Topic: Law and Civil Liberties

Feinstein-Burr: The Bill That Bans Your Browser

Last week, I criticized the confused rhetorical framework that the Feinstein-Burr encryption backdoor proposal tries to impose on the ongoing Crypto Wars 2.0 debate.  In this post, I want to try to explain why technical experts have so overwhelmingly and vehemently condemned the substance of the proposal.

The first thing to note is how extraordinarily sweeping the bill is in scope.  Its mandate applies to:

device manufacturers, software manufacturers, electronic communication services, remote communication services, providers of wire or electronic communication services, providers of remote communication services, or any person who provides a product or method to facilitate a communication or to process or store data.  [emphasis added]

Any of these  “covered entities,” upon reciept of a court order, must be able to either provide the government with the unencrypted “plaintext” of any data encrypted by their product or service, or provide “technical assistance” sufficient to allow the government to retrieve that plaintext or otherwise accomplish the purpose of the court order.  Penalties aren’t specified, leaving judges with the implicit discretion to slap non-compliant providers and developers with contempt of court.  Moreover, “distributors of software licenses”—app stores and other software repositories—are obligated to ensure that all the software they host is capable of complying with such orders.

When Should Courts Defer to White-Collar Prosecution Settlements?

Deferred prosecution agreements and their close relatives non-prosecution agreements (DPAs/NPAs) have become a major tool of white-collar prosecution in recent years. Typically, a business defendant in exchange for escape from the costs and perils of trial agrees to some combination of cash payment, non-monetary steps such as a shakeup of its board or manager training, and submission to future oversight by DoJ or other monitors. Not unlike plea bargains in more conventional criminal prosecution, these deals dispense with the high cost of a trial; they also dispense with the need for the government to prove its allegations in the first place. DPAs may also pledge a defendant to future behavior that a court would never have ordered, or conversely fail to include remedies that a court would probably have ordered. And they may be drawn up with the aim of shielding from harm — or, in some other cases, undermining — the interests of third parties, such as customers, employees, or business associates of the targeted defendant, or foreign governments.

So there was a flurry of interest last year when federal district judge Richard Leon in Washington, D.C., declined to approve a waiver, necessary under the Speedy Trial Act, for a DPA settling charges that Fokker Services, a Dutch aerospace company, sold U.S.-origin aircraft systems to foreign governments on the U.S. sanctions list, including Iran, Sudan, and Burma. While acknowledging that under principles of prosecutorial discretion the Department of Justice did not have to charge Fokker at all, Judge Leon said given that it had, the judiciary could appropriately scrutinize whether the penalties were too low.

What’s In a Name? Uproar Over Renaming the Antonin Scalia Law School at George Mason University

The left must be in disarray over at George Mason University. It took the faculty senate almost a month to adopt a resolution expressing “deep concern” over the university’s decision to rename the law school after the late Justice Antonin Scalia, following grants of $10 million from the Charles Koch Foundation and $20 million from an anonymous donor. That’s slow by today’s academic standards, especially in this year of protests across the country.

What’s worse, the National Law Journal reports today that fewer than 140 faculty members have thus far signed a letter opposing the renaming. Their concerns, however, will surprise no one. It seems that Justice Scalia was less than solicitous of identity politics. Moreover, the resolution claims, he “was a significant contributor to the polarized climate in this country that runs counter to the values of a university that celebrates civil discourse.” And perhaps of greatest concern, this decision reinforces “the external branding of the university as a conservative institution rather than an unaligned body that is a comfortable home for individuals with a variety of viewpoints.” Oh the horror, at intercollegiate colloquia, to have GMU on one’s name tag.

Notice the apposition in that last concern: “a conservative institution rather than an unaligned body that is a comfortable home for individuals with a variety of viewpoints.” We’re invited to believe, first, that the average American university is an “unaligned body”—like Princeton, for example, where in the 2012 presidential election, 157 faculty and staff donated to Barack Obama’s campaign, 2 to Mitt Romney’s—a visiting engineering professor and a janitor. For a broad picture of the ideological complexion of American law schools, see the splendid article by Northwestern University Law School’s Jim Lindgren in the current Harvard Journal of Law & Public Policy. GMU’s law school is anomalous only in having a fairly broad ideological distribution of faculty members, where any student can find any number of sympathetic professors.

But note also and especially the implication that liberals could not be “comfortable” if GMU were, in fact, a conservative institution. Funny how that concern doesn’t seem to go both ways, as many a conservative student at your average liberal institution can attest—the evidence for which has been richly documented by the scrappy Foundation for Individual Rights in Education (FIRE). But that concern is deeply revealing as well, and goes far toward explaining why our college and university faculties are so overwhelmingly of the left: They, indeed, are uncomfortable with opposing views. Witness this very incident. Does anyone believe that such conservatives as there are at GMU would come out of the woodwork in protest if a liberal justice’s name were given to the law school?

Res ipsa loquitur.

Cato Beats Back Attempt to Stop Our Brief from Even Being Filed

It’s quite rare that a counsel denies Cato (or anyone) consent to file an amicus brief. That just forces us to file a perfunctory motion, thereby drawing more court attention to our brief than it otherwise would’ve received. Experienced lawyers know that there’s really no point objecting to these briefs; the court will itself reject any bizarre or disrespectful ones, and judges are free to disregard (or not even read) amicus briefs anyway.

In the case of Harte v. Board of Commissioners, however, counsel representing some (but not all) of the defendants in a civil suit made just such an objection. As you’ll recallHarte is the case where police officers are accused of using excessive force and pursing an unreasonable search for their military-style raid of a private home in Johnson County, Kansas. The evidence that led to the raid was that the Hartes had visited a gardening store and thrown out wet tea leaves that were misidentified as marijuana.

Cato thus moved for permission to file before the U.S. Court of Appeals for the Tenth Circuit, arguing simply that the case implicates the constitutional safeguards that exist to preserve person and property from unnecessary harms. Our brief advances unique and helpful arguments about Fourth Amendment common law and the systemic use of military-style raids by police. Had law enforcement in this case done routine police work, an armed raid need not to have taken place.

Counsel for Johnson County, perhaps seeing an opportunity to bill his clients for more (taxpayer-funded) hours, disagreed. To Lawrence L. Ferree III, our brief is “simply a lame attempt to morph this case into Cato’s libertarian mantra” on a case of “narrow issues.” Credit is due to Mr. Ferree for his rhetorical flare, but his arguments fall flat. 

Ferree tried to argue that our brief would not be helpful to the court because the search of the Harte’s residence wasn’t a “raid,” our brief is “boilerplate,” and that the case does not implicate Fourth Amendment common law. Well, it takes a certain degree of mental gymnastics to argue that a seven-person team armed with AR-15s, trained dogs, and a battering ram isn’t a raid team. It’s also curious that Ferree’s legal argument against our filing contained some of the exact same language he used to oppose the Marijuana Policy Project’s brief – “boilerplate” arguments, indeed.

Economic Perspectives on the Criminal Justice System

President Obama’s Council of Economic Advisers (CEA) has just released a new report, “Economic Perspectives on Incarceration and the Criminal Justice System.”  I attended a briefing on the report this morning at the White House led by Jason Furman, who chairs the CEA.  A panel discussion followed and C-SPAN covered the proceeding.

In this post, I want to excerpt some of the most interesting aspects of the report based on my quick perusal and offer some comments.  Instead of asking the Attorney General and the director of the bureau of prisons to examine the criminal system, Obama asked for an economic analysis.  That was an interesting choice.  From the report:

From an economic perspective, the goal of an efficient criminal justice system is to maximize the safety of citizens and minimize criminal activity while also limiting the direct and indirect costs of criminal justice policies to individuals, communities and the economy. Broadly, debates about the criminal justice system can be framed as a comparison of the system’s societal benefits in terms of reduced crime and its societal costs in terms of direct government spending and collateral consequences for individuals, families and communities. Likewise, any reform should offer an improvement to current practice, through increasing safety, rebuilding communities, improving economic opportunity, or reducing expenditures or other social costs.

One of the panelists, Douglas Holtz-Eakin, joked that many in the room may think that economists may be heartless because of their number crunching ways, but he said cost-benefit analyses can be a very useful framework to organize our thinking.

The Wrong Way to Protect Police Officers

Yesterday, the Philadelphia Inquirer published a piece I wrote about pending legislation in Pennsylvania to anonymize officers under investigation for use of force. The legislation is supposed to increase officer safety. A snippet:

Of course, officer safety is important. But there is scant evidence that specific police officers or their families - in Pennsylvania or elsewhere - have been targeted and harmed by criminals because they were named in use-of-force incidents. (While police officers have been the tragic victims of ambushes, including in Philadelphia, the indications are that officers are, as New York City Police Commissioner William Bratton said in 2014, “targeted for their uniform,” not their actions.)

At best, these bills provide a remedy for something that has not been proven to be a problem. At worst, they protect officers with documented histories of violence and, ironically, give the majority of officers a bad rap.

Internal and criminal investigations are by their nature kept from the public eye, and for good reason. But the community should know if its public servants are under investigation for inappropriate violence and who they are. If one officer out of a thousand does something bad, but no one can say who he is, all officers fall under suspicion because the so-called bad apple is indistinguishable from everyone else.

As we saw in the aftermath of the fatal shooting of John Geer in Virginia, when police withhold information from the public about inappropriate uses of force, silence can seem like a cover-up. States and police agencies should look for ways to increase transparency after questionable uses of force, not put up new barriers to information.

Read the whole thing here.

This is cross-posted at PoliceMisconduct.net.

One Threat To Freedom Of Opinion Down, In California. Many More To Go.

At Overlawyered, I’ve repeatedly covered California Attorney General Kamala Harris’s audacious demand for the donor lists of nonprofits that carry on activities in California, a step likely to lead to both private and public retaliation against individuals and groups revealed to have donated to unpopular or controversial causes. So this is good news: a federal district judge in California has ruled that her crusade violates the Constitutional rights of one such group, Americans for Prosperity Foundation.

As the WSJ notes in an editorial, U.S. District Judge Manuel Real “declared her disclosure requirement an unconstitutional burden on First Amendment rights,” finding that there was scant evidence the disclosures were necessary to prevent charitable fraud, and that, contrary to assurances, her office had “systematically failed to maintain the confidentiality” of nonprofits’ donor lists, some 1,400 of which Harris’s office had in fact published online. As for retaliation against donors, “although the Attorney General correctly points out that such abuses are not as violent or pervasive as those encountered in NAACP v. Alabama or other cases from [the civil rights] era,” he wrote, “this Court is not prepared to wait until an AFP opponent carries out one of the numerous death threats made against its members.”