united-states common-law privacy constitutional-law us-constitution
Can US courts be made to define whether a given search is reasonable (i.e. constitutional)?
<p>In 2014, regarding the forced disclosure of the encryption keys of his email service provider company Lavabit, <a href="http://www.theguardian.com/commentisfree/2014/may/20/why-did-lavabit-shut-down-snowden-email" rel="nofollow">Ladar Levison wrote</a>:</p>

<blockquote>
  <p>The largest technological question we raised in our appeal (<strong>which the
  courts refused to consider</strong>) was what constitutes a "search", i.e.,
  whether law enforcement can demand the encryption keys of a business
  and use those keys to inspect the private communications of every
  customer, even when the court has only authorized them to access
  information belonging to specific targets.</p>
</blockquote>

<p>The emphasis is mine.</p>

<p>Assuming Levison's statement to be true, my question is: <strong>is there a way in which one or more relevant courts could be made to consider, and issue a verdict on, that question; and if so, how?</strong></p>

<p>Clarity on the matter would seem to be in the public interest, after all.</p>

<p>Federal courts <em>can</em> issue opinions on any issue for which an appellant has standing. They tend to rule only as broadly as necessary to decide the particular <a href="https://en.wikipedia.org/wiki/Case_or_Controversy_Clause" rel="nofollow">case or controversy</a> in front of them. Federal courts can also deny appeals. For both of those reasons, they cannot be <em>forced</em> or <em>made</em> to define the limits of reasonable search.</p>

<p>However, the US Supreme Court has clarified many times whether a particular behaviour constituted a search, and if so, whether it constituted a reasonable search.</p>

<p>In <em>Katz v. United States</em> 389 U.S. 347 (1967), the court held that attaching a listening device to the exterior of a telephone booth constituted a search, and that it was an unreasonable search.</p>

<p>In <em>Smith v. Maryland</em> 442 U.S. 735 (1979), the court held that using a pen register to obtain the records of phone numbers that were dialed by an individual was not a search.</p>

<p>In <em>United States v. Jones</em> 565 U.S. ___ (2012), the court held that installing a GPS on Jones's car was a trespass and <em>per se</em> an unreasonable search.</p>

<p>In <em>Heien v. North Carolina</em> 574 U.S. ___ (2014), the court held that a seizure and subsequent search is reasonable if based on an officer's reasonable mistake of law.</p>

<p>There are many more.</p>

<p>As an example of the U.S. Supreme Court explicitly avoiding a broader ruling than necessary to decide the case before them, see <em>United States v. Jones</em>:</p>

<blockquote>
  <p>It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.</p>
</blockquote>

<p>It was possible to decide the case based solely on the trespassory test, so the majority didn't go further.</p>

<p>Federal courts are not permitted to issue abstract opinions divorced from an actual legal dispute between two parties; the Constitution restricts federal judicial power to actual cases and controversies. Courts can decide broad questions <em>when it is necessary or useful to decide an actual case</em>, but only when it's necessary (anything not necessary for the holding <em>in that case</em> is not binding precedent). It is not possible to force a federal court to issue a broader opinion than needed to resolve the actual issue before the court; you can ask them to clarify the law for the sake of precedent, but can't make them do it. </p>
