Orin Kerr writes:
Although I wasn’t planning to post any more on the Fifth Circuit cell-site case, I happened to notice that Magistrate Judge Smith recently posted a new essay on SSRN that is in significant part a response to my amicus brief and my criticisms of his decision. I thought it only fair to point readers to his paper and explore Smith’s argument in some detail. I’ll then offer my thoughts in response at the end.
In his essay, Standing Up for Mr. Nesbitt, forthcoming in the University of San Francisco Law Review, Smith argues that magistrate judges must “stand up” and protect ordinary citizens from “an increasingly surveillance-happy state” because “Congress and the Supreme Court have yet to do so.” None of the three branches of government are standing up to protect the ordinary citizen, Smith argues. The Executive Branch can’t regulate itself, and Congress has not addressed some important issues effectively. The Supreme Court has failed to step in, too, as it has hardly touched electronic privacy and it has expressed caution about its own role in recent decisions. With all three branches failing to protect the ordinary citizen, Smith argues, magistrate judges must step in and “play goalie for the missing side.” That is, magistrate judges must correct for the failures of the three branches by representing the side of the target of the investigation.
Read more on The Volokh Conspiracy.