What do Los Angeles motel owners and the nation’s largest corporations have in common?
A little-noticed case before the Supreme Court on Tuesday – about hotel guest registers and the Fourth Amendment – has triggered “friend of the court” briefs from the U.S. Chamber of Commerce and other corporate players. And some of them believe that the full protection of the Fourth Amendment should extend to all business records.
Unfortunately, given these heavy hitters, the Supreme Court might make a critical mistake – the right ruling for the wrong reason.
The case involves a Los Angeles ordinance that makes hotels keep detailed guest registers, and to make registers available to the Police Department. Police might have a good reason for this information: Shady motels (often charging by the hour) are hotbeds of crime, including prostitution, drug deals and even child sex trafficking.
But the hotel operators say the ordinance violates the Constitution’s Fourth Amendment, which guarantees the right against unreasonable searches and seizures. They say that if a cop wants to see the guest register, he should get a search warrant. They might well be right, but not for the reasons that have excited the corporate world.
The ordinance requires guest registers to keep a lot of personal information about guests, including not just names and addresses, but also details about their cars, how they paid and who stayed with them. If police have probable cause to believe they’ll find evidence of criminal activity, they absolutely should be able to get a warrant to examine the guest register. But the ordinance seems to allow any LAPD officer to just wander in and demand the register.
That might allow more police snooping on hotel guests than the Fourth Amendment allows, and not just of the bad guys. Unfortunately, police departments in cities from Boston to Los Angeles have been accused of spying on people involved in peaceful protest marches. And some cops aren’t above abusing their power to spy on an ex-wife. That’s why the requirement to get a warrant adds an important layer of protection for individuals’ privacy.
Unfortunately, some in the corporate world are framing the case the wrong way. They’re not talking about the Fourth Amendment rights of the people who stay in the hotels. They’re claiming the law violates the Fourth Amendment rights of businesses.
That could threaten our ability to enforce laws protecting consumers and to fight white-collar crime such as money laundering and tax evasion. As the Supreme Court said in 1950, “corporations can claim no equality with individuals in the enjoyment of a right to privacy.” So, for example, the high court rejected a Fourth Amendment challenge of an anti-money laundering law that requires banks to report large cash transactions to the government.
And broad corporate Fourth Amendment arguments could even limit our ability to protect clean air and water. In 1978, Dow Chemical refused to let Environmental Protection Agency inspectors inside a 2,000-acre chemical manufacturing facility surrounded by elaborate security. So the EPA flew an airplane over the facility and took pictures. Dow claimed this violated the company’s Fourth Amendment rights, and with support from the U.S. Chamber of Commerce took it all the way to the Supreme Court.
The EPA won, though just barely (5-4). Yet corporate polluters keep bringing these cases, claiming, for example, that their Fourth Amendment rights are violated when EPA inspectors open up a manhole to test polluted wastewater before it enters the sewer.
That’s why it’s important for the Supreme Court to focus on whose constitutional rights are really at stake: the people who stay at hotels. There are no hotel guests in this lawsuit, but the court’s analysis should center on them anyway. The nonprofit Electronic Privacy Information Center filed a brief urging the court to focus on “the privacy and First Amendment interests of hotel guests who frequently gather at hotels for political and religious purposes.” That’s a good way to think about this case.
The Fourth Amendment is a “right of the people,” not a tool for corporate stonewalling.
Ron Fein is legal director of Free Speech for People, a national nonprofit advocacy group.