A Motel-Sized Victory for Privacy at the Supreme Court

In Los Angeles, where Ben Braddock registered as Mr. Gladstone before starting his affair with Mrs. Robinson, hotel and motel operators are required by law to be nosy. They may not say, “Welcome to my inn, where your business is your own,” for they must record each guest’s name and address; the number of people in her party; her date and time of arrival; her planned date of departure; her room number; the rate she is paying; her method of payment; her ID number if she failed to reserve in advance, paid cash, or rented for 12 hours or less; and information on her vehicle (forcing her to return to the parking lot to take down the plate number).

This registration information must be stored for 90 days. Front desk employees must be trained to record it per municipal regulations. And they must turn it over to authorities when given a lawful subpoena or search warrant. But what if an LAPD officer comes to the lobby, sans warrant, and demands to inspect these records?

The city has sought to force innkeepers to comply with any such request from any police officer. A law declared any failure to make guest records available for police inspection a misdemeanor punishable by 6 months in jail and a $1,000 fine. It wouldn’t matter if a rookie LAPD officer arrived on his own initiative and demanded the registration card of a Black Lives Matter organizer in town for a conference or an actress whose home address he hoped to pilfer. The innkeeper could not refuse. The nosy cop could arrest the innkeeper immediately if he dared try.

On Monday, the Supreme Court declared that law unconstitutional.

The majority opinion was written by Justice Sonia Sotomayor, the high court’s foremost champion of safeguarding privacy rights against aggressive searches and seizures. The 5-to-4 ruling, embraced by the court’s liberal wing, struck down the law because it penalizes people for failing to give up records without affording any opportunity to challenge the lawfulness or reasonableness of the request.

With rare exceptions, for an administrative search to be constitutional, the subject “must be afforded an opportunity to obtain precompliance review before a neutral decision maker,” Sotomayor wrote. “We see no reason why this minimal requirement is inapplicable here.” Although the Court has never specified the form such a review must take, Los Angeles did not even attempt to argue that its law affords hotel operators any opportunity for a challenge, meaning that a hotel owner who refuses access to his or her registry “can be arrested on the spot.”

The law is therefore “facially invalid,” she wrote.

Sotomayor went on to explain why she believes that upholding the law would have been dangerous.

“The ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests,” she explains. “Even if a hotel has been searched 10 times a day, every day, for three months, without any violation being found, the operator can only refuse to comply with an officer’s demand to turn over the registry at his or her own peril.” Now, misbehavior by L.A. or municipalities with similar hotel regulations can be checked before police can coerce innkeepers into granting abusive requests. And police will continue to get cooperation most times from most inns, at least if they treat innkeepers with respect and don’t abuse their authority.

As for inns rife with criminals and complicit innkeepers, police can send an undercover cop with $50 in bribe money to ascertain if the register requirement is easily avoided; or they can go through minimal administrative burdens to see the whole registry, though I don’t see why known criminals wouldn’t use fake names and IDs.

* * *

Justice Antonin Scalia was unmoved by the majority opinion. Writing in a dissent joined by Justices Roberts and Thomas, he declared that inns belong to a special class of heavily regulated industries for which long precedent holds that “when an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of governmental regulation.” At the time of the Founding, “searches—indeed, warrantless searches—of inns and similar places of public accommodation were commonplace,” the conservative jurist observed. “For example, although Massachusetts was perhaps the State most protective against government searches, ‘the state code of 1788 still allowed tithingmen to search public houses of entertainment on every Sabbath without any sort of warrant.’”

Scalia argues that L.A.’s law “furthers a substantial governmental interest” by deterring criminal activity like drug dealing, prostitution, and human trafficking, and reasons that warrantless searches are “necessary to achieving that interest,” because they provide “a necessary incentive for motels to maintain their registers thoroughly and accurately: They never know when law enforcement might drop by to inspect.” Without the requirement, he adds, innkeepers who conspire with drug dealers or procurers of prostitutes “may demand precompliance judicial review simply as a pretext to buy time for making fraudulent entries in their guest registers.”*

Put more succinctly, Scalia believes that because some motel guests commit serious crimes, and because some motel owners conspire to hide that fact from police, it is reasonable to impose warrantless searches on all hotel and motel operators, without any way to preemptively challenge even the most egregious requests, and even absent suspicion that any crime is occurring on the premises being scrutinized. “Because I believe that the limited warrantless searches authorized... are reasonable under the circumstances,” he wrote, “I respectfully dissent.”

* * *

As I noted last year when the Supreme Court first agreed to hear Los Angeles v. Patel, it’s worth stepping back to think through the logic embraced by Los Angeles, the LAPD, a district court, a Ninth Circuit dissent, and now, four dissenting Supreme Court justices. All seem comfortable with something that wasn’t addressed directly in this case: the notion that hotel and motel guests have no right to privacy in information that they voluntarily turn over to third parties, per Smith v. Maryland.

The third-party information precedent is problematic on its own.

But it is devastating to privacy when paired with laws that compel businesses to collect detailed information on customers and to turn it over to police without warrants, destroying the ability to enter voluntary transactions that include discretion.

The practical effect of this two-step is that Americans cannot travel without waiving privacy rights to personal details as intimate as where they go, the times they arrive and leave, who stays with them in their rooms, and how many beds are inside those rooms. If the state is permitted to seize all that information without probable cause or a warrant, the Fourth Amendment is devalued, especially if the same logic is extended to other businesses: Most people can't function in modern society without revealing virtually every aspect of their lives to some “third party” or other. By compelling those businesses to track us, Big Brother gains many minions.

Even staying within the narrow bounds of inn records, it is easy to imagine a day very soon when paper registration is totally abandoned and all registries are held electronically, whether as a matter of convenience or because regulators compel it.

Permitting electronic access to police would be trivially easy. (In fact, the brief submitted by Los Angeles raises a hypothetical in which “the City requires any hotel that uses an electronic register to enter the information into a City database in real time over the Internet,” a scenario that it regards as obviously lawful.)

At that point, when L.A.’s convention center hosts the national conference of the National Rifle Association or the American Civil Liberties Union or the Green Party, should local cops have warrantless e-access to the names of all hotel guests? Scalia’s jurisprudence would give L.A.’s hotels no way to preempt such informational hoovering, perhaps because he’s so focused on the long history of inns keeping records that he doesn’t appreciate what the future holds for the practice: an easily compilable record of all travelers as they move about the country.

And one wonders what Arizona Sheriff Joe Arpaio will do if and when he can check all hotel registries from his computer. I expect guests with Spanish surnames will be first to find out.

Now let’s return to the present.

A brief put forth by Los Angeles in this case argued that a hotel operator’s “individual privacy concerns pale in comparison to the City’s legitimate interest in deterring prostitutes, drug dealers, and other serious criminals from committing crimes in hotels. Hotels have only a limited privacy interest in their required registers.” If you suddenly found yourself owning and operating a motel in Los Angeles, would you feel a limited privacy interest or a strong privacy interest in the fact that a prominent LAPD whistleblower, the wife of an LAPD officer put on administrative leave for domestic violence, or a group of anti-police activists were staying at your hotel, where you hope for future police protection from criminals?

Going forward, a libertarian approach to Fourth Amendment law would offer much better protection. “When a search or seizure occurs, its effect on privacy is one consideration in determining whether or not it was reasonable,” the Cato Institute declared in its amicus brief on this case. “Privacy invasion is not,   however, the sine qua non of unreasonable searches and seizures. Instead of  asking whether Los  Angeles  hoteliers have an ‘expectation of privacy’ in their business records, this Court should examine whether their right ‘to be secure in their persons, houses, papers, and effects, against  unreasonable searches and seizures’ is infringed by a statute that requires them to create business records  and make them available for search on their premises by ‘any officer of the Los Angeles  Police  Department,’  for any reason or no reason, and without a warrant.”

After Monday’s ruling, Jim Harper, a co-author of that brief, speculated that had the Court considered the totality of L.A.’s “warrantless search scheme,” it would’ve assessed “whether it is reasonable in our constitutional system for private businesses to be dragooned into wholesale, comprehensive surveillance on behalf of the government,” a scope that “might have brought the Court’s conservatives off the sidelines and into defending the degree of privacy against government that existed when the Fourth Amendment was adopted. Surely, the government couldn’t have conscripted businesses into mass surveillance of the public at the time of the framing.”

But for years, self-described conservatives have chipped away at the Fourth Amendment by privileging the convenience of police over the privacy of innocents. In so doing, they’ve helped America’s cops to significantly reduce drug trafficking and prostitution in America––wait, no, it’s actually as easy as ever to buy drugs or sex, and neither would be done in crime-ridden motels if the associated vices were brought under sane regulators rather than black market dons.

Despite the fact that the ostensibly compelling reasons for eroding the Fourth Amendment have mostly failed to bring about the desired ends, I fear that the Supreme Court’s conservatives will continue embracing positions that weaken it, even as the government’s ability to collect, store, and analyze information about innocents exceeds anything that the Framers could have imagined or would have permitted. Absent a significant change in jurisprudence, an increasingly comprehensive surveillance state is all but inevitable in the U.S. And Sotomayor seems more inclined to protect privacy than any of the court’s Republican appointees.

* Scalia's notion that criminal innkeepers would be able to fabricate a 90-day registry in the time it takes police to get permission from a neutral arbiter is baffling to me, in part because it would be so easy to catch a fabricator in such a ruse. If police suspected a motel of failing to keep its registry properly, for example, they could send a plainclothes cop to the parking lot, have him photograph all license plates with his phone, come back 33 days later, request the registry, get refused, appear before the neutral arbiter––ostensibly giving the owner time to fabricate the record––and then finally get their hands on the fabricated “registry”… which wouldn’t come close to recreating the license plate numbers from cars in the parking lot 33 days prior, when the owner didn’t know cops were there.