Privacy

Waiting for Patel

By Paul Rosenzweig
Thursday, June 18, 2015, 8:30 AM

The annual ritual has begun.  Every June, official Washington waits in anticipation for the Supreme Court to complete its term.  All of the "blockbuster" cases await decision.  This year, most of the press and public are waiting for the gay marriage case and for the Obamacare/ACA tax decision.  But there are more than a dozen cases yet to be decided and one of the possible sleepers is City of Los Angeles v. Patel.  To be honest, it will probably be a bust, but there are some ways in which it might be one of the more significant privacy/Fourth Amendment cases -- depending, of course, on how the case is decided.

Patel involves a lawsuit brought by hotel operators who were challenging the City of Los Angeles' rules allowing the inspection of hotel registration records.  Hotel records are generally thought of as public records both here in the US and in Europe.  As a result, the hotels are obliged to maintain the records and routinely make them available for police inspection.  Thus the question presented is "whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry."

By way of background, Patel and the other hotel operators run relatively small hotel operations in Los Angeles -- ones that are sometimes called "parking meter hotels" because they rent by the hour.  Some of the renters are, it seems, unsavory characters.  Hence, the LAPD took a rather strong interest in the guest registers and, reportedly, often found therein some who had outstanding warrants or were engaging in illegal activity.  Under the LA ordinance the police inspections of the registers could be without warning and without a warrant.  The Ninth Circuit found the ordinance unconstitutional -- and held that an administrative warrant (of the sort required by the Supreme Court in Marshall v. Barolow's Inc.) was required.  Most observers (including me) think that the Court took the case to reverse -- the doctrine has long been that warrantless searches of "closely regulated" industries is permitted under the Fourth Amendment, and hotel guest registries have been regulated since Colonial times in the US (and for far longer in Europe).  More to the point, LA argues that surprise inspections of guest information at these types of hourly rental hotels is necessary to prevent them from being used as easy locations for drugs and prostitution.  Given that argument (and given that the hotel is asserting the derivative privacy interests of their customers rather than their own direct interests) this might be an easy case -- and it probably will be.

But if we press a little deeper, there are some privacy/liberty/security questions buried in the case that it would be fun if the Court were to address:

  • Do the hotel guests have any privacy interest in the data they share with the hotel in order to get a room?  This pretty clearly implicates the third-party doctrine, which has been under some stress in the national security context.
  • Does the Los Angeles disclosure requirement conflict with Federal and State privacy law?  After all, some of the data that you give up to get a hotel room (like a credit card number) are protected from disclosure.  May a local city mandate disclosure of that which Federal law prohibits?
  • Does it matter (or should it) if the LAPD is collecting the data rather than just inspecting it?  In other words what if the LAPD is engaged in bulk data collection of hotel stays in the LA area?  We don't know this (since the case is a facial challenge) but the question implicates many of the big data concerns that animate large scale data collection by the government.
  • And, finally, does it matter that the inspection rationale is often pretextual?  For years we have looked only at the objective reasonableness of a police officer's actions -- not his subjective intent.  Yet here it seems clear that much of the inspection is not intended to enforce health and safety regulations (the nominal ground for inspections of "closely regulated" businesses) but rather to enhance criminal law enforcement generally. 

As noted, I seriously doubt that any of these will come up, but it seems fun to ask.  We'll probably know the answer in a few hours, or a few days at most.

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