Privacy

Patel Decided

By Paul Rosenzweig
Monday, June 22, 2015, 12:15 PM

Boy, talk about making a mistake.  On Monday I confidently predicted the pending decision in City of Los Angeles v. Patel, saying, among other things that "Most observers (including me) think that the Court took the case to reverse" and "this might be an easy case -- and it probably will be."  Of course, today, the Court affirmed in a split 5-4 decision -- i.e. not very easy at all.

Justice Sotomayor,  held that the ordinance (requiring hotels to make their guest registries available for routine police inspection without a warrant) is facially unconstitutional. Despite the long history of such laws, the majority (which also included Kennedy, Breyer, Ginsburg and Kagan) concluded the exception to the warrant requirement for “heavily regulated businesses” does not apply.  In particular because the ordinance permitted the immediate arrest of any hotel operator who refused to comply the Court said that an opportunity for pre-enforcement judicial review was essential.  In doing so, the Court said that hotel regulation was different from the four industries it had previously identified as heavily regulated -- liqour, firearms, mining and automobile junkyards.  [Why those four you ask?  Good question  I can justify the first two and maybe even mining ... but junkyards???]

Happily for my predictive ability, the Court did, in fact, fail to address the many interesting questions about bulk data and third party records that I had suggested they would avoid.  But still, next time I make a prediciton here, remind me of how poorly I did with Patel!