Who’s at the ho­tel?

Los Angeles Times - - OPINION -

In strik­ing down a Los An­ge­les or­di­nance that re­quires ho­tel own­ers to turn over their reg­is­ters to po­lice at any time of the day or night, in the ab­sence of a court or­der, the Supreme Court on Mon­day only in­di­rectly pro­tected the pri­vacy of ho­tel guests. Un­der the 5- 4 de­ci­sion, own­ers, not guests, will be able to go to court to chal­lenge a re­quest for in­for­ma­tion about who is stay­ing at a ho­tel or mo­tel.

But in­di­rect pro­tec­tion is bet­ter than no pro­tec­tion at all, and the de­ci­sion should have the ad­di­tional salu­tary ef­fect of pre­vent­ing po­lice from ha­rass­ing the own­ers of mo­tels where they think pros­ti­tu­tion, drug traf­fick­ing and other crimes might be tak­ing place. By not al­low­ing ho­tel own­ers to chal­lenge re­quests for in­for­ma­tion in court, Jus­tice So­nia So­tomayor wrote for the court, the or­di­nance cre­ated “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.”

The rul­ing was based on the 4th Amend­ment’s ban on un­rea­son­able searches and seizures, which usu­ally ap­plies when po­lice are search­ing for ev­i­dence of a crime. In the­ory, at least, the re­quests for ho­tel reg­is­ters were part of a “reg­u­la­tory” scheme sim­i­lar to those in­volv­ing searches of busi­ness premises for safety vi­o­la­tions. In re­al­ity, the po­lice were us­ing their record in­spec­tion au­thor­ity as a crime- fight­ing short­cut.

Even af­ter Mon­day’s de­ci­sion, many if not most ho­tel own­ers will agree to turn over the records and forgo the op­por­tu­nity to chal­lenge a re­quest in court. Still, we hope that So­tomayor is cor­rect that the mere pos­si­bil­ity of ju­di­cial re­view will de­ter po­lice from ask­ing for records “10 times a day, ev­ery day, for three months, with­out any vi­o­la­tion be­ing found.” ( Po­lice will still be able to de­mand records, even with­out a court or­der, in emer­gen­cies.)

The rip­ple ef­fect of greater po­lice re­straint will mean that fewer ho­tel guests will have their per­sonal in­for­ma­tion — in­clud­ing credit card num­bers — shared with law en­force­ment. But it was the pri­vacy rights of ho­tel own­ers that was at is­sue in this case. That nar­row fo­cus was ne­ces­si­tated by a 1979 Supreme Court de­ci­sion hold­ing that in­di­vid­u­als have no ex­pec­ta­tion of pri­vacy in in­for­ma­tion they will­ingly turn over to a third party.

Yet, as So­tomayor her­self ob­served three years ago, that doc­trine is “ill suited to the dig­i­tal age, in which peo­ple re­veal a great deal of in­for­ma­tion about them­selves to third par­ties in the course of car­ry­ing out mun­dane tasks.” Sooner rather than later, the court needs to adapt the pri­vacy pro­tec­tions of the 4th Amend­ment to that re­al­ity.

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