference, a move that attracted harsh criticism from groups like Athlete Ally, which released a statement saying that “acceptance to an athletic conference is an honor and privilege, and . . . there should be standards of equality and inclusion that schools must meet to be included.”⁹⁴ Pressure from the NCAA or athletic conferences to adopt non-discriminatory policies may be an attractive option, given that there would be much less possibility of a religious freedom claim when the action is taken by a private association rather than the government. The First Amendment provides protection from government intervention, not absolute protection for religious groups against any hardship.

Finally, I would like to consider the likelihood of success for the aforementioned potential avenues of protection for LGBTQ+ students at private religious institutions. It has been a somewhat encouraging development that the Department of Justice has demonstrated a recent willingness to initiate investigations into claims of civil rights violations against LGBTQ+ students. As I mentioned above, in 2021, the DOJ announced a somewhat unprecedented investigation into BYU. However, this enforcement mechanism may not have any teeth after all because the investigation was subsequently dropped when BYU asserted its religious exemption based on relevant religious tenets consistent with its affiliation with the Church of Jesus Christ of Latter-day Saints.⁹⁵ It would surely be notable if the DOJ thoroughly investigated colleges for allegedly “over-extending” their exemptions, actually engaging in sufficient fact-finding and being willing to flex their enforcement muscles. It would be quite a development if these investigations were able to turn up anything substantial—and even more so if the Biden administration’s justice department categorically revoked the exemptions.

CONCLUSION

In this Note, I have considered the practicality and effectiveness of the argument that it is constitutionally impermissible to grant tax-exempt status and distribute any government funding to private educational institutions that engage in discrimination against LGBTQ+ students. I have concluded that the approach taken by the plaintiffs in Hunter v. Department of Education is unlikely to be successful. It is important to remain practical: a bright line rule consistent with this position would likely be impossible to implement, especially in the current political environment. The Hunter v. Department of Education lawsuit is still in the early stages of litigation; though it represents the best opportunity thus far presented in federal court, it is not a guaranteed win. Recently, a very unwelcome development spells trouble for the plaintiffs and the LGBTQ+ students they represent: the court ordered that the Department of Justice, over its objections and assurances that it would be able to effectively defend the suit itself, will be joined by intervening parties in the defense of the religious exemption to Title IX. Three Christian universities—Western Baptist University, William Jessup University, and Phoenix Seminary—along with the Council for Christian Colleges & Universities (“CCCU”) sought to intervene in the lawsuit. In the filing, CCCU adopts sweeping and broad language that the DOJ may be unlikely to adopt itself—that “the Title IX exemption is constitutionally required.”⁹⁶ On October 8, 2021, the court issued an order allowing this intervention and therefore opening up the suit to the much more hard-lined and sweeping rhetoric of the intervenors. There is some chance of victory—albeit small—for the plaintiffs at the lower court level. However, the chances of victory would wane even more if the case were to be elevated to the Supreme Court; I do not see a path to victory for the plaintiffs in front of the current conservative-supermajority Court.

It is noteworthy that the first time the scope of the religious exemption to Title IX was adjudicated, the court ruled against the civil rights of LGBTQ+ students—in favor of the free exercise rights of religious institutions. In Maxon v. Fuller Theological Seminary, plaintiffs brought a Title IX case against Fuller Theological Seminary because they were expelled for violating “school policies against same-sex marriage and extramarital sexual activity.”⁹⁷ In November 2019, a motion to dismiss was granted in federal district court, as the court held that the religious exemption to Title IX was valid and applied in the case. Although this is a discouraging step, this was only a district court, and the Supreme Court has yet to issue a final authoritative word on the issue.

97 S. Cal. L. Rev. 737

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Sydney Smith*

* J.D., University of Southern California Gould School of Law, 2024. B.A., Bowdoin College, 2019.

When Doctors Become Cops

July 2024July 2024Teneille R. Brown*

The lines between law enforcement and health care are blurring. Police increasingly lean on doctors to provide them with genetic samples, prescription histories, and toxicology results that they could not obtain on their own. This often occurs without a warrant or the patient’s consent. At the same time, legislatures are using physicians as regulatory levers to police pregnant and transgender bodies. And due to chronic underfunding of social services, many Americans now receive pseudo-mental health treatment through the courts rather than clinics. Together, these things paint a sinister picture of law enforcement being thrust into medicine in ways that are deeply troubling and vastly underexplored.

In this Article, I reveal how the blurring of law enforcement and health care undermines core principles of medical ethics—such as privacy, accountability, efficacy, honesty, and autonomy—in the service of diametrically opposed prosecutorial goals. I walk through various examples of law enforcement’s co-option of medicine. These examples expose fundamental conflicts between the two professions that support keeping them far apart.

Scholars have done excellent work documenting the overpolicing of emergency rooms. This Article expands the analysis to a wider set of clinical domains and ratchets up the urgency by establishing police involvement in health care as a social determinant of health. When doctors become cops, this does violence to the physician-patient relationship and the (disappearing) trust on which it relies. This in turn causes demonstrable negative health outcomes. Not coincidentally, medical mistrust is highest in communities that are poor, racially diverse, and overpoliced. Thus, to improve the physician-patient relationship and promote health, I provide a few suggestions for how the line between law enforcement and health care may be better enforced.

INTRODUCTION

A. Abortion Restrictions Intensify Police Presence into Health Care

In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health, 597 U.S. 215 (2022), legislatures in conservative states have significantly restricted access to abortion.¹ One such law is Utah’s SB 174, which was written to go into effect as soon as Roe v. Wade, 410 U.S. 113 (1973), was overturned.² This law criminalizes the provision of abortion from implantation in all but three narrow circumstances.³ One of the three circumstances is if the woman was sexually assaulted.

However, it is not enough that the patient confide in her doctor that she was raped. Before terminating a pregnancy, physicians are required to verify that the rape has been reported to law enforcement.⁴ This same provision exists in other states.⁵ There is no legislative guidance on the procedure to be followed to protect the confidentiality of the patient’s medical records or the patient-provider privilege. This sort of conspicuous and ill-conceived police intrusion into medical decision-making is both exceptionally troubling and on the rise.

Such laws interfere with patient care by thrusting police into decisions that should be exclusively between patients and their doctors. Rape survivors frequently choose not to report their assault out of concerns that it will revictimize them without leading to a conviction.⁶ Under the law of several states, this rational, personal decision will now block these patients from accessing safe medical interventions. Complying with these laws puts physicians in a bind—do they fulfill their ethical obligations, or their legal ones? More importantly, such laws force patients to have their medical needs subordinated to larger prosecutorial goals. Prioritizing the state’s interest in prosecution in this way violates long-standing norms of patient autonomy and medical ethics.

The criminalization of abortion brings law enforcement’s conscription of physicians into agonizingly sharp relief.⁷ But this conscription goes well beyond reproductive care and operates on two axes. The first axis involves legislators, acting through the police, leaning on nurses and physicians to enforce moral codes that are only tangentially related to medicine. Examples include not just bans on abortion or gender-affirming care, but the implementation of prescription drug monitoring programs and the provision of addiction or mental health treatments through the carceral system. The second axis of police encroachment into health care is more historic and familiar. It involves cops asking hospital staff to provide them with biological samples that they then use to investigate drug prosecutions, car accidents, murders, and sexual assaults. Everywhere you look, it seems, cops are operating on these two axes to blur together the provision of health care with the prosecution of crime.

While these police encroachments target diverse kinds of data and endanger different aspects of health care, they each do violence to the physician-patient relationship and the trust on which it relies. They take what makes health care so unique and special—the confidentiality and ethical obligations the physicians have toward their patients—and exploit this for prosecutorial ends. The physician-patient relationship is not just some precious ideal that we need to protect out of respect for old-fashioned values. Substantial research now demonstrates that when we undermine the trust patients have in physicians, we do significant damage to population⁸ and individual health.⁹

In this Article, I explore how the blurring of health care and law enforcement violates fundamental principles of medical ethics. But I will also reveal how shaky and aspirational these core ethical principles are, and how far we are from realizing them. I establish medical mistrust, which is exacerbated by police intrusion, as a social determinant of health (“SDOH”) that has been massively underexplored.¹⁰ Not coincidentally, medical mistrust leads to poorer health outcomes and is much higher in communities that are poor, racially diverse, and overpoliced. This exacerbates health inequities, as Latinx and Black people have a long history of receiving inferior care, despite having comparable insurance and access.¹¹ To repair mistrust to improve patient outcomes and respect for autonomy, physicians cannot be perceived to be aligned with policing—an institution that is oppressive and surveillance-oriented.¹²

To justify my thesis—that law enforcement and health care need to be more completely divorced from one another—the Article will proceed in the following way. In the first Part, I will reveal how abortion restrictions are just the tip of the iceberg. In the second Part, I will describe how law enforcement easily gains access to confidential medical data. In the third Part, I establish medical mistrust as a SDOH. Unfortunately, when the police lean on physicians to do their investigative work, this has the potential to annihilate the struggling physician-patient relationship and to lead to poorer health outcomes. In the fourth Part, I provide several illustrations of how law enforcement is meddling inappropriately in health care. These examples reveal not just how pervasive the meddling has become, but also how fundamental the differences are between the two cultures’ ethics. While medicine aspires toward self-regulation, privacy, accountability, efficacy, honesty, and respect for autonomy, law enforcement resists these values. This matters because the co-option of health care by the police undermines principles of medical ethics in the service of diametrically opposed prosecutorial norms. To respect patient autonomy, repair medical mistrust, and promote individual and public health, I will conclude by suggesting a few concrete legal reforms that may better wall health care off from law enforcement.

B. Ubiquitous Police Involvement in Health Care

The post-Dobbs abortion restrictions give us a unique sense of urgency regarding the co-option of health care by law enforcement. However, abortion is just the tip of the iceberg. In many other domains, police are reaching into medical databases and spaces to gain access to information that they cannot obtain on their own.

The reason for the high quantity of police meddling in health care is two-fold. First, physicians are risk-averse and already highly regulated. Attaching threats of criminal penalties to their noncompliance with state laws will deter many of them, and it is easy to add new conditions to the renewal of their medical licenses.¹³ This is the “easy deterrence” rationale. Second, cops are constantly looking for ways to improve their crime clearance rates, or the percentage of crimes that are solved. The value of medical and biological evidence to this pursuit is enormous, and this is something hospitals have in spades. This is the “easy access” rationale. Hospitals and physicians are thus both a convenient regulatory lever and a reservoir of evidence.¹⁴

Astute observers have written about how the police have forced their way into emergency rooms in poor, urban neighborhoods.¹⁵ In one study, close to 80% of patients who had cops transport them to or visit them in the emergency department were Black.¹⁶ Police omnipresence has been shown to compromise clinical care by, for example, prioritizing the interrogation of trauma patients when they need life-saving interventions.¹⁷ Additionally, their swiping of confidential patient data in emergency departments—sometimes without a warrant or consent—appears to be rampant, and increasing, with very little oversight.¹⁸ Overpolicing in urban emergency rooms is a harrowing example of cops injecting themselves into health care in ways that frustrate patient autonomy and clinical care.

But it goes beyond this phenomenon too. To the surprise of many, police have been quietly conducting warrantless searches of various genetic databases.¹⁹ Physicians have also been asked to take on the mantle of law enforcement to limit patient access to not just abortion, but also opioid medications and gender-affirming treatments. Police administer fatal doses of ketamine to patients they diagnose as having “excited delirium” despite this diagnosis being highly contested in the medical community. Counties are expanding their “treatment courts” to provide substandard mental health and addiction treatment, with threats of incarceration for noncompliance.

In many domains, law enforcement is co-opting the practice of medicine. I will go into greater detail for each example below, as they each illustrate different violations of medical ethics norms. However, in the following Section, I will introduce the problems with community distrust of police. I will then compare this to medical mistrust and explore how the deep roots of medical mistrust are an important SDOH.

1. Police Mistrust Is at Record Highs

The public’s trust in the police is at an all-time low.²⁰ This is related, no doubt, to the fact that in the last year alone, The Washington Post reported that over 1,100 people have been shot and killed by the police.²¹ Shockingly, one in twenty homicides in the U.S. are committed by law enforcement.²² In 2022, 11% of police killings involved no alleged offense by the deceased, 9% involved mental health or welfare checks, and 8% involved traffic violations.²³ One need not linger on these data to understand why the police in the United States spark fear of violence.²⁴ People should obviously not be killed for being mentally ill or for running a red light.

Now that there is more widespread video recording of officers “as they engage in violence against Black citizens . . . the world has begun to see the human rights violations” committed against Black people by police.²⁵ In the wake of the police murders of George Floyd and Breonna Taylor, almost ninety percent (88%) of Black Americans say major changes are needed to make policing more accountable.²⁶ This is compared with 63% of Hispanic Americans and 51% of White Americans who likewise desire greater police accountability.²⁷ And since the widespread coverage of these incidents, even more examples of police brutality have impaired community trust and reduced incentives to cooperate with the police.²⁸ Awareness of police brutality has been shown to result in fewer calls to 911 and less information-sharing with the police.²⁹

2. Structural Racism in Policing

A large body of scientific research reveals structural racism in “virtually all aspects of the criminal legal system,” with Black Americans “experiencing harsher outcomes in relation to police encounters, bail setting, sentence length, and capital punishment than White people.”³⁰ While people’s trust in the police varies greatly based on their race, in general, the trust people have in police has taken a huge hit in the last few years.³¹

Researchers have begun to make the connection between police brutality and unmet medical needs.³² A proposed mechanism for this is impaired medical trust. This Article proposes a direct link between policing and inequitable health outcomes, because patients perceive medicine as aligned with law enforcement. When doctors work too closely with cops, health care is not just seen as affected by the police—it is the police. This takes medicine in the opposite direction from where it needs to go: to correct health inequities. Because trust is so vital and diminishing in health care, we must do more to ensure that the violent and patronizing cop culture does not infect the clinic.

I. MEDICAL MISTRUST IS A SOCIAL DETERMINANT OF HEALTH

A. The Physician-Patient Relationship Is Suffering

Trust is a “vital aspect of clinical care”³³ with mistrust being “a major barrier to a strong patient-clinician relationship.”³⁴ Unfortunately, the physician-patient relationship is not what it once was. Today, the ideal of the trustworthy, compassionate, attentive physician seems almost quaint. Most of us do not have a long-term, trusting relationship with our primary care doctor. There are many reasons for this.

First, patients and physicians have precious little time to build trust.³⁵ Since the 1990s, managed care insurance organizations have put considerable pressure on physicians to move quickly from patient to patient.³⁶ Seeing a high volume of patients is financially rewarded in the allocation of relative value units (“RVUs”), which is a performance metric that impacts physicians’ promotions and salaries. Additionally, doctors “face mounting demands on their time” to fill insurance authorization requests, perform utility review, train mentees, and update their recordkeeping.³⁷ Patients and physicians simply do not have the time to get to know one another in the way they did decades ago.

Research shows the best way to forge a strong therapeutic alliance is for physicians to “engage more with patients by listening to what they have to say, asking questions and showing sensitivity to their emotional concerns.”³⁸ But unfortunately, this is not occurring. The fee-for-service model reimburses hospitals and physicians for doing things, but not for talking about whether and how to do things.³⁹ Relatedly, as medicine has become more technical and specialized, there has also been “a growing substitution” of patient self-reports for those made by machines.⁴⁰ Why focus on what a patient is telling you, when you can run a test, bill for it, and see “objective” data for yourself? The overreliance on tests and technology may lead patients to feel like their personal accounts of their health histories do not matter.⁴¹

Telemedicine may also be damaging the physician-patient relationship. Something critical is lost when our regular physicians cannot see us biting our nails, rapidly losing weight, or struggling to walk. In one study of telemedicine, physicians reported they “were very concerned about the loss of personal connections and touch, which they believed diminished expected rituals that typically strengthen physician-patient relationships.”⁴² Of course, telemedicine improves access for many rural Americans. It is not a universally bad thing. But when it comes to initiating strong, trusting bonds between physicians and patients, it is a poor substitute for in-person visits.

Given these systemic pressures, it is impressive that some physicians still take the time to get to know their patients. Though of course, not all physicians do. And data suggests that patients of color⁴³ who are overweight,⁴⁴ who have intellectual disabilities,⁴⁵ or who use illicit drugs⁴⁶ are more likely to feel rushed by their doctors and to experience poor physician communication.

Most patients are familiar with the feeling of being rushed by their doctor. One famous study found that on average, physicians interrupt their patients after less than twenty seconds of the patient speaking.⁴⁷ While interruptions sometimes facilitate deeper sharing, physicians often interrupt patients in ways that discourage patients from offering additional relevant concerns. It is difficult to trust people who do not appear to listen to us.

Together, these factors contribute to a perfect storm that is weakening the physician-patient relationship. Repairing this relationship is not just a good insofar as it promotes health; it is a good on its own because it fosters informed, compassionate, and individualized care. Against this backdrop where doctors are not trusted and police are trusted even less, we need to do more to repair patient trust in health care. Allowing cops to take advantage of the trust that remains in health care to access patient data and prosecute crime does exactly the opposite. In this next Section, I will describe how medical mistrust impairs individual and public health.

B. Medical Mistrust Hurts Health

The trust between clinicians and patients does not exist in the context of an equal relationship. There is a sharp power imbalance, where the “doctor typically has knowledge that the patient lacks, and the power to order investigations and treatments.”⁴⁸ But the asymmetry flows in the other direction as well—the patient may hold private knowledge about their symptoms, their values, and their medical history that really ought to be shared.

In theory, patients can adopt the treatment plan or not, they can terminate the relationship, and they can seek treatment elsewhere. But this power is severely limited by practical considerations. For example, many patients live in rural areas, have complicated diagnoses that require specialized care, or do not have access to affordable insurance and a range of providers. Any of these can mean that they have no real choice and are “stuck” seeing particular physicians. Because patients lack the ability to see another doctor, earning the patient’s trust is essential to making sure patients receive quality care and do not feel forced to continue a disrespectful relationship.⁴⁹

Researchers have documented unacceptable levels of medical mistrust, which captures the “overall suspicion of the health care system and beliefs that health care providers and organizations may act contrary to patients’ best interests.”⁵⁰ Medical mistrust has been shown to lead to poorer health outcomes,⁵¹ and to “trigger nothing short of a public health crisis.”⁵² However, while understood to be “ubiquitous,” precise measurement of medical mistrust has been difficult because it encompasses many different things.⁵³

Even so, mistrust has been shown to cause patients to feel stressed about seeing their physician⁵⁴ and report less satisfaction with their care.⁵⁵ Medical mistrust also leads patients to refuse prescribed medications, to miss cancer screenings,⁵⁶ to not see their doctor for regular visits,⁵⁷ to discourage others from seeking treatment, to not share sensitive medical information with their providers, and to be less likely to comply with the prescribed treatment or health care plan.⁵⁸ There is even some evidence that trusting your health care provider is associated with better self-reported health status.⁵⁹ Put simply, when trust suffers, patients suffer.⁶⁰

Medical mistrust is exaggerated in already marginalized communities. It has been shown to discourage Native Americans,⁶¹ Black people,⁶² and Latinx people⁶³ from receiving all kinds of care. In groups with intersectionalities,⁶⁴ the effects of mistrust might be even more exaggerated.⁶⁵

For example, researchers have linked vaccine hesitancy to medical mistrust.⁶⁶ During the COVID-19 (“COVID”) pandemic, public health researchers observed that Black and Latinx people had more “vaccine hesitancy” despite being disproportionately impacted by COVID deaths.⁶⁷ But rather than focusing on “why people of color distrust medicine,” scholars have recently encouraged asking “how has power been abused in medicine?” and “what can institutions do to stop it?”⁶⁸ That is, why might people of color rationally fear the COVID vaccine, based on how they have been exploited and abused in the past? The burden of rectifying mistrust cannot be borne exclusively by the disadvantaged communities themselves. This is the great insight of the SDOH framework. It allays the propensity to engage in victim blaming or assuming that the alarming state of health inequity is just.

Unfortunately, the nature of medical mistrust makes it difficult to combat. In a poll by the Association of American Medical Colleges, “six in 10 adults have concerns about sharing their social and online activity data in a healthcare setting” in part due to mistrust.⁶⁹ While researchers often need access to race, income, and other sensitive data to measure health inequities, “when patients distrust the system, they are less likely to share self-identifying data.”⁷⁰ This creates an unfortunate feedback loop; the very causes of medical mistrust make patients reluctant to provide the data needed to correct it. Of course, if patients know that their health data can be shared with law enforcement, they are even less likely to share their demographic data with their doctors. This will make it even harder to run racially sensitive epidemiological studies to correct health inequities.

As a key factor in racial health disparities, distrust in health care institutions is a massively underexplored SDOH.⁷¹ It needs to be explored in the same way as other well-known factors, such as stress,⁷² exposure to high levels of industrial chemicals, air pollution,⁷³ or living in food deserts.⁷⁴ Only by viewing the co-option of health care by law enforcement as a SDOH can we appropriately evaluate the health impacts on communities of color who already experience disproportionate health disparities.

1. Medicine’s History of Injustice

Medicine has a troubled history of policing bodies and reinforcing power structures.⁷⁵ For too long, physicians from upper-class, white households have dismissed the stories of patients who were considered “disobedient” or “difficult” simply because they had different backgrounds or experiences.⁷⁶ This dynamic continues today. The disparity in class, education, physical ability, and race creates a form of epistemic injustice⁷⁷ that prioritizes the voices of patients who tell the physicians familiar stories and what they expect to hear.⁷⁸ Add to this the fact that physicians generally have poor listening skills,⁷⁹ and we can see why we need to “dethrone” physicians from their presumed superiority to respond to the SDOH.⁸⁰

Hubris and histories of racism in health care have led to justified mistrust of medical providers, especially among people with disabilities,⁸¹ women, Indigenous, Black, and Latinx populations.⁸² When reflecting on this, people often call to mind the unethical Tuskegee experiments, in which poor Black sharecroppers were deliberately infected with syphilis and denied available treatments. But by focusing on Tuskegee, we risk minimizing the geographic and temporal breadth of medical racism.

Before the Civil War, physicians “attributed poor health among slaves to their biologic inferiority.”⁸³ They ignored the fact that servitude was toxic to health while simultaneously exploiting individuals for medical research. Historically, hospitals were intentionally racially segregated, and they continue to be underfunded in racially diverse communities.⁸⁴ Up until the 1970s, Black and Indigenous women were formally and involuntarily sterilized by physicians.⁸⁵ Women in detention facilities continue to be sterilized through deception and violations of informed consent.⁸⁶ To this day, Black women are much more likely to die from childbirth because their health concerns are dismissed.⁸⁷ In one study, half of the white physicians surveyed were found to hold false beliefs about Black people’s biological differences—such as thinking they have thicker skin or their blood coagulates more quickly.⁸⁸ Infant mortality for Black babies is higher now than it was during the antebellum period.⁸⁹ To this day, physicians are more than twice as likely to call the cops when treating a Black patient compared with when they are treating white patients.⁹⁰ Reports of these disparities naturally make their way to the affected communities.

2. To Repair Medical Mistrust, Law Enforcement Must Be Walled Off from Medical Spaces and Data

At the population level, physicians are generally trusted as an institution. However, trust in the medical establishment varies significantly by class and race. People of color report lower trust in doctors and the larger health care system than do white people, likely due to the medical racism described above.⁹¹ Members of the LGBTQ community have also experienced discrimination and inferior health care treatment.⁹²

Compared with white participants, a multivariate analysis revealed that Black and Hispanic participants had 73% and 49% higher odds, respectively, of reporting mistrust in health care professionals.⁹³ Additionally, low-income families in the U.S. report being significantly less trusting of physicians and less satisfied with their care than adults who are not from low-income families.⁹⁴ Given the volume of data that demonstrates how mistrust impacts health outcomes, it also contributes to significant health care inequalities.⁹⁵ By including ratings of trust from marginalized groups, we can see that for many, the health care system is already failing to behave in ways that are worthy of trust.⁹⁶

These datapoints tell us that structural racism and discrimination persist in health care. However, the quantitative data risks masking the lived experiences of people of color, many of whom have a personal story of being mistreated by a medical professional.⁹⁷

As one physician put it, “to improve relationships between doctors and disenfranchised patients[,]” physicians must “recognize that racial preconceptions continue to affect clinical practice, even if it’s not intentional.”⁹⁸ Unfortunately, little has changed since the recognition over twenty years ago that “black Americans are less likely than whites to receive a wide range of medical services, including potentially lifesaving surgical procedures.”⁹⁹ Black people are “dying not of exotic, incurable, poorly understood illnesses nor of genetic diseases that target only them, but rather from common ailments that are more often prevented and treated among whites than among blacks.”¹⁰⁰

Medical schools in the U.S. are working to correct this. For example, during the initial COVID lockdowns, doctors protested in solidarity with Black Lives Matter activists in grassroots events called “White Coats for Black Lives.”¹⁰¹ The American Medical Association (“AMA”) has also worked to incorporate anti-racism¹⁰² and anti-ableist education¹⁰³ throughout the medical curriculum. However, they must still do more. Medicine must continue to shift its gaze to the SDOH, rather than “record[ing] politics as biological misfortune.”¹⁰⁴ To trust health care systems, patients must feel heard by their doctor, trust that their doctor is being honest and doing what is in their best interest, and feel the doctor will respect their confidentiality.¹⁰⁵

Most of the metrics on trust in medicine focus on the physician-patient relationship, because it is the most important aspect of patient trust.¹⁰⁶ As Ji Seon Song recognized, “[w]hen medical and police actors act in concert, there is the potential for their actions to amplify bias and discrimination.”¹⁰⁷ In light of the rampant violence and pervasive lack of trust in the police, repairing medical mistrust cannot be done if law enforcement intrudes on this struggling relationship by invading medical spaces and data.

In the next Section, I will pivot to explaining how it is that police gain access to confidential health information. Given that health data is considered especially sensitive, federal statutes, state statutes, and evidence rules recognize it as privileged and confidential. However, ironically, the Privacy Rule of the Health Insurance Portability and Accountability Act (“HIPAA”), which was enacted to shield medical data from unauthorized disclosure, incorporates a number of exceptions for the police.¹⁰⁸ These exceptions oddly give the state access to this highly private information.

II. HOW POLICE HAVE EASY ACCESS TO MEDICAL DATA AND SPACES

Many of the articles and cases that have analyzed whether police can co-opt health data have viewed this query exclusively through the lens of a criminal defendant’s Fourth Amendment constitutional right to be free from unreasonable searches and seizures. Fourth Amendment cases nearly always find a way to permit the unconsented-to blood draw, search of a private database, or forced involvement of physicians in policing.¹⁰⁹

The Fourth Amendment framing makes sense as an initial matter, because it provides the constitutional floor for privacy protection. However, it does not provide the ceiling. Governments can do much more to protect medical privacy than what is required by the Fourth Amendment. And by myopically focusing on constitutionality when assessing medical privacy, courts and legislatures do not take seriously the social good that comes from walling health care off from law enforcement.¹¹⁰

This is not to say that Fourth Amendment doctrine is irrelevant; it provides a critical piece of the tapestry. I will therefore explain how it has operated to generally grant police access to private medical data. For starters, if a valid warrant is issued on a showing of probable cause, the medical search would not violate the Fourth Amendment’s protection against unreasonable searches and seizures.¹¹¹ But even without a warrant, police access to medical records is often permitted as either not being a search,¹¹² being a reasonable search, or being part of a “special need” that is incidental to law enforcement.¹¹³

Even so, depending on the circumstances, police can be found to have violated a patient’s Fourth Amendment rights if they obtained private medical data without a warrant and the search was deemed unreasonable. To determine reasonableness, courts balance the government interest in obtaining the data, which is often compelling, against the “manner in which the information was gathered and maintained, and whether confidentiality is protected.”¹¹⁴ In practice, this does not limit police access too much. This is especially true when police obtain toxicology results from the emergency department to prosecute drunk driving. As Song points out, this is because emergency departments are often treated as though they are public spaces, where patients forfeit their expectations of privacy.¹¹⁵ Thus, even if the access to medical data is deemed a “search,” it will often be considered a reasonable one in light of the patients’ reduced expectations of privacy.

Given the unpredictability of the Fourth Amendment balancing test, many are concerned about the protection medical data will be afforded in the context of reproductive or gender-affirming care. At present, the case law is inconsistent in terms of whether the involuntary disclosure of private, non-emergency medical data runs afoul of the Fourth Amendment, especially when the evidence might be permitted under federal law, but not under state law.¹¹⁶ And if the courts come out differently on the reasonableness of searches in less politicized contexts of drunk driving and gunshot wounds, they will certainly be variable when dealing with prosecutions of physicians who provide highly-politicized abortion and trans care.¹¹⁷ And no matter how or why the private medical data are disclosed, once the state has access to this sensitive health data, the damage will be done. This will almost certainly chill patient access to many types of treatment.

However, to be clear, the police rarely need warrants to search in health care settings. Instead of obtaining a warrant by demonstrating probable cause, they can simply rely on subpoenas, state statutes, and HIPAA exceptions to gain warrantless access to patient medical data. Health care data has become the warrantless, backdoor, investigatory jackpot. So, how does this happen?

First, hospitals can play a quite active role in sharing patient data. The coercive prenatal drug testing program deemed unconstitutional in Ferguson v. City of Charleston, 532 U.S. 67 (2001), was a hybrid program run by both the hospital and the local police. It threatened women with criminal punishment if they did not “agree” to drug treatment.¹¹⁸ Hospitals and law enforcement conspired together to violate patient trust in what was something like a medical “sting operation.”¹¹⁹

This program exploited vulnerable patients while generating negative public health impacts.¹²⁰ That is, when pregnant women worry that they can be prosecuted for drug use, they are discouraged from seeking prenatal and addiction care, which then harms them and their newborns.¹²¹ To be clear, routine drug testing of pregnant individuals does not violate the Fourth Amendment so long as it is done initially for medical purposes and with patient consent. However, the legal consequences of the consent to the blood draw or urinalysis might not be explicit, and the pervasiveness of drug testing has led one physician to ask whether it is a “policing practice masquerading as clinical care.”¹²²

Cases like Ferguson are extreme, and hopefully rare. But the police do not need to formally run sting operations within prenatal clinics to obtain confidential medical data. Instead, they can do something much more banal. So long as the data are either incidental to law enforcement or relevant to an ongoing investigation, they can just ask nurses and physicians to provide them with it. And often, health care workers comply.

A. Cooperation by Health Care

One of the most common ways police access patient data without a warrant is to rely on nurse or physician complicity. Because the Fourth Amendment case law is messy, nurses and physicians report not being sure what the police are constitutionally allowed to do.¹²³ And even when they know disclosure is neither required nor permitted, health care workers have admitted to turning over confidential patient data simply because law enforcement asked.¹²⁴ One nurse reported how a police officer started asking investigative questions of a patient while he was being resuscitated.¹²⁵ She knew this was not allowed. But she noted that it can be awkward to tell a loitering cop, who is armed, to leave the radiology suites, or to stop observing lifesaving treatments.¹²⁶

Qualitative research has documented how physicians and nurses may divulge test results, patient treatments, and patient locations¹²⁷ to cops because they feel pressured¹²⁸ or “cornered” by armed officers.¹²⁹ This is especially apparent in bustling emergency departments where providers may feel safer having police around. A symbiotic relationship sometimes develops—in which the police protect staff from seemingly unruly patients and in turn the providers give the police access to confidential medical data.¹³⁰

The pressure that nurses report feeling to comply with police requests is warranted. In 2017, nurse Alex Wubbels was arrested after explaining to a University of Utah cop that she could not draw blood from an unconscious patient. She told the officer that because the patient was not under arrest, there was no warrant, and the patient could not consent, she could not provide a blood sample according to the institution’s policy and interpretation of the Fourth Amendment.¹³¹ After confirming she would not comply with his request, the cop lunged at Wubbels, forcing her into handcuffs and taking her outside while she screamed in protest.¹³² She ultimately settled a suit against the university for $500,000 for battery and false imprisonment. However, the media coverage of this event will likely deter other nurses from similarly pushing back against illegal police overreach. Police have come to feel entitled to emergency room patients, as if the hospital is just an extension of what happens out on the public street.

There is great inconsistency in how cases are treated when patients allege Fourth Amendment violations against the police having access to their medical data. However, the trend seems to be to allow law enforcement to use medical data and even obtain blood samples without a warrant. And there is sadly little accountability for the health care workers who are complicit. When providers cross the line and violate patient privacy, as Ji Seon Song points out, “[o]nly in the rare case has a doctor been taken to task by the courts for assisting police officers by performing procedures,” such as when a doctor “participated in a number of forced rectal examinations.”¹³³

We do not have good data on how often nurses and physicians turn over private medical data without a warrant. However, qualitative studies suggest that health care staff often comply with warrantless police requests to obtain biological samples or test results of patients without probable cause. In cases where patients are later prosecuted, they may challenge the constitutionality of the search of their medical records or the acquisition of specimens for law enforcement. But sometimes the medical data is just used to identify individuals and is never introduced at trial. In these cases, the legal remedies are quite unsatisfying.¹³⁴

B. Permissive State Laws

Another way cops gain access to patient medical data is by broadly interpreting permissive state laws. State statutes explicitly allow law enforcement to access patient data—such as toxicology or urine results in the event of a vehicle crash,¹³⁵ prescription history to regulate controlled substances,¹³⁶ paramedic data on opioid overdoses for public health reporting,¹³⁷ or positive test results for sexually transmitted disease.¹³⁸ But often, police use these statutes to obtain medical data for very different reasons than those contemplated by the statute.

Permissive state laws can provide a tremendous amount of wiggle room. In State v. Russo, 790 A.2d 1132 (Conn. 2002), the defendant challenged a warrantless search of his prescription history as violating the Fourth Amendment. The state responded that the search was reasonable because a Connecticut statute granted law enforcement access to prescription records in order to enforce controlled substance laws. It did not matter that the police inspected the patient records for a very different purpose—to prosecute fraud.¹³⁹ The court still upheld the search under a broad and deferential interpretation of the statute.

For another example, a state attorney general was investigating whether abortion clinics were performing abortions after fetal viability in violation of Kansas law.¹⁴⁰ The Kansas statute permitted disclosure of patient information “to comply with the obligation to disclose the medical basis and specific medical diagnosis relied upon [for the abortion.]”¹⁴¹ When the attorney general was later being investigated himself for misconduct and harassing the clinics, the court permitted thirty complete patient medical records to be produced—from an abortion clinic, no less—despite neither the provider nor the patients being under investigation.¹⁴² Broad interpretation of disclosure statutes with narrow statutory purposes provides another avenue for police access to confidential medical data.

Even when permissive statutes are deemed unconstitutional under the Fourth Amendment, police reliance on them will not always trigger exclusion at trial. That is, even when statutes specifically exclude use of the medical data, or the statute itself has been found to violate the Fourth Amendment, the prosecution might still be allowed to rely on the data in a criminal trial if the police can show they were confused, and relied on the statute in “good faith.”¹⁴³ The latitude shown to law enforcement in these contexts is astounding.

C. HIPAA Exceptions

In addition to state confidentiality provisions, most readers will be familiar with the Privacy Rule of the Health Insurance Portability and Accountability Act (“HIPAA”).¹⁴⁴ This federal law requires that covered entities like health care providers and insurance companies obtain the patient’s authorization before sharing their protected health information (“PHI”).¹⁴⁵ Protected health information is anything identifying an individual, created or received by a health care provider that relates “to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual.”¹⁴⁶

HIPAA is often invoked as the universal health privacy protector. But it poses almost no obstacles to the police use of medical data.¹⁴⁷ For starters, the police themselves are not a “covered entity,” so once medical data resides with them, they are not subjected to HIPAA privacy or security rules.¹⁴⁸ And even when the police request PHI from a hospital or other covered entity, the Privacy Rule permits disclosure to them for a broad variety of reasons, and without judicial involvement. For example, disclosure is permitted (1) if a state law permits it (such as the statutes above mandating disclosure of opioid overdoses), or (2) to respond to a court order, warrant, subpoena,¹⁴⁹ or summons issued by a judge or grand jury.¹⁵⁰ Perhaps most broadly, HIPAA allows covered entities to share PHI (3) to respond to an administrative subpoena or written statement by police that specifies how the request is “relevant and material” to an investigation.¹⁵¹

The only limit on these administrative requests is that they must be limited in scope “to the extent reasonably practicable in light of the purpose for which the information is sought” and “[d]e-identified information could not reasonably be used.”¹⁵² This squishy language from the Privacy Rule seemingly does not employ any balancing test. If law enforcement has made a request that asks for information that is relevant and material (a low bar) and the request fits within one of the stated uses, then HIPAA will allow it.¹⁵³

Because hospitals need not publicly report when they disclose PHI to law enforcement, we have no idea how often the police use this backdoor route.¹⁵⁴ The exception is a gigantic loophole. If nurses and physicians incorrectly interpret this exception as requiring rather than permitting disclosure of PHI, it could result in much less privacy protection against government disclosure than the drafters envisioned. And even if they interpret it correctly, the exception permits law enforcement to have access to confidential medical information any time it might be useful to their criminal investigations. They do not need a warrant. They do not even need a subpoena.

Unfortunately, in addition to allowing quite a lot of unconsented-to disclosures, trial courts interpreting these HIPAA exceptions sometimes read them to suggest that they preempt common law or constitutional privacy requirements.¹⁵⁵ Thus, if something is permitted under HIPAA, some trial courts treat it as permissible under various tort theories¹⁵⁶ and the Fourth Amendment. This is an error, as the Privacy Rule applies to a very narrow context of covered entities and was never meant to be coterminous with preexisting privacy rights.¹⁵⁷ However, confusion about HIPAA’s application is rampant. This may lead cops, health care workers, and patients to think that it replaces common law privacy protections and gives the final say on what may legally be disclosed.¹⁵⁸ It is counterintuitive and troubling that a statute meant to expand confidentiality over medical data is likely having the opposite effect.

Additionally, if the disclosure of a suspect’s medical data was unauthorized under HIPAA, that does not automatically lead to suppression in a related criminal trial.¹⁵⁹ Conversely, if the disclosure was permitted under HIPAA, it might still violate a defendant’s Fourth Amendment rights. If the medical data does need to be introduced at trial, it could be suppressed if the police are found to have conducted an unreasonable search under the Fourth Amendment. This risk might be why the police are increasingly relying on nondefendants’ medical data. Nondefendant’s medical data poses no risks of suppression or Fourth Amendment violations.

When seeking genetic data to identify suspects, police can rely on “close enough” genetic matches by requesting the medical data of a suspect’s children, siblings, or even cousins. They can then use the biological sample from the suspect’s relative to connect the suspect to the crime scene through familial matching. When done this way, the investigative use of a relative’s genetic material might never see the light of day at trial and may never need to be introduced. Because the remedy for a Fourth Amendment violation is suppression at trial, if the relative whose specimen was tested by police is never criminally charged, the relative would need to seek redress by filing a civil rights violation under Section 1983 of Title 42 of the U.S. Code.¹⁶⁰ In addition to being time-consuming and expensive, the evidentiary hurdles are quite high.¹⁶¹ And these civil proceedings would have no impact on the related conviction. This renders the legal guardrails against police overreach in this context insufficient.

In the previous Section, I explained how there are few legal hurdles to law enforcement accessing private patient data. Specifically, the way the Fourth Amendment has been interpreted, provider compliance, and broad HIPAA exceptions permit a great deal of police access to confidential medical data. Additionally, even when police overreach, the remedies that are available are insufficient to fully protect patient privacy. In the next Section, I describe why police access to medical data has the potential to do so much violence to the physician-patient relationship and core principles of medical ethics.

III. THE GUN AND THE STETHOSCOPE: TWO VERY DIFFERENT CULTURES

Conscripting clinicians to do the bidding of law enforcement is lamentable for a number of reasons. This is because the goals of law enforcement are diametrically opposed to the goals of health care. Consider the most common symbols of each profession. For physicians, it is the stethoscope, which amplifies the patient’s body and allows its rhythms to be heard. Now, consider the symbol of policing in the U.S.—the gun, which is violent and silencing. While these two professions embody more than can be encapsulated by these two symbols, the stethoscope and the gun reflect deep concrete and metaphorical differences between the two institutions. These differences are reflected in their values, ethics, and in the community’s expectations of them.

But let us start with how they are similar, and then we can highlight their significant differences. First, doctors and cops are both considered part of the helping professions. Each owes fiduciary obligations to the people they serve, which in theory, are built on trust. They both wield tremendous power over vulnerable populations, given their status as gatekeepers to important social goods. However, mounting awareness of the disparities experienced at their hands has led to reduced trust in both professions.

In practically every other way, there could not be two more different institutions. Health care is about healing and promoting evidence-based measures, while protecting patient autonomy, privacy, and health care accountability. Law enforcement is not about healing, does not promulgate evidence-based measures, and frequently disrespects individual autonomy and privacy, while dodging most forms of legal accountability. Some have argued for police to adopt a “culture of health” to improve their policing, and perhaps they should.¹⁶² But it cannot operate the other way. That is, the culture of medicine cannot be infected with the culture of policing. I will now explore various case studies of police intruding into health care. Each example reveals the diametrically opposed norms and ethics of each profession, and why this creates a strong argument for their being kept separate.

A. Different Self-Regulation Norms

In the last century, fueled in part by complicity in the Nazi concentration camps, physicians have developed and internalized sweeping reforms to their codes of ethics.¹⁶³ Emerging from this grisly past, physicians have documented many instances of their abuses of power. Principles of respect for autonomy, nonmaleficence, privacy, accountability, and justice have since been incorporated not only into the medical school curriculum, but also into the fabric of how hospitals and clinics should be run.¹⁶⁴

These ideals are not consistently realized, and sometimes they are pit against one another. However, because the principles of autonomy, privacy, accountability, and nonmaleficence are near-absolute, when physicians fail to realize them, these norms are likely to be regulated by the physicians and hospitals themselves—even in the absence of any legal liability. As compared with law enforcement, physicians extensively self-regulate through governing bodies and professional associations.¹⁶⁵ And of course, on top of their self-regulation, if physicians breach confidentiality, fail to obtain patient consent, or cause harm through their negligence, they are frequently civilly sued and held accountable for malpractice.

When it comes to honesty, almost seventy percent (69%) of Americans now rate the honesty and ethical standards of physicians as “very high” or “high.”¹⁶⁶ Most, but certainly not all, Americans feel safe entrusting our physicians with sensitive health information about ourselves or our family members that we would never willingly give to the cops. This did not happen by accident. This is the result of decades of developing cultures of honesty and disclosure.¹⁶⁷ Overall, trust in clinicians in the U.S. remains relatively high, though it could and should be much higher, particularly among the most socially disadvantaged groups.¹⁶⁸

By contrast, police rarely hold themselves accountable for the violence that they perpetrate, which is often not just careless, but intentional.¹⁶⁹ If anything, police culture “tolerate[s] and encourages” misconduct by framing things in terms of “us versus them”—where a certain amount of brutality is considered necessary to protect law enforcement from the communities they serve.¹⁷⁰

And when it comes to honesty, rather than regularly exposing mistakes, as is done during medical peer review meetings, cops are discouraged from disclosing misconduct or perjury by fellow officers. This practice of solidarity has been referred to as the “blue wall of silence.”¹⁷¹ This code of silence and resulting lack of transparency makes it difficult to identify problem officers and widespread corruption. Experts who have examined root causes of police misconduct have concluded that “the roots of police misconduct rest primarily within the organizational culture of policing.”¹⁷²

To the extent police officers support ethical codes of conduct, they appear to do so instrumentally to prosecute crime. And perhaps this makes sense because they are accountable to the public, and not to individuals. That is, respect for autonomy does not appear to be an end in itself, but a means of having a better rapport with the community and increasing crime clearance rates. Conversely, in medicine, there are precious few actions a clinician can take that violate a competent individual’s autonomy, because autonomy is a deontological obligation that clinicians are bound to uphold. These different institutional values and goals lead to very different patient expectations of clinicians and cops. If cops intrude on clinical spaces in ways that violate autonomy, patients may worry that physicians will do the same—and indeed they might at police behest.

B. Different Privacy Norms

Cops and clinicians also have very different norms around privacy and confidentiality. Patient privacy is considered by the American Medical Association (“AMA”) to be “fundamental, as an expression of respect for patient autonomy and a prerequisite for trust.”¹⁷³ The AMA Code of Ethics even spells out the different zones of privacy that physicians must respect: physical space, personal data, decisional privacy, and associational privacy.¹⁷⁴ Ethically, physicians should inform patients when their privacy has been breached, separate from any legal obligations.

Physicians also have common law fiduciary obligations for “confidences communicated by a patient [to] be held as a trust.”¹⁷⁵ Texas law stresses that due to the “highly personal nature of [medical] information[,] [it] places a heavy responsibility on the trial court to prevent any disclosure that is broader than necessary.”¹⁷⁶ And every state has now created a statutory physician-patient privilege of some form that prohibits disclosure of statements¹⁷⁷ and medical records¹⁷⁸ in court without the patient’s consent.¹⁷⁹ The privilege promotes “free and full communication between a patient and his doctor so that the doctor will have the information necessary to competently diagnose and treat the patient.”¹⁸⁰ Indeed, courts have warned against jeopardizing the “sanctity” of the physician-patient relationship by divulging patient information to third-parties.¹⁸¹ Others have stated that “the patient [has] the power to reveal the private information to the persons the patient chooses, reinforcing the [physician-patient] privilege’s policy of patient autonomy and privacy.”¹⁸² It is difficult to square these unequivocal statements with granting cops broad access to sensitive medical information, just because they ask.

If patients do not trust that their communications will be private, they will keep secrets from their doctors that will frustrate their care.¹⁸³ Even worse, they may refuse to seek important prenatal or emergency care altogether. Additionally, confidentiality fosters a feeling of safety and sanctuary between patients and physicians, which signals that, as it relates to the physician’s goals, the needs of the patient are paramount even to those of society.

People (sometimes reluctantly) must also share sensitive and humiliating information with cops. Even so, there are no norms of confidentiality in law enforcement. There are also no common law, statutory, or evidentiary requirements that information shared with police be kept confidential. If anything, in law enforcement, the norms generally run in the opposite direction.

Witnesses largely lose control over their testimony when it becomes part of an investigative record. For example, Chanel Miller recounts in her beautiful memoir, Know My Name, how painful it was to realize that intimate photos of her naked, assaulted body would be shared in a crowded courtroom during the prosecution of Brock Turner.¹⁸⁴ Once the police are involved, the victim’s images are no longer private.¹⁸⁵ This is true regardless of how sensitive or embarrassing those images or statements might be. This is not to say that the police are unethical—this is just to say that their code of ethics do not include honoring confidentiality.

1. Police Search Clinical Laboratories and Biobanks

Genetic information is one of the most sensitive types of information connected to us: it reveals predictive information about our future health and our relatives, it does not change over time, and we are only scratching the surface of what it all means.¹⁸⁶ Recognizing that genetic material is highly sensitive, but might be used nefariously, Congress passed a federal statute in 2008 to restrict its use in the provision or pricing of health insurance.¹⁸⁷ Despite its extensive protection in health care, genetic information receives meager confidentiality safeguards when used by cops. The Fourth Amendment jurisprudence has shockingly analogized discarded genetic samples to trash, permitting its warrantless seizure.¹⁸⁸

Given the value of genetic samples to solving crime, it is no wonder police use of genetic material from health care databases is so common. In 2005, police in Kansas subpoenaed a DNA sample from a woman’s pap smear to connect her father to a string of murders. Through the use of her medical sample (which had been held in a Kansas health clinic), without her notice or consent,¹⁸⁹ the police confirmed that her father, Dennis Rader, was likely the BTK serial killer.¹⁹⁰ This connection gave them probable cause to arrest the suspect. Rader was later convicted of ten counts of first-degree murder.¹⁹¹

2. Police Search Public Health Newborn Screening Genetic Databases

Recently in New Jersey, a child’s genetic sample—also obtained in a health care setting—was used to implicate her father in a sexual assault.¹⁹² The child, who is now nine years old, had her heel stuck by hospital staff when she would have been just a couple of days old.¹⁹³ The heel stick was part of New Jersey’s mandatory newborn screening program, which blends together individualized patient care with public health goals.¹⁹⁴ Because the database is maintained for public health reasons, the consent process is not as robust as it is in regular clinical decisions.¹⁹⁵ In the absence of a formal refusal, hospital staff collect the blood samples on filter paper that they use to test the baby for dozens of serious, hidden diseases. The residual samples are often maintained in public health facilities.¹⁹⁶

In the New Jersey case, law enforcement suspected that the child’s father had committed a sexual assault.¹⁹⁷ When they realized he had a child in New Jersey, they accessed the child’s state newborn screening database without a warrant. A comparison of the crime scene DNA and the blood on the screening card revealed the newborn to be a first-degree relative of the perpetrator. This gave them the probable cause they needed to arrest the father for the assault.¹⁹⁸

News of this prompted a lawsuit by the New Jersey Office of the Public Defender against the Department of Health (which maintains the screening cards).¹⁹⁹ The complaint asserted that parents are not told that their child’s DNA will be placed in this database and potentially used by law enforcement. The litigation resulted in the state admitting to using the newborn bloodspots, without parental consent, in at least five other cases that resulted in prosecutions. Legislators in New Jersey proposed a bill in 2022 to prohibit the use of newborn blood spots for criminal investigations without parents’ affirmative consent, but the bill has stalled in committee.²⁰⁰

For Fourth Amendment purposes, the lack of any consent for secondary law enforcement use makes this case very different from the use of a public genetic database, called GEDMatch, to apprehend the Golden State Killer in 2018.²⁰¹ So-called forensic genetic genealogy relies on public genetic databases, in which users voluntarily upload their genetic information from Ancestry.com or 23andMe to facilitate their personal genealogical research. This was also how police identified the man who murdered four college students at the University of Idaho.²⁰²

In this case, however, parents were not uploading their child’s genetic profiles to a public website for recreational purposes. Rather, the genetic newborn screening bloodspots were obtained in a hospital, exclusively for medical purposes. This draws hospital staff into the prosecutorial process in a very different way.

Because the newborn screening program is not completely voluntary, and parents usually must affirmatively opt out rather than opt in,²⁰³ there should be no unconsented-to secondary uses of this data. It only takes one highly publicized instance of misuse, such as in the New Jersey case, to deter parents from participating in the screening program. If parents opt out, newborns will lose the huge benefit of detecting rare diseases that can be fatal if untreated.²⁰⁴ Given that overpolicing and distrust is already more rampant in communities of color, there is reason to worry that blurring the public health goals of newborn screening with the prosecutorial goals of criminal investigations will cause greater health disparities.

Some may argue that the use of newborn screening bloodspots is justified, on an instrumentalist account. On this view, the data is just sitting there in a warehouse, waiting to serve the public and identify rapists, murderers, and other “bad” people. In response to this, I offer two thoughts. First, we ought not to concede that the inquiry is a consequentialist one, as opposed to holding firm in the obligations to keep medical data private. And second, even on the instrumentalist account, it is not clear that providing cops access to genetic newborn screening databases will yield net benefits to society. Are dozens of children dying from preventable diseases obviously worth less than a murder prosecution? The life of a child who dies because his parents opted out of the screening program is just as valuable as the life of a murder victim for whom the police seek justice. The public should be able to debate the competing values of these institutions, rather than the prosecutorial goals always trumping those of public health.

Additionally, the police may not be able to handle these sensitive specimens in a way that adequately maintains confidentiality.²⁰⁵ The storage, labeling, and transfer of genomic materials is highly regulated in health care settings and laboratories.²⁰⁶ Because data stored by law enforcement is not subject to health privacy or clinical laboratory regulations, medical data could find its way into an investigative police file, and be treated far too cavalierly.²⁰⁷

This fear is not exaggerated. In San Francisco in 2016, a woman provided her DNA to police as part of a sexual assault rape kit. Without her knowledge or consent, in 2021, police used her genetic sample to charge her with retail theft.²⁰⁸ This horrific use of her genetic information reveals the lack of respect for privacy in law enforcement. Once they have your data for one purpose, they may feel entitled to use it however they please. And just as we worry that parents will opt out of newborn screenings if they think their samples are accessible to law enforcement, sexual assault victims are now given yet another reason not to report their assault to police.

All of this blurring of genetic data with law enforcement occurs amidst considerable police secrecy. We do not know how often police access medical or public health databases; law enforcement does not report this.²⁰⁹ This is an additional difference between cops and clinicians. Clinicians are much more likely to report on their own internal practices, either due to accreditation requirements or because of their civil commitment to transparency. Cops, on the other hand, tend to be very secretive about their own internal processes—using privacy as a shield and sword when it comes to their own institutional data.

C. Different Accountability Norms

One reason for the different privacy norms has to do with who each profession sees as their “client.” Medical institutions must address social injustice at the policy level. However, individual physicians do not owe duties to society generally when making treatment decisions.²¹⁰ Instead, their duty is to the individual patient.²¹¹ This has been enshrined in some states’ common law. For example, physicians in Arizona owe a fiduciary duty to their patients “to exercise the utmost good faith” and to “act in the best interests of his patient so as to protect the sanctity of the physician-patient relationship.”²¹²

This focus on the individual can create conflict between medical and public health ethics. For example, during pandemics, governments might ask physicians to allocate scarce resources like ventilators or antivirals to serve population health. Because physicians see themselves as agents for individual patient care and not as instruments of public health, having to do this caused some physicians moral distress.²¹³

1. Police Are Increasingly Unaccountable to Private Individuals and the Public They Serve

To law enforcement, conversely, the client is the public, not any one individual. The first sentence of the International Association of Chiefs of Police Code of Ethics states that the police officer’s “fundamental duty is to serve mankind.”²¹⁴ Police success is measured in terms of public safety statistics measured at the population level. The utilitarian framework contributes to an ideology of police being unaccountable to individuals for the harms they cause.

The unaccountability of law enforcement plays out directly in negligence law, where police are often immunized from liability under the “public duty doctrine.”²¹⁵ This common law doctrine varies a bit from state to state. However, it essentially holds that cops cannot be held liable for an injury if they fail to perform a duty, and the duty is “owed to the general public rather than to an individual plaintiff.”²¹⁶ For police to owe a duty to affirmatively act to protect an individual, some special, pre-injury relationship must exist between the cop and the injured party, the injured party must be in custody, or the cop must have created detrimental reliance.²¹⁷ Even grossly negligent failures by a cop may not be considered a basis for tort liability, as cops are protected by the discretionary nature of their decision, the public duty doctrine, and other government immunity provisions.²¹⁸

The common law doctrine of qualified immunity further shields the police from individual liability for constitutional rights claims unless the officials violated “clearly established law.”²¹⁹ The specter of immunity impacts the likelihood that individuals will even file suit.²²⁰ Qualified immunity for civil rights violations has received well-deserved criticism in recent years due to media coverage of appallingly high levels of police killings.²²¹ Shielding police from civil lawsuits in all but a tiny fraction of cases, the doctrine “serves as a barrier to incentivizing police officers to do better when dealing with the public.”²²²

This patchwork of immunities reveals a picture of police that are increasingly unaccountable to the public they serve. This led one judge to write that “liability for municipal employees is effectively dead.”²²³ Meanwhile, the duties of medical professionals are expanding to protect nonpatients and unnamed third-parties the physicians have never met.²²⁴

These opposite trajectories bear emphasizing. In the last fifty years, physicians, nurses, and therapists have seen sharp increases in their liability through expanding notions of negligence obligations.²²⁵ Physicians in Pennsylvania have duties to protect or warn a patient’s neighbors, even when they have never met them or know their names. Somewhat paradoxically, physicians have been asked to pay for accidents that may even be principally caused by law enforcement. I will explain how this came to be, below.

2. Physician Accountability to the Public Is Expanding

The landmark case of Tarasoff v. University of California, 551 P.2d 334 (Cal. 1976), is an important illustration of the asymmetrical obligations owed to the public by health care professionals and law enforcement.²²⁶ Because it was a key factor in the erosion between health care and law enforcement, I will go into a bit of detailing describing the case here. In Tarasoff, a young man named Prosenjit Poddar brutally killed fellow Berkeley student Tatiana Tarasoff. In Poddar’s criminal trial, the family discovered that Poddar’s therapist had breached confidentiality—risking tort liability—to report Poddar to local law enforcement. The therapist was concerned for the unnamed woman (Tatiana) whom his client had admitted he wanted to harm. Discovering this, Tatiana’s parents then sued the police, the university, and the individual therapist who had treated Poddar in negligence—for failing to warn their daughter of Poddar’s threats.

The facts of this case are quite remarkable. When the therapist called the campus police, the police detained Poddar and then let him go because he “appeared rational.”²²⁷ The police were sued but were given statutory immunity because their decision to release Poddar was part of their public duties and was discretionary. The court reasoned this was appropriate because courts should not be second-guessing the executive branch.²²⁸

The therapist, on the other hand, was found to have a duty to protect Tatiana. The California Supreme Court suggested that the therapist was careless for not figuring out that Poddar’s target was Tatiana, and then personally reaching out to warn her. How the therapist was reasonably supposed to do this in the 1970s, without Google or Tatiana’s contact information, much less any training in risk assessment or violence prevention, remains a mystery.

An oft-cited section from the opinion states that patient-psychotherapist confidentiality “must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.”²²⁹ Many follies in the co-opting of medical privacy to serve law enforcement goals may be traced to this opinion, and this singular sentence. Even the HIPAA exception that permits unauthorized disclosure if someone threatens themselves or others is referred to as the “Tarasoff exception.”²³⁰

After Tarasoff, judges extended affirmative duties to warn nonpatients to social workers and physicians. Clinicians may be liable for negligence if they do not violate patient confidentiality to prevent imminent, serious bodily harm to an identifiable person.²³¹ While physicians already had duties to report infectious diseases, Tarasoff can be viewed as creating a sea change in creating broad obligations for therapists, and then other clinicians, to protect the public health and safety. Unsurprisingly, therapists really dislike being asked to violate patient confidentiality to disclose imminent risks to third parties, as they worry it chills therapeutic speech and can stymie treatment. It also runs counter to principles of beneficence—the ethical duty to prioritize the interests of their individual patients.

The Tarasoff majority created new duties for therapists by exploiting the special relationship between the therapist and patient and using it to generate duties to people outside of that relationship.²³² Put differently, the court took the very things that made therapeutic relationships special and sacrosanct—confidentiality and trust—and exploited them for law enforcement goals. Many take this “special relationship” argument at face value and assume that because the therapist had a trusting relationship with the murderer, this naturally led to his owing a duty to the murderer’s victim.²³³ But this move was and is extremely counterintuitive.

Imagine extolling the cherished relationship between mother and son, and then requiring the mother to divulge her son’s secrets to prioritize some other kid’s needs. The obligations to third parties is a weak link in the reasoning of Tarasoff that is assumed rather than defended. As a landmark example of the co-option of health care by law enforcement, the Tarasoff decision has likely done a great deal of violence to the therapeutic relationship.

3. The Tarasoff Ruling Frustrates Psychiatric Care

Indeed, shortly after the case was decided, a whopping eighty percent of therapists “observe[d] greater patient reluctance to discuss violent thoughts,” and sixty percent felt “that patients were at least somewhat more reluctant to discuss sensitive information.”²³⁴ In addition to chilling patient willingness to discuss sensitive matters, therapists also erred on the side of restricting patients’ freedoms. A third of therapists reported being “more likely after Tarasoff to commit patients involuntarily to the hospital.”²³⁵ This might not be terrible policy if it helped patients or prevented violent crime. But that appears not to be the case. One study using a fixed-effects model found that mandatory duty-to-warn laws actually resulted in an increase in homicides of five percent.²³⁶

Of course, recognizing the vulnerability of patients and the potential for abuse, physicians and nurses are accountable to the public in many other ways. If they abuse patient trust or fail to execute their duties, they can lose their professional licenses,²³⁷ be denied hospital admitting privileges,²³⁸ and may also be liable for fines for violating the Health Insurance Portability and Accountability Act.²³⁹ They also may be prosecuted for many health-care-specific types of self-dealing, fraud, and misrepresentation.²⁴⁰ And of course, unless they work for a public, state-run hospital, they can be, and frequently are, sued for ordinary common law malpractice claims.²⁴¹

D. Different Efficacy Norms

Therapists worried (correctly) that the Tarasoff ruling would pierce a huge hole in patient confidentiality, demand clairvoyance,²⁴² and not deter much crime. They were right. Without gathering any data whatsoever, Tarasoff-type expansions of duties have knocked down the preexisting wall between health care and law enforcement. This is concerning, but unsurprising. Judges do not conduct research on the efficacy of the policies they propose, and neither do the police.

Even law enforcement interventions that are passed by statute and capable of being carefully studied first by experts are almost never evidence based. Of the scant few police interventions that have undergone validity or reliability testing after the fact, the large majority have not been shown to work at all.²⁴³ This means, in effect, that law enforcement is allowed to experiment on the public. This makes it all the more appalling that they are then immunized from negligence when they get it wrong.

This is diametrically opposed to ethical principles in clinical medicine.²⁴⁴ Virtually no treatments should be offered to patients without testing their safety and efficacy first. An untested intervention might actually cause harm as opposed to just not work, which would lead to violations of the ethical principle of nonmaleficence (colloquially, “do no harm”).²⁴⁵ While all health care involves some uncertainty, to experiment on patients, physicians must first demonstrate that no safer options have worked.²⁴⁶ To deviate from an accepted standard of care, physicians must have data that the new path is equally safe and potentially more effective. This is not an ethical norm held by law enforcement. In the following Section, I explore two examples of law enforcement dabbling in health care in ways that resemble raw experimentation rather than evidence-based care.

1. Examples of Law Enforcement Providing Experimental “Treatment”

i. Excessive Ketamine Administration

In August 2019, a twenty-three-year-old Black man named Elijah McClain was stopped by police on his way home. Someone reported he was “acting suspicious” though he was not suspected of any crimes.²⁴⁷ Three cops restrained Elijah in a chokehold and then handcuffed him while he stated he was an introvert who never even hurt flies. The police claimed after the fact that McClain went for a gun, but there is no evidence of this. When the paramedics arrived, at law enforcement’s request, they administered five milliliters of ketamine without knowledge of Elijah’s vital signs, asthma, or mental health history.²⁴⁸ Elijah went into a coma and later died. The final autopsy report indicated a high dose of ketamine contributed to his death. The police officer who put McClain in a neck hold after he was administered ketamine was acquitted of negligent homicide and manslaughter.²⁴⁹

While law enforcement may need to restrain individuals who are physically threatening them, they seem to have no internal criteria for how the restraint will be done ethically and according to best medical practices. In Elijah’s case, there was no evidence that he needed the ketamine to be restrained. Indeed, he was already in handcuffs.

Unfortunately, police often rely on the controversial diagnosis of “excited delirium” to administer ketamine to stressed individuals.²⁵⁰ As Osagie Obasogie has written, “there is little scientific evidence to support claims that excited delirium exists as a legitimate psychiatric condition.”²⁵¹ Even so, it is increasingly being used to explain “suspicious deaths that occur in police custody.”²⁵² Reviews of police custody deaths validate that excessive use of ketamine is often the primary cause of death, as law enforcement are administering doses of sensitive medication without adequate medical training or supervision. This is yet another troubling example of the medicalization of criminal investigations, using nonevidence-based “treatments.” Police have inadequate training on how to assess the health status of individuals. And yet, they, along with paramedics, routinely experiment on a case-by-case basis, injecting powerful medications into people experiencing mental health crises.

ii. Drug Courts Provide Nonevidence-Based Treatment

Drug courts have proliferated in the last two decades as a result of the failed War on Drugs and mass incarceration.²⁵³ Qualifications for drug court vary, but state and county programs typically allow people charged with nonviolent crimes to take a plea in abeyance, which will disappear so long as they graduate from a diversion program such as drug court. Drug courts often involve a county judge overseeing someone’s treatment program with regular check-ins with parole officers, treatment providers, and counselors. Participants must appear before their judge and explain any relapses they have had. Judges will often place requirements on graduation from drug court, such as obtaining and keeping a job.

Drug courts provide an on-ramp to treatment. Compared with probation-as-usual, some studies suggest they reduce recidivism rates.²⁵⁴ However, because addiction is a disease, the primary comparison should not be criminal metrics, but clinical ones.²⁵⁵ We do not know how drug courts compare to routine, affordable evidence-based medical care for addiction because access to this treatment does not exist in the United States.²⁵⁶ Instead, we funnel addiction “treatment” through the prison system or through highly unregulated addiction clinics that often do not have even one licensed medical provider.²⁵⁷

The blending of punishment and treatment goals problematically blurs the lines between health care and law enforcement. People in recovery are expected to check in with their parole officer and attend drug court regularly with the threat of incarceration looming in the background. These check-ins make it difficult for poorer people living on the margins and without transportation to sustain employment. The result is that the carceral state is engaged in a great deal of surveillance and treatment that should be provided not in the courtroom, but in the clinic.²⁵⁸

While some of the treatment programs mandated through drug court are evidence-based, many are not.²⁵⁹ As a result, participants in drug courts often get mixed messages about the value of medication to their recovery. For example, despite being highly effective and the “gold standard” for opioid use disorder, some drug court programs prohibit the use of buprenorphine to curb opioid cravings.²⁶⁰ For decades, many drug courts have considered medication for opioid use disorder (such as methadone) to be taboo because it is “just another addiction.”²⁶¹ This perspective ignores the reliable empirical data that when properly dosed, opioid agonists like buprenorphine can keep people employed and able to break the cycle from craving to binging.²⁶²

There are unfortunately great disparities between courts in the level and quality of addiction care that participants receive. Even some of the evidence-based drug courts that contract with licensed addiction providers require participants to attend group therapy through Alcoholics Anonymous meetings.²⁶³ Group therapy can be a very useful form of social support to individuals in recovery. However, in some counties it is the primary method of “treatment” for individuals in drug court. This is a problem because its faith-based message is “not a substitute for scientifically valid addiction treatment and should not constitute the primary form of medical assistance received by drug court participants.”²⁶⁴

2. Police Are the Default Providers for Patients in Crisis

Because the U.S. has failed to fund many types of social services and behavioral health care, the police are often called on when people are in crisis.²⁶⁵ When police are the hammer and the only tool we have, every social service—from “traffic stops and noise complaints to evictions, overdoses, and psychiatric emergencies”—becomes their nail.²⁶⁶ We have culturally come to depend on the police as the key point-of-access for the delivery of addiction treatment, mental health care, and even the reporting of child abuse, despite their inability to meet vulnerable patients where they are.²⁶⁷ To be clear, police departments may not desire being frontline medics. However, due to the chronic underfunding of behavioral health services, police are much more likely to be the first and last resort for people in crisis.²⁶⁸

While crisis-trained police can reduce escalation and help divert people to treatment,²⁶⁹ these programs are only successful relative to the status quo of carceral, law enforcement methods.²⁷⁰ And while they may be “associated with reducing recidivism and lowering costs, . . . there is little association between program participation and improved behavioral health.”²⁷¹ That is, they might reduce crime, but they do not appear to promote health. And yet, state governors and mayors are expanding nonevidence-based programs to funnel “treatments” for mental illnesses through law enforcement and the criminal justice system.²⁷²

In California, the “CARE Court” will “connect[] people in crisis with a court-ordered treatment plan for up to two years, while diverting them from possible incarceration, homelessness or restrictive court-ordered conservatorship.”²⁷³ Programs like this reveal how we have completely given up on providing actual, evidence-based mental health treatment and instead criminalize poverty and mental illness.²⁷⁴ The vast majority of unhoused people with addiction or other mental illnesses receive no treatment.²⁷⁵ And when this is the reality—where we have given up on providing universal mental health treatment—the illnesses do not simply disappear. They show up in ways that are funneled by default through law enforcement and the criminal justice system.²⁷⁶

CARE Court and similar programs only seem progressive if they are compared to incarceration. When compared with the receipt of top-notch, evidence-based treatment, they fall woefully short.²⁷⁷ And yet, we lack the collective imagination or will to treat people in the clinic rather than the courtroom.²⁷⁸ It would be far better to provide mental health treatment wholly divorced from the threat of punishment. The looming stick of incarceration distracts from the provision of quality, evidence-based treatment.

Providing “treatment” through criminal courts confuses the roles of law enforcement and clinicians. Participants may come to view clinicians as being inherently aligned with the police state. If you are used to your treatment provider talking about your mental health struggles with your parole officer, counselor, or judge, you might come to think these disclosures are normal outside of this context. You might also not tell your court-appointed provider everything that they need to know to adequately treat you; if you say the wrong thing, it might delay graduation from drug court or any other diversion program. But most importantly for our purposes, the treatment that is provided by these diversion programs is often out-of-date and not evidence-based. This will impair patient trust in health care. In the next Section, I will explain how another ethical principle, honesty, is also critical for trust. I will discuss how it is a cornerstone of medicine, but not of law enforcement, and why this matters.

E. Different Honesty Norms

There used to be norms of “benevolent deception” in medicine,²⁷⁹ where physicians did not disclose terrible prognoses to patients to give them hope. This is no longer ethically or legally permitted.²⁸⁰ The AMA Code of Ethics requires physicians to maintain “open communication between physician and patient” as “essential for trust in the relationship.”²⁸¹

If a clinician is dishonest in any way, this will negatively impact the care the patient receives, the willingness of the patient to seek care, and the likelihood that the patient will see the clinician as protecting their best interests.²⁸² Deception is universally condemned in medicine.²⁸³ It impairs shared decision-making and “fundamentally undermines patients’ autonomy in nearly all situations.”²⁸⁴ Clinicians who lie to patients can be sued and investigated for professional ethics violations.²⁸⁵ They could also potentially lose their license.²⁸⁶

Police, on the other hand, routinely lie to witnesses to get them to cooperate.²⁸⁷ For example, they may tell someone their statement is not being recorded when it is, or say they have video footage of the defendant committing the crime, even if this is not the case. Courts do not find this violates defendants’ due process rights.²⁸⁸ It is well-recognized that “[t]he police are permitted to lie or use some deceptive methods in their questioning as long as the deception was not . . . so extensive as to induce a false confession . . . .”²⁸⁹ In this regard, health care and law enforcement are quite distinct. Physicians should not assume that patients are lying, because the physician and the patient should theoretically be on the same page. However, for the police, the need to investigate a crime means everyone is presumed to be hiding something. They have therefore “come to believe that lying is a necessary and justifiable component of their jobs.”²⁹⁰

Police are allowed to use deceptive methods to obtain evidence.²⁹¹ For example, DNA that a suspect unwittingly leaves on an armchair may later be analyzed without a warrant and without violating the Fourth Amendment.²⁹² If one technically agrees to provide a DNA sample, but did not feel they were free to refuse, this is presumed to be voluntary consent in the police context.²⁹³

Some have argued that police surreptitiously obtaining genetic samples for investigative purposes is unethical because they “bypass[] the codes of informed consent.”²⁹⁴ In the medical context, the phrase “informed consent” is a term of art. It “requires that a patient understands what is being done to her before she agrees to be touched by a physician or researcher.”²⁹⁵

A physician’s failure to provide informed consent can result in battery or medical malpractice liability. It is a well-developed concept and obligatory.²⁹⁶ But this is not true for law enforcement, which is not an institution built on honesty, transparency, or trust.²⁹⁷ The different disclosure and transparency norms between health care and law enforcement stem from the different weight each puts on the value of autonomy. In the next Section, I will explore the principle of autonomy, and how it steers medical ethics but not police practice.

F. Different Autonomy Norms

Despite physicians and nurses having a great deal more clinical education than most of their patients, they should not tell the patient what to do with their bodies.²⁹⁸ In medicine, respecting autonomy means that patients have the freedom to make decisions for themselves and determine the course of their care.²⁹⁹ Autonomy does not mean patients get to demand specific things. Rather, it means they should be presented with the options—their risks and benefits—and be given the chance to ask questions.

Patients cannot make autonomous decisions if physicians do not share information that would be material to their decision.³⁰⁰ Respect for autonomy means that patients might make choices that appear irrational to physicians (like refusing chemotherapy), but stem from personal goals of care. Thus, respecting autonomy means respecting the patient’s idiosyncratic values and right of self-determination.

There is no corollary respect for autonomy in law enforcement. There is not a police code of ethics that ensures that autonomy is respected. Indeed, manipulative or sneaky tactics might be instrumentally encouraged to detain or interrogate individuals.³⁰¹ This provides yet another critical difference between the two institutions and another basis for keeping them separate. To trust physicians, patients must not come to expect their doctors to treat them like cops do.

The next two examples I will explore demonstrate how the legislature disrespects autonomy by refusing to allow patients to make medical decisions for themselves. If the legislature has decided that a type of health care—such as abortion or gender-affirming care—is morally suspect, they regulate it heavily, using health care licenses and professionals as the enforcement mechanism. And yet, states only have the ostensible moral authority to regulate these practices in the way they do because at base, they do not consider them to be legitimate health care. If they did honor them as valid treatments, they would have no authority to stick their noses in a conversation that should be between patients and their doctors.

1. Limiting Access to Lifesaving Abortion Care

Governments are presently using their police power to block access to critical health care—showing perhaps the greatest disrespect possible for the autonomy of people who can become pregnant. Statutes that have restricted access to abortions since Roe v. Wade was overturned demonstrate a remarkable lack of recognition of how they require physicians to violate medical ethics.³⁰²

Because these power grabs by law enforcement are not evidence-based, the way the exceptions are crafted reveals complete naivete about how medicine is practiced. For example, the meaning of terms like “medical emergency” have already been tested in hospitals across the country. In Missouri, a woman named Mylissa Farmer went into labor at 18 weeks with a desired pregnancy. Her water broke and she had vaginal bleeding and cramping.³⁰³ When emergency physicians assessed her, they said the baby girl she was carrying would not survive. However, because it was technically still alive, Missouri’s post-Dobbs abortion ban would not permit them to perform an abortion, even to prevent serious complications to Mylissa. Unfortunately, her physicians did not think she was close enough to death to justify the termination under Missouri’s law. Mylissa’s doctors told her she would just need to wait until her “vitals plummeted or infection set in, or the fetus’ cardiac activity stopped” before they could intervene.³⁰⁴ This put her at great risk, as she attempted to travel to a neighboring state while in a precarious and unstable situation.

The Missouri statute, and others like it, tie physicians’ hands and do not let them do what they know is best for the birth mother and her baby, which is to terminate the pregnancy compassionately and safely.³⁰⁵ There is already mounting evidence that in other states, like Texas, patients are suffering from preventable complications that are caused not by medicine, but by criminal laws.³⁰⁶ These abortion bans are obviously not meant to respect the autonomy of women and people who can become pregnant. In fact, they are written in such medically naive ways, they might even be designed to do the opposite.

In an effort to advance a pro-life, anti-choice agenda, abortion bans forget that they are conscripting physicians to violate their code of ethics in the service of prosecutorial goals. They also forget that medical decisions are not black-and-white. Several of the statutes are written as if a siren goes off when someone’s life is at risk.³⁰⁷ But that is not how critical situations arise. A pregnant person’s vital signs can change rapidly, often without advance notice. Someone can seem stable, and then two minutes later they are crashing.

Finally, “medical emergencies” are not declared without patient input. Respect for autonomy means that physicians do not unilaterally tell patients when heroic life-saving interventions will be used. Whether a patient wants chest compressions or a ventilator depends on their values and personal goals of care. The exceptions that only permit abortions when the pregnant person is near death ignore the very purpose of medicine. Medical ethics requires that physicians do what they can to promote healing and to help people thrive—by promoting autonomy and beneficence—and not just to prevent death.

Other abortion laws exhibit additional “black-and-white” thinking about medicine.³⁰⁸ Utah’s current eighteen-week ban permits abortions if the fetus has a lethal defect or severe brain abnormality that is “uniformly diagnosable.”³⁰⁹ However, this fundamentally misunderstands the way bodies present themselves and the uncertainty inherent in many clinical situations. While some fetal defects are expressed with near certainty, whether a particular defect will be fatal and within a particular timeframe is rarely something that can be uniformly diagnosed.³¹⁰ Medically speaking, the phrase “uniformly diagnosable” is nonsense. These are just some of the terrifying real-world problems that arise when legislators try to commandeer the practice of medicine, with the threat of criminal consequences to physicians for noncompliance.

Physicians in Utah and elsewhere have expressed concern over how to thread the needle in these situations—that is, to do what is best for their patients while also not exposing themselves to criminal fines or jail time.³¹¹ Every physician’s risk preference will vary, but these laws will certainly have a chilling effect and put patients’ lives at risk.³¹² They are also part of a long-term, disturbing trend of requiring physicians to violate autonomy by shoehorning politics into health care.³¹³ Below is yet another example of this phenomenon, which is tragically on the rise.

2. Punishing the Provision of Gender-Affirming Treatment

State laws banning gender-affirming care also require physicians to disrespect patient autonomy. In 2023, the Governor of Utah signed a ban on gender-affirming surgeries for minors into law.³¹⁴ The Utah law prohibits a health care provider from “providing a hormonal transgender treatment” or “providing sex characteristic surgical procedures” to new patients who were not diagnosed with gender dysphoria before a certain date.” The penalty for violating this law is either losing one’s license or being sued for malpractice.³¹⁵

On April 6, 2021, the Arkansas State Legislature overrode the governor’s veto to prohibit the provision of gender-affirming treatment to minor patients—or to even refer them to other physicians for this treatment.³¹⁶ The Arkansas law states that “[t]he risks of gender transition procedures far outweigh any benefit at this stage of clinical study on these procedures.”³¹⁷ In Arkansas, unlawful provision of gender-affirming care is likewise considered unprofessional conduct and can provide a basis for a malpractice lawsuit. Because physicians who provide gender-affirming care could lose their license in Arkansas, this will effectively remove this care for many youths in the state and will almost certainly result in increased mental distress and suicide.³¹⁸

Similar legislation is pending in approximately fifteen other states. Most of these bills propose banning all health care professionals from prescribing or administering puberty blockers, hormone therapy, or gender-affirming surgeries to anyone under the age of eighteen unless the patient can verify that they are genetically intersex.³¹⁹ Penalties can be extreme; in Idaho, a proposed bill would punish physicians with a felony punishable by a life sentence.³²⁰ Fortunately, the Idaho bill has not yet passed their senate.

In the aforementioned laws, the legislature is deciding what counts as the medical standard of care—disrespecting patient autonomy by going against the great weight of medical evidence and expertise and imposing fines and professional penalties.³²¹ The American Academy of Pediatrics issued a statement saying “[p]olitics has no place here. These are individual conversations between clinicians, patients and families about what’s best.”³²² In testimony regarding the harms the legislation will cause, pediatricians said it is based on “myths and misinformation” and a “misunderstanding about medical and surgical aspects of gender-affirmative care.”³²³

While legislators claim these bills protect children, physicians argue they do the opposite. Long-term data shows that “access to gender-affirming care in childhood and adolescence can have profoundly important mental health benefits,” including reducing the risk of suicide, decreasing depression, and decreasing anxiety.³²⁴ At some point, these statutes will need to be enforced, and when they are, law enforcement will trump important goals of clinical treatment simply because the government holds itself to a lower standard of care, permits experimentation on the public, and violates patient autonomy.

Once again, we see the state invading private medical domains through the apparatus of law enforcement. This is concerning, because as I have laid out above, law enforcement fails to promote the key tenets of privacy, honesty, evidence-bases, respect for autonomy, and accountability, which are key ingredients to stimulate trust. Once in the hands of law enforcement, vulnerable patients’ data may be used for nefarious, punitive purposes, which might discourage patients from receiving necessary treatments. The disrespect for individuals in the law enforcement context cannot infect patients’ perspectives in the medical space; otherwise, patient trust in medicine will suffer. In the next Section, I will explain why patient trust is critical to the delivery of quality care.

G. Different Trust Norms

Compared with other countries, public trust in physicians in the U.S. is low—unacceptably low.³²⁵ It is therefore imperative that health care policies do more to earn the trust of the patient populations they serve, and not less. Promoting patient trust cannot be accomplished if people perceive physicians to be prosecutors, or as working in tandem with law enforcement.

This is not about trying to keep groups separate for the sake of purity or to fetishize medicine. Rather, to prevent negative impacts on patient health, it is critical that we erect sharp boundaries between law enforcement and treatment. The lack of respect for patient privacy, honesty, and autonomy, and the lack of accountability in law enforcement for causing brutal, individual harms, makes the police in the U.S. less worthy of public trust. In the next Section, I will explore instances when the lines between health care and law enforcement have been blurred, and how these blurred lines have likely caused significant harm to the physician-patient relationship, the trust on which it relies, and the quality of care.

1. Prescription Drug Monitoring Programs Rely on and Exacerbate Mistrust

Prescription drug monitoring programs (“PDMPs”) are databases that track prescriptions and patient requests for controlled substances.³²⁶ They proliferated over the last decade in response to the opioid crisis and now exist in nearly every state.³²⁷ From the outset, they were “an instrument of law enforcement.”³²⁸ PDMPs operate differently in every state, but generally require physicians and pharmacists to enter prescribing data for controlled substances or to check such data before initiating a new controlled substance prescription.

Proponents argue that PDMPs are a helpful investigative tool to assess potential criminal diversion of drugs by patients, physicians, and providers.³²⁹ Critics argue that they are inefficient and poorly designed. PDMPs are often not developed with a “clear orientation towards health promotion” and instead complicate “communication and relationships between prescribers, pharmacists, and patients.”³³⁰ Put simply, they place law enforcement between a patient and their physician and can violate the trust between them.

PDMPs also may trigger unintended consequences that harm patients. Fearing law enforcement oversight, physicians may under-prescribe necessary pain medications.³³¹ This may lead patients to seek treatment for their pain illegally on the streets, with a drug supply that could be impure and deadly.³³² In addition to the significant public health concerns, there are enormous potential privacy risks of PDMPs when this sensitive data lands in the hands of law enforcement.³³³

For the purposes of this Article, the chief problem with PDMPs is that they destroy patient trust by injecting law enforcement norms and goals into medicine. If patients know that their physician is stepping away for a few minutes to check a police database to see if the patient is telling the truth, this brings a prosecutorial element into the decision-making process that will destroy rapport. When programs like PDMPs start chipping away at the principle of confidentiality in medicine, there are no obvious principled limits on cops’ use of doctors as their prosecutorial instruments. This loss of confidentiality will further hurt the sanctity of the physician-patient relationship, and the disappearing trust on which it relies.³³⁴

CONCLUSION

For the many reasons laid out above, it is important that the norms of law enforcement not creep into the world of medicine. As the Association of American Physicians and Surgeons so fittingly recognized, “[p]hysicians are not agents of the police power of government, and should not be forced to choose between protecting their patients against prosecution or protecting them against disease.”³³⁵ Unlike cops, physicians must embody ethical norms that respect self-regulation, privacy, accountability, efficacy, honesty, and autonomy. Respecting these ethical norms is critical not only to promote public health, but also to repair the broken trust between physicians and patients. In this Article, I described the rampant mistrust of medical providers and institutions, which is exacerbated by police intrusion into health care. Medical mistrust is a SDOH that disproportionately impacts patients of color. To build health care systems that are more trustworthy and equitable, physicians must be walled off from law enforcement.

A number of efforts can mitigate against the police intrusion into health care. However, there is no simple solution to this complex problem, and more detailed research needs to be completed on each solution. Nevertheless, below are some concrete steps courts and legislatures could consider to better separate health care from law enforcement.

A. HIPAA Should Be Revised to Make It Harder for Cops to Obtain Medical Data

The HIPAA exceptions described above make it too easy for law enforcement to pierce medical privacy and obtain access to confidential health data.³³⁶ In addition to permitting disclosures of patient data in response to subpoenas, HIPAA also permits disclosures on a simple written administrative request; this is what health privacy scholar Leslie Francis has called an “open-ended provision.”³³⁷

HIPAA has thus had the counterintuitive effect of making it easier, rather than harder, for the government to access health data. HIPAA was not intended to provide cops with greater access to confidential data. However, because its permissive exceptions are sometimes read by law enforcement and health care staff to create entitlements to patient data, the statute has become not a shield, but a sieve.³³⁸ This is unfortunate because the “HIPAA drafters worried as much about personal data being abused by the government as they did about misuse by researchers or the insurance industry.”³³⁹

Indeed, while I was writing this Article, Vanderbilt Medical Center became embroiled in controversy over its disclosure of transgender patients’ medical records to the Tennessee attorney general “as part of an investigation into medical billing.”³⁴⁰ The disclosure appears to have been pursuant to a civil investigative request, and it is unclear whether this runs afoul of existing Fourth Amendment precedent.³⁴¹ The concern, of course, is that the investigation could be pretext, and a means for harassing clinics that provide gender-affirming care as well to their patients. Regardless, HIPAA does almost nothing to stop this kind of disclosure. As Nashville LGBTQIA+ advocate Lance Preston said: “[d]o we believe that Vanderbilt Medical Center could have fought this and taken a bigger stand? Absolutely. But at the same time, we believe that it would have just prolonged the inevitable because the attorney general unfortunately, has the law on his side.”³⁴²

This Article calls for revisions to HIPAA to remove the breezy access the police have to medical data. The exceptions have become too easy to overcome, without demonstrating a strong investigative need. However, precisely how this statute ought to be revised is beyond the scope of this Article. There is, at least, a strong prima facie argument for requiring cops to do more than issue a written request asking for medical data. The status quo is too permissive. Ironically, HIPAA currently gives the very entity most people worry about sharing their medical data with—the police—incredible free access.

B. Common Law Courts Should Rethink Tarasoff and Expansive Immunity

The Tarasoff-style duty to warn was ill-conceived from the start. Empirical research has shown that such duty has not resulted in demonstrable improvements in the prevention or prosecution of crime. Instead, it has stifled vulnerable patients’ willingness to obtain mental health treatment. While likely resulting from an intuitive impulse to hold someone accountable for heinous crimes, the Tarasoff-style duty takes the very thing that makes health care special—confidentiality and patient trust—and exploits it in a way that harms not only public health, but also medical ethics. One way to course-correct is to limit the rampant recognition of duties of physicians to warn or protect third parties whom they have never met. Therapists and physicians lack good risk-assessment tools, they are often wrong, and their warnings to third parties are generally ineffective. But requiring them to contact the police to report their patients chills therapeutic trust.

C. Physicians Need Greater Autonomy to Practice Ethical Medicine

In Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990), the Supreme Court recognized that competent patients have a “constitutionally protected liberty interest in refusing unwanted medical treatment” under the Fourteenth Amendment.³⁴³ While this has been interpreted as a negative liberty rather than a positive right, it nonetheless underscores the importance of patient autonomy in our nation’s history and tradition. In another case that refused to recognize a right to physician-assisted suicide, the Court heralded the state’s legitimate interest in “protecting the medical profession’s integrity and ethics and maintaining physicians’ role as their patients’ healers.”³⁴⁴ Federal courts have long-recognized that the physician-patient relationship is special and “common law and historical American practices have traditionally trusted individual doctors and their patients with almost complete autonomy to evaluate the efficacy of medical treatments.”³⁴⁵ While a legitimate government interest can justify limiting certain rights and is not itself recognition of a right, the articulated state interest in protecting the physician-patient relationship is worth emphasizing.

The Dobbs decision exposes the current Court’s hostility to substantive due process jurisprudence.³⁴⁶ However, there was a time, not too long ago, when the Court recognized patients’ liberty interest in making autonomous medical decisions. Indeed, before the Dobbs about-face, privacy, informed consent, and medical autonomy were considered deeply rooted in our nation’s history and tradition.³⁴⁷ Returning to this orthodox view, and bolstering it in other health care contexts, could make it harder for the police to encroach on health care decisions and disrespect patient autonomy. Of course, this will require focusing strategic appellate efforts on future Courts. In the meantime, advocates should try to develop respect for patient autonomy under state constitutions, and in contexts that are less politicized than abortion or trans care. This can provide helpful counterbalancing to the increasing encroachment of law enforcement and the state into health care.

D. Health Care Providers Need Training on the Difference Between Permissive and Mandatory Disclosures

As discussed above, nurses and physicians comply with police requests for confidential medical data because they are unsure of what they are allowed to do. Consequently, hospitals and clinics therefore must provide better training for their staff on when they can exclude law enforcement from clinical data and spaces. They also must provide real-time security and support if cops threaten staff for not granting them access to this data.

Additionally, nurses and physicians must be trained on the difference between permissible and required disclosures. While HIPAA permits many unauthorized disclosures to law enforcement, it does not require them unless they are accompanied by a judicial order. Institutions should educate providers on the long-term negative health effects of blurring health care and law enforcement, so that they will reject more requests for health data that are not accompanied by a judicial subpoena or warrant.

E. We Need to Reimagine Health Care as Being Off-Limits from Police

I leave the reader with many open questions about how far my proposal should go. When I first began this project, I asked myself whether my desire to divorce law enforcement from health care could justify keeping medical data from the police even in cases of child abuse or neglect. Every state requires physicians to report suspected abuse, and while the efficacy of these laws is debated, they are thought to at least reduce ongoing abuse. Surely, despite the negative impact of police encroachment on the physician-patient relationship and trust, there could be a way to justify it when innocent children are at risk.

Upon reflection, I realized that I had fallen into a common trap. This trap presents complex social problems such as poverty, homelessness, mental illness, and child abuse as being either handled by the police, or not being handled at all. However, this is a false binary. Physicians should continue to report suspected abuse and neglect, but to trained social workers and abuse prevention experts, not to the police. Police should only be involved much later in the process, if at all, after allegations of abuse are validated through an investigation led by trauma-informed social workers. And even then, we should prioritize addressing and treating the root cause of the abuse, rather than reflexively removing children from the home.³⁴⁸

Cops are trained to be “authoritative, physical, and commanding”—traits that might be helpful in some policing situations, but are “ineffective” when responding to most health care needs.³⁴⁹ But because of chronically underfunded social service programs, when people are in crisis, it is the cops who show up. This leads to law enforcement having a de facto monopoly on the provision of many forms of treatment, which are delivered poorly and in ways that violate medical ethics. We simply lack the collective imagination to see many calls to 911 as health problems deserving of compassionate, ethical, and evidence-based treatment by doctors, and not by cops.

On another front, because physicians are easy regulatory levers, states have increasingly been shoehorning politics into medicine. This takes the very thing that makes the physician-patient relationship sacred—trust—and violates it for ulterior government motives. We have seen this recently with bans on gender-affirming care and in the many laws restricting abortion access. Everywhere we look, law enforcement is encroaching on the practice of medicine. To repair the physician-patient relationship, uphold principles of medical ethics, and promote greater trust in health care, we need to keep doctors from becoming cops.

97 S. Cal. L. Rev. 675

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Teneille R. Brown*

* James I. Farr Professor of Law, Associate Dean for Faculty Research and Development, University of Utah, S.J. Quinney College of Law; B.A. 2000, University of Pennsylvania; J.D. 2004, University of Michigan Law School. She is also Director for the Center for Law and the Biomedical Sciences and a faculty member of the Center for Health Ethics Arts and Humanities (“CHeEtAH”). This research was made possible in part through funding from the Utah Center for Excellence in ELSI Research (“UCEER”). UCEER is supported by the National Human Genome Research Institute of the National Institutes of Health (“NIH”) under award number RM1HG009037.

Oceanic Impunity

July 2024July 2024Stephen Cody*

Ocean protection is essential to avoid climate disaster. Phytoplankton, seaweeds, and sea grasses produce more than half of Earth’s oxygen—exceeding all terrestrial forests and plants combined—and absorb about ninety percent of the heat generated by rising emissions. Yet oceans continue to be sites for brazen environmental law violations, from illegal fishing to toxic dumping. International criminal law has largely ignored these crimes, even when they amount to offshore environmental atrocities. Meanwhile, legal structures for ocean governance tend to focus on regulatory compliance, self-policing, and dispute resolution, all of which have proved inadequate to protect oceans and coastal communities. Without more global enforcement, environmental criminals will continue to operate with impunity at sea, even as their crimes exacerbate existential climate threats.

Mare liberum or freedom of the seas has been a foundational principle of ocean law for centuries, dating back to the writings of Hugo Grotius. But unconditional free seas are no longer defensible in the Anthropocene. The idea of free seas falsely presumes an inexhaustible ocean too vast to govern. Consequently, governance models based solely on the principle of free seas continue to legitimate careless national policies, destructive relations with marine ecosystems, and exploitation of vulnerable ocean environments. Moving forward the international community must defend oceans as the heritage of all humankind and work together to protect seas against serious environmental harms.

This Article develops a blueprint for targeted forms of international criminalization that would deter offshore ecological destruction. It defends international prosecutions for a range of oceanic environmental crimes, including marine pollution, illegal fishing, and seabed destruction caused by illegal trawling or deep-sea mining. Beyond theories of retribution or deterrence, global criminal prosecutions for environmental harms have expressive value during this time of climate crisis. International criminal convictions showcase humanity’s shared concern for ocean life and marine environments. Criminalization of grave ocean harms would signal an ecocentric shift in international criminal law and aid multilateral efforts to protect marine environments and to promote new legal duties to nature.

INTRODUCTION

Violence and insecurity are common at sea.¹ For centuries, seafarers have committed serious crimes and human rights abuses, often with the explicit backing of sovereign governments.² Oceans are also notorious sites for environmental crimes, including toxic dumping, illegal fishing, and unlawful seabed destruction. Notwithstanding this grim history of oceanic impunity, international criminal law has long neglected oceanic offenses.³ Offshore environmental atrocities, when acknowledged at all, have been prosecuted by domestic law enforcement agencies or adjudicated by federal and state administrative bodies.⁴ Accountability gaps persist for grave ocean crimes, especially those that occur beyond national jurisdictional waters.⁵

Oceans have never been entirely lawless places.⁶ For centuries, state leaders have engaged in various kinds of ocean governance with varying degrees of success.⁷ However, offshore environmental crimes present substantial enforcement challenges for national agencies and international courts, and state efforts to hold criminals accountable for environmental offenses at sea have regularly failed for several reasons.⁸

For example, vast open seas and limited ocean patrols often hamper criminal investigations and enforcement.⁹ Sovereignty claims and principles of noninterference create obstacles for criminal prosecutors that target defendants on foreign vessels.¹⁰ Conflicts over maritime boundaries and territorial seas also exacerbate interstate tensions over criminal jurisdictions, particularly within contested territorial waters.¹¹ Additionally, international organizations tasked with ocean protection frequently lack effective enforcement mechanisms or adequate resources to address criminality.¹² Meanwhile, captains flying flags of convenience and corrupt officials at local ports often hide environmental crimes, thereby shielding criminal networks from the monitoring bodies designed to prevent marine pollution and illegal resource exploitation.¹³

Nevertheless, the need for criminal accountability to deter environmental harms and express collective commitments to ocean protection has never been greater. Phytoplankton, seaweeds, and sea grasses produce more than half of the world’s oxygen—more than all forests and plants on land combined—and absorb approximately ninety percent of the heat generated by rising emissions.¹⁴ Without healthy seas, the global community is unlikely to achieve its climate goals or to mitigate ongoing environmental impacts of industrialization. Intense waves and storm surges now regularly devastate coastal communities. Lethal chemicals, sewage, and plastics threaten vital fisheries and marine environments worldwide. The climate crisis and marine deterioration are rapidly transforming ocean governance priorities and underscoring the need for enhanced monitoring and enforcement of environmental protections beyond national jurisdictions.

This Article lays the groundwork for international criminalization of ecological harms at sea. It describes the relational dynamics of oceanic impunity and discusses several options for improving accountability in coastal waters and on the high seas. Most important, international criminal prosecutions should express shared principles and concerns about the climate crisis, underscore global commitments to protect marine environments, and raise awareness about destructive consequences of serious ocean crimes.¹⁵

International criminalization of activities that destroy ocean ecosystems would signal a common awareness of critical threats to marine environments and national leaders’ willingness to situate humanity within the natural world, not above it.¹⁶ In contrast to the dominant anthropocentrism of international criminal law, international criminalization of ocean crimes could establish duties to nature independent of direct human victimization and recast international criminal accountability as including crimes against marine flora and fauna.¹⁷ Such an ecocentric shift holds promise for “greening” various aspects of international criminal law.¹⁸ Recognizing international crimes against nature, for example, could influence financial investment in the investigation of ocean crimes, tailor prosecutorial priorities, or improve case selection decisions to better reflect environmental concerns in communities worldwide.¹⁹

Part I of this Article conceptualizes oceanic impunity as the embodiment of relationships and interactions between criminal perpetrators and enforcement authorities. Drawing on relational sociology, Part I defines oceanic impunity as a series of unfolding processes and interactions rather than as a permanent state of criminality.²⁰ Attempting to circumvent both methodological individualism and methodological nationalism, this Article identifies seven transnational dynamics that perpetuate criminality on the world’s oceans and advances a relational approach to study these dynamics.²¹ By documenting weak transnational and global enforcement practices, relational approaches to oceanic impunity reveal contemporary barriers to criminal accountability, particularly in seas beyond national jurisdictions.

Part II discusses three ocean crimes—ocean pollution, illegal fishing, and seabed destruction—with consequential effects on marine environments. Part II advances the argument that targeted international criminalization can improve criminal enforcement and accountability for each crime category. International law has long sought to address offshore environmental crimes through treaties and regulatory agreements but monitoring and enforcement challenges have regularly undermined these efforts.

Part III makes the case for targeted international criminalization to supplement existing ocean governance frameworks. By individualizing culpability for offshore crimes against nature, international criminalization creates new modalities for deterrence and novel enforcement mechanisms to address environmental crimes perpetrated beyond national jurisdictions. Selective criminalization through multilateral agreements and international courts can outfit global prosecutors with new tools to address oceanic impunity and ensure protection of marine environments.

Part IV discusses the expanded use of suppression conventions and criminal prosecutions at the International Criminal Court (“ICC”) to combat offshore environmental criminality. Amendments and new protocols to incorporate crimes against nature, including the proposed crime of ecocide, can empower international criminal prosecutors to investigate suspected perpetrators of environmental atrocities at sea.

I. OCEANIC IMPUNITY

Relational approaches to “objects” of legal research require a different method of legal analysis. Relational scholars recognize the mutual constitution of law and social relations. Ocean crimes and oceanic impunity, therefore, cannot be studied as distinctive social facts independent of concrete relationships and social problems. Understanding oceanic impunity requires accounting for evolving personal and institutional interactions that shape both community perceptions and participants’ own identities and practices. In other words, perpetrators of ocean crimes do not operate independent of governance regimes and enforcement agencies that prohibit and police their offshore activities. They exist only in relation to each other. The study of ocean criminality requires empirical investigation of relations among lawmakers, ocean offenders, and law enforcement authorities whose entanglements construct criminality in complex social fields transcending maritime boundaries. A relational approach seeks to overcome an ontological model of law as something outside of social relations and to capture the full situation of meaning-making between the observer and the observed.²² Oceanic impunity emerges through historically and geographically contingent transactions between legal regimes, law enforcement officials, and ocean outlaws. Offshore criminality, in this sense, is spontaneous, socially complex, and dynamic. It is rarely, if ever, the outcome of free will, rationality, or deeply considered social actions. Shifting oceanic relations are simultaneously constitutive of both lawlessness and order at sea. Study of oceanic impunity therefore requires reflexive empirical investigations and theoretical revision based on changing social practices within national jurisdictions and on the high seas.²³

Relational sociology also provides an alternative view of criminalization. Ocean crimes are not objective empirical facts to study. They are portals into a diverse set of interpersonal processes created and reproduced by social interactions. As an alternative explanatory framework, relational approaches to criminalization seek to move beyond conceptual antinomies—perpetrators and victims, state and non-state, legal and illegal—to focus analysis on evolving transnational practices, exchanges, and dialogues. Viewing oceanic impunity in this way means that targeted international criminalization does more than establish new crimes or empower prosecutors. It has symbolic effects that can transform social relations. Such expressive power in many cases exceeds the benefits of individualized retributive justice. International environmental criminalization under the right social conditions can encourage greater environmental protection by cultivating new social logics and institutional dynamics better aligned with ecocentrism.

A. Geography

Geography matters for ocean accountability. Oceans are massive, open spaces. They are difficult to navigate and made dangerous by high winds, changing currents, and inclement weather. Consequently, oceans are hard places for law enforcement to monitor vessels and activities aboard them.²⁴ Limited resources for patrols hamper maritime enforcement in territorial waters and on the high seas. Another enforcement challenge created by open water and nautical travel is the limited availability of logistical or medical support for routine maritime operations. Patrol boats may operate as solitary vessels unless they are monitoring shipping lanes, busy harbors, or navigating close to shore. However, while geography certainly matters for oceanic impunity, vast ocean distances cannot completely explain the pervasiveness of offshore criminality.

Advanced satellite imaging and other surveillance technologies, including long-range reconnaissance drones and unmanned submersibles, have increased the visibility of ocean crimes in recent decades. Nonprofit organizations like Global Fishing Watch, Trygg Mat Tracking, and Oceana employ satellite technologies that increasingly make it possible to identify and track particular maritime vessels.²⁵ Vessel tracking technology, big data, algorithms, and artificial intelligence (“AI”) can now be used to estimate apparent fishing efforts and to identify illegal catches in many places.²⁶ While satellite technologies have not yet created an ocean panopticon, they do allow state enforcement agencies to detect a range of ocean crimes, tighten port surveillance, and exercise better control over transitory waterways and commercial shipping channels. New kinds of collaborations between states and nonprofit organizations hold promise for detection of serious ocean crimes. The United States Southern Command (“SOUTHCOM”), for example, has partnered with Global Fishing Watch in recent years to enhance detection of illegal fishing in the Caribbean and the Pacific.²⁷

Several monitoring firms now triangulate public and private data to provide unprecedented real-time surveillance of offshore activities, even across vast geographic areas. Windward, an Israeli based company, uses AI and predictive modeling to create operational profiles of individual vessels, which enables the company to monitor a wider range of private ships. The International Maritime Organization (“IMO”) has registered about 70 thousand maritime vessels worldwide, but Windward tracks more than five times that number using its digitized data.²⁸ The expansion of AI technologies such as these will likely aid maritime law enforcement in identifying suspect vessels and environmentally damaging activities across vast oceans in the coming years.

However, visual detection of criminality alone may not improve enforcement or impact overall levels of oceanic impunity. Ocean perpetrators increasingly avoid aerial surveillance by shifting operations to different kinds of marine vessels or simply turning off automated tracking systems. Private fishing vessels, for example, are frequently used to hide illicit trafficking activities, evade detection by enforcement agencies, and distribute the costs of interdiction.

B. Technology

Transforming technologies are another powerful dynamic that shapes oceanic impunity. While new technologies have enhanced states’ capacity to monitor oceans and sometimes improved interdiction operations in coastal waters, they have also facilitated criminal enterprises.

Criminal syndicates increasingly use technology to conceal their offshore activities.²⁹ For example, vessel cloaking technologies formerly restricted to advanced naval powers have appeared on global black markets.³⁰ These new technologies enable ship captains to jam or modify data showing their navigational positions. The U.N. requires all large maritime ships to operate satellite transponders and transmit their geographic positions in real time.³¹ But ships using cloaking technologies can transmit false location data to avoid detection in contested waters or to violate international sanctions regimes.³²

Global fuel tankers, for example, disguise resupply locations to visit sanctioned oil ports in Venezuela, Iran, or Russia, and large container ships use new navigational cloaking technologies to hide shipments of commodities traveling to or from embargoed countries. In 2022, ocean monitoring groups discovered hundreds of ships manipulating onboard transmissions to camouflage their navigational location. Surveillance technologies can increase detection of environmental crimes and mitigate oceanic impunity in some cases. But emerging technologies can also fortify criminal networks and shadow economies that contribute to it.

C. Sovereignty

The Westphalian system also contributes to oceanic impunity. National maritime jurisdictions established under the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”) prevent the investigation of many offshore environmental crimes.³³ States have criminal jurisdiction over their territorial sea and archipelagic waters, ordinarily the first twelve nautical miles from shore.³⁴ States can further prevent infringements to customs, fiscal, immigration, or sanitary laws and regulations for the next twelve nautical miles where a contiguous zone exists.³⁵ But beyond these waters, state authorities generally lack jurisdiction to investigate or prosecute criminality except on their own flagged vessels or with regard to foreign resource exploitation within their exclusive economic zone.³⁶ Consequently, most of the open ocean lies beyond any national criminal jurisdiction.³⁷

Moreover, even when environmental crimes amount to flagrant violations of domestic criminal law, state authorities routinely fail to enforce criminal laws in their own territorial seas.³⁸

National laws can also facilitate illicit ocean activities. Chinese fishing boats, for example, participate in civilian militia patrols in the South and East China seas. To prevent foreign states and international organizations from tracking these fishing vessels, Chinese national security laws forbid sharing data, including vessel tracking data, with international bodies.³⁹ Under the cover of domestic Chinese law, the fishing vessels go dark in contested waters.

D. Flags of Convenience

Flags of convenience are yet another pervasive dynamic contributing to oceanic impunity. In 1927, the Permanent Court of International Justice (“ICJ”) held all ships subject to the laws of their flag state. Vessels registered to a national territory were required to operate under the domestic laws of that state. UNCLOS later required a vessel owner to have a “genuine link” to its flagged state, though generous interpretations of what constitutes such a link have been commonplace.⁴⁰ Flag state jurisdiction covers criminal enforcement and typically includes oversight of labor and safety standards and international rules as well as maritime law standards.

However, despite its legacy as a foundational principle of maritime law, there is no immediate consequence for a flag state that fails to monitor registered vessel conditions or to prosecute criminal activities aboard. Consequently, flag state enforcement varies considerably.⁴¹ Some states willfully ignore national and international law. Fictitious shell companies linked to the flag country only by a mailing address commonly appear in national vessel registries. Secondary shell companies often are used to further mask vessel ownership. This layered system of corporate ownership means that flag states seeking to enforce criminal codes or regulations may struggle to identify the relevant person or parties, making criminal accountability difficult. Shell companies not only protect secrecy and insulate owners from culpability but also often provide added financial advantages by allowing owners to transfer vessel profits to jurisdictions with lower tax rates. A 2018 study, for example, found that seventy percent of vessels engaged in illegal fishing were flagged in tax haven countries.⁴²

E. Regulation

Reliance on regulatory compliance is another dynamic that contributes to oceanic impunity. Legal scholars have documented the regulatory turn in international law.⁴³ But less attention has been given to how this regulatory turn has undercut criminal accountability for environmental crimes.

Many state officials and environmental groups view ocean protection as a task for administrative agencies, not criminal prosecutors.⁴⁴ Consequently, environmental treaties typically define adjudication procedures for conflicts between parties but seldom include language that explicitly criminalizes treaty violations.⁴⁵ With this regulatory focus, law enforcement tends to respond to ocean crimes retroactively, which makes the collection of evidence challenging and criminal prosecutions less likely.⁴⁶

Further, regulatory approaches tend to place emphasis on guidelines, voluntary codes of conduct, and self-reporting. This often means that international authorities responsible for monitoring compliance shy away from questions of individual criminal culpability for environmental damage. Some fear that insisting on punishments for criminal wrongdoing will threaten regulatory alliances or jeopardize existing conformity to compliance regimes.

Even when domestic laws impose fines for environmental damage or censure offshore activities, authorities often do not seek legal judgments against vessel owners or crew. Individual accountability for environmental harms is rare. Diplomacy and economic policy remain the primary tools state officials use to encourage treaty compliance.

Ocean regulation, while expansive, is also fragmented among countries and within them. National laws governing ocean protection usually involve multiple agencies and complex jurisdictional questions. In the United States, for example, state agencies tend to regulate marine resources in territorial waters, and federal agencies regulate marine resources in the exclusive economic zone (“EEZ”) and continental shelf.⁴⁷ But even these jurisdictional lines are contested. At least twenty-four coastal states, five island territories, and four Native American tribes make claims to jurisdiction over marine resources in the United States’ ocean territories.⁴⁸ Moreover, even when only a single national law applies, management responsibilities for its regulations may involve various subnational and regional regulatory bodies that complicate lines of authority and enforcement efforts.⁴⁹ Regulatory compliance regimes also tend to adopt governance models that focus on specific resources, marine species, or geographic territories. This creates a patchwork of narrow, overlapping, and potentially competing interests and complicates enforcement more than a more wholistic, ecological approach that focuses generally on biodiversity protection and ecological sustainability.

F. Jurisdiction

Conflicts over maritime boundaries are another dynamic of oceanic impunity. Domestic criminal legal systems generally require a nexus between alleged perpetrators’ criminal acts and state claims to maritime jurisdiction. Jurisdictional disputes in contested waters can lead judges to question this nexus and halt criminal investigations and prosecutions. Perpetrators of environmental crimes also purposefully exploit jurisdictional gaps and interstate disputes to avoid obligations under international law.

Although maritime jurisdictions are well defined under UNCLOS, major powers still ignore established maritime limitations. In 2016, for example, the Permanent Court of Arbitration (“PCA”) unanimously rejected China’s claims to historic rights over most of the South China Sea and found that China had violated the Philippines’ sovereign rights by interfering with fishing and resource exploration.⁵⁰ The PCA award, however, did not change Beijing’s territorial claims or dissuade the activities of its military and its civilian maritime militia in the contested waters.⁵¹ In brazen disregard of the PCA, China has continued to claim the disputed seas as its jurisdiction.⁵²

Universal jurisdiction might provide an alternative mechanism to combat serious ocean crimes in the future. Historically, states have relied on universal jurisdiction to prosecute pirates and slave traders as enemies of all humankind.⁵³ However, the international community has yet to apply the principle of universal jurisdiction to environmental crimes.⁵⁴

G. Corruption

Corruption is yet another crucial dynamic that contributes to oceanic impunity. National and coastal economies regularly benefit from oceanic impunity, particularly from fisheries that are unlawfully exploitative.⁵⁵ Intentionally permissive state compliance regimes and local officials who act outside legal boundaries can generate windfall profits for local authorities. State leaders may neglect enforcement in exchange for direct payments. In some cases, they build cottage industries to aid in the illegal collection of certain marine species, such as sharks and whales.⁵⁶ Rewards of such illegal resource exploitation pool with violating states, even as compliant states bear additional costs of attempted criminal enforcement.

Local officials in some countries also partner with organized crime syndicates, which generally diminishes prospects for criminal accountability.⁵⁷ Threats of violence from members of criminal organizations tend to suppress local complaints and severely restrict community cooperation with outside criminal investigations. Environmental crimes perpetrated by organized criminal groups may also be associated with other criminal activities, such as money laundering, trafficking, and forced labor.

II. OCEAN CRIMES

Environmental ocean crimes are not expressly defined under international law.⁵⁸ Despite overwhelming empirical evidence that offshore environmental harms are global problems with impacts far beyond any single national jurisdiction, no global framework defines normative principles or articulates national obligations to combat environmental sea crimes. Instead, criminalizing ocean destruction depends exclusively on national lawmaking and ratification of treaties or environmental agreements.

Several well-established multilateral environmental agreements (“MEAs”) incorporate provisions that criminalize environmental harms at sea.⁵⁹ The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes (“BASEL”), for example, states that “illegal traffic in hazardous wastes or other wastes is criminal.”⁶⁰ The International Convention for the Prevention of Pollution from Ships (“MARPOL”) also authorizes the use of criminal penalties “to discourage violations” of Convention provisions.⁶¹ Countries often impose criminal penalties for trafficked illicit wildlife, including protected marine species, under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”).

These and other MEA criminal provisions are useful in combating oceanic impunity. However, most international environmental agreements still focus on regulatory solutions to specific environmental problems and lack adequate monitoring and enforcement mechanisms. In other words, multilateral agreements may aspire to limit marine pollution, avoid fishery exploitation, or revise shipping regulations, but compliance with these agreements still primarily depends on self-policing and domestic administrative oversight. Even where international agreements contain criminal penalties, states often have wide latitude to interpret their legal obligations and broad discretion in enforcing—or not enforcing—criminal sanctions. Ocean governance continues to rely, ineffectively, on a mosaic of layered customs, treaties, and international environmental agreements that prioritize regulatory solutions and voluntary compliance.⁶²

A. Ocean Pollution

In the Anthropocene, ocean pollution presents unprecedented threats to ocean health. According to the United Nations, ocean pollution constitutes at least eighty-five percent of all marine waste.⁶³ Waste disposal at sea dates to early maritime navigation, but the scale and toxicity of ocean pollution has changed over time. In 2021, for example, maritime enforcement agencies in 67 countries identified 1,600 marine pollution offences worldwide in single month.⁶⁴ Human activities are now responsible for fifty-three percent of petroleum discharges to marine environments.⁶⁵ Illegal oil discharges from commercial vessels are a major source of this ocean pollution.⁶⁶ While several multilateral agreements prohibit ocean dumping, few countries invest significant resources to investigate or prosecute offenders, particularly when dumping occurs beyond national jurisdictions.

States agencies and national militaries also dump harmful waste into oceans. The United States, for example, began to dump radioactive waste into the Pacific Ocean after World War II. Between 1946 and 1970, U.S. vessels discarded more than 55,000 containers of radioactive waste.⁶⁷ The Russian navy adopted similar dumping practices and continued to dispose of nuclear waste in the Sea of Japan until 1993. Even today, countries are actively considering ocean dumping of nuclear waste. Japan, for example, plans to discard about 1.3 million tons of contaminated radioactive water from the Fukushima Daiichi nuclear power plant into the Pacific when storage runs out at the current facility.⁶⁸ Discarded poisons, such as DDT, and toxins leaking from spent military munitions pose similar global ecological and health risks.

Plastics pollution needs greater attention, too.⁶⁹ The rough equivalent of one garbage truck of plastic is dumped into the world’s oceans every minute.⁷⁰ Slow plastic breakdown generates microplastics that ocean currents circulate throughout the world. Scientists now find microplastics in marine life from every kind of ocean habitat, from shallow coral reefs to deep-sea trenches.⁷¹ In May 2019, the Conference of the Parties to the Basel Convention amended Annexes II, VIII, and IX to define plastics as a hazardous waste and outlaw their disposal at sea.⁷² But international governance and oversight remains haphazard and unreliable.⁷³

Ocean dumping is a quintessential global problem. It inevitably impacts waters beyond sovereign territorial boundaries.⁷⁴ Yet few perpetrators are prosecuted for illegal ocean dumping. Without eyewitnesses, investigators often struggle to identify conclusively the precise source of marine pollution. It can also be tricky at trial to prove causality and other elements of criminal offenses, including the perpetrators’ intent or their subjective awareness of the potential for environmental harm. Scientists can detect and measure different types of ocean pollution, but building a case for criminal prosecution generally requires larger-scale investigations by environmental protection and law enforcement agencies.

International law has long struggled to combat toxic pollution. Several international agreements presently prohibit ocean dumping, including the MARPOL and the London Convention.⁷⁵ UNCLOS also requires states to control marine pollution.⁷⁶ Further, several regional agreements ban ocean dumping.⁷⁷ However, enforcement of anti-dumping laws is highly uneven. In some countries, waste disposal is tightly regulated with high penalties for violations of domestic environmental protections. In others, enforcement is non-existent. Reporting and compliance problems also persist at the domestic level, with few options to internationalize enforcement.

Selective international criminalization offers a path forward to hold ocean polluters accountable for harmful dumping on the high seas. Current agreements generally lack powers to punish individual violators, especially when dumping happens beyond a state’s territorial waters. Enforcement depends almost entirely on the actions of domestic officials, who may lack resources or an interest in investigating ocean pollution.

Global courts and international prosecutors often have more autonomy than local officials or state agencies to investigate offshore crimes and bring criminal charges. They can also investigate ocean dumping as a crime of omission and prosecute state inaction to stop ocean dumping. If international investigations document ongoing ocean pollution, prosecutors can either charge polluters or threaten prosecution to encourage compliance with existing international prohibitions. The criminal investigations and option to prosecute, even when international prosecutors elect not to bring criminal charges, also expresses a shared global commitment to ocean protection.

As with other international criminal investigations, state leaders may try to obstruct investigations, a practice that is sometimes effective at impeding the criminal process.⁷⁸ But this should not distract from the expressive power that targeted criminalization gives international prosecutors to bring global attention to serious environmental crimes at sea. The mere public threat of prosecution can deter some kinds of ocean destruction, even when criminal investigations or prosecutions never occur.

B. Illegal, Unreported and Unregulated Fishing

Illegal, unreported, and unregulated (“IUU”) fishing operations are highly-profitable and annually generate between an estimated $10 and $23 billion worldwide.⁷⁹ However, the consequences of IUU fishing can be devastating. IUU fishing depletes fish stocks and inhibits long-term sustainability. It undermines domestic and regional fisheries management and, more universally, ocean conservation. A lack of accountability for IUU fishing can also undercut state governance regimes and disadvantage responsible fishers who abide by existing environmental regulations.⁸⁰

Whales, sharks, turtles, and other protected species have been hunted to near extinction in many regions. IUU fishing tends to target vulnerable marine stocks that are often subject to controls specifically created to prevent fishery collapse. Unreported catches often interfere with essential management plans designed to aid species recovery and to restore the ecological balance, biodiversity, and sustainability of marine environments. IUU fishing also generates food insecurity for coastal communities dependent on local hauls for protein.⁸¹ Absent effective fisheries enforcement, climate change will likely compound these issues.

Prosecuting IUU fishing offenses can be challenging for a variety of reasons. Fishery managers usually have few resources for patrols or boat inspections and depend on fishers’ self-reporting of their catches and fishing methods. At the same time, the absence of high seas patrols makes detection unlikely beyond coastal waters. Illicit operators can hide illegal catches in several ways. Captains can offload catches to bribed port authorities or others complicit with their criminal enterprise. Fish can be processed offshore or relabeled to avoid detection. Crews from vessels employing illicit fishing methods, such as bottom trawling, can mix their catches with fish caught legally before returning to port.

Decentralized IUU fishing operations regularly cross jurisdictional lines, making it difficult to identify or track illegal boats or to target those most responsible for organizing criminal networks.⁸² Migrants and captive fishers may be forced to work on unregistered ghost ships where they engage in various forms of unregulated or illegal fishing. Those who attempt to leave can be shackled, sealed below deck, or even cast overboard.⁸³ State enforcement agencies also regularly ignore IUU fishing practices, which offer short-term benefits to coastal communities or provide supplemental income through patronage networks. Corruption and willful blindness to illegality continues to be a major obstacle to oceanic accountability for IUU fishing.

To be clear, there is no shortage of international agreements on fisheries.⁸⁴ But while UNCLOS and the UN Food and Agriculture Organization (“FAO”) are responsible for investigating IUU fishing, these bodies often hamper criminal accountability for perpetrators. Article 73(3) of UNCLOS, for example, authorizes coastal state penalties for fishing violations in EEZs but explicitly forbids imprisonment of offenders absent a bilateral agreement to the contrary.⁸⁵

State leaders must balance protection of fish stocks under current international and regional fisheries’ agreements against other state interests, including economic growth and national security. Consequently, many state governments take no notice of IUU fishing when other salient national interests are at stake. This partly explains why government IUU prosecutions are exceedingly rare. National law enforcement authorities often tolerate wrongdoing in their own civilian fishing fleets.

Efforts to combat IUU fishing generally focus on regulatory enforcement and treat illegal catches as management problems to be addressed by administrative state agencies rather than free-standing criminal offenses. State prosecutions and official public accounts of IUU fishing frequently attribute criminality to personal greed and rouge captains, even when sophisticated global criminal syndicates are known to run IUU fishing operations.⁸⁶ Targeted international criminalization of IUU fishing can empower international prosecutors to investigate global IUU criminal networks, which often extend beyond any single national jurisdiction.

Some IUU-related crimes, including human trafficking and seafood slavery, are already investigated and prosecuted in national jurisdictions. But international criminalization potentially broadens the scope of criminal culpability to include criminal offenses against the environment. International prosecutors can bypass corrupt port officials and domestic agencies complicit in IUU activities and lead investigations of powerful individuals, including high-ranking corporate financiers, who are involved in global IUU fishing. International criminalization individualizes culpability for serious ecological damages that transgress national jurisdictions. It also facilitates accountability for perpetrators engaged in transnational criminal enterprises that destroy marine environments. Further, following criminal convictions, international courts can order criminal reparations to aid the defense and restoration of depleted fish stocks. Criminalization of grave ocean crimes empowers international courts to serve as sentinels of marine environments.

C. Seabed Destruction

Seabed ecosystems increasingly face threats from illegal trawling and deep-sea mining.⁸⁷ Despite grave and well-documented environmental costs, bottom trawling remains the most common seabed fishing method employed on the high seas.⁸⁸ Deep sea mining exploration and exploitation activities also increasingly threaten seabed environments.⁸⁹

The Clarion-Clipperton Zone (“CCZ”) in the Pacific Ocean is an area roughly the size of Europe, spanning more than 3,000 miles at depths of 12,000 to 18,000 feet.⁹⁰ The CCZ seabed is rich in polymetallic nodules, a potential source of metals needed for lithium-ion batteries and other green energy technologies.⁹¹ Deep-sea mining could begin there in the next few years.⁹² Because the area lies in international waters, the International Seabed Authority (“ISA”) governs mining in the CCZ.⁹³ Companies seeking to mine the area must partner with a UNCLOS member country and apply for authorization from the ISA—a UN agency with fifty employees, a modest annual budget, and a jurisdiction that covers half the world.⁹⁴ As it stands, more than a dozen international companies have exploration contracts for the CCZ.⁹⁵ A 2022 ocean trial conducted by The Metals Company, a Canadian-based mining company that has partnered with Nauru to start mining the CCZ, generated fierce debate and opposition from some UNCLOS member states, including several states that are now seeking a moratorium on deep-sea mining operations.⁹⁶

Understanding the environmental consequences of mining the CCZ is complicated by the depths of mining operations and the current lack of information about deep-sea ecology.⁹⁷ Marine scientists estimate that ninety percent of species living in the region earmarked for mining remain undescribed.⁹⁸ Mining advocates argue that environmental damage from seabed mining is minimal when compared to land-based operations, and underscore the need for manganese, iron, copper, nickel, cobalt, lead, zinc, lithium, and rare earth elements to transition to green energy.⁹⁹ Conservationists strongly disagree with mining advocates about the environmental harms of deep-sea mining. They argue that mining operations will gouge the seabed and cause plumes of sediment to enter the water column and resettle over delicate ecosystems.¹⁰⁰ They seek a moratorium on mining until more environmental assessments can be completed on the impact of mining operations.

Presently, the science on the impact of deep-sea mining is nascent.¹⁰¹ Scientists have limited access to such remote depths and insufficient data on deep-sea species, habitats, and ecosystems. Consequently, deep-sea research has neither produced clear baseline data nor determined how sediment plumes will impact marine life on the sea floor.¹⁰² Scientists continue to identify new marine species during expeditions to the ocean floor but still know little about how mining will impact these species. Many deep-sea species are uniquely adapted living thousands of feet below the surface, where they thrive in near-total blackness and under immense water pressure. At such depths, metabolism and evolution slow, and even minor alterations of the environment can have long-term impacts.

Despite the lack of knowledge about deep-sea species, dozens of countries have started to plan mining operations for the near future. In 2017, Japan was the first country to mine its seabed and chose a location off the coast of Okinawa.¹⁰³ Norway also recently discovered rich seabed deposits and authorized further seabed exploration.¹⁰⁴ Mining companies already have begun prospecting for nodules to assess their size, composition, and economic value.¹⁰⁵ Absent political support for a temporary moratorium on seabed exploitation, large-scale commercial operations will likely begin in the next few years.

In the 1960s, Maltese Ambassador Arvid Pardo declared the seabed “the common heritage of all (hu)mankind.”¹⁰⁶ He advocated for an international governance regime to ensure deep sea resources benefited all of humanity, emphasizing the needs of less developed countries to share in any benefits of seabed exploitation. His advocacy eventually resulted in the Law of Sea Convention and the establishment of the International Seabed Authority. His concern that seabed resources serve our common heritage, in particular, seem prescient today. Technological advances and increased demand for mineral resources have renewed interest in mining the sea floor, especially as land-based mineral deposits decline. But the environmental consequences of such offshore operations are still unknown, and perhaps unknowable in the coming decade.

As demand grows, mining pressures will continue to increase, and more countries will partner with large corporations to exploit the deep sea.¹⁰⁷ Lackluster supervision of deep-sea mining operations and no real threat of criminal prosecution from partner countries creates well-founded fears that mining companies will be able to operate with impunity.¹⁰⁸ Under ISA contractual arrangements, companies are required to undertake baseline studies and conduct annual environmental assessments.¹⁰⁹ The ISA is tasked with judging these environmental assessment plans and determining the likelihood of compliance before they grant mining permits. However, once companies have permits in hand, the system relies on self-policing. Many conservationists believe this lack of mining operations oversight – combined with companies’ profit motive—will inevitably result in a tragedy of the deep-sea commons.¹¹⁰

International prosecutions, however, could help to ensure compliance with ISA regulations and deter companies from intentionally generating severe environmental harms. The possibility of individual criminal punishments for wanton acts of environmental destruction puts company officials on notice.

Further, the reparations processes that follow international criminal prosecutions could provide added resources to coastal communities and oversight agencies if company executives act illegally and conceal their criminal activities. Reparations decisions could also generate funds for the restoration and protection of marine life in the deep sea. Nature is resilient when provided the chance to recover. Criminal prosecutions and post-conviction reparations could help to ensure that environmental damage from mining violations stops with the first bad actor and that damaged sectors have time to recover before other operations can begin.

III. INTERNATIONAL CRIMINALIZATION

No global organization monitors environmental ocean crime or coordinates national enforcement efforts to protect marine environments. As a result, accountability for offshore environmental crimes depends on an incomplete jigsaw puzzle of enforcement regimes. State agencies and international organizations tasked with combatting transnational organized crime or protecting the marine environment from illegal fishing and toxic dumping often lack the capacity to address even the most egregious and visible ocean violations. Few offshore environmental crimes are ever investigated or prosecuted, even when marine scientists and conservation groups document permanent and extensive environmental harms.

Human rights scholars have rightfully criticized the punitive focus of international law, especially when the focus on criminal accountability and retributive punishment eclipses more reparative approaches to human rights and transitional justice. Some scholars argue that the turn to criminal law in international justice distracts from less visible forms of state violence and global efforts to grapple with persistent structures of social inequality.¹¹¹ Under this view, criminalization diverts attention and resources from endeavors to combat poverty, racial discrimination, and enduring forms of colonial domination.

Uncritical criminalization is a disturbing problem, and that is not what I suggest here. However, any serious global effort to address the climate crisis will need enforcement mechanisms to provide greater accountability for environmental harms beyond national jurisdictions. Rapid climate changes and environmental degradation demand innovations to improve ocean governance and ensure ocean protection. Targeted international criminalization of serious ocean crimes can provide critical tools to investigate environmental destruction at sea and to deter future harms.¹¹² Criminalizing environmental atrocities can also reinforce the legal status of oceans as the common heritage of humankind and encourage a shift toward greater ecocentrism in international justice.

International criminalization could also facilitate the investigation and prosecution of transnational criminal networks and other groups acting in concert to circumvent environmental protections even when national officials oppose accountability efforts. Organized criminal syndicates engage in various types of illegal fishing and toxic dumping that pose significant threats to marine environments. International criminalization could enable criminal cases against syndicate members independent of domestic interest or capacity to bring criminal charges.

International criminalization could further authorize criminal charges in cases where state officials fail to undertake obligatory actions to protect marine environments. Willful inaction, at least under certain conditions, amounts to a crime of omission. National environmental laws routinely fail to protect marine environments because state authorities are unwilling to enforce the rule of law. International criminalization could help to outlaw official inaction that results in serious ocean destruction and advance efforts to establish an international environmental duty of care.¹¹³ Even when the international criminal investigation of a state official’s failure to protect the marine environment does not result in criminal charges, it could still encourage greater compliance with existing environmental regulations and improve regional cooperation on ocean governance. International criminalization communicates a global concern for ocean protection that promotes dialogue and cooperation even in the absence of criminal prosecutions. Criminalization of environmental offenses on the high seas could also direct international attention toward invisible ocean harms often neglected by international criminal courts.¹¹⁴

The present incapacity of the international community to hold perpetrators accountable for ocean crimes abandons nearly all maritime enforcement to state and local officials, who often have vested interests in ongoing practices of oceanic impunity. International criminalization, in contrast, offers a potential solution to the problem of state corruption and complicity. Inadequate domestic enforcement of environmental law frequently results in environmental harms that cross borders and warrant international concern. Mare liberum or freedom of the seas has been a foundational principle of ocean law for centuries, dating back to the writings of Hugo Grotius.¹¹⁵ This idea of free seas has remained the backbone of ocean governance. But unconditional free seas are no longer defensible in the Anthropocene. Governance models based solely on the principle of free seas often legitimate careless national policies and encourage exploitation and destruction of vulnerable ocean environments.

Accountability is a primary aim of international justice.¹¹⁶ Yet, no single state institution or solitary judicial body can respond to the complex challenges posed by oceanic impunity. Various organizations, law enforcement agencies, and courts play complementary roles in collective responses to transnational criminality and environmental degradation at sea. International criminalization offers a useful, if limited, means to improve accountability for ocean criminality and better coordinate global responses to offshore environmental destruction.

The following section discusses two options for targeted forms of international criminalization. First, the Article discusses the expanded use of suppression conventions to encourage multilateral criminalization of ocean crimes. Criminalization, under the right conditions, enhances environmental compliance and supports international cooperation. Second, the Article discusses Rome Statute amendments that would allow the ICC to investigate certain oceanic crimes of ecocide. Amending the Rome Statute to include the crime of ecocide could transform the ICC into an environmental court of last resort. However, despite the potential benefits of internationally prosecuting ocean crimes, international criminalization should still be viewed as a limited tool for seeking justice and improving environmental ocean protection.

A. Suppression Conventions and Voluntary Instruments

Suppression conventions are an alternative mechanism for targeted international criminalization. Suppression conventions are multilateral agreements that require signatories to criminalize certain kinds of activities.¹¹⁷ The threshold for criminalization depends upon the objectives of the sovereign states signing the agreement, but the promise of criminalization signals a mutual commitment to transnational enforcement. Suppression conventions, therefore, help coordinate law enforcement responses by defining substantive legal prohibitions, establishing jurisdictional boundaries, and authorizing procedures for cooperation and investigative methods. Historically, suppression conventions have addressed a range of criminal activities from slavery and human trafficking to serious violations of international and customary law.

Suppression conventions that criminalize environmental harms are particularly salient in the context of oceanic impunity because of shortfalls in environmental monitoring and enforcement in EEZs and on the high seas. The freedom of the seas principle generally sanctions unencumbered maritime navigation and unrestricted resource exploitation beyond national jurisdictions, which disincentivizes the monitoring of oceanic harms and often precludes enforcement actions.

Suppression conventions provide two distinct paths for international criminalization. First, state officials can negotiate new stand-alone suppression conventions. These novel agreements could address a broad range of ocean crimes or be tailored to address a specific category of offshore criminality. For example, like-minded states could establish a suppression convention to address biodiversity loss in designated marine protected areas and as part of the convention members states could collectively criminalize specific activities that result in species or habitat destruction. Alternatively, states concerned about protecting migratory routes for pelagic species could negotiate a suppression convention to criminalize fisheries exploitation near migratory seamounts or agree to collectively police important migratory territories.

Because suppression conventions generally require the incorporation of crimes into national criminal codes, the enactment of suppression conventions could also improve monitoring and enforcement within national jurisdictions, thus improving accountability for oceanic impunity in domestic waters. The domestication of environmental crimes in suppression conventions in some instances could also permit investigations and prosecutions of corporate actors, thereby extending corporate liability for offshore environmental crimes. The utility of these stand-alone suppression conventions would be illustrated if and when a smaller group of interested states developed independent suppression conventions and thereby encouraged a larger community of states to recognize specific ocean crimes.

The second path that suppression conventions offer for international criminalization is that lawmakers already bound by an existing convention could seek to amend it or to enact new protocols that expand its scope. For example, States’ parties to the United Nations Convention against Transnational Organized Crime (“UNTOC”) could file a resolution at the UNTOC Conference of the Parties to categorize certain ocean crimes as serious crimes under the existing framework agreement and, thereby, establish mutual obligations to investigate and prosecute those ocean crimes. States’ parties could also otherwise develop a new protocol outside of the existing framework to supplement the UNTOC. Supplemental protocols have the advantage of cultivating new forms of cooperation among treaty members while also preserving general procedural rules and provisions.

Amendments or additional protocols that incorporate new ocean crimes or binding enforcement provisions could strengthen a range of existing international conventions without scrapping or undermining established agreements. For example, the International Convention for the Regulation of Whaling requires member states to take appropriate measures to punish violators of the convention.¹¹⁸ Present provisions, however, do not include any criminal penalties. Likewise, the Convention for the Prevention of Marine Pollution from Land-Based Sources requires member states to ensure compliance and to punish conduct that contravenes the agreement. But again, the present provisions do not explicitly authorize any criminal punishments. Amendments or additional protocols to established conventions could strengthen enforcement regimes by authorizing some criminal punishments.

Voluntary instruments are an alternative to suppression conventions for criminalization of environmentally destructive activities at sea. They generally operate independent of binding commitments negotiated by participating states. These voluntary instruments, for example, might be simple declarations that define a new ocean crime or articulate a shared commitment to investigate and prosecute a specific environmental harm. While such non-binding instruments often depend on implementation agreements and generally function more as regulatory compliance regimes, they can still accelerate multilateral enforcement coordination and legal harmonization in ocean governance. The adoption of voluntary instruments can further express states’ shared commitment to environmental conservation and communicate a more ecocentric approach to international law.

Suppression conventions and voluntary instruments are no panacea for oceanic impunity. However, they are adaptable instruments of multilateralism and, as such, provide alternative pathways for states concerned with ongoing environmental crimes to strengthen environmental monitoring and enforcement at sea.

B. International Criminal Courts

International criminal courts are possible mechanisms to investigate and prosecute oceanic impunity. International criminal law has long acknowledged environmental destruction—from aerial bombing campaigns during the Second World War to Agent Orange defoliation programs in the Vietnam War. However, international prosecutors have not traditionally focused on environmental harms in case selection or charging decisions.¹¹⁹ Most acts that cause serious environmental damage are not defined as international crimes whether perpetrated on land or at sea.

1. Rome Statute

As ratified, only one article in the Rome Statute, the ICC’s legal foundation, addresses environmental crimes. Article 8(2)(b)(iv) defines “war crimes” to include the following:

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.¹²⁰

Article 8(2)(b)(iv) creates possibilities for environmental war crime prosecutions and expands individualized criminal accountability for environmental offenses committed during armed conflicts.¹²¹ The Article also recognizes environmental damage as a stand-alone offense that need not relate directly to human injuries. In this way, Article 8(2)(b)(iv) moves away from traditional anthropocentrism in international criminal law and closer to an ecocentric vision of international justice.¹²²

However, Article 8(2)(b)(iv) has significant limitations. The definition of environmental destruction requires that harms be “widespread, long-term and severe” but these terms are undefined. As a result, the ICC Office of the Prosecutor (“OTP”) has wide discretion to interpret the language and to decide what kinds of environmental damage fall under the Article’s purview. The exercise of such discretion can irregularly prioritize environmental crimes and raise questions about both fair notice and equitable enforcement.

Article 8(2)(b)(iv) also includes a proportionality requirement that restricts its applicability during armed conflict.¹²³ Acts causing environmental damage must be “clearly excessive” in relation to any anticipated military advantage.¹²⁴ This threshold for disproportionate violations gives military officials significant leeway to defend strategic strikes, even when military actions result in severe environmental harms.¹²⁵ Further, to satisfy the mens rea requirement for the offense international prosecutors must establish the defendant’s subjective knowledge of the attack’s disproportionality, which creates a high threshold that must be crossed to secure convictions for environmental destruction.

Finally, and most concerning, Article 8(2)(b)(iv) only covers environmental damage inflicted during armed conflict.¹²⁶ Environmental crimes that happen in times of peace, therefore, fall outside the scope of the Article.

2. Ecocide

The crime of ecocide could provide a pathway to prosecute serious ocean crimes perpetrated outside of armed conflicts. Campaigns to criminalize ecocide as an international crime began in the 1970s but for decades failed to gain widespread public support.¹²⁷ But growing awareness about environmental degradation and the climate crisis have resurrected past ecocide debates. In February, the European Union Parliament became the first international body to criminalize serious environmental damage as “cases comparable to ecocide.”¹²⁸ Advocates for criminalization now include a range of world leaders from environmentalist Greta Thunberg to Pope Francis.¹²⁹ Viewed amid their concerns about accelerating environmental degradation, supporters emphasize ecocide’s moral force and expressive power.¹³⁰ They argue that ecocide prosecutions would raise the global profile of environmental crimes, which are too often treated as second order crimes.

In 2021, an independent panel of international criminal law experts published a definition of “ecocide” for consideration as an amendment to the Rome Statute.¹³¹ Subsequent debate on the definition evidences burgeoning interest in the criminalization of ecocide.¹³² The panel definition reads: “‘[E]cocide’ means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”¹³³

The proposed definition would significantly broaden the scope of criminal culpability for environmental destruction and clarifies some critical statutory terms. As described above, although ICC prosecutors must establish that international crimes are “severe,” “widespread,” and “long-term,” the Rome Statute does not explicitly define these essential terms.¹³⁴ This lack of statutory clarity would make it difficult for OTP to determine whether specific environmental harms would satisfy the legal threshold for ecocide. The new draft definition solves this problem by clarifying the terms as follows:

“Severe” means damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources;

“Widespread” means damage which extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings;

“Long-term” means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time.¹³⁵

In addition to clarification of the legal elements, the independent panel definition enables crimes to be prosecuted during peacetime, discarding the previous requirement to show a nexus between the environmental harm and an armed international conflict. This change recognizes that environmental atrocities frequently happen outside of war. The new definition also criminalizes acts irrespective of their connection to a civilian population or the boundaries of state territories. Individuals can be prosecuted for ecocide even when environmental damage does no harm to people. This change potentially brings corporate officials under the scope of criminal culpability if they engage in unlawful or wanton acts when they are aware of the substantial likelihood of severe and long-term environmental damage.

The proposed definition of ecocide further criminalizes acts of omission under some circumstances. With environmental harms, the failure to act—whether to prevent damage or to stop its continuance—can be as devastating as affirmative acts of destruction. Under the draft definition, global prosecutors would have the ability to investigate perpetrators responsible for serious and ongoing environmental dumping, illegal fishing, or unlawful mining operations. In some cases, even gross failures to prevent greenhouse gas emissions could result in potential criminal liability. Expanded international criminal culpability could help to safeguard domestic environmental protections and encourage criminal investigations of state officials complicit in serious oceanic crimes or other significant crimes against nature. Enlarging the scope of criminal culpability could also improve state compliance with environmental treaties, conventions, and voluntary instruments if the threat of international criminal investigation deters violations by state officials and corporate leaders.¹³⁶

Support for a more ecocentric approach to international criminal justice has not been limited to forces outside the ICC. In recent years, the OTP has gestured toward greater engagement with environmental concerns. In 2016, the OTP issued new guidance requiring international prosecutors to consider environmental consequences in evaluating the gravity of crimes and giving particular weight to crimes that result in environmental destruction, illegal exploitation of natural resources, or illegal dispossession of land.¹³⁷ New guidelines also explicitly recognize environmental destruction as a factor in decisions to launch preliminary investigations and select cases for prosecution.¹³⁸ The OTP customarily selects investigations and prosecutions based on the gravity of alleged crimes and on the degree of responsibility of the alleged perpetrators. In the gravity analysis, prosecutors normally consider the scale, nature, manner of commission, and impact of the alleged crimes on human victims.¹³⁹ Harms to the environment are now also weighed as significant factors in the gravity analysis.

ICC member states have also started to lobby for the crime of ecocide and requested investigations into serious environmental crimes. In 2019, for example, several island nations, including Vanuatu and the Maldives, called for ICC member states to consider the addition of ecocide as a core crime at the annual Assembly of States’ Parties Conference. The ICC has also received at least five formal complaints alleging serious environmental crimes in the Brazilian Amazon, opening a preliminary evaluation of its jurisdiction in one of the cases in 2020.¹⁴⁰ In June 2023, Ukraine officials accused Russia of committing environmental war crimes and ecocide by destroying the Kakhovka dam, which caused severe flooding and environmental damage.¹⁴¹ In February 2024, the ICC Chief Prosecutor, Mr. Karim A.A. Khan KC, announced a new policy initiative to advance accountability for environmental crimes. He stated:

“Damage to the environment poses an existential threat to all life on the planet. For that reason, I am firmly committed to ensuring that my Office systematically addresses environmental crimes in all stages of its work, from preliminary examinations to prosecutions. This latest policy initiative is another commitment to this necessary objective.”¹⁴²

3. Ecocide and Oceanic Impunity

Amending the Rome Statute to include ecocide as a core international crime would likely advance efforts to combat oceanic impunity for several reasons.¹⁴³ Ecocide prosecutions would facilitate ICC investigations of environmental violations committed in the territorial seas of ICC member states and also violations committed by member state nationals. The ICC could claim jurisdiction over ocean crimes committed on ships sailing under member state flags, even when law enforcement authorities in those member states are unwilling or unable to investigate the crimes. While ICC jurisdiction in the EEZs of member states and on the high seas remains in question, ICC investigations would likely avoid some jurisdictional challenges associated with flags of convenience as the most notorious flag states, including Panama and Liberia, are current parties to the Rome Statute.¹⁴⁴

Making ecocide an international crime could also empower international prosecutors to take on a larger role in environmental protection at sea.¹⁴⁵ The ICC operates as an independent judicial institution authorized by the Rome Statute to investigate international crimes and seek accountability even when state officials are complicit in the criminal acts or oppose ICC investigations. As a permanent court of last resort, the ICC has the legal authority to prosecute international crimes when state agencies are unable or unwilling to do so.¹⁴⁶ Arguably, a global court insulated from domestic political pressures and interest groups could more effectively monitor criminality at sea and perhaps intervene before severe and long-term ocean violations arise, thereby preventing future environmental harms.¹⁴⁷

Amending the Rome Statute to include the crime of ecocide could lead to major institutional changes for the ICC.¹⁴⁸ The new crime would broaden the scope of criminal liability to include a range of environmental harms and promote a more ecocentric approach to international justice. For the first time in the history of international criminal law, serious crimes against nature could be prosecuted during peacetime independent of injuries to human beings. Ecocide investigations could also explore forms of “slow violence” that impact the environment.¹⁴⁹ Tasked with a duty to protect nature, the ICC could consider scientific indicators of environmental decline and climate impacts in the gravity analysis of alleged crimes. Ecocide prosecutions might also contribute to public dialogues about justice and accountability for coastal communities impacted by extreme environmental changes.¹⁵⁰ The ICC Chief Prosecutor could take a leading role in shaping the field of international environmental law and global sustainability through preliminary investigations and case selection. Meanwhile, ICC judges could contribute to the development of jurisprudence on international environmental crimes.

Ecocide also potentially expands the significance of the ICC Chief Prosecutor’s proprio motu power and encourages individual informants and nongovernmental sources to report serious environmental crimes directly to the OTP. Under the Rome Statute, ICC inquiries start in one of three ways: member states can refer a situation to the ICC; the UN Security Council, acting under its Chapter VII powers, can refer a situation to the ICC; or the ICC Chief Prosecutor can exercise proprio motu power and independently start an investigation.¹⁵¹ Because the ICC Chief Prosecutor has the power to initiate criminal investigations independent of states, informants with information or evidence about serious environmental crimes would have a direct channel to provide information to the court without involving state officials or domestic law enforcement. Informants might likewise report information about global criminal syndicates to the ICC even when they fear retaliation from syndicate members or domestic authorities. The ICC Chief Prosecutor might also properly exercise proprio motu power to express shared normative commitments to environmental protection.¹⁵²

Ecocide prosecutions over time might also establish ocean crimes as jus cogens offenses and thereby prevent state derogations from obligations to protect the marine environment in future international agreements. International state practice continues to evolve rapidly in response to divergent forms of ocean criminality. Customary law will also need to adapt to new priorities in ocean governance and environmental protection.¹⁵³

International ecocide prosecutions would signal an ecocentric shift in international criminal justice. Ecocide would be the first international crime to address non-human violations outside of armed conflict. In contrast to previous international crimes, a criminal conviction for ecocide would be possible without any evidence of human injury or suffering. By holding out crimes against nature as the moral equivalents of other atrocity crimes, ecocide prosecutions could advance a vision of international justice that recognizes both our ecological interdependence and the intrinsic value of nature.¹⁵⁴ The activities of humanity at sea will likely accelerate in the coming decades and continue to impact climate change.¹⁵⁵ If empowered by the global community to prosecute environmental crimes, the ICC could help to moderate offshore environmental harms by prosecuting those people most responsible for illegal destruction of marine environments and expressing a global commitment to ocean protection.¹⁵⁶

The idea of an environmentalist ICC presently seems utopian. But the climate crisis will transform priorities for criminal accountability and international criminal justice in the next decade. In the meantime, the international community can no longer afford to abdicate responsibility for ocean governance to national authorities. The next generation of international prosecutors must merge international environmental law and international criminal law to respond to the urgent and existential environmental threats to oceans and the planet.¹⁵⁷

CONCLUSION

This Article advances a relational approach to the study of oceanic impunity. Building on scholarship in international criminal law, marine ecology, and relational sociology, the Article proposes targeted international criminalization to increase offshore accountability for severe environmental harms.

National law enforcement has mostly failed to protect marine environments or to combat widespread oceanic impunity. State agencies tasked with investigating offshore criminality routinely have insufficient resources to patrol waters under their jurisdiction. Beyond national jurisdictions, no single organization monitors environmental ocean crimes or coordinates law enforcement efforts.

This Article describes three critical ocean crimes—ocean pollution, illegal fishing, and seabed destruction—and suggests two international options for improving accountability at sea. First, suppression conventions could establish compulsory obligations to criminalize certain ocean crimes and encourage the development of multilateral enforcement regimes. Second, international criminal courts could investigate and prosecute serious environmental crimes. Amending the Rome Statute to include ecocide, for example, could empower ICC prosecutors to investigate serious ocean crimes and allow the ICC to operate as an environmental court of last resort. Targeted forms of international criminalization could also help to harmonize definitions of environmental ocean crimes and improve intelligence sharing and evidence gathering in criminal investigations and prosecutions.

In the Anthropocene, international cooperation to end oceanic impunity is essential to confront the climate crisis. Beyond theories of criminal retribution or deterrence, international criminalization and the investigation of serious environmental harms has expressive value. Environmental prosecutions signal an ecocentric shift in international criminal justice and promote a shared global commitment to ocean protection. Recognizing our inextricable relations with nature, ecocentrism presents an ontological challenge to the traditional anthropocentrism of international criminal law.¹⁵⁸

Healthy oceans and seas will ultimately depend on more than criminalization, however. International criminal prosecutions are insufficient instruments to achieve comprehensive ocean governance, and criminal punishments alone cannot address the most pressing problems facing oceans or coastal communities. Combatting oceanic impunity and ecological disaster requires deeper commitments to international cooperation. In addition to targeted criminalization, state lawmakers must make oceans a priority and collaborate to protect marine biodiversity beyond national jurisdictions, fund international organizations tasked with ocean governance, and establish more marine protected areas.

97 S. Cal. L. Rev. 637

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Stephen Cody*

* Associate Professor of Law, Suffolk University Law School. Thanks to Amanda Beck, Sarah Burstein, Kevin Davis, William Dodge, Andrew Van Duyn, Laurel Fletcher, Maryam Jamshidi, Chimène Keitner, Steve Koh, Cody Corliss, Katerina Linos, Xander Meise, Saira Mohammed, Sharmila Murthy, Julie O’Sullivan, Dan Richman, Wadie Said, Guillermo Garcia Sanchez, Shayak Sarkar, Daimeon Shanks, David Sloss, Melissa Stewart, Pierre-Hughes Verdier, Joshua Weishart, and participants in the Faculty Workshop on Global Criminal Justice at Boston College, the Northern California International Law Scholarship Workshop at Berkeley Law, and the Junior International Law Faculty Workshop at Boston University. All errors are mine.

Filtered Dragnets and the Anti-Authoritarian Fourth Amendment

July 2024July 2024Jane R. Bambauer*

Filtered dragnets are digital searches that identify a suspect based on the details of a crime. They can be designed to withhold information from law enforcement unless and until there is a very high probability that the individual has committed the offense. Examples today include DNA matching, facial recognition from photographs or video of a crime, automated child sexual abuse material detection, and reverse geolocation (geofence) searches. More are sure to come, and their wide-scale use will be irresistible to improve the low rates of criminal detection that currently afflict many communities.

However, filtered dragnets imperil society precisely because they detect crime too well. Sudden increases in the detection of criminal conduct will intensify the pathologies of American criminal justice: namely, that too many marginally harmful acts are criminalized, crimes are punished too harshly, and police and prosecutors have too much discretion. If nearly everybody commits some technical violation of criminal law that can be easily detected and harshly punished, all Americans will be at the mercy of the constable’s pity.

These threats are not well constrained by current Fourth Amendment jurisprudence, based on privacy rights, because filtered dragnets detect crime without revealing irrelevant details. Thus, Fourth Amendment theory and doctrine must strengthen the anti-authoritarian objectives endowed in its roots. A search conducted with a filtered dragnet should be considered reasonable only if it is administered in an evenhanded manner, and a subsequent seizure of a person is reasonable only when the misconduct is abhorrent enough to justify arrest and imprisonment.

INTRODUCTION

Nearly forty years ago, Justice Brennan asked his colleagues, who had just given a constitutional stamp of approval to the drug-sniffing dog, to imagine a device “that, when aimed at a person, would detect instantaneously whether the person is carrying cocaine.”¹ If the device could detect the presence of cocaine inside a building, “there would be no constitutional obstacle to the police cruising through a residential neighborhood and using the device to identify all homes in which the drug is present.”² He believed the prospect of police having a tool of near-perfect detection presented a catastrophic threat that the courts have a duty to stop.

We are not too far off from this scenario anymore,³ and some strategies already in use by law enforcement and intelligence agencies are similar to Brennan’s machine. Examples include DNA matching, facial recognition from photographs or video of a crime when it was in progress, automated child sexual abuse material detection, and reverse digital searches (where police use information known about the crime, such as location, timing, or special instrumentalities, to cross-check against service provider data in order to identify a suspect). Many more of these investigative techniques are sure to come, especially if or when the Internet of Things reaches its potential by placing increasingly powerful sensors on nearly every machine.

Twenty-first century policing will increasingly use data collected from tracking and sensing technologies to conduct investigations that work backwards. Law enforcement will use the particulars of a crime as a “fingerprint,” so to speak, to determine who should belong in the pool of suspects. Unlike the standard dragnet, which permits law enforcement to observe large amounts of data and to choose their targets, filtered dragnets force investigations to focus on the evidence of a crime. Computers will automatically scan through data without exposing it and will make a disclosure only when there is probable cause to believe that a person’s data matches the signature of the crime. Moreover, even when data is disclosed, filtered dragnet programs can be designed so that the only data revealed is potentially relevant data; extraneous details can be withheld.

When surveillance technologies meet all these benchmarks—that is, when (1) they are used to find an individual related to a crime (rather than to find a crime related to an individual), (2) when they report details from an otherwise private database only after meeting a high threshold of confidence (e.g., probable cause or higher), and (3) when they withhold details that are ex ante unlikely to be relevant to the current criminal investigation, the nature of that surveillance is different from other types of police work. Filtered dragnets, as I will call them, are structured to avoid many problems traditionally associated with mass surveillance.

Fourth Amendment theory and reasoning is just starting to find its legs in digital search cases,⁴ but filtered dragnets will destabilize criminal procedure law again. They will whittle down most of the privacy rationales for Fourth Amendment protection. Mounting a Fourth Amendment defense will require a litigant to convincingly argue that even though the defendant very likely committed a crime, and even though the police did not see or have discretionary access to data for any other persons and did not even have irrelevant data about the defendant for that matter, the search was nevertheless unreasonable. That sort of privacy über alles argument might work for crimes of questionable legitimacy—drug possession, for example—but it won’t work in the context of universally reviled conduct like murder.

What is more, filtered dragnets may reduce privacy intrusions on net, as compared with current investigation techniques, because they can remove many people from the scope of suspicion who would otherwise become targets of investigation. In other words, filtered dragnets break the privacy-security trade-off because they simultaneously increase criminal detection and privacy. As Bennet Capers has explained, they may be a useful tool to simultaneously tackle under-protection and over-policing problems.⁵ Outright bans of these technologies, as have been advocated in many corners,⁶ would be irresponsible.⁷

Nevertheless, even if filtered dragnets detect crime and nothing else, they pose serious social risks that Fourth Amendment law and scholarship are ill equipped to handle: What happens to Fourth Amendment theory and the practice of criminal justice if nearly every crime could be detected?

In the late 1990s, Larry Lessig asked this very question.⁸ He anticipated that digital technologies may create a wedge between the privacy and anti-authoritarian rationales for criminal procedure. But most Fourth Amendment scholars do not even recognize a schism between privacy and anti-authoritarian goals. Instead, they continue to focus on privacy as the key constraint on any police activity that leverages large amounts of personal data. The scholars who have recognized liberty and anti-authoritarianism as a Fourth Amendment lodestar have insisted that all technology-assisted surveillance is a tool of abusive state power per se.⁹ As a result, Fourth Amendment scholars lump filtered dragnets with all other surveillance and advocate for the strictest access controls, guaranteeing the continuation of a low rate of criminal detection.

This is the wrong course. The threat from filtered dragnets is tyranny, and the Fourth Amendment will be more effective and coherent if we recognize that. Filtered dragnets will dramatically increase the detection of crime, and this will intensify existing pathologies in American criminal justice that have little to do with privacy. Namely, we have too many crimes, too much punishment, and too much police and prosecutorial discretion. These problems jointly produce the risk of authoritarian power. An overly expansive criminal code paired with harsh penalties ensures that nearly everybody could be subjected to incarceration.¹⁰ When the state also has unchecked power to choose where and when to investigate within the ocean of criminal-but-typically-ignored conduct, the populace is at the mercy of the state’s will.¹¹

Today, the criminal justice equilibrium rests on an unspoken compromise. The state has broad substantive law, harsh punishment, and unchecked discretion, it is true, but the populace has privacy rights that nearly guarantee low detection, even when police are highly motivated. When filtered dragnets give police near-perfect detection, the bargain has to be renegotiated.

This Article proposes a new grand bargain for Fourth Amendment law: the Supreme Court should recognize filtered dragnets as a legitimate and even desirable tool for criminal investigations. But constitutional rules should guarantee that the substance of American criminal law will be limited to conduct that is commonly recognized as heinous, that the severity of the punishment fits the reprehensibility of the crime, and that the enforcement of criminal laws is equitable and nonarbitrary.¹² Without these civil rights, if the substance of criminal law is left as broad and vague as it is today,¹³ and if penalties and the impact of prison are as debilitating as they are now, filtered dragnets would give the government the means of exercising tyrannical control through the omnipresent threat of criminal enforcement and the power of discretionary clemency.

This Article proceeds as follows: Part I describes some filtered dragnets that are already in use and lays out the essential features that distinguish them from other investigation tools.

Part II describes the potential social benefits that can be gained from the responsible use of filtered dragnets.

Part III describes the scholarship and caselaw challenging the constitutionality of filtered dragnets on privacy grounds and disagrees with it. By most common-sense meanings of privacy, filtered dragnets are in fact much more private than the sorts of investigations that routinely occur.

Part IV shows that the threat of filtered dragnets comes not in the form of privacy but in the form of tyranny. Perfect detection of crime in a system where criminal statutes are sprawling and criminal penalties are harsh will either create a country of convicts or will give government too much power to engage in selective leniency.

Part V reinterprets the Fourth Amendment prohibition of unreasonable searches and seizures to fit the criminal justice problems that emerging surveillance technologies will cause. The reasonableness of a seizure should depend on whether the defendant’s conduct truly warrants criminal liability and penalties. The reasonableness of a search should depend on both expectations of privacy and on evenhanded investigation practices.

Part VI explains why the Constitution, and the Fourth Amendment in particular, are well suited to carry out this shift even though it would mark a departure from twentieth century precedent.

The agenda laid out in this Article is ambitious—almost embarrassingly so. What I propose here would require a seismic shift in Fourth Amendment principles that would cross the procedural/substantive divide.¹⁴ Given that, I take comfort in the fact that I am not painting on blank canvas. This project is a remix of themes developed by Bill Stuntz,¹⁵ Bennett Capers,¹⁶ Elizabeth Joh,¹⁷ Bernard Harcourt and Tracey Meares,¹⁸ Chris Slobogin,¹⁹ Mark Kleiman,²⁰ and many others. Even so, it is awfully presumptuous to suggest courts might start invalidating criminal laws or sentencing rules using a new-fangled conception of the Fourth Amendment. But I will suggest it anyway because it is the only desirable and realistic option. The criminal justice system needs to be transformed in a manner that accepts much greater levels of detection in exchange for many fewer criminal prohibitions and punishments. It is a trade that has to be executed simultaneously in order to avoid disastrous consequences.²¹ No legislative or local government process could pull off a massive rights horse trade of the sort that is required. It can only be accomplished through the style of landmark constitutional cases that, every generation or so, help realign Fourth Amendment operational rules with the ultimate purpose of Fourth Amendment protection.²²

I. WHAT ARE FILTERED DRAGNETS?

The progenitors of filtered dragnets have been around for a while. Fingerprinting analysis is a well-known and time-honored method of backwards investigation where the facts from the scene of a crime (the fingerprint markings) are cross-checked against a large stockpile of information in order to make a fairly confident match to a particular suspect.²³ Police dogs are another example.²⁴ We know that the mind-boggling sensitivity of a dog’s nose is such that, if it could talk, it could reveal vast amounts of information about a person—what is inside their bag, how their health is, whether they’ve been in recent contact with other people—that are unobservable to we mere humans. In some sense, the mind of a police dog is a treasure trove of personal information that remains inaccessible to police most of the time. But when they are trained to alert to contraband or to specific scents sampled from a crime scene, the dog and the training combine to create a “binary search”—a mechanism that tells the police nothing unless there is probable cause that a crime is being committed.²⁵

These crime-driven, quasi-filtered investigations are the outliers in a system of police investigation that relies much more heavily on witnesses, confessions, and physical searches.²⁶ But we can expect the practice to rapidly expand because of the greater amounts and variability of data available for cross-checking the facts of a crime against data from the population of potential suspects.

This Part lays out the two required features of filtered dragnets that will cause an unprecedented shock to Fourth Amendment theory. We will then visit examples of techniques that are already in use that either already satisfy the definition of filtered dragnets or soon will.

A. Required Elements to Qualify as a Filtered Dragnet

Filtered dragnets provide a suspect’s data to police only if (a) their data matches uniquely criminal details such that there is a high probability they have engaged in criminal conduct; and (b) their data has been pared down to provide only relevant details about the suspected crime to the police. When combined, these features make filtered dragnets a qualitatively different style of police investigation.²⁷

1. Automated Matching of Uniquely Criminal Details

Filtered dragnet investigations will trawl through and process large amounts of data. There is no doubt that they are a dragnet. But to qualify as a filtered dragnet, the filter of the dragnet must constrain the system’s ability to leak information. A filtered dragnet must be programmed to alert police only if an individual’s data matches a unique fingerprint of a crime.²⁸ In other words, the system blinds the police until at least probable cause (and hopefully more suspicion) is established.

Filtered dragnets are a subset of the category of investigations that Christopher Slobogin calls “suspectless searches.”²⁹ But they are a narrow subset. Very few of the suspectless searches that Slobogin analyzes (many of which I describe below) have the potential to become filtered dragnets. As they are practiced today, they will not meet the heightened standards for filtered dragnets because they do not use unique signatures of criminal behavior. For example, geofencing and familial DNA-matching procedures often allow police today to access data about a handful of individuals, all but one of whom are necessarily innocent, in order to help the police create leads for traditional follow-up investigation. To find the Golden State Killer, the FBI found a genetic match to a family member, and then used traditional genealogy to trace from that family member to the suspect.³⁰ The revelation of that family member’s identity would not qualify as matching to “uniquely criminal detail.”

Slobogin argues that even when a small number of people, some of whom are guaranteed not to be the perpetrator (such as somebody whose DNA only partially matches that of the sample from a crime scene), are identified to the police, the intrusion into privacy is fairly minimal and should be handled through Fourth Amendment doctrines that allow for warrantless searches and seizures, like checkpoints.³¹ I agree with nearly all of Slobogin’s proposals about how courts should interpret the Fourth Amendment with respect to these examples. But they still do not meet the criteria I am setting—criteria that, when met, challenge the most basic conceptions of Fourth Amendment privacy. To meet the definition of a filtered dragnet for my purposes, police will remain ignorant to details and identities until there is a high probability that the information identifies and pertains to the perpetrators and no one else.

2. Nondisclosure of Irrelevant Details

The first requirement on its own ensures that filtered dragnets are analogous to “binary searches” like drug-sniffing dogs—the sort that alert only if there is probable cause of a crime. But there is an additional affordance that should be exploited: filtered dragnets must refine the information that is ultimately disclosed to police by filtering out personal, irrelevant details even about a suspect. This is equivalent to a drug-sniffing dog that could magically produce a suspect’s drugs without any of the rifling through cars and pockets that are necessary today. Thus, the suspect will retain privacy over details that are not relevant to the criminal investigation at hand.

To be clear, neither of these requirements are meant to be absolute guarantees. All systems have error, and even if police are able to set very demanding thresholds for false positives, police will occasionally access licit, irrelevant details when a filtered dragnet falsely identifies a suspect who is then subjected to an arrest or probable cause–based search. But the requirements for disclosure in a filtered dragnet system can be calibrated to fit societal needs and expectations: the chance of false accusation error can be driven down to practically zero if we would like, if we are willing to tolerate the consequences that there will be more false negatives (more crimes that are not detected) or that police departments will need to access more data in order to maintain the same level of detection.

A. Examples

Next, we will visit a set of backwards investigation techniques that are in use today. These use the particularities of a crime to lead police to a suspect. While most cannot meet the demanding definition of “filtered dragnet” formalized above, with time and additional data resources, they will surely get there.

1. DNA Matching

DNA-matching investigations use parts (non-revelatory portions) of a DNA sequence produced from a sample collected at a crime scene or from a crime victim in order to identify a suspect using DNA databases. They are an obvious extension of fingerprinting analyses with some souped-up features. First, DNA matching can set a very high threshold of statistical probability of true match (or, in other words, a very low probability of a false match) because each DNA sequence has a large amount of data.³² Second, they can make use of popular commercial and ancestry databases for cross-checking and are therefore not limited to identifying individuals who have a history with the criminal justice system.

Third, familial or partial DNA matches are very useful for police investigations in a way that partial fingerprint matching is not. In familial DNA-matching investigations, such as the one that eventually led to the arrest of the Golden State Killer, police departments recover the identity not of the suspect but of one or more of the suspect’s genetic relatives.³³ This raises privacy concerns for the relatives whose identities are revealed to law enforcement in the course of finding the perpetrator.³⁴ So, as practiced today, familial DNA searches do not fit the definition of a filtered dragnet. They fail the second element (filtering out innocent and irrelevant details) by revealing identities and information about family members who are definitely not the perpetrator of the crime.³⁵ However, it is conceivable that in the future, if multiple databases are able to be accessed and triangulated, familial DNA matching can be part of a filtered dragnet system that automatically finds a familial match, trawls other data sources in order to identify the correct relative of familial match (based on, e.g., age, location, or personal history of the relatives), and discloses the identity of the suspect and the relevant details only when and if there is sufficient confidence that the correct suspect has been identified.³⁶ All of this can be automated.

DNA evidence holds an esteemed place in criminal justice and public perception. DNA evidence is durable (as long as it is handled properly) and judges and juries can justifiably place a high degree of confidence in the reliability of DNA-matching investigations.³⁷ Other types of data beyond DNA can have these qualities, too, but they provoke much more suspicion and dissent. Distinguishing them from DNA matching will become increasingly untenable.

2. Facial Recognition

Facial recognition uses large databases of identified photographs (often scraped from the public Internet) to discover the identity of a person who would otherwise be anonymous.³⁸ The technology can be used as a filtered dragnet when police departments deploy facial recognition on photographic evidence from the scene of the crime.³⁹ For example, law enforcement has used facial recognition to pin identities to individuals who appeared in surveillance footage from the Capitol on January 6, 2021, as well as to robberies and street crimes.⁴⁰ Although facial recognition algorithms are less accurate for female and non-white faces,⁴¹ industry members claim this is not the case for top-performing algorithms in active use.⁴²

3. Automated CSAM Detection

Last year, Apple unveiled a program that would automatically scan iPhoto images and cross-check them against a library of known child pornography when the images were uploaded to the iCloud. Apple had planned to use a hashing technique to check all files sent from Apple devices to be stored on iCloud servers. Essentially, every image received by an Apple phone is converted to a code that corresponds to the visual image.⁴³ When a person’s iPhoto images produce ten matches, Apple employees would automatically be alerted and would share the information with authorities. Thus, while every image would be hashed and cross-checked against child pornography, only the images that matched could lead to a disclosure to law enforcement. Apple has since abandoned its plans in response to criticism,⁴⁴ but the technological capability still exists.

4. Geofences and Other Reverse Searches

In 2019, a spate of arsons involving vehicles parked in commercial lots was committed in short succession.⁴⁵ Based on the locations, surveillance footage, and similar modi operandi, police had reason to believe that a single set of co-conspirators was involved in all six arsons. When federal investigators requested that the court issue a warrant requiring Google to search its time-logged geolocation records for cellphones that were at or near the scenes of the arsons during the times that they were committed, a U.S. magistrate judge complied.⁴⁶ This type of process—where police start with the location, approximate time, and other details of a crime and ask service-providers to find a matching account—is known as a “geofence warrant,” and magistrate judges have issued orders authorizing their use under certain conditions. Judges have refused to issue warrants (without deciding whether warrants are actually necessary) when the request cast too wide a net—that is, if too many devices are likely to be identified as matching the search criteria.⁴⁷ For example, if police are investigating a crime that took place during a Beyoncé concert, even a geofence with a small radius, during a fairly precise window of time, will draw in too many false matches—too many phones of innocent bystanders. But this concern falls away if police can use multiple details or the intersection of several geofences in order to create a search criteria that will be unique to the perpetrator.⁴⁸ For example, in one recent case, a perpetrator who was suspected to have cased the location of a murder on the day before he committed it was identified using overlapping geofences from the day before and the day of the murder.⁴⁹ License plate readers, drone footage, Internet of Things data, and satellite surveillance imaging could also be sources of geolocation information in the likely circumstance that criminals begin to leave their devices at home.⁵⁰

Geolocation data can be combined with other types of information, too, to form a signature of crime that is more likely to be unique. As an illustration, US intelligence agencies located Osama bin Laden in part by looking for locations where they would expect to find Internet and cell service but in fact found none.⁵¹ There are data sources outside of location data that can create a signature for reverse searching. For example, while investigating an arson case, the Denver police department sought and received a “keyword warrant”—a court order requiring Google to reveal the account information of users who had recently searched for the address of the arson during a fifteen-day period leading up to the crime.⁵² Cyberstalking, child pornography, and many other online crimes have used forms of reverse searches in order to identify the accounts associated with IP addresses that were used to engage in those crimes.⁵³

5. Scanners, Sensors, Cameras, and Microphones

Red light cameras were one of the first ventures into automated policing and were also much despised.⁵⁴ These systems used sensors to detect if a car entered an intersection after the light had turned red, took a photograph of the car, and later used the image of the car (and its license plate) to track down the owner and mail a ticket. These systems are not dragnets per se (they do not make use of pre-existing collections of data), but they set the stage for Automatic License Plate Readers that do capture an abundant amount of data in case some particular parts of it are useful later, as when police are searching for a stolen vehicle.⁵⁵

Patterns that are highly suggestive of crime can also be automatically detected using recording devices with cameras, microphones, or sensors that operate in “always on” mode.⁵⁶ One example in use today is ShotSpotter microphones that are constantly “listening” in a public setting but alert the police and save data long term only when the noises captured by the shot-spotter match the sounds of gunshots.⁵⁷ In theory, Alexa, which also constantly records to respond to watchwords like “Hey Alexa,”⁵⁸ could be designed to detect sounds that are particular to domestic violence or home invasion and automatically alert the authorities.

Other sensitive devices like terahertz scanners can detect when naturally occurring radiation is blocked by metal objects. When the blocking metal objects are gun shaped, the scanners can be programmed to alert.⁵⁹ But this is nothing compared to what quantum magnetometry will be able to do in the near future.⁶⁰ Quantum sensing is so sensitive to minute differences in magnetic fields that the sensors will be able to detect trace amounts of chemicals, even when they are concealed behind walls. So, Justice Brennan’s nightmare scenario is here: we will soon have contraband detection devices.

This survey of suspicionless searches and backwards investigations demonstrates that there is increasing viability and interest in using these types of techniques. The practices currently in use do not usually meet the two formal requirements for “filtered dragnets,” but it is useful to assume they eventually will. By assuming investigations will eventually meet the demanding definition of filtered dragnets, we will be able to state with more rigor precisely why it is we are nervous about these law enforcement technologies, and what the policy or constitutional response should be.

II. THE ADVANTAGES OF FILTERED DRAGNETS

This Article will eventually explain why filtered dragnets impose serious risks on society that are not adequately (or even nominally) addressed in Fourth Amendment theory. But first, we will explore reasons to embrace, rather than resist, the integration of filtered dragnets into policing.

Filtered dragnets offer several advantages over the investigation practices in common use.⁶¹ These include decreased exposure of innocent details, increased accuracy and efficacy of criminal investigations, increased detection and deterrence of crime, decreased discretion for suspect selection, and decreased risk to witnesses and victims. In combination, these advantages contribute such compelling benefits to society that courts and attorneys should feel a moral obligation to harness their powers as much as possible.

A. Decreased Exposure of Innocent and Irrelevant Details

Filtered dragnets protect the privacy of innocent individuals, as well as the innocent-and-irrelevant details of a suspect. They protect innocent individuals whose data is scanned in the process by allowing police and courts to set a high standard for false match error. That is, filtered dragnets can be programmed to alert and reveal personal information only when the statistical probability that the person has engaged in crime is greater than 50%, or 80%, or 99%. This would ensure that the number of innocent individuals who are initially approached and investigated will be only a fraction of the number of criminals who are found.⁶²

Moreover, filtered dragnets limit the type of information that is revealed even about the proper subjects of investigation who have committed a crime. This is a game-changer. If police could have searched a house or a car in a manner that blinded them to everything except contraband or criminal evidence, the text and interpretation of the Constitution would probably differ from what we have today. The closest analogy we have to filtered dragnets, as I have mentioned before, are drug-sniffing dogs. Police dogs are allowed to sniff and alert based on the (mostly defensible) assumption that they will be trained well enough to have a low error rate.⁶³ The dog sniff and subsequent alert are, controversially, treated as a non-search in Fourth Amendment law unless the dog has trespassed into the home or curtilage of a resident.⁶⁴ But once the dog alerts, the police have probable cause to perform an entire human-conducted unfiltered search of a person’s vehicle, home, or effects, thereby revealing intimate and innocent details while they look for contraband. Filtered surveillance is more privacy-protective than drug-sniffing dogs because it can restrict the sort of data that is revealed even as police are verifying that the alert is accurate.

I do not mean to suggest that filtered dragnets avoid all revelations about innocent people or activities. Relevant data disclosed to police as a result of a high probability match will frequently, maybe even usually, reveal information that is not directly tied to wrongdoing. For example, if in the future the police used a system that combines familial DNA matching with other records to identify a sexual assault offender, police may see and use the identity of the family member in order to confirm that the identification is sound and to show how the case was solved to a jury. This could reveal the identity of estranged parents or children of the suspect or could uncover paternity that was not previously known.⁶⁵ But this is a consequence of the fact that all successful investigations impose some irreducible privacy costs on the innocent. Even using traditional strategies, police will occasionally and appropriately question a spouse in a manner that reveals the suspect is having an affair or may make other similar sensitive revelations. If the revelations are in service of pursuing a probable cause–backed investigation, these will be innocent-but-relevant details.⁶⁶ The advantage I describe here pertains to the shielding of innocent-and-irrelevant information.

B. Increased Accuracy

By definition, filtered dragnets identify suspects and reveal information only when there is a high probability of crime. This is a form of increased accuracy—a reduction in false positive error. (In the next subsection, I will discuss the other form of increased accuracy—the reduction in false negative error—which would allow filtered dragnets, if deployed consistently, to solve more crimes and increase clearance rates.)

If filtered dragnets are held to higher probability standards than standard investigation techniques, they will cause proportionally fewer false starts and erroneous arrests and searches along the way.⁶⁷ In time, a shift toward filtered dragnets should decrease the dangers and anxiety that come from false suspicion and conviction at every stage of criminal investigation. Indeed, facial recognition systems that identify a suspect based on photographs or surveillance footage from a crime already outperform the accuracy rates of average eyewitnesses and PC-based warranted searches by a large margin.⁶⁸

Skeptics will have at least two critiques of my optimistic prediction: all systems have some error, and the sort of error that comes from a highly technical and data-driven system might be particularly worrisome since a falsely accused defendant will have to go up against a trusted and more accurate system.⁶⁹

It is true that no investigation tool is free from error, and it is also possible that police, prosecutors, and juries could be at risk of reflexively trusting the results of a filtered dragnet system because they are so reliable. But the premise of the critique might be plain wrong. When a filtered dragnet produces a spurious result, the error could very well be easier to catch than when an informant or witness makes a spurious identification. For example, when a man named Michael Usry was the target of an investigation based on his father’s partial genetic match to crime scene DNA, Usry was cleared as soon as his own DNA sample was collected and analyzed because it did not match the sample collected at the scene of the crime.⁷⁰ This should generalize: the more independent sources of data there are, the more protection there should be for innocent.⁷¹ A person wrongly identified by facial recognition is more likely to have a credible digital alibi (e.g., geolocation data that puts them in an entirely different state at the time of a crime) than a wrongly identified person who was accused by a confidential informant.

The facts of United States v. Chatrie⁷² illustrate the propensity for the erroneous targets of filtered dragnets to be cleared earlier and easier than erroneous targets in traditional investigations. In that case, police used a geofence warrant to access the deidentified location data of individuals who were near the scene of a bank robbery during the hour that the crime took place.⁷³ The geofence produced the deidentified location records of nineteen individuals, only one of whom was the perpetrator.⁷⁴ These facts do not fit the requirements of a filtered dragnet because law enforcement accessed and manually examined information related to the eighteen individuals who were not the perpetrator, but we can think of these eighteen as stand-ins for those who are wrongly targeted by filtered dragnet. One hour of anonymous geolocation data conclusively ruled out sixteen of them, and an additional hour ruled out the other two. None of the eighteen were identified (by name or other direct identifier) to the police, and none were questioned.⁷⁵ By contrast, consider the experiences of two individuals who were briefly implicated in the investigation before the FBI used geofence technologies. Using traditional policing methods, the FBI first investigated the ex-boyfriend of a woman who saw news reports about the bank robbery and called the police to offer a false tip. They also investigated somebody who owned the same kind of car that was used as the getaway vehicle when a bank employee reported the possible tip, but that, too, was a dead end.⁷⁶ It is not clear from the opinion what sorts of encounters and information-gathering the police used to rule out these two, but I suspect the anxiety and privacy burden absorbed by them was greater, by almost any measure, than the burden to the eighteen individuals whose approximate movements in public during one to two hours were disclosed in deidentified form. If this case is representative, the geofence warrant process should be a method of first resort, rather than last resort, because it is likely to lead more quickly to both the identification of the right suspect and the elimination of wrong ones.

A second skeptical critique is that I am describing the positive qualities of filtered dragnets under the assumption that the systems will be deployed as intended and will not be manipulated or tampered with. This is a legitimate concern to which the long history of flaws in forensic labs can attest.⁷⁷ But as a comparative matter, data-driven techniques of this sort might be more accountable and auditable than old-school forms of criminal investigation. When the same level of scrutiny and doubt is applied to traditional investigations that would have to continue in the absence of new technologies—the risks of error and manipulation present in eyewitness testimonies, suspect interrogation, or warrant affidavits⁷⁸—the prediction that filtered dragnets will be more corrupt and error-prone is hard to believe.⁷⁹

C. Increased Detection and Deterrence

The accuracy and efficiency of filtered dragnets can help tackle longstanding social problems of chronically unsolved crime, assuming filtered dragnets are used regularly.⁸⁰ About twenty-five million Americans—8% of the population—suffer from a violent felony or a felony-level theft each year.⁸¹ These events are of course disproportionately likely to beset low-income households. While violent crime rates today are still down compared to the high-water marks in the 1980s and early 1990s,⁸² the statistics are still grim, particularly for communities of color. In the U.S., about five people in every 100,000 are murdered each year.⁸³ For African-Americans, the rate is above six per 100,000.⁸⁴ (By comparison, the rates in France and Italy are 1.28 and 0.52 per 100,000, respectively.)⁸⁵ In addition to the trauma and losses to crime victims, society also absorbs a range of economic costs and psychological distress in the course of guarding against crime.⁸⁶ It is all too easy for scholars, lawmakers, and others who live in safe neighborhoods to forget: serious crime is just awful.

Crime clearance rates (that is, the proportion of crimes actually reported to the police that have led to an arrest or otherwise been considered solved) for violent crime is 42%, and the rate is under 15% for property crimes.⁸⁷ Only about half of violent crimes and one-third of property crimes are ever reported to the police, and many arrests and convictions are erroneous. The low likelihood of reporting a crime, the low clearance rates, and the somewhat sizable chance of false arrest altogether mean that the probability a criminal will be prosecuted for any particular violent crime is probably under 20%.⁸⁸

Clearance rates in black neighborhoods are even worse. The events over the last decade validate Bill Stuntz’s observation that “poor black neighborhoods see too little of the kinds of policing and criminal punishment that do the most good, and too much of the kinds that do the most harm.”⁸⁹ Dampening crime in lower income black communities is a civil rights goal of longstanding stature.⁹⁰ Bennett Capers described underenforcement as the criminal justice problem that gets short shrift,⁹¹ and that was before George Floyd’s murder made police violence and over-policing problems an issue of pressing global salience. There is some squeamishness today in discussing crime in black neighborhoods (and certainly in referring to that crime as “black on black”), but it is foolish to expect criminal justice reform to be lasting and meaningful if it does not tackle both of the scourges of inner-city policing: harsh policing and civilian violence.

The most obvious and natural way to curb future violent crime is to increase the detection of very serious crimes today.⁹² Some scholars, Tom Tyler chief among them, have made the case that in the long run, law-abiding behavior has less to do with criminal law enforcement tactics than with cultural, economic, community, and norms-based factors.⁹³ Occasionally, this insight has been oversimplified and distorted to leave the impression that law enforcement detection rates have nothing to do with crime rates.⁹⁴ This is a mischaracterization of the evidence.⁹⁵ While there are multiple “root causes” of crime,⁹⁶ data and common sense confirm that holding other factors steady, criminal behavior is sensitive to the probability of law enforcement detection. The relevant criminology studies consistently find evidence that detection reduces the incidence of future crime.⁹⁷ There is also some evidence that the swiftness of enforcement—the “celerity”—makes a difference.⁹⁸

Increased detection of crime not only reduces crime rates, but also improves other measures of social mobility and security as well. Greater crime detection increases the likelihood that offenders will seek and find employment, enroll in education, and live in a stable family environment, and it reduces school absenteeism in the community.⁹⁹ Indeed, given how dramatic the impact of detection is on increasing pro-social behavior, it is not at all clear that law enforcement should even be distinguished from the so-called “root causes” of crime. Fear that crime will not be well controlled is a root of many of the root causes of crime.¹⁰⁰

So, an enduring and well-documented fact is that an increased likelihood of detection and enforcement drives crime rates down. This is much less true, and possibly not true at all, for the severity of punishment, where increasing the length of prison sentences is found to have no impact or even criminogenic effects.¹⁰¹ Thus, the state’s essential duty to protect its constituents from the violence and exploitation of others is well served by good detection. Unfortunately, crime rates are currently under the management of the American criminal justice system’s haphazard style of enforcement: occasional, error-prone, and harsh.¹⁰²

D. Decreased Discretion for Suspect Selection

Filtered dragnets are crime-driven rather than suspect-driven. In suspect-driven investigations, police have developed suspicion—or a hunch—around a particular individual and focus their observations in an attempt to develop a case.¹⁰³ Suspect-driven investigations are propelled by the theories of police officers and proceed within their discretionary control. Police also have some control over filtered dragnet investigations (e.g., over where and when to deploy them), but once they are put into service, police lose control over the results. If facial recognition or reverse searches identify a wealthy or politically connected individual as the suspect of a crime, it will be much more difficult for police and prosecutors to avoid pursuing investigation and prosecution, as compared to cases where police use informants or witnesses as the main source of identification.

In later Parts, this Article describes the ways in which police can still exercise too much discretion by, for instance, using a filtered dragnet tool preferentially to solve some crimes and not using it on others that are substantially similar. But we should not lose sight of the ways filtered dragnets do constrain discretion. One of the greatest risks from mass surveillance (that is, dragnets) is its potential to create a resource for selecting the suspect first and then finding a crime, or for using legal but sensitive information to discredit political enemies and personal foes.¹⁰⁴ Police cannot exert this type of control over filtered dragnets.¹⁰⁵

The Supreme Court caselaw that has found fault with Big Data policing has involved digital searches in which the police first selected their target and then accessed long histories of their target’s whereabouts without a warrant.¹⁰⁶ The Court is right to constrain investigations that permit police to access sensitive and detailed information without any justification or checking mechanism. Even when police have developed suspicion against a target, the low-tech factors that go into building up suspicion about a particular individual (e.g., testimony from an informant or presence in a “high crime neighborhood”) can impose an indirect racial tax on innocent minorities that could mostly be avoided with filtered surveillance programs that have very low error.¹⁰⁷

Not all agree with this assessment. Kiel Brennan-Marquez has argued that “nothing about the logic or practice of data-driven law enforcement makes [] redistributive impulses necessary. On the contrary, they will be hard fought—and particularly in our current political climate, unlikely.”¹⁰⁸ I share a certain degree of Brennan-Marquez’s cynicism (I have wondered, for example, if law enforcement’s sloth-like speed in adopting crime-driven investigation practices rather than suspect-based practices are related to the loss of control over defining the pool of suspects),¹⁰⁹ but he goes too far. There already is some evidence that data-driven policing has redistributed the costs of law enforcement and will continue to do so. DNA-based exonerations, for example, have proven the innocence of disproportionately more minority convicts than whites.¹¹⁰ This suggests that, going forward, DNA-based investigations will shift police focus not only toward the guilty, but also away from wrongfully accused Black and minority suspects.

E. Decreased Risk to Victims, Witnesses, and Suspects

Police investigations cause a range of problems that are not captured in the variables I have discussed so far—privacy intrusions, erroneous arrest, et cetera. When police have to rely on old school methods of case investigation, the system necessarily puts victims, witnesses, and suspects at risk of physical or economic harm.

Let us start with crime victims and witnesses. Cooperating with the government is a perilous activity for these individuals, as captured by the saying “snitches get stitches.”¹¹¹ By one theory, clearance rates for serious crimes are low in the U.S. because proving homicide or robbery cases requires victims and witnesses to testify and put themselves at risk.¹¹² Bill Stuntz hypothesized that police forces increased their focus on drug and gun possession charges because these crimes were “self-proving” once contraband was discovered, and therefore did not necessitate the cooperation of a victim or witness.¹¹³ As a result, more serious crimes were harder to clear than low-level crimes. But, of course, those are the crimes that are more damaging to the community. If reverse searches, facial recognition, and other filtered dragnets could allow police to prove cases independently, without exposing victims and witnesses to the risk of social stigma and retaliation, they would contribute benefits to society that are not accounted for in the usual privacy-versus-security debates.

As for the suspects, the manner in which traditional policing builds up cases leave much to be desired. Police stops and searches are often vectors for bias and disrespect where swearing, insults, unwarranted accusations and suspicion, and unjustified physical contact lead to demoralization and distrust.¹¹⁴ Traditional investigations are costly in terms of time, fear, property damage, and general unpleasantness. A person who is pulled over for a secondary inspection when a police dog alerts to her car may very well have no recourse when the police slash open the seats of her car to try to find drugs. Home searches and interrogations cause additional physical, emotional, and economic strain to suspects, irrespective of what sorts of private information is revealed. These costs will become more obvious and more salient when technology obviates the need for a government agent to tear open the upholstery of a suspect’s car, dishevel a dresser, and “grope[] and grab[] our children” at the airport.¹¹⁵

***

In combination, these factors show that filtered dragnets should be part of any responsible law enforcement program. They extend the “pareto frontier” by allowing privacy and crime detection to increase at the same time.¹¹⁶ It would be counterproductive for law to prohibit their use based on a formalistic or expansive notion of Fourth Amendment protection. And yet, as the next Part shows, there is some risk that courts and lawmakers may do just that.

III. FILTERED DRAGNETS AND PRIVACY

Most of the courts, scholars, and civil society organizations that have considered the societal impact of filtered dragnets such as geofencing and reverse keyword searches have concluded that they pose serious threats to privacy.¹¹⁷ Putting aside for a moment whether filtered dragnets are consistent with the full set of Fourth Amendment principles, this Part argues that filtered dragnets pose almost no threat to Fourth Amendment privacy. What I mean is, among all of the meanings and purposes that the right to privacy is meant to capture, the only ones that are meaningfully violated by filtered dragnets are related to abuses of power. The privacy expectations of the non-offender, which are the ones that predominate Fourth Amendment analysis, suffer at most a technical violation. If we separate out the anti-authoritarian goals of privacy, nothing is left of the privacy critique of filtered dragnets.

This does not mean that filtered dragnets are harmless—to the contrary, as Part V will argue, they pose significant dangers to civil liberties. But by ruling out privacy as the vector of abuse, courts can harvest the benefits of analytical precision and adjust Fourth Amendment law to better match the problems. This Part describes how courts and scholars have responded to filtered dragnets so far and then explains why Fourth Amendment principles are so poorly suited to address the negative reactions.

A. Judicial Reactions to Filtered Dragnets

Courts are not prepared for the challenges that filtered surveillance pose to Fourth Amendment jurisprudence. Indeed, they are struggling as it is to find principled limits in more common and straightforward digital dragnet cases.¹¹⁸

So far, lower court opinions are surprisingly unfriendly to technologies and practices that will be the predicates to filtered dragnets. For example, Baltimore tried to set up a program called Aerial Investigation Research (“AIR”) in which its police department collected and retained 45 days’ worth of aerial surveillance footage, but would not be allowed to access the footage unless a violent crime occurred and was likely to be caught on camera.¹¹⁹ Civil liberties organizations successfully challenged the program, arguing that the Fourth Amendment should constrain the government from amassing data that can be used for longitudinal location tracking no matter how constrained the Baltimore Police Department’s access and use of the data might be.¹²⁰ The Fourth Circuit used the theoretical possibility of government access to information as a sufficient reason to find that a Fourth Amendment search on all Baltimore residents took place, regardless of the design, practice, and risk of abuse for the program.¹²¹ If this reasoning is adopted throughout the judiciary, law enforcement will not be able to collect their own information for filtered dragnets and will have to rely on data that is collected and held by private industry.

Many courts have expressed similar reservations when the government asks a private company like Google to trawl through its data to conduct reverse searches, too.¹²² But these opinions suggest that a warrant process that is sufficiently narrow and “particularized” so as to avoid disclosing data of innocent bystanders to the police would satisfy Fourth Amendment requirements.¹²³ This leaves an opening for filtered surveillance. It suggests that the automated scan that Google or another third party would perform of all its data in the process of identifying responsive records would not be a search in and of itself. In other words, the focus of the courts that have analyzed geofence warrants is not on the data that is scanned at all, but on the data that is ultimately revealed to police.

Courts might begin to clamp down on third-party scanning for law enforcement purposes following the logic of the Fourth Circuit’s decision in the Baltimore AIR case. Many scholars are advocating for this, as I describe next. But it is still not clear that filtered dragnets will be understood to be a search at all given that they are designed to alert only when probable cause of a crime has been established. Even if police use computing technologies to automatically scan through large amounts of personal data, the constitutionally relevant event is the revelation and use of information to the government agents who are making decisions.¹²⁴

This is best captured by the binary search doctrine—the rule establishing that, for example, a drug dog’s alert is not a search under the Fourth Amendment because it reveals only the presence of contraband and criminal wrong-doing. There is little reason to believe the Supreme Court will backpedal. The Court has found that a universal fingerprinting database, possibly even one that requires involuntary contributions of fingerprints by individuals who are not yet in the database, could be justified, given that fingerprinting is an “inherently more reliable and effective crime-solving tool than eyewitness identification or confessions.”¹²⁵ More recently, in Maryland v. King, the Supreme Court found that police can forcibly swab an arrestee and cross-check his DNA against the database of DNA samples from unsolved crimes.¹²⁶ The opinion focused almost entirely on the physical act of swabbing and took for granted that the cross-checking of a DNA sample to a crime database will not be a search because it reveals either nothing at all or reveals only a high-confidence match to a crime.¹²⁷

That said, some of the Supreme Court decisions in the last ten years written by Justice Scalia incorporated a strong property-based formalism. In United States v. Jones, the use of a GPS device was a search not because of the sensitivity of the information gathered, but because of the touching of the suspect’s car.¹²⁸ And in Florida v. Jardines, use of a drug-sniffing dog on a front porch was a violation of the Fourth Amendment because the practice involved a trespass with information gathering.¹²⁹ The fact that the information gathering was in the form of a binary search did not alleviate the flaw, according to the majority.¹³⁰ If Scalia’s formalism for real and tangible property is extended to personal data, filtered dragnets could be considered a search of all individuals whose data is mechanically scanned in the process, irrespective of how trivial the invasion to them may be.

Even if courts come to agree that mechanically processing data is a Fourth Amendment search, this would still not guarantee the death of the filtered dragnet. They might be reasonable searches under the special needs or checkpoints doctrines.¹³¹ In the context of checkpoints, bulk searches, and other dragnets, the Supreme Court has articulated the factors that it would use to determine whether the searches are “reasonable” despite a lack of individualized suspicion. These factors include the intrusiveness of the search, the public and government interest that is served by the dragnet, and the degree of oversight or limitations on discretion that are involved.¹³²

Thus, judicial reasoning seems to be on a collision course between (a) cases that are eager to expand the recognition of privacy rights to cover all data subjects in large databases whose information is theoretically accessible to police and (b) cases that find highly probative “binary searches” are outside the ambit of Fourth Amendment prohibition.

B. Scholarly Reactions to Filtered Dragnets

Lawrence Lessig saw this train wreck coming. In Code, he pointed out that the Internet and digital information technologies will allow police to identify a perpetrator with high confidence while remaining blind, by design, to the intimate details of the innocent. He explained that this will cause the privacy rationale for Fourth Amendment protection to lose relevance, at least when filtered dragnet investigations are possible. He expected these technologies would force a wedge between privacy and anti-authoritarian justifications for criminal procedure, when in the past, the two types of arguments traveled together.

Fourth Amendment scholars have doubled down on privacy.¹³³ They have lumped filtered dragnets together with all other digital surveillance in order to hinder police access. Dragnets of every sort, including the filtered sort, still suffer from analytical chaos because of value judgments and predictions that too often stay latent in the scholarship.¹³⁴ As a result, scholars are all over the map in terms of the proper treatment of digital dragnets, and none have focused on the right factors.

A few examples. Daphna Renan has argued that the collection, retention, and theoretical capability for law enforcement to access data is alone sufficient to constitute a privacy harm. Consent or a warrant should be required before the government collects any privately held data, and even before they access or request machine scanning of that data by third parties, irrespective of how limited and careful the readout is.¹³⁵ Natalie Ram has approvingly held up Maryland’s law prohibiting law enforcement from using genomic databases to solve crimes unless they have received consent from all individuals whose data is in the genomic dataset.¹³⁶ More generally, this brand of scholars use access to data, rather than how it is used, as the sine qua non for Fourth Amendment analysis and ask why anybody should be under “lifetime surveillance.”¹³⁷

Scott Sundby and Nadine Strossen take the more moderate position that dragnets (of any sort) should be used only as a last resort,¹³⁸ though it is not clear they would apply their conclusions to filtered dragnets in particular. Eldar Haber, in considering how the Internet of Things can become a rich source of police investigatory data for reverse searches, advocates for a warrant requirement that goes beyond the “super-warrant” requirements of the current Wiretap Act to create an “ultra-warrant” requirement.¹³⁹ Since the super warrant requires police to exhaust all other means of investigating before securing a wiretap warrant, the effect and objective of Haber’s recommendation is similar to Sundby’s and Strossen’s—to ensure that the criminal justice system strongly disfavors use of Internet of Things data in investigation.¹⁴⁰

Continuing down the spectrum, some scholars appreciate the potential benefits of filtered dragnets and have advocated for a style of restraint that differs from prohibition or PC-based warrant requirements. Stephen Henderson and Kiel Brennan-Marquez argue that police departments should have a budget for searches and seizures (including digital investigations that, at least right now, operate outside the formal definition of a Fourth Amendment search) so that they are incentivized to use the most efficacious practices rather than the most expedient ones.¹⁴¹ Christopher Slobogin has explicitly called for a more nuanced understanding of dragnets and suspicionless surveillance. He would allow dragnets that meet a standard of “generalized reasonable suspicion” where their efficacy outweigh the privacy intrusion enough to merit their use in criminal investigations.¹⁴² Jeffrey Bellin recommends locating the Fourth Amendment interest in databases with the owner or holder of data, rather than the subject of the data searches, which would give a company the right to either consent to a search or to demand a warrant.¹⁴³ Andrew Ferguson would allow the use of dragnets as long as the legislative branch explicitly authorizes their use.¹⁴⁴

Reaching the other end of the spectrum, some scholars (myself included), see the use of filtered dragnets as a move toward justice rather than away from it.¹⁴⁵ The prohibition of a highly reliable investigation tool is unethical when the prohibition would push police toward more invasive and less accurate investigation techniques and when serious crime would too often go undeterred. David Kaye and Michael Smith have made this argument with respect to DNA matching.¹⁴⁶

Where does this leave us? Hopefully with an open mind and a hunger for reasoning from first principles.

C. The Pointlessness of Fourth Amendment Privacy

Filtered dragnets will disrupt the equilibrium between the government, criminals, victims, and bystanders. That is obvious enough. Orin Kerr has made the descriptive and normative claim that courts intuitively adjust Fourth Amendment rules to strike a new balance between privacy and security whenever the government gains a significant new surveillance capability.¹⁴⁷ Filtered dragnets implicate only a few Fourth Amendment interests, and those few are not well served by the reasonable expectations of privacy test, by the warrant requirement, or even by intuitive adjustments. We are in new terrain in which a technology increases both privacy and crime control.

1. Theoretical Dimensions of Fourth Amendment Privacy

Borrowing from a rich literature that catalogues and elucidates the concept of privacy,¹⁴⁸ the following arise most frequently in the context of government intrusions and surveillance:

i. Freedom from Embarrassing Revelations, Social Dislocation, and Harassment

Perhaps the most common and robust form of privacy is the recognition that everybody has some legitimate, pro-social reason to want to keep licit details about their lives away from at least a subset of people.¹⁴⁹ They want the freedom that comes from relative obscurity,¹⁵⁰ where their decisions and behavior are not under the scrutiny and judgment of others.¹⁵¹ Everybody deserves to be shielded, at least to some degree, from embarrassment over the things they have said or done that did not cause any lasting harm to others and that can be misunderstood.¹⁵²

The scope of this interest ranges from trivial embarrassments (the regrettable hairstyle, the piece of toilet paper stuck to a shoe) to the truly life-changing (the ostracism of an HIV diagnosis, the physical attack carried out with the help of location information).¹⁵³ Much of the time, the sensitivity of a piece of information will depend greatly on context,¹⁵⁴ but the point is that “everyone has facts about themselves that they don’t want shared, disclosed, or broadcast indiscriminately.”¹⁵⁵ When information is permitted to leap from one context to another and to be used in unexpected ways, it will cause harm.¹⁵⁶

Filtered dragnets relieve, rather than exacerbate, these concerns. By shielding data from police (and everyone else) unless and until they match the fingerprint of a crime, filtered dragnets keep as much information private as practically possible.¹⁵⁷ Indeed, if more police investigations were conducted through filtered dragnets, members of the community would be much more obscure and unknown vis-à-vis the state as compared with programs that involve heavy use of interviews, street patrols, traffic stops, and home searches.

ii. Freedom from Manipulation

An actor can exploit access to another person’s data by discovering their vulnerabilities or gaps in rationality and then using those to persuade, cajole, or threaten the data subject into doing something.¹⁵⁸ Again, as with freedom from embarrassment, filtered dragnets present a lower, rather than higher, risk of this sort because law enforcement and other government actors are blinded from nonrelevant information. The only use to which the dragnet data are put involves solving a crime.

iii. Freedom from Indignity

The privacy literature prizes at least two forms of dignity that are not captured in other concepts on this list. First, privacy intrusions sometimes bring about an indignity from being singled out for suspicion.¹⁵⁹ Dragnets, whatever their faults, do not have this intrusion. Nearly everybody suffers the same indignity when bulk data is scanned, just as they do at TSA checkpoints and DUI roadblocks.¹⁶⁰ Another form of dignity concerns being treated as a human rather than being processed as a faceless line of data. This has some overlap with the concept of “individualized suspicion,” which I will discuss below, and which (in my opinion) filtered dragnets more than adequately should meet. Nonetheless, it is undeniable that filtered dragnets are entirely mechanical up until the point when a limited set of information is disclosed to police. Whether this should make a difference in the moral and legal status of filtered dragnets, though, is debatable.¹⁶¹

iv. Freedom from Anxiety

A common theme throughout the discourse revolves around the idea of loss of control and the uncertainty and anxiety that arises from it.¹⁶² When the government has personal information about a subject, the subject is uncertain how the information could be used and fears that it may be used against them. This fear is, in and of itself, a social cost. Kiel Brennan-Marquez has argued that new data-gathering technologies create, and to some extent have already created, an omnipresent low-level form of anxiety similar to the feeling one gets when seeing a patrol car in the rear-view mirror and “feeling your pulse quicken; awareness heightened and senses alert, as you try not to break any traffic rules.”¹⁶³

A natural follow-up question is: What havoc can the government cause with data?¹⁶⁴ The greatest risk posed by filtered dragnets is to offenders, and it is the risk that their offense (and nothing more) will be detected. Thus, for filtered dragnets, freedom from anxiety calls for a freedom from law enforcement itself. It vindicates the rights of the supposedly “guilty” rather than the innocent. Fourth Amendment privacy recognizes no such interest.

2. Routine Compliance with Reasonable Expectations of Privacy

Data-driven policing has inspired a series of gloomy articles that predict the Fourth Amendment’s reasonable expectations of privacy test has become irrelevant.¹⁶⁵ As long as the third-party doctrine stands, permitting police to access data held by third-party companies without justification or oversight, privacy will be insufficiently protected. I agree with these scholars.¹⁶⁶ But courts are already addressing this problem. Cases like Carpenter v. United States—in which the Supreme Court found that police access to several days’ worth of geolocation data constitutes a search that would require a warrant or appropriate warrant exception—have proven that for suspect-driven searches, Fourth Amendment privacy is not yet irrelevant and is becoming more powerful by the day.¹⁶⁷

Nevertheless, the reasonable expectations of privacy test is very unlikely to impede the adoption of filtered dragnets. That test has repeatedly been interpreted to deny privacy interests of the guilty. “[A]ny interest in possessing contraband cannot be deemed ‘legitimate,’ and thus government conduct that only reveals the possession of contraband ‘compromises no legitimate privacy interest.’ ”¹⁶⁸ Jed Rubenfeld’s synthesis of Fourth Amendment caselaw seems to get it right: the Fourth Amendment aspires to support “a justified belief that if we do not break the law, our personal lives will remain our own.”¹⁶⁹ Filtered dragnets pass this test.¹⁷⁰

To be clear, there are reasons, independent of privacy, to protect law-violators-as-violators. These arguments, which I describe in depth in the next Part, are critical for understanding the threat from filtered dragnets. But they are only loosely related to “privacy” as the term is typically used, and they will not be incorporated into the reasonable expectations of privacy unless that test is changed beyond all recognition.

3. The Irrelevance of the Warrant Requirement

In U.S. v. Chatrie, the geofence case described earlier, the court suggested it would approve a geofence warrant process if a magistrate or court got to make a probable cause determination before the geolocation data of a target were de-anonymized.¹⁷¹ Generalizing to other filtered dragnets, law enforcement would seek a warrant after the filtered dragnet system alerts, but before any identifying data is revealed.

This process might be a good component for accountability and oversight, and to ensure that filtered dragnets are performing at or above the expected “hit rate,” but it is hard to imagine why a warrant could ever be denied. A warrant is valid as long as it is issued by a neutral judge or magistrate, is based on probable cause, and states with sufficient particularity what is to be searched or seized.¹⁷² The standards for both probable cause and particularization will be met—more than met—given that the definition of filtered dragnets I am using requires them to withhold information until the probability that the target has engaged in the investigated crime meets a high standard. As for particularization, because the filtered dragnet procedure begins with the signatures of a crime and works backwards to find the perpetrator, the profile for matching (what I have been calling the “fingerprint” of the crime) is as particularized to a crime as it can be.¹⁷³

Privacy advocacy groups have argued that warrants issued for reverse searches are tantamount to general warrants because they do not identify (or even anticipate) a particular suspect before they are issued.¹⁷⁴ But the only similarity that geofence warrants have to general warrants from the Colonial Era is the lack of a named suspect. In every other way, geofence warrants restrict the information that is revealed to that which is closely linked to a particular crime. By comparison, general warrants authorized agents of the colonial government to look for stolen or untaxed goods anywhere the agent “[should] think convenient to search.”¹⁷⁵ The only manner in which the geofence warrant is unconstrained—by allowing police to discover who the suspect is rather than requiring police to come with a suspect in mind—is a feature of geofence warrants that should be praised, as it limits the discretion of the police to select their targets in advance. This is the critical distinction between filtered dragnets like geofence warrants or DNA searches and suspect-driven searches—one that scholars and commentators too frequently gloss over.¹⁷⁶

Thus, a warrant requirement is irrelevant to the adoption of filtered dragnets, apart from the time, resources, and general system friction involved, because they should routinely be granted.

***

Privacy scholars are courting disaster by lumping filtered dragnet techniques in with other types of dragnets and digital searches. Even if there are court victories in the short term, they will be pyrrhic. The very concept of “privacy” will become increasingly vulnerable to the “I have nothing to hide” argument that is loathed by the field (and rightly so).¹⁷⁷ Courts might fail to sufficiently constrain unfiltered dragnets and suspect-driven investigations because of the utility and low harm of filtered dragnet techniques that happen to share the same Fourth Amendment bucket.

Arguments against mass surveillance often start with the observation that surveillance fundamentally shifts power from the surveilled to the surveillor.¹⁷⁸ This is true as far as it goes, but if the surveillor is constrained and can only see evidence of a crime, that power shift will often be a desirable one. In fact, assuming that the law is legitimate, the enforcement of a law is one of the most legitimate acts the government can do. The burden is therefore on surveillance scholars to explain why those who have violated the law may have justified interests in being protected from state detention and prosecution, even when their law-abiding conduct remains private. There are answers to this challenge, but they sound in tyranny rather than invasions of privacy. There is a virtue to being precise about the problems of filtered dragnets without reliance on capacious notions of privacy that would implicate nearly every law enforcement function.

IV. FILTERED DRAGNETS AND TYRANNY

Filtered dragnets will provide a highly concentrated dose of criminal detection. Even though, in theory, the whole point of having law enforcement departments is to detect and prosecute crime, a drastic increase in criminal detection can have toxic effects on society. The dynamics and interaction of other criminal justice factors have come of age in a time of low detection and only make sense if detection continues to be difficult.

This Part begins by revisiting the interests that privacy scholars have identified that would be affected by filtered dragnets. Each of them is really an anti-tyranny concern garbed in the language of privacy. If we are more explicit about the goals and analyze the risks of authoritarianism that filtered dragnets may drag along with them, the problems (and, therefore, the remedies) become much more obvious.

The true threats from filtered dragnets are that: (1) many Americans will confront a real risk of criminal liability based on our overbroad criminal codes; (2) prosecutions of those crimes could lead to life-altering detentions in our inhumane prison systems; and (3) without the shield of abysmally low detection rates, the only protection is lenity, which is no protection at all from a government that attempts to exert authoritarian power.

A. Privacy as a Stalking Horse for Anti-Authoritarianism

Neil Richards claims that privacy is a necessary bulwark “if we want political freedom against the power of the state.”¹⁷⁹ But privacy is inadequate on its own to protect the broad range of liberty and equality interests that arise with abuse of power. Filtered dragnets prove it. They can be used to trample liberties and to serve the public unequally even though the government will not know any irrelevant details about licit activities.

Instead of trying to expand the meaning of “privacy” to tackle every possible state abuse, courts and criminal justice scholars alike should seize the moment and force constitutional theory to shift its focus from privacy to anti-authoritarian constraint. To be sure, courts should continue to refine the conception of Fourth Amendment privacy interests to address unfiltered digital dragnets. But if we have any hope of harnessing the great potential of filtered dragnets without creating a despot’s playground, the Supreme Court will need to simultaneously cultivate an anti-authoritarian strand of Fourth Amendment rules.

When surveillance scholars use the concept of privacy to curb abuses of power, they are concerned about unnecessary social control and abuses of discretion.¹⁸⁰

1. Unnecessary Social Control

Law enforcement serves the obvious and highly valued function of social control. As Kiel Brennan-Marquez explains, “we want people to worry about breaking the rules”¹⁸¹—at least, when the rules are good rules, and when the consequences for breaking rules are proportional and fair. However, Brennan-Marquez is concerned that data-driven policing tools will leave the police “awash in probable cause,” allowing them to stop, search, or arrest nearly anybody.¹⁸² This concern gets to the heart of the matter. But it is ultimately a critique of the substance of criminal law and the discretion of criminal justice decisionmakers. These are the same themes that Bill Stuntz repeatedly raised when he critiqued Fourth Amendment cases and scholars for allowing privacy to be a distraction from more pressing threats.¹⁸³

Let us return for a minute to Brennan-Marquez’s metaphorical driver who has just discovered a patrol car in the rearview mirror. If the government had done a massive purge of its penal codes and the only crimes left on the books were murder, rape, arson, armed robbery, and aggravated assault, and if false positive police error was vanishingly small, would the driver feel anxiety? For a time after the change, yes of course. There will be a short-term period of distrust and adjustment when technologies or rules change suddenly and dramatically.¹⁸⁴ But in the long run, anxiety will ebb under the pressure of persistent feedback of non-events and the absence of harm.

Public opinion surveys find that attitudes about privacy are mediated through attitudes about the substantive criminal law that is being enforced: a dog that is sniffing for bombs is perceived as less privacy-invasive than a dog that sniffs for drugs even though the experience is identical for the investigation target (at least, up until the moment that the dog alerts, that is).¹⁸⁵ If assessments of privacy change not because of the revelations or techniques that are used but because of the crimes that are prosecuted, the concept of privacy is standing in for objections to the substance of the law.

The concern about unnecessary social control is better addressed by defining, as best we can, which types of antisocial conduct rise to the level of being worthy of criminal punishment and which do not. And the concern raises important questions about whether criminal violators are treated too harshly. Privacy is a blunt instrument for these purposes. It draws lines that have only a vague relationship to the distinctions we mean to draw.

2. Selective Attention

Another serious concern is that police might make use of a system of surveillance to rifle around for something to use against a specific person or group.¹⁸⁶ Motivations could range from political persecution to racism to personal vengeance to simply wanting to make a quota or appear well in performance metrics within a bureaucratized police department.

As with unjustified social control, the problem of discretion and selective attention is only indirectly related to privacy. Indeed, it is not even clear that privacy has any positive influence on police discretion. Privacy steers police toward information sources that disproportionately expose low-income and minority groups: if police cannot bring a drug-sniffing dog to a house, they will bring it to apartments and cars.¹⁸⁷ If police cannot search the full set of government and commercial DNA databases for a match to a crime scene sample, they will just use the government’s database of arrestee DNA data.¹⁸⁸ At the same time, police can also engage in selective inattention by avoiding leads that could cause problems for friends or powerful people and by failing to give crimes perpetrated against low-status victims the same attention as the ones inflicted on high-status victims. When communities are under-protected, it is a form of too much privacy vis-à-vis the government.

The policy antidote to government discretion and bias is to directly limit discretion and bias. Filtered dragnets already do this, to some extent, because once they are employed, police lose control over who will ultimately be identified as a suspect. But law enforcement can still deploy filtered dragnets unfairly when selecting the neighborhoods or cases in which filtered dragnets will be deployed.¹⁸⁹

Thus, in the context of filtered dragnets, “privacy” concerns are attempting to capture and curb something bigger: too much social control at the discretion of the government.

B. Filtered Dragnets and the Risks of Tyranny

An authoritarian regime thrives when it has unlimited discretion to issue stiff punishment based on criminal behavior that has negligible negative consequences (and possibly even positive consequences) to society. This threat is blunted if the state lacks the means to acquire evidence of criminal behavior, but with reliable surveillance mechanisms, law enforcement officials will be able to exert as much social control as they please, because nearly every person can be charged with a crime.¹⁹⁰

Thus, filtered dragnets present risks that run along three vectors: (1) overbreadth of criminal law; (2) overly harsh punishment of criminals; and (3) overly discretionary investigations and enforcement. If these three forces remain unchecked, filtered dragnets could cause more harm than good. In the wrong hands, filtered dragnets could cause catastrophic risks of the sort that the Constitution is meant to prevent.

1. Overbreadth of Criminal Law

A government that has the capacity to detect criminal behavior at very high rates must come under heightened standards of care when it promulgates or maintains its criminal laws. If we wince at the thought that everybody who commits a minor offense will get caught and will be prosecuted if they do not seem to qualify for a privilege or defense, this is a sign that the conduct is a poor fit for criminal law, and legislators must consider alternatives (e.g., warnings, civil fines, or positive incentives for pro-social conduct) instead.¹⁹¹

Right now, constitutional case law does very little to constrain the creation of criminal laws. Outside criminal statutes that would intrude upon specific individual liberties recognized in the Bill of Rights, the courts hold legislatures to very low standards of care (the rational basis test).¹⁹² This latitude on substance has a curious relationship with the procedural restrictions imposed by the Fourth Amendment: as long as police have probable cause to believe that a person is violating or has violated a criminal law, police can make an arrest or initiate a search, no matter how trivial the offense. Thus, in Atwater v. Largo Vista, the Supreme Court found that the government acted within the bounds of the constitution when a police officer arrested a woman who was driving with two small children for the violation of a seatbelt law.¹⁹³

Even if the Court is reluctant to interfere with legislators’ management of criminal codes, common sense dictates that some crimes are much worse than others. The state’s attention should focus on conduct that causes serious harm to others. There is a reason, for example, that the states that have regulated familial DNA-matching programs have allowed their use only for serious offenses like murder and rape,¹⁹⁴ and Baltimore’s Aerial Investigation Research (“AIR”) system, before it was dismantled, was restricted to use in investigating a limited set of very serious crimes.¹⁹⁵ It is the same reason that the federal Wiretap Act permits courts to issue wiretap orders only when there is probable cause to investigate one of the explicitly listed serious criminal offenses.¹⁹⁶ The same impulse explains why there is scholarly criticism and public outrage when a surveillance system adopted for the purpose of detecting one set of serious criminal violations (like smuggling or terrorism) is simultaneously used to detect violations of drug laws.¹⁹⁷ The unstated assumption is that some crimes should be detected as well as possible (terrorism, for instance) and some should not.¹⁹⁸

The fact that state and federal criminal law has dramatically expanded in quantity and complexity is not in dispute.¹⁹⁹ And yet, curiously, responses to the problem tend to focus on procedural rather than substantive limits.²⁰⁰ The unchecked growth of substantive criminal law ironically creates a problem for public safety because the fear of prosecution prompts a demand for privacy and law enforcement obstruction.²⁰¹

The first and most obvious reason to place limits on criminal liability is to reduce the opportunity for unnecessary social control. The relationship between the government and the governed changes profoundly when a crime has been committed. The defendant in Atwater should have put a seatbelt on her children, and the government has an interest in encouraging, even requiring, that behavior. But not through criminal law.²⁰² A second reason to constrain the substance of criminal law is to increase compliance with the rules we care about most.²⁰³ Overstuffed criminal codes also bleed into the problems of law enforcement discretion (discussed at greater length below) because the government has too much power to decide which members in the nation of criminals to send to prison.

Consider two examples that illuminate the problem through opposite ideological lenses. First, abortion will be criminalized in many states in light of Dobbs v. Jackson Women’s Health Organization.²⁰⁴ Some states are considering criminal liability for women who seek out an abortion.²⁰⁵ For liberals and progressives, criminal liability for abortion-seekers represents an intolerable overreach of the state. To combat the substance of these laws, organizations such as the ACLU have already issued warnings about the risk that geofence searches could facilitate arrests and prosecutions of a law that a sizable portion of the state’s constituents believe is unjust.²⁰⁶

By contrast, conservatives might be concerned about overzealous enforcement of gun restrictions.²⁰⁷ Geolocation and credit card transaction data could be used to create a filtered dragnet that finds individuals without a gun license who cross state lines, attend a gun show, make a sizable purchase, and immediately return to their state.

In both cases, perceived flaws in the substance of the law would not be so troubling if the laws carried only modest punishments—warnings or fines, for example, rather than the incarceration and downstream labor and housing problems that inevitably follow conviction.²⁰⁸ But given the breadth and severity of criminal law, plus the mostly unchecked discretion that police departments have when deciding which among an ocean of technical criminal violations to investigate, the prospect of near-perfect detection takes on a more sinister character. Thus, when people have reservations about, for example, Alexa devices being used to detect the sounds of domestic violence, the reservations stem not from the specific use case but the general capabilities. They wonder, for good reason, what mischief can be made from such a technology when the set of conduct that is forbidden and harshly punished is sprawling and unevenly enforced.²⁰⁹

Criminal codes are often expanded when the state has not gotten a handle on crimes of violence and property theft. The criminalization of vice (alcohol and drugs) was supported by the community not necessarily out of concerns that the drugs themselves cause to users but because of the “unconscionable violence” that came along with trafficking and addiction.²¹⁰ In other words, substantive criminal law is expanded to compensate for deficiencies in the detection and prosecution of crimes that were already on the books so that police could arrest for lower level crimes and (stochastically) reduce the incidence of more serious crimes.²¹¹ If detection of the serious crimes were more functional, this should relieve the need for sprawling criminal codes.

Hence the dilemma: better crime detection could help stop the pattern of an upward ratchet, but as long as the criminal codes are already sprawling, there will be resistance to increasing detection.

2. Overly Harsh Punishment

On severity of punishment, the United States stands out among developed nations. We use incarceration intensively. In France and the U.K., a criminal who punches a person in the nose would be sentenced to less than six months in jail.²¹² The same conduct in the U.S. would result in a sentence of about three years.²¹³ Moreover, no outsider would mistake our prisons for institutions of rehabilitation: the entire sentence is usually carried out in a facility that is punishing, with drab quarters, humiliating toilet and bathroom facilities, and rancid food.²¹⁴ Once released, the negative consequences continue as the housing and labor markets penalize criminal convicts.²¹⁵ Long sentences also create risks of abuse by giving police officers and other state agents leverage to extract bribes, pleas, and false confessions.²¹⁶

The harshness of our sentences is the byproduct of a low detection rate. Communities that at various times have been disfigured from crime waves tend to demand more and harsher criminal penalties.²¹⁷ The intuitive appeal of using long prison sentences to make up for low detection rates became the explicit policy of federal and local governments following the landmark work of Gary Becker. Becker modeled crime with a simple formula determined by the probability of conviction and the severity of punishment.²¹⁸ Because it is much easier and cheaper for the state to ratchet up punishment than to catch more perpetrators, his work persuaded many politicians to manage crime through tough sentencing.²¹⁹

The sparseness of Becker’s model for crime rates leaves much to be desired for anybody looking for a comprehensive explanation for crime—crime, of course, has a range of social and economic causes²²⁰—but as Part II explained, there is little doubt that detection has a significant influence over the amount of crime in a given community.²²¹ Punishment, by contrast, seems to have a U-shaped relationship to recidivism, where no punishment and long, harsh punishment both tend to increase the odds that a perpetrator will recidivate.²²²

I do not want to overstate the case for reducing prison time. Roughly half of the inmates in prison are individuals with such consistent sociopathic and antisocial behaviors that for those inmates, long-term incapacitation has positive externalities. Not only does incapacitation prevent these particular individuals from committing additional crimes (specific deterrence), but their families and particularly children may benefit from having less, rather than more, exposure to them.²²³ Nevertheless, the social costs of harsh punishment do not seem to serve deterrence or otherwise be justified outside the context of heinous or repeated criminal activity.

Over-punishment and criminal detection are inextricably connected. We cannot expect to find a political will to reduce punishment unless the police have—and use—new means to detect and root out crime. Filtered dragnets can jolt and resettle the criminal justice system in a new equilibrium where detection, rather than harsh punishment, is the key mechanism for crime control.

3. Discretionary Application

Once the police have committed to investigating a particular crime, filtered dragnets take discretion away from the police to drive the investigation. But there are other points in time before and after a filtered dragnet may be used when government agents can exert control over the process:

i. Selective Protection

When it comes to serious crimes of violence and theft, American police forces have a troubling history of systematically ignoring the suffering of minority communities. Police once actively conspired to deprive former slaves of their right to protection by joining the murderous mobs.²²⁴ Over the subsequent century, police started to exhibit a more passive form of selection by simply not investigating and pursuing crimes committed against African-Americans as zealously as crimes committed against whites.²²⁵ This is a form of inequality that is not adequately addressed in constitutional caselaw.²²⁶ Thus, courts must prevent police from using filtered dragnets to solve crimes committed against one set of privileged crime victims while failing to use the same tools to solve comparable (and comparably detectable) crimes committed against others.

ii. Selective Crackdowns

Police also decide which crimes to target,²²⁷ and when and where to focus their resources.²²⁸ For example, police will decide which crime scene images should be subjected to facial recognition. There is no guarantee that they will pursue arrest and prosecution of violent or destructive participants at Black Lives Matter protests or at a pro-Trump rallies with the same vigor.

iii. Controlling the Data

Whether police use government-held data or data held by private companies to operate a filtered dragnet, they can exert some influence over the process if they are allowed to use a subset of available information to run through the filtered dragnet.²²⁹ For example, if the government were able to limit DNA-matching to the data collected from ex-convicts only, or if a geofence warrant could direct a service provider to look for matching records only among customers who live in a certain precinct, the police could do an end run around the discretion-reducing function of filtered dragnets.

iv. Downstream Decisions

After a suspect is identified by a filtered dragnet, police and prosecutors still have unchecked power to use leniency and to simply not pursue the leads that they do not like.²³⁰

The unifying theme across these decision-making practices is that the Supreme Court has avoided interfering with law enforcement discretion any time it has a plausible connection to judgment about the best use of resources. In Whren v. United States, the Supreme Court rejected a constitutional challenge by a criminal defendant who was pulled over for making an illegal U-turn. The defendant argued that the police would not have pulled over a white person, or any person about whom the police did not have a pre-existing “hunch,” under similar circumstances.²³¹ The court believed that the defendant’s theory of unequal enforcement of minor traffic infractions was irrelevant and unworkable.²³² At the time it probably was.²³³ But it is not anymore and will be even less so in the future. Today, a defendant bringing a case like Whren might have the data, thanks to GPS tracking of police and civilian cars, to demonstrate that police pull over only a small fraction of the illegal U-turns and other traffic infractions that they observe, and that the enforcement disproportionately targets minority drivers (if this is so).²³⁴

If police are able to use filtered surveillance to solve crimes at minimal expense, there will be even less need for discretion. So, if police have a filtered dragnet, courts must make sure they have an acceptable response to the question: “Why did you enforce the criminal law here and not there?”²³⁵

In summary, a government that has the capacity to detect criminal behavior at very high rates must come under heightened standards of care with respect to the promulgation of criminal laws, the use of incarceration and punishment, and the application of detection tools.

V. THE ANTI-AUTHORITARIAN FOURTH AMENDMENT

Anti-authoritarianism, rather than privacy, should be the benchmark for the Fourth Amendment when police develop cases using filtered dragnets. What makes facial recognition or a geofence or some other form of filtered dragnet “reasonable” is not that the privacy of the innocent is protected—they will all do that. Rather, an “unreasonable” use of these technologies means the state is misusing its power to punish and control.

The current trajectory of Fourth Amendment caselaw suggests that we are headed for one of two suboptimal endpoints: either the state will be able to use filtered dragnets with little to protect its citizens from the perils of broad criminal laws, harsh criminal sentences, and selective enforcement, or the state will effectively be prohibited from using filtered dragnets, leaving a criminal justice status quo that nobody would devise and few would defend.²³⁶ But if the courts start to take seriously the fundamental differences between filtered dragnets and other investigation techniques—if they recognize that technology can explode longstanding assumptions about the nature of risk when police increase the detection of crime—courts can harness the disruptive technology and help society land in a better equilibrium.

Thus, the Fourth Amendment must evolve to demand “reasonableness” when detection is easy. The thrust of my proposal is that the phrase “reasonable searches and seizures” should be understood as a more expansive and robust guarantee of reasonableness.²³⁷ Specifically, the requirement of “reasonable” seizures should guarantee that the consequences of a seizure (e.g., carceral arrest and a possible prison sentence) are fitting and proportionate to the gravity of the suspected crime. The requirement of “reasonable” searches should guarantee not only that the search is conducted based on probable cause and in line with established warrant requirements, but also that the decision to search or not search is reasonable and non-arbitrary. The former ensures that the criminal law being enforced is serious enough to justify the loss of rights that comes along with an arrest or a long sentence. The latter ensures that criminal detection tools are used in an even-handed manner.

A. Reasonable Seizing—Restricting the Substantive Criminal Law

The prospect of near-perfect detection requires more care in defining a reasonable seizure. In order for a carceral seizure of a person to be reasonable, state uses of force and coercion involved must be justified by the harm that the arrestee has imposed on society. “Freedom from unreasonable . . . seizures” should be interpreted to protect the interests of individuals who have engaged in conduct that is technically illegal but not morally reprehensible.²³⁸ Thomas Jefferson’s unfinished vision laid out in the Declaration of the Rights of Man and of the Citizen provides the blueprint. Article 4 states, “Liberty consists in the power to do anything that does not injure others”; Article 5 states, “The law has the right to forbid only such actions as are injurious to society”; and Article 8 states, “The law ought to establish only penalties that are strictly and obviously necessary.”²³⁹

A seizure should only be reasonable if the underlying criminal conduct and the resulting punishment are also reasonable. While substantive due process rights and the Eighth Amendment provide some absolute constitutional limits against unreasonable criminal codes or punishments, these rights must be bolstered in the face of near-perfect detection. An analysis of reasonable seizures in light of filtered dragnets has two aspects to it: (1) whether the behavior is sufficiently blameworthy to belong in the criminal code at all, and (2) if so, whether the punishment fits the risks and harms of the crime.

Is the conduct crime-worthy? The first inquiry asks whether the suspect’s conduct is bad enough to justify arrest and incarceration at all.²⁴⁰ This is a threshold issue. Criminal conviction needs to be blameworthy and stigmatizing. Defining what sort of conduct is “blameworthy” raises deep philosophical questions, but there is an aspect of the question that is empirical: it needs to be rare. If the conduct captured by the scope of the criminal codes is commonplace, the actor’s community evidently has not incorporated restraint deeply into its moral fabric.²⁴¹ In those cases, government intervention short of criminal liability (including expressive law, civil fines, or positive reinforcement for its opposite) should be used.²⁴²

This is at odds with cases like Atwater, where the court refused to second-guess a local government’s decision to criminalize a minor driving infraction,²⁴³ but Fourth Amendment case law does occasionally break rank with Atwater and peeks at the substance of the criminal violation in order to gauge the reasonableness of a procedure. For example, when analyzing whether a warrantless traffic checkpoint is constitutional as a reasonable warrantless seizure, the Supreme Court explicitly considers “the gravity of the public concerns served by the seizure” as one of the factors.²⁴⁴ And the Court has refused to allow exigent circumstances to excuse the failure to secure a warrant for a home search and arrest when the underlying crime is a minor offense.²⁴⁵ And Atwater is ahistorical: a quick tour of the notorious cases the Crown directed against colonists that inspired the Bill of Rights are offensive, in large part, because of the substance of the crimes. These included crimes such as writing or publishing “gross and scandalous reflections and invectives upon his majesty’s government” or the crimes of illegal trade and inadequate record-keeping.²⁴⁶

Is the punishment too harsh? If the suspect’s conduct is reprehensible enough to pass the initial threshold test, a post-conviction seizure could still be unreasonable if the quality and length of detention is disproportionately harsh.²⁴⁷ The sentences of many crimes, even violent crimes, could probably be reduced to weeks or days, or even converted to non-carceral forms of punishment (like public service or surveillance-enabled supervised release) without increasing crime rates if detection rates were much higher than they currently are. Long-term prison sentences can be reserved for murder, treason, severe sexual assault, severe child abuse, and for the incapacitation of repeat criminals.²⁴⁸ For other crimes, detection through filtered dragnets, rather than a small chance of very harsh punishment, can be the door jamb that stops the metaphorical revolving door of recidivism.

B. Reasonable Searching—Minimizing Discretion

A police department’s use of filtered dragnets will be fair if it avoids gaps in the protection from crime as well as gaps in leniency from enforcement.

1. Duty to Search

All cases of reported or otherwise known crimes that are equally suitable for filtered dragnets should be investigated.²⁴⁹ For example, if a police department can use filtered dragnets to detect gun violence or robberies, and it fails to investigate daytime violence and robberies taking place near low-income schools even though it investigates every daytime robbery or assault that takes place near high-income schools,²⁵⁰ the uneven use of filtered dragnets would render it an unreasonable search. As a practical matter, while it would make more sense for a constitutional challenge to come in the form of a § 1983 claim brought by a resident who is harmed by a detectable or deterrable crime, the challenge is more likely to emerge when a criminal defendant brings a claim similar to the claim brought in Whren (arguing that although they committed an offense, the crime is unequally enforced).²⁵¹ Courts should be open to a claim and evidentiary proof of this sort.

2. Duty to Cast a Large Dragnet

Law enforcement should not have undue control defining the search pool that will be used by a filtered dragnet. The database that will be used to cross-check against the facts of a crime should include everyone possible whose data is accessible and whose participation in the crime would not be an impossibility. This reduces the risk of arbitrariness or bias that could result if police search for potential leads and matches in one population while ignoring another.

By this standard, facial recognition systems like Clearview AI are more legitimate (in the sense of being less susceptible to bias or discretion, at least) when they match surveillance footage at a crime scene against the largest possible set of publicly available portraits on the open web. Contrast this with DNA filtered dragnets: it is increasingly common and popular to restrict local law enforcement who are running DNA searches to CODIS, the federally maintained database of arrestee or convict DNA samples.²⁵² Whatever rationale might justify subjecting convicts to greater likelihood of being caught in their own future crimes, the logic does not follow to arrestees or to individuals whose crimes are detected through familial DNA.²⁵³

The principle of evenhanded enforcement is consonant with what Bennett Capers meant when he argued that equitable policing may require “redistributing privacy.”²⁵⁴ But it may require courts to enforce subpoenas or issue warrants in order to pierce through corporate policies that resist law enforcement access.²⁵⁵ These policies are already in place at some companies.²⁵⁶ Of course, there may be times when law enforcement resources really are constrained so that investigating every trackable crime or casting the widest possible dragnet will not be possible, but the police should be able to offer some reasonable explanation. And an explanation that would not be reasonable is that too many individuals would be caught: if the availability of filtered dragnets forces law enforcement to confront the problem that there are too many criminal acts, the proper government response is to revisit and narrow or purge some of the substantive criminal laws.

C. Police Culture: The Era of the Nerdy Police Force

The adoption of filtered dragnets will require law enforcement agencies to become more technocratic. Much of the initial investigation work is likely to be centralized, in upper management working at desks, and their compliance with Fourth Amendment restrictions will require competence, if not expertise, in statistical methods and data auditing procedures. To some extent, this change in operations is already happening with the gradual introduction of DNA forensic labs, facial recognition, and now, reverse searches. With clear Fourth Amendment guidance for filtered dragnets, police forces could rapidly adopt filtered dragnets and divest somewhat from traditional techniques. Police operations would shift away from self-initiated patrols and field-based investigation toward data-driven initiation and investigation. This will change who is qualified for and attracted to a policing job. Police investigators who are used to solving cases through interrogations and informants will begin to feel like the baseball scouts who still visit high school and college teams looking for “good legs” while their younger, nerdier, and (eventually) better paid colleagues use Bill James-style statistics to prioritize the team’s recruiting efforts.²⁵⁷

This may prove to be a feature—a way to achieve the reform of police culture by working backwards from shared ends that are appealing to both suburban families and Black Lives Matter activists (lowering crime, reducing false convictions, and achieving even-handed enforcement). The cultural shift can provide counterpressure to a problem that currently plagues police recruitment—that the people most interested in working for law enforcement have stronger-than-average preferences for meting out punishment.²⁵⁸ All the more reason civil liberties organizations should reconsider their instinctive negative reactions to filtered dragnets.

The criminal defense bar may get transformed, too. Andrew Ferguson has made the case that law enforcement data-collection and data-mining practices can be inverted to discover negligent or abusive practices within police departments.²⁵⁹ Defendants can make use of “blue data” to prove their cases that, for example, law enforcement had used an unreasonably narrow dragnet.²⁶⁰ This may offend a police department’s sense of agency and self-determination, but this is a reasonable price to pay for the power and efficiency of filtered dragnets.²⁶¹

VI. ADDRESSING FRIENDLY OBJECTIONS

Some readers will no doubt disagree with my description of the looming opportunities and problems that will arise with filtered dragnets, and as a result will reject the policy solutions offered in Part V. I addressed doubts about the upsides of filtered surveillance or the downsides of near-perfect detection as best I can in those earlier Parts. Whatever disagreements about the policy implications remain will have to be aired in other fora. Here, I address some objections that will be raised even by readers who agree that the policies advanced in this Article are sound.

“Friendly” critics will wonder why it is necessary to constitutionalize these policies rather than advocating for a legislative response. The answer, in brief, is that constitutional protections are the only viable tools when several criminal justice rules must be changed at the same time.

Friendly critics may also wonder why the Fourth Amendment is the right vehicle for course correction even if all agree that constitutional law must be pressed into service. On this question, I am more neutral. If the Eighth Amendment and Due Process clauses can be interpreted to reach the same anti-authoritarian objectives, there is little reason to insist on the Fourth Amendment as the primary source of these rights. But since filtered dragnets will inevitably cause seismic activity in Fourth Amendment law, and since highly efficient searches are the reason that the threat of government tyranny will become more pronounced, it is at least fair to say that the Fourth Amendment could be the right constitutional source for the anti-authoritarian rights described in Part V.

A. Why the Courts? (Or, Why Not the Legislature?)

Not every problem in law enforcement needs to be solved through the constitution, but this one does. The political process is exceedingly unlikely to get us out of our criminal justice rut, where low detection rates are messily compensated through criminal liability for minor infractions. Political winds bob from too much lenity to authoritarian severity,²⁶² and as a result, surveillance restrictions and decriminalization usually rise and fall together depending on whether the mood is pro-rights or anti-crime. Political institutions do not have the tools to break surveillance and substantive criminal law apart and to work out a criminal justice horse trade. But a horse trade is what we need: we simultaneously need the police to detect more violent crime while also ensuring that no person who is caught with a $10 baggie of drugs could ever be in a position to go to prison for the rest of their life.²⁶³

This trade—reduced criminal liability in exchange for greater detection—can only be accomplished through constitutional adjustment. If criminal liability and punishment are reduced without a simultaneous increase in detection, crime rates will rise and the ballot box consequences for political actors will be harsh. If detection capacity is increased without any change to the criminal codes, the political actors’ constituents will be justifiably nervous about how the newfound power of detection will be used. But if the two reforms happen at the same time—if the state is constrained by constitutional interpretation from detaining or imprisoning individuals based on minor infractions, or from levying long sentences for anything other than the most serious and violent offenses—surveillance is defanged because the threat of unjust prosecution is reduced.²⁶⁴

Put another way, the political pressure to limit or ban surveillance tools might make sense as a second-best solution if decriminalization and reduced sentencing is politically infeasible, but the risk is that the strategy can lock out the first best solution—the low penalty/high detection solution. Indeed, in the wake of rising murder rates, the decriminalization and police reform movements are already more politically controversial than they were just a couple years ago. If crime rates continue to rise while detection is capped or suppressed through new legal constraints on technology, politically accountable decisionmakers will continue to use mass incarceration to manage crime.

To be fair, many luminaries in the field of criminal justice have seen roughly the same patterns of dysfunction and technological disruption that I have recounted and have recommended solutions in the form of legislation, administrative regulation, and restoring the role of local government. Bill Stuntz, for example, argued that many of the abuses of power in the criminal justice system would be avoided if local governments (rather than states) were the primary promulgators of criminal law and if juries (rather than prosecutors) were the decisionmakers who most often determined whether a defendant should be convicted or serve time.²⁶⁵ Chris Slobogin, Barry Friedman, Maria Ponomarenko, Catherine Crump, and Andrew Ferguson have argued that legislatures and regulatory agencies should be more active in structuring how (non-filtered) dragnet and surveillance technologies should and should not be used in the field.²⁶⁶ But they also acknowledge that politically accountable bodies always run the risk that their decisions will disproportionately benefit the politically powerful and will be relatively indifferent to problems of under-protection and prejudiced enforcement.²⁶⁷

Daphna Renan has argued, convincingly in my opinion, that political processes alone cannot be expected to produce the sort of basic rights and counter-majoritarian protections that the Constitution should guarantee.²⁶⁸ Our agreement ends there, though, because Renan advocates for a Fourth Amendment superstructure, or set of principles, that would set requirements and boundaries on administrative agencies (such as the Privacy and Civil Liberties Oversight Board) tasked with creating law enforcement surveillance programs.²⁶⁹ But no board, no matter how independent, could actually make the grand maneuver that I’m asking readers to consider here—where filtered dragnets are permitted, but in exchange for protection from bad laws, harsh punishment, and discretionary application. Renan’s proposal may be a good second-best solution, but a dramatic reorientation of constitutional priorities can only be done by the Supreme Court. It is time for constitutional renewal in search of a better equilibrium.²⁷⁰

B. Why the Fourth Amendment?

The harder question, and I confess this is where I am on shakier ground, is why the anti-authoritarian principles that I claim are so important during this inflection point are the responsibility of the Fourth Amendment to solve rather than other parts of the Bill of Rights or notions of substantive due process.²⁷¹ The case is somewhat easier for the principle that reasonable searching requires evenhandedness. At the founding, the Fourth and Fifth Amendments were meant to prevent the government from being able to rummage through a disfavored target’s things looking for evidence of a crime, so equal and non-arbitrary treatment was always a goal.²⁷²

The case for using the Fourth Amendment to put constraints on substantive criminal law and sentencing is a bit harder. After all, the Supreme Court has repeatedly authorized law enforcement agencies to execute stops, searches, and arrests, no matter how trivial the law-violating behavior may be to overall public safety.²⁷³ As early as Boyd v. United States, decided in 1886, the Court found that Fourth Amendment protections do not apply to those who have committed a public offense, and courts have declined to second-guess whether the public offense was valid in the course of a Fourth Amendment analysis.²⁷⁴ And one may reasonably think that if courts are going to invalidate an overly harsh prison sentence on constitutional grounds, as I argue they should under the guise of protecting against unreasonable seizures, they would have already imposed these limits under the Eighth Amendment’s cruel and unusual punishment clause.²⁷⁵

Perhaps it would make as much sense to make Eighth Amendment or Due Process protections more robust to ensure that criminal liability is not overbroad and sentences aren’t overlong.²⁷⁶ But a long view of the Fourth Amendment can support a shift from the protection of the property, privacy, and autonomy of non-offenders to the protection of those same interests of those who are innocent in the more platonic sense.

In many ways, the history of Fourth Amendment caselaw shows a faltering and incoherent attempt to get to the main point: to make sure the state does not have too much power to enforce silly crimes and scare its constituents into submission.²⁷⁷ Silly crimes have been at the center of the original construction of the Fourth Amendment and each of its major reforms. Shortly after the American Revolution, sedition laws motivated creative lawyers like Alexander Hamilton to use procedure in order to correct flaws in the substantive criminal law that were not, at that time, adequately constrained by the First Amendment.²⁷⁸ In the context of that time, when states had nearly full rein to search for physical evidence and when prosecutions were proved primarily using witnesses, the thought that constitutional protections could get in the way of convicting rapists and murderers would have been preposterous.²⁷⁹ After all, the founders did not expect the Fourth Amendment to constrain how local law enforcement investigated crimes, and group searches executed without particularized warrants were tolerated.²⁸⁰ Thus, at that time, the buildup of procedure to help protect against crimes of belief and thought had little cost to the control of more conventional crimes.

Courts again increased Fourth Amendment procedural protections during two subsequent periods when the substance of criminal law was directed at questionable, arguably victimless vice crimes like gambling, alcohol (during prohibition), obscenity, and recreational drugs.²⁸¹ In the twentieth century, new information technologies changed the nature of police investigation by enabling wiretapping and forms of long-term tracking of suspects without reliance on trespass or witness cooperation. The standard story is that these technologies unsettled the balance between conflicting societal goals related to police investigations, which is true enough. But another important factor is that the test cases involved the detection and enforcement of gambling, bootlegging, and drug distribution crimes. Katz v. United States, the Fourth Amendment case that developed the reasonable expectations of privacy test, involved bugging a phone a bookmaker was using.²⁸² And it followed the logic of Justice Brandeis’s dissent in an earlier case, Olmstead v. United States,²⁸³ which involved the wiretapping of a bootlegger.²⁸⁴ Katz marked the end of a primarily property-based conception of Fourth Amendment rights and ushered in the privacy phase. When test facts making their way to the Supreme Court involved more serious crimes, like stalking, the Supreme Court avoided finding a privacy violation.²⁸⁵

To be clear, there are other reasons, separate from the substance of the criminal law being enforced, that justify a focus on privacy. Twentieth century surveillance capabilities certainly left Americans—criminals and the innocent alike—at greater risk of unwanted observation of licit activities. But there is also a clear pattern: courts have used criminal procedure to frustrate the enforcement of controversial criminal statutes that cover activities in which a sizable proportion of Americans willingly participate.²⁸⁶ Once privacy posed a significant obstacle to police investigations, procedural rights became the default defense against a tyrannical state. There was less pressing need to press the Constitution into service to challenge whether conduct should even be considered criminal in the first place or whether the police are protecting communities fairly. For better or worse, the Fourth Amendment privacy rule created a tractor beam for public defenders and civil liberties organizations to concentrate their anti-authoritarian efforts.

Scholars have occasionally attempted to refocus the Fourth Amendment on a more general purpose to create a constraint on power.²⁸⁷ Bill Stuntz faulted Fourth Amendment’s turn to privacy because it “tend[ed] to obscure more serious harms that attend police misconduct.”²⁸⁸ More recently, Thomas Crocker has argued that the Fourth Amendment should be understood as a substantive right, not just a procedural one, that follows in the vision of the First, Second, and Ninth Amendments.²⁸⁹ But ultimately, Crocker advocates for the use of this substantive right to argue for a more thorough protection against surveillance.²⁹⁰ Naturally, I think this misses the point. A citizen whose government makes nearly all conduct and action illegal will never feel secure no matter how many restrictions on surveillance are in place. And conversely, a government that is rigidly constrained from expanding its criminal laws beyond the conduct that is nearly universally reviled will be limited in its ability to threaten a citizen’s sense of liberty no matter how much surveillance is in place.

The happenstance of technology provides another reason to prefer the Fourth Amendment over other constitutional sources to redress the problems of overcriminalization and uneven protection. The privacy of the innocent was mediating the clash between American values in freedom and security. Increasing use of filtered dragnets will make this arrangement untenable. If we expect the role of the Fourth Amendment to be meaningful—to be something other than a brief paperwork requirement in the process of securing warrants for filtered dragnets—it is both necessary and appropriate that Fourth Amendment caselaw starts to look for its root function and embrace its substantive as well as procedural dimensions.

CONCLUSION

In 1967, Alan Westin, a leading light among privacy scholars, said that “the modern totalitarian state relies on secrecy for the regime, but high surveillance and disclosure for all other groups.”²⁹¹ This is probably a true statement, but highly incomplete. Surveillance is a necessary condition for authoritarian control, but not sufficient on its own. Indeed, all modern states need surveillance. Modern systems of taxation, public benefits distribution, medical services, and public health could not function without copious amounts of personal data. Thus, surveillance is necessary for all states, not just despotic ones. Moreover, surveillance is no more unique to totalitarianism than are weapons, prisons, and other tools the state must use to carry out the most basic obligations to support social order and security.

The tools that live exclusively in the toolbox of despots are repressive substantive criminal laws, harsh punishment, and discretion to choose when to enforce the law. Even in George Orwell’s dark depiction Nineteen Eighty-Four, Big Brother was oppressive partly because of the substance of the law: the wrong thought could land a person in jail.²⁹²

Against this threat of uncontrolled surveillance, many privacy scholars recommend the dismantling of the surveillance apparatus. This Article focused instead on the “uncontrolled” quality of uncontrolled surveillance. Filtered dragnets are a highly controlled dragnet that reveal only criminal violations. Thus, they are only as threatening to society as the criminal statutes that they enforce and the discretion of the government agents who use them. With the right alignment of Fourth Amendment rules to authoritarian threats, the state can be made to heel—to detect crimes fairly without burdening any communities with under-protection or over-punishment. This will require some intrusion of the traditionally procedural domain of the Fourth Amendment into the substantive realm of criminal law and punishment. If the state can suddenly detect every violation, prison must be reserved for truly awful behavior, and law enforcement should have less latitude to seek out or avoid the investigations of members of certain groups.

These are radical proposals. They go well beyond the privacy framework that has dominated Fourth Amendment theory for over half a century. But they respond to a radical tool that will shock a criminal justice system that is already in crisis and deserves rescue.

97 S. Cal. L. Rev. 571

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Jane R. Bambauer*

* University of Arizona James E. Rogers College of Law. The author is grateful for the advice and invaluable feedback from Jordan Blair Woods, Tracey Maclin, Farhang Heydari, Toni Massaro, Tammi Walker, John Villasenor, Andrew Woods, Lilla Montagnani, Kiel Brennan-Marquez, Jeffrey Fagan, Christopher Slobogin, Derek Bambauer, Mark Verstraete, Xiaoqian Hu, Andrew Coan, Niva Elkin-Koren, Uri Hcohen, and Tal Zarsky.