Archives: February, 2013

DNA and Doctrine in the Supreme Court

This week, the Supreme Court considered whether collecting DNA from an arrestee was an unreasonable Fourth Amendment search.

Or at least that would have been a good way for the Court to frame the question.

Instead, much of the oral argument in Maryland v. King dealt with the question whether swabbing the cheek of an arrestee to take a DNA sample upsets one’s reasonable expectations of privacy. The “reasonable expectation of privacy” test is doctrine that arose from Justice Harlan’s concurrence in Katz v. United States. The test asks whether a person claiming the Fourth Amendment’s protections had a subjective expectation of privacy and whether it is “one that society is prepared to recognize as ‘reasonable.’”

The government’s case rests on that framing, which is why Deputy Solicitor General Michael Dreeben began his argument by saying that arrestees are “on the gateway into the criminal justice system. They are no longer like free citizens who are wandering around on the streets retaining full impact Fourth Amendment rights. The arrest itself substantially reduces the individual’s expectation of privacy.”

It’s true that an arrestee has his privacy and other liberties invaded various ways. What problem is it if a bit of DNA is collected at the same time? It’s pretty much like finger printing, the argument goes…

The “reasonable expectation” test is almost never faithfully followed by courts. My guess is that the Court will not assess whether King himself actually expected “privacy.” That would encompass everything from believing that none of his mucus membranes would be collected by a government agent, to believing that his genetic material would neither be analyzed nor preserved in a Maryland lab for further analysis somewhere in an uncertain future.

When it applies the objective part of the test, there is a chance, but I’ll be surprised if any justice actually examines the difference in experience between fingerprinting and DNA collection, such as by comparing the slim privacy invasion when one person touches another’s hands to the real invasion that occurs when a person puts something in another person’s mouth. Doing so in its exercise of free-form interest balancing could, but probably wouldn’t, overcome the government’s interest in using “the fingerprinting of the 21st Century” to catch crooks.

Rather than using doctrine and making policy judgments, the Court should assess the government’s actions as the Fourth Amendment commands. The law does not invite the Court to examinine what people may or may not think about “privacy.” It bars the government from committing unreasonable searches and seizures.

If one examines the case guided by the words of the Fourth Amendment, what happened is far more clear. Taking a bodily specimen from Alonzo King was, in natural language, a seizure. Processing that specimen to create an identity profile was a further examination, bringing otherwise concealed information into law enforcement’s view. And comparing King’s identity profile to cold-case profiles was incontrovertibly looking for something. This is all searching using that seized bodily material.

Now, was the search reasonable?

Having been picked up on a variety of assault charges, King’s mouth was swabbed and his DNA taken, processed, and used to investigate whether genetic material matching his was associated with any other cases. It’s the equivalent of taking keys on the person of an arrestee and looking through his house for evidence of other crimes. There was no relationship between King’s alleged wrongdoing and the investigation conducted using his DNA.

Perhaps it is reasonable to conduct a free-form search into the biography of a person who has been arrested–that is, a person about which a law enforcement officer says he has probable cause to arrest–but it is unlikely. The Fourth Amendment’s particularity requirement suggests that it is unreasonable to investigate a person arrested for one crime to see what other, unrelated crimes he may have committed.

Counsel for the State of Maryland rested her argument heavily on the use of information about other crimes in bail decisions. This falls apart under the same logic, unless the Court is going to produce a rule that the Fourth Amendment allows the government carte blanche to search and seize when a bail hearing is pending. And the DNA results came back months after Alonzo King’s arraignment.

A Case Study of How the Media Influences Popular Perception of Science

Global Science Report is a weekly feature from the Center for the Study of Science, where we highlight one or two important new items in the scientific literature or the popular media. For broader and more technical perspectives, consult our monthly “Current Wisdom.” 

Today’s  global media are ablaze with coverage of newly reported scientific findings purporting to show that anthropogenic global warming is leading to more extreme weather events such as heat waves, forest fires, and floods.

The findings are being made available in the early releases section of the Proceedings of the National Academy of Sciences (PNAS) and represent the work of a group of researchers from the Potsdam Institute for Climate Impact Research (PIK)—an institute which can be routinely counted on to produce rather alarming climate change studies. The new analysis, led by Vladimir Petoukhov, is no exception. 

The researchers examined the trends in the daily patterns of air flow in the lower atmosphere and found that some patterns had become more persistent with time—a characteristic that leads to a slowdown in the forward motion of weather systems. Or as the researchers put it in their press release, “What we found is that during several recent extreme weather events these planetary waves almost freeze in their tracks for weeks.” To make sure you understand the implications, they added “Since many ecosystems and cities are not adapted to this, prolonged hot periods can result in a high death toll, forest fires, and dramatic harvest losses.”

While climate alarm plays well in the media, what doesn’t play so well is climate-as-normal.

Case and point: there are zero media stories about a similarly timed study purporting to show that any anthropogenic global warming influence on extreme weather events is too small to be reliably detected.

This study, available in the early-release section of the journal Geophysical Research Letters, was performed by the research team of James Screen and Ian Simmonds of the University of Melbourne. Screen and Simmons examined the trends in the daily patterns of air flow in the lower atmosphere and found little significant change. They note that “the changes in meridional amplitude over recent decades are relatively small compared to the year-to-year variability” and “that possible connections between [anthropogenic global warming] and planetary waves, and the implications of these, are sensitive to how waves are conceptualized.” They cautiously conclude that “[t]he contrasting meridional and zonal amplitude trends have different and complex possible implications for midlatitude weather, and we encourage further work to better understand these.”

[Layman’s translation: There are few significant changes in north-to-south extent of jet stream troughs or their forward speed. The data are so noisy that results are highly dependent upon what analytical method is chosen. The contrasting north-south and east-west changes in jet stream troughs have multiple influences that we haven’t sorted out yet, but it would be foolish to tie them to global warming at this time.]

Why You Shouldn’t Believe the Cyber-War Hype

Constantine von Hoffman explains it on CIO.com:

Cyber war is not what the Chinese currently appear to be up to. That’s called spying. If you doubt it consider what Rep. Mike Rogers, chair of the House Intelligence Committee, said Sunday on one of those talk shows that no one outside of D.C. watches:

“They use their military and intelligence structure to [steal] intellectual property from American businesses, and European businesses, and Asian businesses, repurpose it and then compete in the international market against the United States.”

If stealing secrets is an act of war then America is currently at war with all of its allies.

That’s some crisp contrarianism, and I like the dig at D.C.’s self-importance.

At around the time I was reading this article yesterday, an email arrived in my inbox touting an upcoming book event on “Cyber Warfare: How Conflicts in Cyberspace Are Challenging America and Changing the World.”

Oh, there’s no shortage of challenges laid before all actors trying to secure computers, networks, and data, but don’t mistake the number of vulnerabilities or threats with the likelihood they will manifest themselves, or the consequence if they do. The “cyberwar” frame is inapt, and looking at cybersecurity through a geopolitical lens is not likely to produce policies that cost-effectively protect our wealth and values.

“Equality Under the Law” Requires State-Sanctioned Marriage to Be Available to Same-Sex Couples

The idea of equality under the law dates back to the foundations of democracy and the ancient Greek word “isonomia.” “Equal justice under law” remains so essential today that it is engraved in the cornice of the Supreme Court building.

In 1868, Congress and the states codified this important ideal into the Equal Protection Clause of the Fourteenth Amendment: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” As the text and history of the Fourteenth Amendment plainly show, the Equal Protection Clause guarantees to all persons — regardless of race, sex, or any other group characteristics — equality under the law, including the legal right to marry the person of one’s choosing.

In 2008, however, California voters passed Proposition 8, a ballot initiative reversing a California Supreme Court ruling that had authorized same-sex marriage and restricting the right to marry to opposite-sex couples only. Both the federal district court and the Ninth Circuit Court of Appeals ruled that Prop. 8 was unconstitutional, for reasons ranging from the violation of a fundamental right to the impropriety of removing rights/benefits once granted.

With the case, Hollingsworth v. Perry, now before the U.S. Supreme Court, the Cato Institute has joined the Constitutional Accountability Center (CAC) on an amicus brief that focuses on supporting marriage equality under the Equal Protection Clause. Our brief explains that the purpose of the Fourteenth Amendment was not exclusively to address the disparaged rights of former slaves but, as the historical record shows, was intended to be universal in its protection of “any person” within U.S. jurisdiction.

The broad and sweeping guarantee of legal equality was understood at the time to secure and protect the equal rights of all individuals, so as to prohibit arbitrary and invidious discrimination. The framers of the Fourteenth Amendment understood marriage to be a personal, individual right that, when established by a state, must be made available on an equal basis to all.

Moreover, the Constitution also protects fundamental rights against state infringement under the substantive liberty provisions of the Fourteenth Amendment. Decades of Supreme Court cases protecting the equal right to marry — without regard to race, being behind on child support payments, or even imprisonment — have been rooted in both the Equal Protection Clause’s guarantee of equality under the law and the Fourteenth Amendment’s broader liberty protections, which converge in securing for all persons an equal right to marry.

Prop. 8 denies gays and lesbians the liberty to marry the person of their own choosing, places a badge of inferiority on same-sex couples’ loving relationships and family life (with the full authority of the state behind it), and perpetrates an impermissible injury to these individuals’ personal dignity. It thus directly subverts the principle of equality at the heart of the Fourteenth Amendment, and is an affront to the inalienable right to pursue one’s own happiness that has guided our nation since its founding.

We urge the Supreme Court, which will hear Perry on March 26, to invalidate Prop. 8 as a violation of the foundational guarantee that all persons shall have equality under the law.

See also my op-ed with CAC’s Doug Kendall, which further explains our reasoning – and stay tuned for another joint brief tomorrow in United States v. Windsor, the Defense of Marriage Act case also on the Court’s docket this term.

ObamaCare Debate Challenge: Lawrence Wasden Edition

Congress empowered states to block major provisions of ObamaCare, including its subsidies and employer mandate. All states need do to is refuse to create a health insurance “exchange.” (And a whopping 34 states, accounting for two-thirds of the U.S. population, have done just that.)

Supporters of the law are doing their level best to deny what the law says. It has now been one full month since I challenged anyone and everyone to debate with me the powers Congress gave states to block these and other parts of the law. My debate-challenge video (embedded below) has nearly 3,000 views on YouTube. And how many brave ObamaCare supporters have accepted my challenge? Zero.

The latest to deny what the law says is Idaho Attorney General Lawrence Wasden, who has issued an opinion that Congress did not give Idaho these powers. So I hereby issue my challenge directly to Wasden, or any member of his staff, or his entire staff: I say you are misreading the law, and doing Idaho legislators, employers, and taxpayers a great disservice. So let’s have a debate over whether Congress allows Idaho to block ObamaCare’s employer mandate, and whether you are accurately portraying the law to Idaho legislators. 

Update: Washington & Lee University law professor Timothy Jost protests that he debated this issue with both Jonathan Adler and me back in October 2012. True enough, Jost is the only person who has agreed to debate this issue with us live. Here’s the video of that debate. Decide for yourself who bested whom. I meant my “zero” count to be prospective, and would be happy to debate Jost again.

Czech President to Join Cato Institute

Václav Klaus, who is stepping down after serving 10 years as president of the Czech Republic, will become a Distinguished Senior Fellow at the Cato Institute on March 7th.

Klaus was born in Prague in 1941, during the Nazi occupation, and went on to graduate from the University of Economics there in 1963. He also attended Cornell University in 1969 before returning to his home country after the Soviet invasion of Czechoslovakia.

He was able to earn a Ph.D in economics while working and studying at the Institute of Economics of the Czech Academy of Sciences in 1968, but was removed from his position shortly thereafter for having views deemed too capitalistic.

“Václav Klaus proved that a steadfast belief in the free market coupled with strong leadership skills could move a nation to throw off the shackles of communism,” said Cato President and CEO John Allison. “We are looking forward to working closely with this champion of liberty.”

In 1991, Klaus co-founded the pro-market Civic Democratic Party, the largest center-right party in the nation, and won the election for prime minister a year later. The party has remained in government for most of the Czech Republic’s independence. Prior to that, Klaus served as finance minister of the former Czechoslovakia, where he was the key architect of the country’s successful move from central planning to the market.

Klaus has been a regular guest at the Cato Institute over the years, speaking for the first time in 1992 as finance minister of Czechoslovakia. Cato has published multiple articles and lectures by Klaus on topics including the environment, the fall of communism, and the Eurozone.

“I consider the Cato Institute one of the most prominent public policy research organizations in the United States which has been consistently advocating the classical liberal principles,” Klaus said in a letter to Cato Founder and President Emeritus Edward H. Crane. “I am truly honored to join Cato.”

Klaus will headline an event at Cato on March 11, The European Crisis Continues: No Solution on the Horizon. In addition to his work at Cato, Klaus has also started his own think tank in the Czech Republic, the Václav Klaus Institute, in Prague.

 

Related Materials:

Václav Klaus, Renaissance: The Rebirth of Liberty in the Heart of Europe, Washington, D.C.: Cato Institute, 1997. Print. 

When Will the Eurozone Collapse?,” by Václav Klaus, Economic Development Bulletin No. 14, May 26, 2010

Environmentalism and Other Challenges of the Current Era,” by Václav Klaus,Economic Development Bulletin No. 10, April 20, 2007

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Gabelli v. SEC: Fairness Wins, 9-0

Congress has provided that most federal agencies filing civil enforcement actions for penalties, fines or forfeitures must act within five years of the accrual of the government’s “claim,” which generally means within five years of the challenged conduct. In Gabelli et al. v. Securities and Exchange Commission, the Supreme Court considered the issue of whether the SEC could file claims of fraud against an investment adviser after this deadline had passed on the argument that it had not discovered the violation until more recently. Courts sometimes apply a “discovery rule” of this sort to keep alive otherwise-lapsed securities claims by investors and other private parties alleging fraud.  

The Cato Institute weighed in with a November amicus brief in support of the petitioner-defendants. As we noted then: 

Statutes of limitations exist for good reason: Over time, evidence can be corrupted or disappear, memories fade, and companies dispose of records. Moreover, people want to get on with their lives and not have legal battles from their past come up unexpectedly. Plaintiffs thus have a responsibility to bring charges within a reasonable time of injury so that the justice system can operate efficiently and effectively — and that is doubly so when the would-be plaintiff is the government, with all its tools for investigation and enforcement. …

[After noting strong historical reasons to read the statute as excluding a discovery rule] …even if courts could alter rather than merely interpret the meaning of statutes, there’s no basis for creating a discovery rule for government enforcement actions. Government agencies with broad investigatory powers — indeed, whose purpose is to monitor regulatory compliance — don’t face the same difficulty as private plaintiffs in identifying causes of action which give rise to the discovery rule. Adding a discovery rule to § 2462 would create an indefinite threat of government lawsuits and invite agencies to review decades of past conduct of selectively disfavored companies and individuals — inevitably chilling innocent and valuable economic activity. To preserve individual liberty in the face of an ever-burgeoning regulatory state and ensure constitutional separation of powers, we urge the Court to reverse the Second Circuit’s decision and hold that no discovery rule applies in Gabelli v. SEC.

I’m happy to report that yesterday by a unanimous 9-0 vote the Supreme Court agreed with this view. Chief Justice John Roberts’s reasoning, as summarized by Robert Anello at Forbes, takes note that the rationale for the “discovery rule” exception is to aid private fraud victims who are often unsophisticated, without means of investigating fraud, and seek simply to be made whole as opposed to punishing an opponent.  

This is not true of government agencies like the SEC, however.  Indeed, the agency’s “central ‘mission’” is to investigate and root out violations of the securities laws and it “has many legal tools at hand to aid in that pursuit.”  Because it is always on the lookout for fraud, the agency does not need the benefit of the doubt afforded by the discovery rule.

Further, unlike a private party who is seeking money to compensate them for injuries sustained as a result of the fraud, the SEC seeks to inflict penalties on a defendant.  As stated by the Court, the outcome of an SEC action is “intended to punish, and label defendants wrongdoers.”  Allowing the SEC to rely on the discovery rule would “leave defendants exposed” to such punishment “not only for five years after their misdeeds, but for an additional uncertain period in the future.”  The Court concluded by noting that the types of changes proposed by the SEC could only be made with congressional approval.

Because the five year limitation period also applies to other government agencies in other contexts, the Court’s decision is tremendously important. 

A federal agency armed with the power to seek quasi-criminal penalties over stale claims – perhaps even claims from decades earlier – is an agency with too much discretionary power.

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