Topic: Law and Civil Liberties

We Should Only Trust the Government as Far as We Can Throw It

Vietnam vet Robert Rosebrock is 72 years old, but he’s still got enough fight in him to stand up for what he believes in. The Veteran’s Administration of Greater Los Angeles (VAGLA) and the U.S. Court of Appeals for the Ninth Circuit would prefer his fight to be in vain.

Rosebrock’s fight here is a protest against VAGLA’s use of a parcel of land deeded to the U.S. government for the care of homeless veterans for purposes other than that purpose.  For example, VAGLA leased parts of the land to a private school, an entertainment company, and a soccer club, and occasionally used it for hosting events. Every Sunday for 66 weeks, Rosebrock hung at least one and as many as 30 U.S. flags from a border fence on the VA property that he believed was being misused.

After seeing a celebrity gala event on the property one Sunday afternoon, Rosebrock started hanging flags with the stars down, signifying dire distress to life and property—the distress faced by LA’s homeless veterans. At this point, VAGLA started enforcing its policy against “displaying of placards or posting of materials on bulletin boards or elsewhere on [VA] property.” When Rosebrock continued, believing his First Amendment rights would protect him, he was issued six criminal citations. He then stopped hanging his flag upside down but was later allowed to hang it right-side-up—a clear if unusual example of viewpoint-based speech discrimination that violates the First Amendment.

“Slipshod Work, Faulty Analysis, And Statistical Sleight Of Hand” At the EEOC

We’ve reported earlier in this space on how the Obama administration’s Equal Employment Opportunity Commission (EEOC) keeps getting slapped down by federal judges over what we called its “long-shot lawsuits and activist legal positions.” Now the Fourth Circuit has weighed in on a high-profile employment screening case from Maryland – and it too has given the EEOC a good thwacking, in this case over “pervasive errors and utterly unreliable analysis” in the expert testimony it marshaled to show the employer’s liability. Those are the words of a three-judge panel consisting of Judge Roger Gregory, originally appointed to the court by Bill Clinton before being re-appointed by his successor George W. Bush, joined by Obama appointee Albert Diaz and GWB appointee G. Steven Agee. 

The case arose from the EEOC’s much-publicized initiative of going after employers that use criminal background checks in hiring, which the agency insists often have improper disparate impact on minority applicants and have not been validated as necessary for business reasons. It sued the Freeman Cos., a provider of convention and exposition services, over its screening methods, but Freeman won after district court judge Roger Titus shredded the EEOC’s proffered expert evidence as “laughable,” “unreliable,” and “mind-boggling.” The EEOC appealed to the Fourth Circuit. 

If it was expecting vindication there, it was very wrong. Agreeing with Judge Titus, Judge Gregory cited the “pervasive errors and utterly unreliable analysis” of the commission’s expert report, by psychologist Kevin Murphy. “The sheer number of mistakes and omissions in Murphy’s analysis renders it ‘outside the range where experts might reasonably differ,’” which meant it could not have been an abuse of discretion for Judge Titus to exclude it. 

Strong language, yet Judge Agee chose to write a separate concurrence “to address my concern with the EEOC’s disappointing litigation conduct.” Noting a pattern in multiple cases, Agee faulted the commission’s lawyers for circling the wagons on behalf of its statistical methods despite repeated judicial hints that it needed to strengthen its quality control. “Despite Murphy’s record of slipshod work, faulty analysis, and statistical sleight of hand, the EEOC continues on appeal to defend his testimony.” If the agency doesn’t watch out, exasperated judges might start imposing more sanctions against it. 

Incidentally, as a counterpoint to the EEOC’s bullheadedness, the U.S. Commission on Civil Rights a year back did a briefing program on employee screening and criminal background checks that tries to include an actual balance of views. You can read and download it here.

When Wisconsin Officials Badger Their Political Opponents, It’s a Federal Case

SWAT teams—police units equipped with military-style weaponry and trained to deal with the most dangerous of criminals—were first created police realized that patrolmen equipped with revolvers and batons are generally able to keep the peace, they lack the resources and skills to deal with riots, urban terrorism, and other exotic crime. Since then, SWAT-style paramilitary units have been deployed to rescue hostages, end bank robberies, secure campuses after school shootings, and, in Wisconsin, to raid the houses and offices of people the state believed to be guilty of exercising their rights under the First Amendment.

That’s right: in the last few years, SWAT raids were part of a wide-ranging (politically motivated) investigation into whether certain unknown individuals—“John Does”—were violating campaign finance laws. Some of these John Does objected and challenged the validity of the subpoenas requiring them to turn over their records to the district attorney’s office.

The state trial court agreed and quashed the subpoena, finding that the state had no reason to believe that any violation of state law had occurred, or that the records taken would contain relevant evidence. Unsatisfied, the DA appealed the judge’s order. Rather than continuing this battle through the state courts, these John Does sued the state officials responsible for the investigation in federal court. They claimed that the investigation was a speech-chilling violation of their First Amendment rights and asked for a federal injunction preventing the state from pursuing the investigation.

The state argued that a federal law—the Anti-Injunction Act—prevents federal courts from ordering states to abandon in-progress criminal cases. Nevertheless, the district court issued an order stopping the SWAT-style fishing expedition, relying on a series of Supreme Court cases holding that the AIA doesn’t apply where the prosecution is known by the state to be baseless, is part of a campaign of harassment, or involves the enforcement of a blatantly unconstitutional law. The judge concluded that Wisconsin’s campaign-finance laws, as well as the methods used to enforce them, violated the First and Fourteenth Amendments.

The U.S. Court of Appeals for the Seventh Circuit reversed the district court’s order, however, concluding that since the state campaign-finance laws had not yet been declared unconstitutional—and their constitutionality was not directly before the district court—the AIA exceptions didn’t apply and the injunction was improper. In short, Wisconsin will be allowed to continue its investigation, the constitutionality of which is immune from legal challenge in federal court. In effect, the Seventh Circuit held that that under the AIA, the only time defendants can challenge the constitutionality of a state’s criminal laws is “when no state prosecution [is] pending.”

Cato has filed an amicus brief urging the Supreme Court to hear the plaintiffs’ appeal. We argue that regardless of whether Wisconsin’s election laws are unconstitutional, there was sufficient evidence suggesting that the sole purpose of the investigation was to harass the plaintiffs and discourage them (and others) from advocating a particular legislative agenda. Because the Supreme Court’s interpretation of the AIA allows federal judges to halt state enforcement of undeniably constitutional laws where there is evidence that a prosecution is being conducted for an improper purpose (like silencing political dissent), or in a manner that constitutes harassment, the district court had the power to issue an injunction regardless of whether or not Wisconsin’s campaign-finance laws are constitutional.

The fact that the constitutionality of those laws is in doubt—it happens to be one of the most heavily contested questions currently before the courts—only makes the district court’s decision all the more proper and the Seventh Circuit’s all the more worrying. If allowed to stand, the long-term effect of the Seventh Circuit’s ruling would be to give prosecutors carte blanche to do exactly what Wisconsin’s politically inspired prosecutors did: “investigate” perceived political threats for the very purpose of suppressing political speech. So long as arrests are never made and claims are never brought, the prosecutors are in the clear and no federal court can do anything about it. That can’t be the law.

The Supreme Court will decide this in the next couple of months whether to take the case of O’Keefe v. Chisholm.

Lynching, The Rule Of Law, and America’s Past

In connection with his new book The Libertarian Mind, my colleague David Boaz wrote a piece last week on how the struggle to abolish slavery was a defining episode for classical liberals and proto-libertarians of the past, indeed arguably their greatest accomplishment. In America, libertarian history and black history cannot be separated. 

We also know that after the end of slavery, the racial subjugation of American blacks did not end, but took new forms. As a new generation of historians has helped the nation remember, the “Black Codes” and Jim Crow laws that spread across the South after Reconstruction were part of an interlocking array of practices that at its worst succeeded in recreating “slavery by another name.” Some of those laws were explicitly racial–and “segregation” is wholly inadequate as a description of the racial subordination they enforced–but others worked through theoretically race-neutral legal institutions, including convict-leasing combined with steep penalties for minor or pretended offenses, debt peonage for tenant farmers, and laws prohibiting “vagrancy” (i.e., unemployment) or walking away from a labor contract, among other offenses.  

The other main branch of legalized racial oppression after the Civil War was, if anything, even more difficult yet necessary to confront: sanctioned violence outside the machinery of the state, symbolized by the practice of lynching. Last week the Equal Justice Initiative released a report (summary here) that was written up in the New York Times and has drawn attention from commentators including conservative Rod Dreher.

The details–be warned that they are gruesome in the extreme–include burnings alive and public tortures and mutilations carried out before crowds of hundreds, even thousands, of persons. “The white men, women, and children present watched the horrific murders while enjoying deviled eggs, lemonade, and whiskey in a picnic-like atmosphere.”

How the NSA Stole the Keys to Your Phone

A blockbuster story at The Intercept Thursday revealed that a joint team of hackers from the National Security Agency and its British counterpart, the Government Communications Headquarters (GCHQ), broke into the systems of one of the world’s largest manufacturers of cell phone SIM cards in order to steal the encryption keys that secure wireless communications for hundreds of mobile carriers—including companies like AT&T, T-Mobile, Verizon, and Sprint.  To effect the heist, the agencies targeted employees of the Dutch company Gemalto, scouring e-mails and Facebook messages for information that would enable them to compromise the SIM manufacturer’s networks in order to make surreptitious copies of the keys before they were transmitted to the carriers. Many aspects of this ought to be extremely disturbing.

First, this is a concrete reminder that, as former NSA director Michael Hayden recently acknowledged, intelligence agencies don’t spy on “bad people”; they spy on “interesting people.”  In this case, they spied extensively on law-abiding technicians employed by a law-abiding foreign corporation, then hacked that corporation in apparent  violation of Dutch law. We know this was hardly a unique case—one NSA hacker boasted in Snowden documents diclosed nearly a year ago about “hunting sysadmins”—but it seems particularly poetic coming on the heels of the recent Sony hack, properly condemned by the U.S. government.  Dutch legislators quoted in the story are outraged, as well they should be.  Peaceful private citizens and companies in allied nations, engaged in no wrongdoing, should not have to worry that the United States is trying to break into their computers.

Second, indiscriminate theft of mobile encryption keys bypasses one of the few checks on government surveillance by enabling wiretaps without the assistance of mobile carriers. On the typical model for wiretaps, a government presents the carrier with some form of legal process specifying which accounts or lines are targeted for surveillance, and the company then provides those communications to the government.  As the European telecom Vodaphone disclosed last summer, however, some governments insist on being granted “direct access” to the stream of communications so that they can conduct their wiretaps without going through the carrier.  The latter architecture, of course, is far more susceptible to abuse, because it removes the only truly independent, nongovernmental layer of review from the collection process. A spy agency that wished to abuse its power under the former model—by conducting wiretaps without legal authority or inventing pretexts to target political opponents—would at least have to worry that lawyers or technicians at the telecommunications provider might detect something amiss. But any entity armed with mobile encryption keys effectively enjoys direct access: they can vacuum up cellular signals out of the air and listen to any or all of the calls they intercept, subject only to internal checks or safeguards. 

There are, to be sure, times when going to the target’s carrier with legal process is not a viable option—because the company is outside the jurisdiction of the United States or our allies. Stealing phone keys in bulk is certainly a much easier solution to that problem than crafting interception strategies tailored to either the specific target or specific uncooperative foreign carriers. Unfortunately, the most convenient solution in this case is also a solution that gives the United States (or at least its intelligence community) a vested interest in the systematic insecurity of global communications infrastructure. We hear a great deal lately about the value of information sharing in cybersecurity: Well, here’s a case where NSA had information that the technology American citizens and companies rely on to protect their communications was not only vulnerable, but had in fact been compromised. Their mission is supposed to be to help us secure our communications networks—but having chosen the easy solution to the problem of conducting cellular wiretaps, their institutional incentives are to do just the opposite.

Finally, this is one more demonstration that proposals to require telecommunications providers and device manufacturers to build law enforcement backdoors in their products are a terrible, terrible idea. As security experts have rightly insisted all along, requiring companies to keep a repository of keys to unlock those backdoors makes the key repository itself a prime target for the most sophisticated attackers—like NSA and GCHQ. It would be both arrogant and foolhardy in the extreme to suppose that only “good” attackers will be successful in these efforts. 

Police Officers Must Keep the Cameras Rolling

Recently released dash camera footage of an arrest in St. Louis, Missouri offers an example of the disturbing flippancy with which cameras can be turned off during police interactions with the public.

According to a police report, on the evening of April 10, 2014, officers Nathaniel Burkemper and Michael Binz stopped a silver Ford Taurus after it made an illegal U-turn and “abruptly parked.” Only minutes earlier, 911 operators had received calls reporting shots fired. One of the calls mentioned a silver car with big rims.

Footage from the dash camera on Burkemper and Binz’s cruiser shows that shortly after the Ford Taurus pulls over, Binz moves to the passenger side of the vehicle, where he searches and handcuffs the passenger. Burkemper speaks to the driver, Cortez Bufford. Burkemper filed a report stating that he smelled marijuana and that both Bufford and his passenger did raise their hands when asked. However, Bufford reportedly “became agitated.” From the St. Louis Post-Dispatch:

Bufford “became agitated,” Burkemper wrote, refusing to give his name and reaching for a pants pocket before the officer warned him to keep his hands in view. Bufford refused orders to get out. Burkemper called for backup when Bufford became “increasingly hostile.”

The report says Binz told Burkemper he had found two bullets in the passenger’s pocket. Burkemper then ordered Bufford out again, saying he was under arrest. Bufford unlocked his door, but refused to exit.

The dash camera footage shows officers pulling Bufford from the car. Then, at least seven officers are involved in kicking, tasing, and subduing Bufford while he is on the street. According to Burkemper’s report, once Bufford was on the street he struggled and reached for his pocket. The  Post-Dispatch reports that Binz “recovered a Kel-Tec 9mm semi-automatic pistol with four rounds in the magazine and one in the chamber.”

Defending the Right to Offend

Between 1861 and 1865, Texas was in a state of rebellion, waging war against the United States under the flag of the Confederacy. Texas has never offered any indication that it’s ashamed of this history. Indeed, the state recognizes April as Confederate History Month and spends January 19 celebrating Confederate Heroes Day. Yet now Texas is before the Supreme Court, arguing that its citizens’ sensibilities must be spared the sight of the Confederate flag in one particular context.

The case involves a state agency that knows well what it is to cause universal offense: the Department of Motor Vehicles. Texas’s DMV, like that of many states, runs a program that allows private organizations such as charities, universities, and businesses to design their own “specialty” license plates—not to be confused with “vanity” plates, where the vehicle owner chooses the letters/numbers on her plate—which can then be purchased through the DMV. The current range of customized plates on offer in the Lone Star State include messages that are patriotic (“God Bless America”), fannish (“Dallas Cowboys”), socially conscious (“Be a Blood Donor”), commercial (“Dr. Pepper”), and completely immoral (“Young Lawyers”).

These custom plates include a near-limitless variety of slogans, symbols, logos, and color patterns—something for everyone’s taste. Except the Sons of Confederate Veterans. Their design, which included a miniature depiction of the Confederate battle flag, was rejected by the DMV on the grounds that some members of the public would find it offensive.

It’s certainly right about that—and the relevant statute authorizes the DMV to reject any design that “might be offensive to any member of the public”—but do we really want the government determining what’s “too offensive”?