Tag: dhs

Fourth Amendment Gone to the Dogs—and to Lasers?!

For all their use by law enforcement across the country, drug-sniffing dogs haven’t gotten a lot of consideration in the Supreme Court. In a pair of cases next fall, though, the Court seems likely to give them some attention. Florida v. Harris is one of the cases it has taken. Harris will examine “[w]hether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle.”

This week, we filed an amicus brief in the other drug-sniffing dog case, coming out of the same state. Florida v. Jardines asks whether the Fourth Amendment would be implicated if the government brought a drug-sniffing dog to the front door of your home seeking the scent of illegality.

What the Court has done with drug-sniffing dogs so far is not very good. We homed in on the major precedent, Caballes, to illustrate the weakness of the “reasonable expectation of privacy” test that originated in United States v. Katz (1967).

In Illinois v. Caballes, 543 U.S. 405 (2005), this Court did not apply Katz analysis. It did not examine (or even assume) whether Roy Caballes had exhibited a subjective expectation of privacy, the first step in the Katz test. Thus, the Court could not take the second step, examining its objective reasonableness.

Instead, the Caballes Court skipped forward to a corollary of the Katz test that the Court had drawn in United States v. Jacobsen, 466 U.S. 109 (1984): “Official conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment.” Caballes, 543 U.S. at 408 (quoting Jacobsen, 466 U.S. at 123).

This is a logical extension of the Katz test, and one that helps reveal its weakness in maintaining the Fourth Amendment’s protections consistently over time. Now, instead of examining whether searches and seizures are reasonable, courts applying the Jacobsen/Caballes corollary can uphold any activity of government agents sufficiently tailored to discovering only crime.

What kinds of activities might those include? We talked about lasers.

A DHS program that might be directed not only at persons, but also at their houses and effects, is called the “Remote Vapor Inspection System” (or RVIS). RVIS “generates laser beams at various frequencies” to be aimed at a “target vapor.” Beams “reflected and scattered back to the sensor head” reveal “spectral ‘signatures’” that can be compared with the signatures of sought-after gasses and particulates. [citations omitted] Using RVIS, government agents might remotely examine the molecular content of the air in houses and cars, quietly and routinely explore the gasses exiting houses through chimneys and air ducts, and perhaps even silently inspect any person’s exhaled breath. If RVIS technology is programmed to indicate only on substances that indicate wrongdoing, the Jacobsen/Caballes corollary extinguishes the idea that its pervasive, frequent, and secret use would be a search.

If a dog sniff only reveals illegal activity, compromising no privacy interest, it’s not a search. So using lasers to check your breath for illegal substances is not a search either. We hope, obviously, that the Court will do away with this rule, which is so attenuated from both the language and the purpose of the Fourth Amendment.

Instead of determining whether a person has “reasonable expectations of privacy”—we called that doctrine a “jumble of puzzles”—courts should examine whether a “search” has occurred by seeing if police accessed something that was hidden from view.

When a person has used physics and law to conceal something from others, the Fourth Amendment and the Court should back those privacy-protective arrangements, breaching them only when there is probable cause and a warrant (or some exception to the warrant requirement).

To hold otherwise would be to allow the government to invade privacy not just using drug-sniffing dogs but using ever more sophisticated technology.

Obama Administration Adopts De Facto Dream Act

Two senior Obama administration officials told the Associated Press that the administration will enforce many of the major portions of the Dream Act using the president’s administrative discretion to defer deportation actions.  According to a memo released by the Department of Homeland Security this morning, the plan would apply to unauthorized immigrants who:

  • Came to the United States under the age of 16.
  • Have continuously resided in the United States for a least five years preceding the date of the memorandum and are present in the United States on the date of the memorandum.
  • Are currently in school, have graduated from high school, have obtained a general education development certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.
  • Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety.
  • Are not above the age of 30.

If the above plan is implemented fully, between 800,000 and 2.1 million unauthorized immigrants could be legalized for up to two years.  By being legalized they will become more productive, earn higher wages, and more fully assimilate into American society.  But this is only a temporary fix.

Temporary work permits can be issued to unauthorized immigrants who have their deportations deferred but in this situation they would only last 2 years.  It’s a routine administrative procedure that already occurs for unauthorized immigrants who have their deportations deferred.  This is one situation where the complexity of our immigration rules and regulations works to the advantage of immigrants and Americans.

A permanent version of this action in the form of the admittedly imperfect Dream Act would need to be passed to reap the full rewards.

The benefits from passing the Dream Act are enormous.  Evidence from the 1986 amnesty showed that the legalized immigrants experienced a 15.1 percent increase in their earnings by 1992, with roughly 6 to 13 percentage points due to the legalization.

In the Winter 2012 issue of The Cato Journal, Raul Hinojosa-Ojeda estimated that an amnesty similar to 1986 would yield at least an added $1.5 trillion to GDP over a single decade.  If 2.1 million eligible unauthorized immigrants were permanently legalized, that would be at least $250 billion in additional production over the next decade (back of the envelope calculation).

However, before we get too thrilled about the prospects of this sorely needed temporary liberalization, we should remember that hardly anything changed the last time the Obama administration used its prosecutorial discretion to review deportation cases.  His administration promised to wade through backlogged cases and close those where the unauthorized immigrants had strong American family ties and no criminal records.  Since that policy went into effect in November 2011, DHS officials have reviewed more than 411,000 cases and less than 2 percent of them were closed.

If the administration’s proposal temporarily goes as far as the Dream Act would, it will shrink the informal economy, increase economic efficiency, and remove the fear and uncertainty of deportation from potentially millions of otherwise law-abiding people.  It would be a good first step toward reforming immigration and a glimpse at what the Dream Act would do.

Hey Daily Kos, Cato Is Not A ‘Republican-supporting’ Institution

I guess it’s not a huge surprise that a writer at The Daily Kos would characterize Cato as “Republican-supporting” when it suits a purpose. Just for their future reference, here is a laundry list of positions taken by Cato scholars that most Republicans (Beltway Republicans, at least) tend to abhor:

We libertarians continue to be amazed at the inconsistency exhibited by the left and the right: conservatives dislike government power except when it comes to militarizing our foreign policy and, oftentimes, running people’s personal lives; liberals profess dislike for government power except when it comes to micromanaging the economy, which can quickly morph into micromanaging everything else. The Nanny-state is pushed equally by liberals and conservatives.

Ralph Waldo Emerson once said that “A foolish consistency is the hobgoblin of small minds.” (my emphasis) I think Cato scholars demonstrate a different kind of consistency in our principled adherence to limited, constitutional government, individual liberty, free markets, and peace. Our positions do not change whenever Republicrats replace Democans in office.

Bureaucrats and Big-Governmenters Work to Revive Their National ID

There are some rich ironies in a recent Stewart Baker blog post touting the slow crawl toward REAL ID compliance he believes states are making. One of the choicest is that his cheerleading for a national ID appears under a Hoover Institution banner that says “ADVANCING A FREE SOCIETY.”

No, having a national ID would not advance a free society. You could say “ADVANCING A SECURE SOCIETY” but even then you’d be overstating the case. A national ID would reduce the security of individuals massively in the aggregate in exchange for modest and arguable state security gains.

Speaking of which, Baker posts a picture of Mohammed Atta’s Florida driver’s license in his post. The implication is that having a national ID would have prevented the 9/11 attacks. In fact, having a national ID would have caused a mild inconvenience to the 9/11 attackers. Billions of dollars spent, massive aggregate inconvenience to law-abiding American citizens, and a much-more-powerful federal government so that terrorists could be mildly inconvenienced?

One of the greatest ironies is that Baker doesn’t—as he never has—takes on the merits of how and how well a national ID would advance security goals. But the merits don’t matter. Baker’s post provides a nice reminder that the bureaucrats will use their big-government allies to restart their moribund national ID plans if they can. Despite massive public opposition to REAL ID, they’ll try to build it anyway.

An anti-immigration group recently issued a report saying that states are getting on board with REAL ID. (They’re meeting massively reduced REAL ID “milestones” coincidentally, not to meet federal demands.) National ID advocate Jim Sensenbrenner (R-WI) put on a lop-sided show-hearing in the House Judiciary Committee last week, hoping to prop up REAL ID’s decaying body.

As if anyone would believe it, a DHS official said at the hearing that the January 2013 deadline for state compliance would not be extended. Book your tickets now, because there won’t be a damn thing different on the airport come January. The Department of Homeland hasn’t stood by any of its deadlines for REAL ID compliance. If it did, by refusing IDs from non-compliant states at the airport, the public outcry would be so large that REAL ID would be repealed within the week.

REAL ID will never be implemented. That doesn’t stop the federal government from spending money on it, so the bureaucrats keep trying to corral you into their national ID. They get occassional help, and sometimes it even travels under the false flag of “ADVANCING A FREE SOCIETY.”

‘Destroy America’ = Suspicion Fail

News that incautious comments on “tweeter” got British tourists excluded from the United States had Twitter alight yesterday. (Paperwork given to one of the two, on display in this news story, refers to the popular social networking site as a “Tweeter website account,” betraying some ignorance of what Twitter is.)

It’s a good chance to review how suspicion is properly—and, here, improperly—generated.

The Department of Homeland Security has been vague as yet about what actually happened. It may have been some kind of “social media analysis” like this that turned up “suspicious” Tweets leading to the exclusion, though the betting is running toward a suspicious-activity tipline. (What “turned up” the Tweets doesn’t affect my analysis here.) The boastful young Britons Tweeted about going to “destroy America” on the trip—destroy alcoholic beverages in America was almost certainly the import of that line—and dig up the grave of Marilyn Monroe.

Profoundly stilted literalism took this to be threatening language. And a failure of even brief investigation prevented DHS officials from discovering the absurdity of that literalism. It would be impossible to “dig up” Marilyn Monroe’s body, which is in a crypt at Westwood Memorial Park in Los Angeles.

I testified to the Senate Judiciary Committee in 2007 about how one might mine data for terrorists and terrorism planning, in terms that apply equally well to Twitter banter and to any criminality or wrongdoing. For valid suspicion to arise, the information collected must satisfy two criteria:

(1) It is consistent with bad behavior, such as terrorism planning or crime; and (2) it is inconsistent with innocent behavior. In … the classic Fourth Amendment case, Terry v. Ohio, …  a police officer saw Terry walking past a store multiple times, looking in furtively. This was (1) consistent with criminal planning (“casing” the store for robbery), and (2) inconsistent with innocent behavior — it didn’t look like shopping, curiosity, or unrequited love of a store clerk. The officer’s “hunch” in Terry can be described as a successful use of pattern analysis before the age of databases.

Similarly, using the phrase “destroy America” is consistent with planning to destroy America. (You want to be literal? Let’s be literal!) But it’s also consistent with talking smack, which is innocent behavior. These Tweets fail the second criterion for generating suspicion.

Twitter is nothing if not an unreliable source of people’s thinking and intentions. It’s a hotbed of irony, humor, and inside jokes. Witness this Tweet of mine from yesterday, which failed to garner the social media guffaw I sought (which is why I link to it here). Things said on Twitter will almost never be suspicious enough to justify even the briefest interrogation.

Other facts could combine with Twitter commentary to create a suspicious circumstance on extremely rare occasions, but for proper suspicion to arise, the Tweet or Tweets and all other facts must be consistent with criminal planning and inconsistent with lawful behavior. No information so far available suggests that the DHS did anything other than take Tweets literally in the face of plausible explanations by their authors that they were using hyperbole and irony. This is simple investigative incompetence.

If indeed it is a “social media analysis” program that produced this incident, the U.S. government is paying money to cause U.S. government officials to waste their time on making the United States an unattractive place to visit. That’s a cost-trifecta in the face of essentially zero prospect for any security benefit. I slept no more soundly last night knowing that some Brits were denied a chance to paint the town red in L.A.

In case it needs explaining, “paint the town red” is archaic slang. It does not imply an intention or plan to apply pigments to any building or infrastructure in Los Angeles, whether by brush, roller, or spray can.

A Scary Thought: Do We Really Need “If You See Something, Say Something?”

At the National Sheriffs’ Association Conference in Washington last week, Homeland Security Secretary Janet Napolitano noted that riders on the DC Metro system can hear her voice repeatedly promoting her department’s “If You See Something, Say Something” terrorism hotline campaign. “That’s a scary thought,” she suggested.

Even scarier to me is the campaign itself.

It was begun in New York City where it generated 8,999 calls in 2006 and more than 13,473 in 2007. Although the usual approach of the media is to report about such measures uncritically, one New York Times reporter at the time did have the temerity to ask how many of these tips had actually led to a terrorism arrest. The answer, it turned out, was zero.

That continues to be the case, it appears: none of the much-publicized terrorism arrests in New York since that time has been impelled by a “If You See Something, Say Something” tip.

This experience could be taken to suggest that the tipster campaign has been something of a failure. Or perhaps it suggests there isn’t all that much out there to be found. Undeterred by such dark possibilities, however, the campaign continues, and the number of calls in New York skyrocketed to 27,127 in 2008 before settling down a bit to a mere 16,191 in 2009.

For its part, the FBI celebrated the receipt of its 2 millionth tip from the public, up to a third of them concerning terrorism, in August 2008. There seems to be no public information on whether the terrorism tips proved more useful than those supplied to the New York City police. However, an examination of all known terrorism cases since 9/11 that have targeted the United States suggests that the “If You See Something, Say Something” campaign has never been relevant.

It turns out that New York has received a trademark on its snappy slogan, something Napolitano’s DHS dutifully acknowledges on its relevant website when it refers to its public awareness campaign as: “If You See Something, Say Something&™.” (Nowhere on the website, by the way, does the Department bother to tally either the number of calls it receives or the number of terrorism arrests the hotline has led to.)

New York has been willing to grant permission for the slogan to be used by organizations like DHS, but sometimes it has refused permission because, according to a spokesman, “The intent of the slogan is to focus on terrorism activity, not crime, and we felt that use in other spheres would water down its effectiveness.” Since it appears that the slogan has been completely ineffective at dealing with its supposed focus—terrorism—any watering down would appear, not to put too fine a point on it, to be impossible.

Meanwhile, in New York alone $2 million to $3 million each year (much of it coming from grants from the federal government) continues to be paid out to promote and publicize the hotline.

But that’s hardly the full price of the program. As Mark Stewart and I have noted in our Terror, Security, and Money, processing the tips can be costly because, as the FBI’s special counsel puts it, “Any terrorism lead has to be followed up. That means, on a practical level, that things that 10 years ago might just have been ignored now have to be followed up.” Says the assistant section chief for the FBI’s National Threat Center portentously, “It’s the one that you don’t take seriously that becomes the 9/11.”

It might seem obvious that any value of the “If You See Something, Say Something™” campaign needs to be weighted against the rather significant attendant costs of sorting through the haystack of tips it generates. Of course, the campaign might fail a cost-benefit analysis because it is expensive and seems to have generated no benefit (except perhaps for bolstering support for homeland security spending by continually reminding an edgy public that terrorism might still be out there).

This grim possibility may be why, as far as I can see, no one has ever carried out such a study and that the prospect of doing one has probably never crossed the minds of sloganeer Napolitano or of the rapt sheriffs in her audience.

Now that’s a scary thought.

Cross-posted from the Skeptics at the National Interest.

Abolish the Department of Homeland Security

We’re ten years past 9/11, and over the last decade we’ve shed a number of our liberties and spent wildly to counter a terrorist threat that, as the recent model airplane plot demonstrated, isn’t existential. The bureaucratic legacy of 9/11, the Department of Homeland Security, has proven an unwieldy and pork-laden nightmare. It’s time to abolish it.

My recent policy analysis, Abolish the Department of Homeland Security, makes the case for doing so. To begin with, DHS is a management disaster by its very nature:

In creating Homeland Security, Congress lumped together 22 previously unconnected federal agencies under a new Cabinet secretary. That’s a problem, not a solution. And while members of Congress routinely clamor for consolidating Homeland Security oversight in one committee, that seems unlikely: 108 congressional committees and subcommittees oversee the department’s operations. If aggregating disparate fields of government made any sense in the first place, we long ago would have consolidated all Cabinet responsibilities under one person — the secretary of government.

Apart from the structural handicaps that DHS faces, the whole notion of “homeland security” is problematic. The “odiously Teutono/Soviet” concept trends us ever closer to a police state and is particularly prone to pork-barrel spending. As I said in my recent op-ed on the topic:

It allows politicians to wrap pork in red, white and blue in a way not possible with defense spending. Not every town can host a military installation or build warships, but every town has a police force that can use counterterrorism funds to combat gangs or a fire department that needs recruits or a new fire station.

Congress must reform its grant programs and end this wasteful spending. While we’re at it, let’s end federal funding for fusion centers, local- and state-organized intelligence cells that duplicate FBI efforts in counterterrorism and end up labeling nearly anyone who expresses political dissent as a potential terrorist, a point I made at this Capitol Hill Briefing. I’ll be speaking at another Capitol Hill Briefing with Jim Harper today on abolishing the Transportation Security Administration. More information available here.