ALM Properties, Inc.
Page printed from: The Recorder
Select 'Print' in your browser menu to print this document.
Ninth Circuit Hears Hotel Guest Privacy CaseIf the court strikes down an L.A. ordinance requiring local hotels to keep guest information available for inspection for 90 days, it would be the second en banc decision this year blocking a warrantless search program.
2013-06-25 12:03:14 PM
SAN FRANCISCO — It doesn't involve Internet monitoring or GPS tracking, but the U.S. Court of Appeals for the Ninth Circuit sounds poised to push back for the second time this year on warrantless government snooping.
On Monday an en banc panel of the court sounded ready to strike down a Los Angeles ordinance that gives police explicit power to search hotel registries without a warrant or reasonable suspicion of a crime.
Several judges suggested that United States v. Jones, the 2012 U.S. Supreme Court decision on GPS tracking, has changed the playing field on warrantless searches.
"I think we do have to look at Jones, whether you like it or not," Judge Consuelo Callahan told Deputy City Attorney Todd Leung, representing Los Angeles.
Callahan and other judges noted the obvious: that hotel guests may prefer to keep their visits private from spouses, parents or others. Hotel owners may wish to keep guest lists hidden from their competitors, Judge Morgan Christen noted.
If the court does strike down Los Angeles Municipal Code §41.49, which requires local hotels to keep names, addresses, emails, license plate numbers and other persona data available for immediate inspection for 90 days, it would be the second en banc decision this year blocking a warrantless search program. In March, the court ruled that border agents may not perform forensic searches of travelers' laptops absent reasonable suspicion.
In Patel v. City of Los Angeles a three-judge panel led by Judge Richard Clifton had ruled last year that hotel owners Naranjibhai and Ramilaben Patel and the Los Angeles Lodging Association had no reasonable expectation of privacy in the data their guests provide when checking in.
Clifton maintained that position in argument Monday, pointing out that a U.S. Supreme Court ruling this month on blanket DNA testing of arrestees emphasized the role of privacy expectations in Fourth Amendment analysis.
But other judges clearly disagreed, saying that Jones focused instead on the nature of the search in the absence of reasonable suspicion. "When you're talking about papers, that is specifically mentioned in the Constitution," Judge Milan Smith Jr. told Leung.
Leung argued that for a search to be illegal requires "some kind of meaningful interference with the possessory interest," but Smith said the definition of search is more narrow. Leung then tried to frame it as a trespass, causing Smith to interject "Ah-ah!" "I said, 'Is it a search?'" he said. "Under the case law, there's really no question, is there?"
Christen compared the guest registry information to a customer list that would have value as a trade secret. "There's arguably a lot more infringement in this case than dropping a bug under somebody's car that nobody knows is there," said Christen, alluding to the fact pattern in Jones.
Judge Richard Tallman appeared to side with Clifton. What about old-fashioned hotels that keep a guest register open on the counter that anybody can walk in and peruse? he asked. "The mere act of eyeballing the open guest register is the intrusion, is that what you're saying?" Tallman asked the hotels' attorney, Frank Weiser.
"I'm actually old enough to remember hotels with open registers," Chief Judge Alex Kozinski said. "Were people allowed to just come in and look at them off the street?"
"Only in movies," replied Judge Raymond Fisher.
Tallman pointed out that the hotels are bringing a facial challenge, and a 1968 Supreme Court decision, Sibron v. New York, frowns on deciding warrantless searches outside a concrete factual context. "So why shouldn't we just follow Sibron and stop this hypothetical debate," Tallman asked Leung.
"I don't disagree with your honor's analysis," Leung said.
"We didn't expect you to," Fisher quipped.
But, said Christen, what about the more recent case of Marshall v. Barlow's, which held the opposite?
For Kozinski, the answer was simple: "But see ..."
Contact the reporter at email@example.com.