Mexican Gulf Fishing Company v. U.S. Department of Commerce: Case Highlights Danger of “Closely Regulated” Exception to the Fourth Amendment
Charter boat fishing companies recently won a major victory for the Fourth Amendment rights of all Americans. The Fifth Circuit Court of Appeals struck down a U.S. Department of Commerce requirement that would have forced charter boat owners to install, at their own expense, a “vessel monitoring system” that would continuously transmit their boats’ location, regardless of whether it was being used for commercial or personal purposes.
The court found that it “borders on incredible” that the government claimed it failed to notice personal privacy concerns in public comments to its rule.
This case is important because the Fourth Amendment warrant requirement protects more than homes. When the amendment was drafted, memories of British officials ransacking the offices of American merchants, shippers, and printers were fresh.
The Fourth Amendment, despite its absolute language, has eroded since the 1970s with the assertion by the courts that some industries have such a history of government oversight that no reasonable expectation of privacy exists. For such businesses – ranging from liquor sales, firearms dealing, mining, and auto junkyards – the threshold for whether a search is reasonable for purposes of the Fourth Amendment is much lower. Years ago, Justice William J. Brennan, Jr. worried that “heavily regulated” is an elastic concept which, if asked too broadly, would mean that “few businesses will escape such a finding.”
In the charter boat case, a lower court erred in lumping the charter boat fishing industry in with the more closely regulated commercial fishing industry. Charter boat fishing accounts for only two-tenths of one percent of annual fishing in the Gulf of Mexico. Nevertheless, the federal government found it necessary to require charter boat owners to install a GPS-enabled device at a cost of $3,000, with service fees of up to $75 per month, all for the pleasure of continuously reporting their whereabouts to Washington, D.C. The Fifth Circuit noted that charter boat owners earn, on average, $26,000 in net income. Disclosing the discovery of a prime fishing spot in the Gulf would constitute a hardship for many charter operators.
“The expansion of closely regulated-industry theory is a huge, huge danger to liberties for everybody,” said John Vecchione in a New Civil Liberties Alliance podcast, which represented the charter operators. Vecchione noted that the Fifth Circuit recognized that “as society grows, and regulation becomes more popular,” simply having to get a license could subject any business to warrantless inspections.
As it is, the reigning judicial standard seems thin to us. We fail to notice the “closely regulated” clause in the Fourth Amendment. But at least, we can be grateful that the Fifth Circuit placed an important guardrail against the expansion of this dubious doctrine.