Topic: Law and Civil Liberties

Public More Wary of NSA Surveillance Than Pundits Claim

By
Emily McClintock Ekins

Based on a bevy of polls conducted in the wake of revelations that the NSA surveiled millions of ordinary Americans’ private communications, many have prematurely concluded public support or opposition to the government surveillance program (for instance here, here, and here). These polls are insufficient gauges for what Americans actually think for several reasons. First, slight wording differences result in majority support or opposition of the program as described in each particular survey question, as I’ve written about here. Second, the full extent of these government programs is not yet fully known; fully 76 percent of Americans think that we’ll find out the programs are “even bigger and more widespread than we know even now.” Third, most Americans are not even fully aware of the revealed information and its implications—according to a Time poll only 24 percent of Americans say they’ve been closely following the reports of the large-scale government surveillance program called PRISM.

The public’s view of the information leak and revelations about these programs is complicated, as Americans strike a delicate balance between security and privacy. For instance, a Time poll found that 53 percent of Americans think the “government should prosecute government officials and others who leak classified materials that might damage security efforts,” but 54 percent thought that Edward Snowden, the person who leaked the information about the secret program, “did a good thing in informing the American public.” This is likely because only 30 percent, according to a CBS/New York Times poll, think these leaks will weaken U.S. security.

Examining the different poll wordings can still offer value, demonstrating how people’s opinions change when they learn different details of the program. For instance, the public distinguishes between tracking ordinary Americans not suspected of any wrongdoing and collecting records of those suspected of terrorist activity. Pew/Washington Post found 56 percent thought it was acceptable for the NSA to get “secret court orders to track telephone call records of millions of Americans in an effort to investigate terrorism.” However, a CBS/NYTimes poll distinguished between tracking phone records of ordinary Americans and those suspected of terrorist activity. In contrast to Pew, CBS/NYtimes found 58 percent disapprove of “federal government agencies collecting phone records of ordinary Americans” but 75 percent approve of tracking “phone records of Americans that the government suspects of terrorist activity.” Americans continue to reveal their preference for targeted surveillance when 73 percent told a Rasmussen poll that the “government should be required to show a judge the reason for needing to monitor calls of any specific Americans” and 64 percent said “it is better to collect phone records only of people suspected of having terrorist connections.”

Survey data also suggests Americans distinguish between government tracking phone records and government monitoring the content of online activities. Although polls have found public support for tracking phone records to investigate terrorism, most Americans draw the line at government monitoring the content of Internet activity, such as emails and chats. For instance, Pew found 52 percent think the government should not be able to “monitor everyone’s email and other online activities.” Likewise, when Gallup describing the government program as collecting phone records and Internet communications, 53 percent disapproved.

Surveys that assume away potential misuses and abuses of the data not surprisingly find greater support for government surveillance programs. For instance, A CNN/ORC poll, found 66 percent thought the Obama administration was “right” in gathering and analyzing data on Internet activities “involving people in other countries,” while assuring respondents that the “government reportedly does not target Internet usage by US citizens and if such data is collected it is kept under strict controls.” The validity of this later assertion, however, is actually at the crux of the debate for those critical of the surveillance program. In fact, according to the same CNN poll, nearly two-thirds believe the US government has collected and stored data about their personal phone and Internet activities. Moreover, Rasmussen found that 57 percent thought it was likely that government agencies would use the data collected to “harass political opponents.” The fact that the public’s reported support for the program jumps when survey-wording guarantees the collected data will not be abused suggests that part of the reason the public is wary of the program is the very potential for abuse. The public does not desire privacy for just privacy’s sake, rather the public fears loss of privacy because of the potential for misuse or abuse. Questions that assume away this possibility are entirely unenlightening.

In sum, these data suggest the public is wary of untargeted government surveillance of ordinary Americans, especially without a warrant. They are more tolerant of government tracking phone records; however, many draw the line at government monitoring the content of ordinary Americans’ Internet activity.

A version of this post also appeared on Reason.com

Topics: 
General, Law and Civil Liberties

Federal Judge to Kentucky Bureaucrats: Stop Prohibiting Free Competition

By
Ilya Shapiro

Last Thursday, a federal district court judge issued an injunction blocking the Kentucky Transportation Cabinet – the genteel name given the Bluegrass State’s department of transportation – from enforcing the state’s anti-competitive licensing law for movers.

In Bruner v. Zawacki, which is being litigated by Cato adjunct scholar Timothy Sandefur and our other friends at the Pacific Legal Foundation, small business owner Raleigh Bruner argues that the licensing laws, which allow existing moving companies to file “protests” to block new companies from opening, create a “Competitor’s Veto” that has no rational basis. Judge Danny Reeves ordered the state not to enforce those laws, at least until he has the opportunity to issue a complete opinion – but he strongly indicated that he already thinks those laws are unconstitutional:

The Sixth Circuit has held that “protecting a discrete interest group from economic competition is not a legitimate governmental purpose.” And it appears that the notice, protest, and hearing procedure in the statutes – both facially and as applied – operate solely to protect existing moving companies from outside economic competition. The defendants have admitted that they know of no instance where, upon a protest by an existing moving company, a new applicant has been granted a certificate … .  [O]ver the past five years, no protest filed has been regarding an applicant’s safety record. Likewise, no applications have been denied on the grounds that the applicant was a danger to public health, safety, or welfare.

You can read more about the case at PLF’s Liberty Blog.

Topics: 
Government and Politics, Law and Civil Liberties, Regulatory Studies

Richard Epstein’s Ricochet Post on the NSA

By
Tim Lynch

Over at the Ricochet website, Richard Epstein elaborates on his defense of the NSA surveillance programs that were recently exposed by Edward Snowden.  In this post, I want to scrutinize some of Epstein’s observations and arguments.

Epstein begins by waving off the track record of government abuse generally.  Forget about the recent IRS scandal and the Associated Press wiretaps, he says, we must focus instead on the “parts of the government” that are organized to address terrorist activity.  According to Epstein, those parts of the government “seem to have performed well.”  Thus, he concludes, we should have confidence in the federal government’s efforts to stop terrorists.

Let’s take a closer look at the “parts of the government” that address terrorism:

•    The Federal Bureau of Investigation:  The Inspector General of the Department of Justice found that between 2003 and 2007, the FBI violated the law or government policies as many as 3,000 times as agents collected phone and financial records.  A few years later, another investigation found that the FBI repeatedly broke the law while monitoring telecommunications.  Major telecom companies had their employees detailed to work in FBI office space and they would respond to very informal verbal requests for phone records, including the “calling circles” of certain reporters.  One FBI agent said it was like having an ATM next to his desk.

•    The Central Intelligence Agency: It is still hard to believe that the American government hid prisoners from the Red Cross and engaged in torture, but it happened.  In 2005, CIA Director Porter Goss went on a TV show and said “What we do does not come close to torture … We do debriefings.”  The American public was repeatedly misled about the prisoner policies, but we later learned about the “black sites” and “ghost prisoners.”  The CIA also destroyed audio and video tapes of its interrogation practices even after the federal courts issued orders to preserve such evidence.

•    The Pentagon:  We have also seen problems in the U.S. military.  The Pentagon kept a database of persons who protested against the Iraq war.  We also know that American prisoners, such as John Walker Lindh and Jose Padilla, were badly mistreated while in military custody.  And those were among the most highly publicized cases.  (The treatment of Bradley Manning is worth mentioning even though he is not an accused terrorist.)  For the non-publicized cases, let’s just recall the letter from U.S. Army Captain Ian Fishback to Senator John McCain: “Despite my efforts, I have been unable to get clear, consistent answers from my leadership about what constitutes lawful and humane treatment of detainees. I am certain that this confusion contributed to a wide range of abuses including death threats, beatings, broken bones, murder, exposure to elements, extreme forced physical exertion, hostage-taking, stripping, sleep deprivation and degrading treatment. I and troops under my command witnessed some of these abuses in both Afghanistan and Iraq.”   

Read the rest of this post »

Topics: 
Law and Civil Liberties

Cato Brief Gains National Acclaim

By
Ilya Shapiro

Remember Bond v. United States, that typical story of adultery, federalism, and chemical weapons?  Cato has actually filed four briefs in Bond, most recently last month, the last three making the point that the president can’t expand federal constitutional powers simply by signing a treaty.

Our arguments are based on a 2005 law review article by Georgetown law professor (and Cato senior fellow) Nicholas Quinn Rosenkranz, the primary author of these last three briefs. It’s certainly unusual for a law review article to play a pivotal role in a Supreme Court case, but, as those following Bond know, there’s little “usual” about this case. 

Maybe that’s why the national media is starting to pay attention to our attempt to get the Supreme Court to be faithful to this particular corner of the Constitution: last week, the National Law Journal declared our Bond filing its “brief of the week.”

For more on this case, and our arguments, watch the lunch panel we had on Friday, featuring Nick Rosenkranz and Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit.  The Supreme Court will hear oral argument in Bond in October.

Topics: 
Foreign Policy and National Security, Government and Politics, Law and Civil Liberties

Maracich v. Spears: The Privacy Case Where Every Justice Switched Sides

By
Walter Olson

Two weeks ago, in Maryland v. King, the Supreme Court was deeply split on a case pitting wider access to a government database for purposes of more thorough law enforcement versus fears about intrusion on privacy and unprofessional standards among law enforcers. Today, in the drivers’-license-database case Maracich v. Spears, the Court was once again pulled 5-4 between those two contending poles. And here’s the remarkable thing: every single Justice switched sides.

In Maracich, as in the earlier case, Justice Anthony Kennedy wrote the majority opinion on behalf of three fellow conservatives plus Justice Stephen Breyer, while three liberal justices joined by Justice Antonin Scalia dissented. (This time it was Justice Ruth Bader Ginsburg, rather than Scalia, who wrote the dissent.) And today it was the conservatives-plus-Breyer who chose to display a delicate regard for privacy and professionalism, while the liberals-plus-Scalia were suddenly the ones who didn’t want to tie the hands of law enforcement.

Now, to be sure, there are some fairly huge differences between the two cases. Maracich v. Spears, unlike Maryland v. King, was not a “big” or closely watched case, except perhaps among auto dealers and trial lawyers, and it raised no Constitutional issues under the Fourth Amendment. Instead it was a narrow case of statutory construction involving the precise scope of the Driver’s Privacy Protection Act of 1994 (DPPA), which forbids outside access to drivers’ license databases operated by state DMVs except for one of a specified list of reasons. In general, DPPA forbids access to drivers’ identities for purposes of commercial solicitation (sending new car owners a coupon for a free car wash, for example). But it does permit queries for the purpose of preparing for legal proceedings, including specifically the “investigation” that may precede the filing of a lawsuit. So the question is: does it allow database queries by lawyers looking for contact information so as to solicit car owners to join a lawsuit against car dealers? Does a commercially motivated query that would otherwise not be okay become okay because solicitation can serve as a stage in lawyers’ preparation and “investigation” of a lawsuit?

When every single justice switches sides you may suspect that ideology has played some role, and you might be right. Plaintiffs’ lawyers as a class in certain ways serve as the police or prosecutors of the civil justice system, launching a stream of enforcement actions some of which prove valid and non-abusive and others not. A durable feature of the ideological split between conservatives and liberals in law is that Justices (and professors and news commentators) who are suspicious of the motives of police are often considerably less suspicious of the motives of plaintiff’s lawyers, and vice versa. Thus Justice Ginsburg’s dissent leans over backwards to give the lawyers the benefit of the doubt, pointing out that the suit against car dealers that was promoted by the solicitation did obtain a settlement (from which we are presumably to deduce that it had some merit under South Carolina consumer protection law) and suggests it could be too hard for judges to distinguish legitimate investigational queries from mere solicitation (though in the episode at hand the lawyers’ letter was blazoned with a prominent label “SOLICITATION,” which might be one clue). Similarly, Kennedy’s majority opinion (which ruled that solicitation as such was not protected under the investigational or “in-connection-with” exemptions and sent the case back for further consideration in light of that) likewise went out of its way to warn about letting private lawyers on fishing expeditions gain access to sensitive database information about drivers’ Social Security numbers or disability status, though there was no indication at all that the South Carolina lawyers had used or misused any such aspect of the data. 

As I say, Maracich by itself isn’t that big a deal, since if Congress thinks the Court has made DPPA too strict it can always go back to widen the exceptions a bit. But one can still daydream about a future bench equally sensitive to privacy menaces whether from police departments or the private bar. 

Topics: 
Law and Civil Liberties

Salinas v. Texas

By
Tim Lynch

Today, the Supreme Court issued its ruling in Salinas v. Texas. Surprisingly, the Court did not answer the primary question court watchers were expecting, which was whether a prosecutor can deride a person’s reliance upon the right against self-incrimination when that person has not been arrested. The Court said it did not have to reach that question because the person here, Salinas, never really properly invoked his constitutional right against self incrimination.  And because he didn’t, there was nothing wrong with the prosecutor’s comments at his trial. This is a lousy ruling.

A bit more background. Everyone knows from TV shows, that once a person is arrested and the police start an interrogation, the Miranda warnings are given.  “You have the right to remain silent, right to a lawyer if you cannot afford one and anything you say can be used against you in court, etc”  The Supreme Court has also held, properly, that if anyone declines to take the witness stand during the trial, the prosecutor can’t attack that choice to the jury with comments like, “He could have taken the stand to tell us his side of the story, but he didn’t. That tells us quite a bit, doesn’t it?” The rationale against allowing that sort of “evidence” is that if one really has a right against self-incrimination, the government should not be permitted to attack it. The prosecutor must use other evidence to persuade the jury of guilt.

So, again, the government can’t offer negative comments on the choice not to testify and may not offer negative comments on a person’s choice to remain silent after an arrest. Salinas brought the question, what about silence before an arrest? Cato filed a brief saying prosecutors should also be barred from attacking pre-arrest silence.

Justice Alito announced today that the main question is again postponed for another day. The Court said Salinas simply remained silent and did not “formally” invoke any constititional right, so prosecutors could offer commentary to the jury. What’s most disturbing about the ruling is its discussion of “burdens.” The plurality put the onus on the individual, not the government. That is the profound error in the decision. As the dissenters noted, in the circumstances of the case, it was evident what Salinas was doing. Unfortunately, the Supreme Court has complicated the law for persons who are the most vulnerable–persons who lack education, persons who do not speak English very well, persons who may suffer from mental problems, and persons who may be under the influence of alcohol. This is a bad day for the Bill of Rights.

Topics: 
Law and Civil Liberties

The Framers and Love

By
Ilya Shapiro

As some of you are aware, I recently got married, right here on Cato’s roofdeck, overseen by the eagle of liberty. I’ll spare you the details – there were plenty of “constitutional moments,” including personalized pocket constitutions as one of our wedding favors – other than to highlight my sometime co-author Josh Blackman’s excellent reading on the Framers and love:

We can look to the same patriots that gave us our Constitution to glean some lessons about love, liberty, and forming more perfect unions.

A successful marriage is not that much different from a successful republic. Both require the union of different parties to utilize their comparative advantages more efficiently. Both require a federalist system that structures powers and rights. And most importantly, both must aspire to a higher charter to bond them into one. For the United States it is our Constitution. For Kristin and Ilya, it is their vows.

First, we look to Federalist 51, Ilya’s favorite, where Madison wrote that if men were angels, we would not need government. Alas, neither husband nor wife is always an angel, so both Kristin and Ilya will need to structure a government for themselves to promote their happiness.

Second, to avoid any strife, we should heed Jefferson’s words in the Declaration of Independence, for mere “light and transient” causes are not enough. They must maintain tranquility, as they “mutually pledge to each other their Lives, their Fortunes and their sacred Honor.”

Third, we turn to the father of our country, General George Washington, whose eternal love for his wife Martha carried him towards victory. In one of the rare letters, which Martha did not burn at George’s death, the General wrote to her, “I retain an unalterable affection for you, which neither time nor distance can change.” May the two of you always be in such love, no matter where you are.

May the passion our framers had for our Constitution and Republic, mirror the love you have for each other. And as the history of our nation has witnessed, despite the dividing difficulties, insurmountable challenges, and specters of oppression, the union shall always prevail. As you pursue happiness together, may Kristin and Ilya always cherish their life, and liberty–and hopefully accumulate vast amounts of property, both personal and real. And that way, they can “secure the Blessings of Liberty to their many Posterity.”

If you’re curious about the rest of the ceremony, including Josh’s presentation, you can view it here (the audio is patchy at first, but kicks in before the vows). Yes, I got permission from my wife to post that and, yes, we’ll be going on honeymoon soon – but, like most couples, we’re waiting for the end of the Supreme Court term before getting away.

Topics: 
General, Law and Civil Liberties

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