State of Washington v. Motel 6 Operating L.P.:
The Latest Episode in Law Enforcement Agencies’ Demands for Access to Guest Records
Last Wednesday January 3, Washington State Attorney General Robert Ferguson filed a lawsuit against a subsidiary of Motel 6, alleging that the company violated state law by regularly providing hotel guests’ personally identifiable information to the U.S. Immigration and Customs Enforcement (ICE), an agency of the Department of Homeland Security, without ICE having obtained search warrants. The case, State of Washington v. Motel 6 Operating L.P., Case No. 18-2-00283-4, was filed in the King County Superior Court, which sits in Seattle.
The Parties
Based in Carrollton, Texas, Motel 6 operates and franchises over 1,400 hotels with over 105,000 rooms, throughout the United States and in Canada. Motel 6 is owned by The Blackstone Group, which acquired the company from AccorHotels in 2012 for $1.9 Billon. Motel 6 owns and franchises 26 properties in the State of Washington. By an executive order signed by Governor Jay Inslee last year, the State of Washington is a “welcoming jurisdiction” (sometimes called a “sanctuary” state). Robert Ferguson was first elected Attorney General of Washington in 2012 and was reelected in 2016.
The State of Washington’s Complaint
The State of Washington’s complaint alleges that since 2015, Motel 6 has “employed a corporate policy and practice of providing guest registry information, including the guests’ personal identifying information, upon request to agents of [ICE].” The company’s policy is allegedly for hotels to provide this information to ICE agents upon request, on the day of an agent’s visit to a hotel. According to the complaint, “ICE’s usual practice was to come to Motel 6’s reception desk and request the guest list from the receptionist. The receptionist would print out the guest list and give it to the ICE agent, along with a ‘law enforcement acknowledgement form’ for the agent to sign, acknowledging receipt of the guest list.” According to the complaint, “Motel 6 trained its new employees to follow th[is] practice without requiring agents to show any reasonable suspicion, probable cause, or search warrant . . .”
The guest lists provided to ICE allegedly “included some or all of the following information for each guest: room number, name, names of additional guests . . . date of birth, driver’s license number, and license plate number.” The complaint continues,
This information was provided on an almost daily basis by some motels without the ICE agents having provided any documentation or evidence of reasonable suspicion, probable cause, or a search warrant for the requested guest registry information. Motel 6 was aware that the ICE agents used the guest registry information to identify and single out guests based on national origin, including guests with Latino-sounding names. ICE would then determine if any of the guests it identified were wanted by ICE in connection with civil immigration matters. On a number of occasions, ICE agents arrested or otherwise detained guests after reviewing Motel 6’s guest registry information.
Between 2015 and 2017, at least six Motel 6 hotels in Washington are alleged to have provided ICE personally identifiable information of at least 9,151 guests. “In no case were guests informed that their presence at [a] motel and personal information would be provided to ICE or another law enforcement agency upon request.”
At a press conference on January 3, Attorney General Ferguson provided details on ICE’s practices at one Motel 6 hotel, in Everett, Washington. Over a period of 225 days, ICE agents visited this hotel 228 times, usually early in the morning or late at night. An ICE agent would ask the front desk clerk to see a copy of the guest registry. After both the clerk and the ICE agent signed a form provide by the hotel, the clerk would print out a copy of the guest registry and give it to the agent. Agents were allegedly seen circling Latino-sounding names on registries. An agent would then take a list to his or her vehicle and return if there was a guest ICE wished to detain. ICE detained six guests from this hotel during this period.
The Attorney General has emphasized that this alleged conduct violated Motel 6’s own privacy policy. This policy, posted on the company’s website and quoted in the state’s complaint, states. “From time to time, we may disclose your personal information. We will always endeavor to make that disclosure in accordance with applicable law.” The policy also states, “We may disclose Guest Information to law enforcement agencies, or may be required to disclose it during the discovery process in litigation, pursuant to a court order, or in compliance with any applicable law, regulation, rule or ordinance.”
The State of Washington is now asserting civil causes of action against Motel 6 under the Washington Consumer Protection Act and the Washington Law Against Discrimination. At his press conference, Attorney General Ferguson identified three ways in which he believes Motel 6’s policy and practice violate these statutes: (1) infringement on guests’ privacy, a right protected under the state’s constitution, (2) failure to comply with Motel 6’s own privacy policy, and (3) discrimination based on national origin. Expanding on the third point, the Attorney General explained, “The company knew that ICE asked for guest registry information with the intent to target people based on their national origin. . . . By voluntarily assisting ICE in its efforts to target people based on their national origin, Motel 6 discriminated against these guests . . .” The state’s complaint seeks a declaratory judgment decreeing that Motel 6 violated both statutes, an injunction against further violations, civil penalties (in an amount yet to be determined) and reimbursement of the state’s costs and attorneys’ fees. Mr. Ferguson explained that the Washington Consumer Protection Act provides for a penalty of up to $2,000 for each violation of the statute. He continued, “We believe that every name that was handed over to ICE . . . represents violation of the Consumer Protection Act.” If proven, this would be grounds for civil penalties in excess of $18 Million, for the over 9,000 names the Attorney General believes were released by only four of the hotels (and potentially more penalties if the same practice is found to have occurred in other hotels Motel 6 owns and operates in Washington).
Investigation was in Response to Incidents Reported in Arizona and a Motel 6 Statement
Mr. Ferguson’s office began its investigation of Motel 6 last September, after a report of similar incidents involving ICE at two corporate-owned Motel 6 hotels in Arizona. In response to those incidents, Motel 6 initially issued a brief statement: “This was implemented at the local level without the knowledge of senior management. When we became aware of it last week, it was discontinued.” The following day, the company issued a longer statement, reiterating that the practices in Arizona were “undertaken at the local level without the knowledge of senior management,” and promising that “to help ensure that this does not occur again, we will be issuing a directive to every one of our more than 1,400 locations nationwide, making clear that they are prohibited from voluntarily providing daily guest lists to ICE.”
Motel 6’s statements did not satisfy the Attorney General of Washington. At his press conference last week, he remarked, “I was not impressed by Motel 6’s response to this in Arizona, at all. They had weeks to think about what they would say before the story broke and their two-sentence statement was utterly lacking and did not have an apology. They tried to portray this as a local issue. . . . We know at least much of that was not true.” To support his allegation that this was not “a local issue” for Motel 6, Mr. Ferguson noted that the six hotels his office has investigated in Washington used a consistent set of standardized “law enforcement acknowledgement forms” and consistently trained new employees to provide ICE agents the information they requested without demanding warrants. He said this suggests an above-property knowledge of the practice, but admitted that he does not know how high within Motel 6 this knowledge was. “We’re going to find out who at Motel 6 knew what, and when they knew it,” he said. He also said his office would expand its investigation to include all of the company’s 26 hotels in Washington, including 15 franchised hotels. Mr. Ferguson and his staff did acknowledge that they are not aware of Motel 6 having disclosed any guest information to ICE agents after the company’s response last September to the incidents in Arizona. Assistant Attorney General Mitchell Riese stated, “We do not have any information that indicates that Motel 6 continued to disclose the guest lists after mid-September of 2017.”
Attorney General Ferguson also suggested that his office may investigate whether other companies operating hotels in Washington also voluntarily disclosed guest information to ICE. However, he acknowledged that doing so is not an industry practice, noting that the American Hotel & Lodging Association had made a statement critical of the practice after the Motel 6 incidents in Arizona. He said that is not aware of any other states investigating Motel 6, but encouraged “other law enforcement [agencies] to take a look at this issue and give some thought to whether they should ask Motel 6 questions as well.”
As of this writing, Motel 6 has not filed any responsive pleading or made any public statement in response to the lawsuit.
No Violation of Federal Law Alleged
It is noteworthy that neither the State of Washington’s complaint nor any other statement by the Attorney General mentions any federal law. The complaint relies entirely on Washington statutes, as well as privacy rights under state’s constitution and common law principles. Mr. Ferguson is also relying on a Washington Supreme Court case, State v. Jorden, 156 P.3d 893 (2007), in which the court held that “information contained in a motel registry—including one’s whereabouts at the motel—is a private affair under [the Washington] state constitution, and a government trespass into such information is a search,” which ordinarily requires a warrant. Attorney General Ferguson has not alleged that Motel 6 violated any guests’ rights under any federal statute. Neither has he alleged that ICE violated guests’ rights under the U.S. Constitution or exceeded its authority under any other federal law. At his press conference, Mr. Ferguson acknowledged that ICE has broad authority to enforce federal immigration laws.
The Motel 6 case does call to mind a recent U.S. Supreme Court case involving police inspection of hotel guest registries, Los Angeles v. Patel, 135 S.Ct. 2443 (2015). In Patel, the court invalidated a Los Angeles city ordinance that had required any hotel in that city, upon demand by a police officer, to produce a copy of the hotel’s guest registry. The Supreme Court held that the ordinance violated the Fourth Amendment’s proscription of “unreasonable searches and seizures” because it “fail[ed] to provide any opportunity for precompliance review [by a judicial magistrate] before a hotel must give its registry to the police for inspection.” However, the Supreme Court took pains to “underscore the narrow nature of [its] holding” in Patel. Notably, the court observed that “hotel operators remain free to [voluntarily] consent to searches of their registries” and recognized that hotel operators “often do” so. The court even anticipated that there would be only “rare instances where a hotel operator objects to turning over [a guest] registry” and review by magistrate becomes necessary.
The Washington Attorney General’s complaint against Motel 6 does not allege that ICE ordered hotels to turn over guest registries. It says that ICE’s usual practice was to “request” them. At the office’s January 3 press conference, Assistant Attorney General Colleen Melody took the position that “[i]f Motel 6 wants to comply with the law”—presumably she meant Washington state law—“it should require ICE to bring a warrant when it seeks guest information, and that’s the way this process is supposed to work.”
Implications of the Case
Particularly if other state attorneys general accept Mr. Ferguson’s invitation to join his investigation of Motel 6, this case will have implications for hotel operators throughout the country. It is doubtful that ICE will change its own policies to require its agents, outside of exigent circumstances, to obtain warrants before requesting that hotels produce guest registries. (According to the Washington Attorney General, ICE’s current practice predates the Trump Administration. The incidents alleged in its complaint began in 2015.)
The scenario is easy to imagine: Late at night, a uniformed (and probably armed) federal police officer walks up to a front desk, presents his badge and asks the assistant manager on duty to present a copy of the guest registry. It is now that hotel employee’s responsibility to protect the hotel guests’ privacy rights (under state law) by telling this federal officer that he cannot see a copy of the registry unless he produces a search warrant. This is a lot to ask of a night-shift assistant manager at a budget hotel. To be sure, as Mr. Ferguson admitted, this response is already the hotel industry standard. However, failures to comply with that standard may now be more consequential.
Practical Recommendations
The State of Washington’s case against Motel 6 is the latest chapter of a long history of interaction between hotel operators and law enforcement agencies, in which the former have been challenged to balance sometimes competing priorities of cooperating with the latter to provide for public safety, while also protecting guests’ privacy. The following are some practical guidelines that hotel managers should follow to balance these priorities:
- Unless special circumstances apply (see below), if any law enforcement office (federal, state or municipal) asks to see any registry of a current or previous guests, or any guestroom portfolio or other record of a guest’s stay, do not produce the registry or record unless and until the office produces a search warrant or subpoena.
- If the officer produces a warrant or subpoena, make a copy of that document and provide the officer copies of whatever documents are described in the warrant or subpoena. Keep copies of the documents provided to the officer.
- If the officer has a warrant to search a guestroom, allow the officer to search the guestroom and obtain a copy of the warrant.
- If the officer has an arrest warrant for one or more guests, inform the officer of the guestroom number(s) of the individual(s) whose name(s) appear on the warrant, and step aside. Obtain a copy of the warrant as soon as possible (if necessary by calling the police department after the arrest has been made).
- If the officer says that a suspect is armed, or otherwise dangerous, or that the officer is in “hot pursuit” of a fleeing suspect, then direct the officer to the appropriate guestroom and step aside, even if the officer does not have a warrant. Here, your prevailing duty is to cooperate with law enforcement officials to ensure the safety of your guests, employees or others.
- As soon as possible after any of the above events, a hotel should contact its management company’s loss prevention or security department, report what happened and forward copies of all warrants presented and documents disclosed.
These guidelines are not new. Washington v. Motel 6 Operating L.P. confirms that the first guideline above has always been a good one, and should continue to be followed. A more challenging question (which is probably also not new) is what to do if a law enforcement officer demands to see a record (or have access to a guest), refuses to produce a warrant or subpoena (or identify any of the above special circumstances), is asked to produce a warrant or subpoena, refuses to do so and persists in his demand. While most police officers are aware of laws governing their duties and respect the limits of their authority, there are occasional bullies. Last year’s headlines featured a story of a heroic nurse at a hospital in Salt Lake City who was arrested for refusing to allow a police officer to draw blood from an unconscious patient. (The nurse accepted a $500,000 settlement from that city’s police department last October, and the police officer was fired.) It is probably not necessary for a hotel management company to require such heroics in its policies. However, in the rare instance in which a police officer threatens force if a hotel does not produce a record (access to a guest) that the officer has no authority to demand, regardless of the hotel employee’s response, the management company should consult with legal counsel immediately afterward. Even if a record (or access to a guest) is produced under these circumstances, it is unlikely that the hotel management company will be found to have cooperated in the officer’s misconduct if, soon afterward, an attorney representing the company writes a carefully-worded letter to the relevant District Attorney, State’s Attorney or U.S. Attorney’s Office, explaining the circumstances and objecting to the misconduct.
If you have questions about a matter involving guest privacy or any other matter related to hotel operations, please contact Lannan Legal PLLC at (202) 223-8900 or info@lannanlegal.com.