Topic: Law and Civil Liberties

Government Can’t Condition Federal Contracts on Giving Up Constitutional Rights

By
Ilya Shapiro

Under the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, the government requires groups receiving federal funding for overseas HIV/AIDS programs to adopt policies explicitly opposing prostitution. Several nonprofit organizations receiving federal funds claim that this “policy requirement” violates their First Amendment rights.

The groups don’t seek to advocate for prostitution (or its legalization), but would rather not speak on the issue at all. Successful efforts to fight AIDS often involve working cooperatively with marginalized groups, so adopting a policy statement that explicitly renounces prostitution could frustrate outreach efforts to disseminate public health information. The government, however, requires funding recipients to espouse such an anti-prostitution policy even when they spend private funds.

The district court ruled in the nonprofit groups’ favor, holding that the policy requirement violates the First Amendment. The U.S. Court of Appeals for the Second Circuit affirmed, concluding that the government may not condition the receipt of public funds on giving up First Amendment rights. Indeed, were the government’s position accepted, it would eviscerate the “unconstitutional conditions” doctrine, which the Court has long recognized to prevent the conditioning of generally available federal benefits on the waiver of fundamental rights.

This week, Cato filed an amicus brief arguing that the policy requirement significantly burdens political speech, the constitutional protection of which lies at the very heart of the First Amendment. The Supreme Court has made clear that Congress may not condition participation in federal programs on speech limitations that are outside the scope of the program being funded: the Court has never given Congress carte blanche to give federal contractors Hobson’s Choices, whether relating to the freedom of speech or other constitutional rights. It should thus continue to adhere to the principle that Congress’s power to condition funding is limited to ensuring that its funds are used to properly implement the program that Congress wishes to fund, not to compel private organizations to adopt express “policies” that don’t relate to the use of those federal funds.

The Supreme Court will hear oral argument in Agency for International Development v. Alliance for Open Society International on April 22.

Topics: 
Health Care, Law and Civil Liberties

Politico Has Been Reading My Email

By
Michael F. Cannon

From today’s Politico Pulse:

OBAMACARE LAWSUIT RECRUITMENT 101: START WITH THE INTERNS - Cato Institute’s libertarian mastermind Michael Cannon appealed to former interns of the right-leaning group to join an “exciting” legal challenge to Obamacare. Cannon is among the top proponents of a legal theory that suggests the health law forbids federal subsidies to people accessing insurance through a federally run insurance exchange.

—”To see if you might qualify, have a look at this checklist,” Cannon writes in a “Dear former Cato Intern” letter. “There are income criteria, plus you must live in one of 33 states, prefer to purchase no health insurance (or low-cost catastrophic insurance), et cetera. If you believe you meet the criteria for at least one of the three categories, email me … to learn more about how you can get involved in this exciting legal challenge, and jump on this chance to make history. Feel free to forward this email to others who may be interested.” The checklist: http://bit.ly/12lJ8Yb.

Thanks, guys. Might as well tell everybody, now. (And “right-leaning”? Seriously?)

Topics: 
Government and Politics, Health Care, Law and Civil Liberties

Maryland Moves To Ban ‘Cyberbullying’

By
Walter Olson

While the enactment of Gov. Martin O’Malley’s sweeping gun control package has gotten more coverage, the Maryland House and Senate have also just passed a bill directed at banning “cyberbullying” [Capital Gazette, WJZ] The bill would, among other things, prohibit the use of electronic means (including cellphones, Facebook, and online forums) to intentionally “harass, or inflict serious emotional distress” on a minor. Violations could be punished by up to a year’s imprisonment.

In effect, the new law attempts to criminalize a good portion of the tort of intentional infliction of emotional distress, at least when undertaken in part or whole through newer technology.

Unfortunately, the new law is a serious affront to First Amendment liberties. It criminalizes a substantial swath of speech without clearly laying out notice of which speech it prohibits. It also prohibits much speech that, while in many cases reprehensible and harmful, is not well remedied by the harshness of criminal sanction.

It’s true that the law as passed drops some of the worst features of an earlier version, such as a ban on posting “private information” about minors. It also shifts the focus to a “course of conduct,” so that an individual cruel comment standing alone might not support prosecution. But the wider dangers remain. While electronic annoyance of an adult becomes criminal only if it continues after a request to stop, no such triggering provision is included for behavior that may annoy a minor. (And as I read it, there is no requirement that the defendant know that the person being subjected to intentional emotional distress is a minor—engaging in a vigorous “flame war” with a Maryland resident might turn out to be criminal if the username “ParentInLinthicum” turns out to conceal a teenage user.) Exceptions are made for speech that is intended to express political views or convey information, a curious pair of exemptions in that it has long been assumed that our First Amendment protects many types of seriously annoying speech other than those two.

We are supposed to support this law—and some lawmakers I admire did support it—to show that we care about children. Once on the books, however, this law will assuredly ruin the lives and futures of other kids who will be the subject of investigations and prosecutions, and not all those kids are monsters whose ruin we should accept with equanimity. Some further background here.

Topics: 
Law and Civil Liberties

Untappable Apple or DEA Disinformation?

By
Julian Sanchez

Tech news site CNET has an interesting, but I suspect somewhat misleading, story today suggesting that text messages sent via Apple’s iMessage service—an Internet-based alternative to traditional cell phone SMS text messages—are “impossible to intercept” by law enforcement. Yet that is not quite what the document on which the story is based—an “intelligence note” distributed to law enforcement by the Drug Enfrocement Administration—actually says.

The DEA memo simply observes that, because iMessages are encrypted and sent via the Internet through Apple’s servers, a conventional wiretap installed at the cellular carrier’s facility isn’t going to catch those iMessages along with conventional text messages. Which shouldn’t exactly be surprising: A search of your postal mail isn’t going to capture your phone calls either; they’re just different communications channels. But the CNET article strongly implies that this means encrypted iMessages cannot be accessed by law enforcement at all. That is almost certainly false.

As cryptographer and computer scientist Matthew Green observes, there is a simple and intuitive way to test whether Apple (or any cloud storage provider) has the capability to access a user’s encrypted content stored in the cloud—as Apple’s iMessages are: The “mud puddle test.” If you slip in a mud puddle, destroying your iPhone (along with any locally stored encryption keys) and forgetting your passwords as a result of the bump on the head, can you still recover your data? Can you, for instance, log in from a Web browser, reset your password, and then restore your content to a new device? If you can—and with Apple’s iCloud services, you can—then the cloud provider must itself hold the keys to unlock that data. So iMessages may not be interceptable from a suspect’s cell carrier, but Apple has to be capable of handing them over when the authorities come knocking with a warrant. In fact, all Apple has to do is provide the cops with an appropriate authentication token and they should, in principle, be able to turn an ordinary iPhone into a de facto clone of the suspect’s own device—so that iMessages show up on the police phone in realtime just as the suspect receives or sends them.

In fact, there’s another big way in which iMessages should be much more convenient and useful to police than conventional text messages. As law enforcement has long complained, most cell carriers store ordinary SMS messages for a few days after they’re sent at most—and some don’t retain message content at all. That means police aren’t able to read through a suspect’s historical messages even if they obtain a search warrant—only new ones. Apple’s iMessages, however, are stored indefinitely—which is a lot more useful if you’re trying to investigate a crime that’s already occurred. That means cops should be absolutely overjoyed if drug dealers or other criminals start using iMessage instead of SMS.

Which brings us to the question of why, exactly, this sensitive law enforcement document leaked to a news outlet in the first place. It would be very strange, after all, for a cop to deliberately pass along information that could help drug dealers shield their communications from police. One reason might be to create support for the Justice Department’s longstanding campaign for legislation to require Interent providers to create backdoors ensuring police can read encrypted communications—even though in this case, the backdoor would appear to already exist.

The CNET article itself discusses this so-called “Going Dark” initiative. But another possible motive is to spread the very false impression that the article creates: That iMessages are somehow more difficult, if not impossible, for law enforcement to intercept. Criminals might then switch to using the iMessage service, which is no more immune to interception in reality, and actually provides police with far more useful data than traditional text messages can. If that’s what happened here, you have to admire the leaker’s ingenuity—but I’m inclined to think people are entitled to accurate information about the real level of security their communication enjoy.

Topics: 
Law and Civil Liberties

Cato Weighs In With the Court – Cert.-Stage Amicus Edition

By
Roger Pilon

Adam Chandler, a Yale Law grad who recently completed a clerkship with Judge Patrick E. Higginbotham on the U.S. Court of Appeals for the Fifth Circuit, posted a SCOTUSblog piece this afternoon entitled “Cert.-stage amicus All-Stars: Where are they now?” Guess what? Cato’s number 4 on the list, right behind the U.S. Chamber of Commerce, the National Association of Criminal Defense Lawyers, and our friends out at the Pacific Legal Foundation – with a very respectable success rate of 22.2 percent.

Five years ago, when Chandler last did these rankings, Cato wasn’t even on the chart. That’s when Ilya Shapiro joined us. Say no more. But I will. He’s done a bang-up job with Cato’s amicus program.

The importance of filing Supreme Court briefs at the cert stage cannot be overstated. That’s the time when the Court makes its up-or-down decision about whether even to take a case, and hence the time at which arguments can be made about the importance of the issues at stake and the broader implications. We at the Center for Constitutional Studies have always taken the long view, grounded in the Constitution’s First Principles, especially as they underpin the limited constitutional government the Framers envisioned.

Commenting on the ideological aspects of these developments (where “conservative” and “libertarian” are largely interchangeable), Chandler writes:

Overall, the ideological cast of the new entrants is more conservative, anti-regulatory, and pro-business than that of those they replaced. To varying degrees, all seven of the new entrants have conservative profiles, whereas several of those left off the list this year, like the Society of Professional Journalists and the National League of Cities, have no obvious ideological bent. Five years ago, I wrote that “the list of top amici is dominated by pro-business and anti-regulatory groups—such groups hold over half the slots in the top sixteen.” Now they hold over three-quarters.

And he adds: “While the conservative groups have stepped up their game, the liberals are still nowhere to be found.” Part of the reason for this trend is of course the ideological cast of the Court itself. But that’s not the whole story – after all, it takes only four votes for certiorari to be granted, and for the most part there are four reliably liberal votes on the Court. Just as important is a change in the constitutional debate. And we’ve played our part in bringing that change about. In fact, in another month or so you’ll find a symposium in the Chapman Law Review on the origins and character of the modern libertarian legal movement. Stay tuned for more on that.

Topics: 
General, Law and Civil Liberties

“Lockdown High”: Brought to You by the NRA

By
Gene Healy

Yesterday, the “National School Shield Task Force,” a 12-member study group commissioned by the National Rifle Association, released its recommendations [.pdf] for heightened school security in the aftermath of the Sandy Hook Elementary School shootings. The Washington Post’s coverage quotes the head of Children’s Defense Fund, who accuses the NRA of “prey[ing] on America’s fears” and trying to turn the nation’s schools “into armed fortresses.” 

Not long ago, I’d have been shocked to find myself agreeing with Marian Wright Edelman over Wayne LaPierre, but in this case, the lady has a point. Since  last December, the NRA leader has outdone left-leaning “children’s advocates” in fomenting legislative hysteria “for the children.” As I noted in Tuesday’s Washington Examiner:  

The NRA head opposes new gun laws, but he’s otherwise been [President Obama’s] partner in panic, breathlessly demanding an “armed good guy” in every school—a federally funded expansion of “America’s police force.” 

The Post notes that the National School Shield Task Force is “ostensibly independent” of NRA direction, and for what it’s worth, the report’s tone is less hysterical, the recommendations somewhat less sweeping, than LaPierre’s. But, like LaPierre’s public statements, it lacks any intelligent assessment of relative risks, instead making the very possibility of harm to children a rallying cry for opening the checkbook and summoning the security consultants. The entire project seems designed to enhance the paramilitarization of public institutions, allowing the Homeland Security mentality of institutionalized overreaction free rein in American schools.

Five of the twelve task-force members work for “Phoenix RBT Solutions,” a security consulting firm that “offer[s] schools vulnerability assessments, innovative security solutions, and reality-based training for security personnel”–and so just might have some skin in the game.  

Among the remaining members are a former Secret Service director, a former top military security official, a Department of Homeland Security veteran, and, for good measure, a “Former Assistant Administrator of U.S. Transportation Security Administration (TSA).”  Woe betide the poor parent who just wants to drop off her kid’s lunch. 

“Prior to the Sandy Hook incident,” the National School Shield Report chides, “most schools took the view that ‘it probably won’t happen here.’”  “Most schools” is too broad a generalization, given that, as documented in Annette Fuentes’ excellent Lockdown High, the trend toward the TSA-ification of American schools long predated the Newtown massacre.  

Still, for any particular school, “it probably won’t happen here” is an accurate assessment of the risk. One estimate, published in the journal Educational Researcher (“What Can Be Done About School Shootings?” January 2010), is that any given school in the United States can expect a school shooting every 6,000 years.  

To put “armed police officers in every school,” as LaPierre has frantically demanded that Congress do, would require hiring over 100,000 new cops. But if your goal is to prevent kids from getting murdered, the schools are about the last place you’d put new police, since 98 percent of youth homicides occur off school grounds.

 

[Source: “Indicators of School Crime and Safety: 2011,” National Center for Education Statistics.]

Rough estimates of what LaPierre’s proposal would cost range from $5.5 billion to $34 billion a year. How can we justify that sort of expense in what’s supposed to be an era of belt-tightening? “You justify it because it’s necessary,” says Asa Hutchinson, the former DEA chief and Homeland Security official who’s heading up the NRA’s school safety initiative. But it’s not necessary, and it’s not wise.

The National School Shield Task Force is less bullish on federal funding than is NRA’s leadership (in December LaPierre called on Congress “to act immediately, to appropriate whatever is necessary … and to do it now, to make sure that blanket of safety is in place.” Though the NSS Report calls for making federal Homeland Security grants available for school security programs, it states that “federal funding has proved unreliable as a long-term solution to the school safety and security needs of our nation” and concedes that “Local school authorities are in the best position” to determine “whether an armed security guard is necessary.”

That’s an improvement over what NRA’s leadership has recommended. Unfortunately, as I’ll discuss in a separate post, I can’t say the same for what the rest of the report has to say about school safety.  

Topics: 
Education and Child Policy, Government and Politics, Law and Civil Liberties

Cato Challenges the Supreme Court to Decide that Congress Doesn’t Have Unlimited Jurisdiction Over Everyone

By
Trevor Burrus

Last year’s partial victory in the Obamacare case is already being applied to new cases reaching the Supreme Court. Recall that, in that case, the Court accepted our argument that the government cannot use the Commerce and Necessary and Proper Clauses to compel someone to purchase health insurance. The Court held that allowing Congress to compel commerce into existence would be an improper use of a great and limitless power. In United States v. Kebodeaux, the Supreme Court will once again address an assertion of power that, if upheld, could give Congress nearly limitless power.

In 1999, Anthony Kebodeaux was sentenced to three years in prison for statutory rape. He served his time, was freed from any post-release parole or probation requirements, and ended his relationship with the federal government in the matter of criminal law. Years later, when Kebodeaux moved intrastate from San Antonio, Texas to El Paso, Texas, he failed to update his change of address within the three-day period as required by the federal Sex Offender Registration and Notification Act (SORNA) of 2006. Even though Kebodeaux was unconditionally released from custody before SORNA was enacted, he was sentenced to one year in federal prison. The Fifth Circuit overturned his conviction en banc, meaning that every judge on the Fifth Circuit heard the case rather than the traditional three-judge panel. They found the registration requirement unconstitutional because Congress lacked jurisdiction over Kebodeaux after they unconditionally released him from custody.

The government’s arguments to the contrary, the court held, would permit not just “unending criminal authority” over Kebodeaux but unending authority over every American who was once in federal jurisdiction, which is, of course, every American.

In a sense, the government is now arguing for the “Hotel California” theory of jurisdiction: you can check out, but you can never leave. 

Yesterday, Cato filed an amicus brief, joined by Ilya Somin, Professor of Law at George Mason University School of Law, arguing that it would be improper under the Necessary and Proper Clause to permit Congress to have unending authority over all Americans. Congress already lacks a general power to punish criminals, much less monitor previously released criminals and impose new and onerous restrictions on them at will. Moreover, there is nothing constitutionally special about sex offenders as a class. Congress should not be allowed to designate a sub-class of people within its jurisdiction as “special” and then assert perpetual jurisdiction over them. These type of assertions of power are precisely what the “proper” element of the Necessary and Proper Clause is supposed to protect against–ones that, even if “necessary,” would give Congress unbounded power. 

Indeed, if the Court rules in favor of the government’s position, it will give Congress virtually unlimited power to regulate nearly all Americans. In essence, it would justify the gradual imposition of endless new requirements on anyone who had previously been subject to federal jurisdiction. Cumulatively, these federal impositions amount to unlimited federal authority over anyone who has ever been held in federal custody or otherwise in federal jurisdiction. This cannot be a power vested in a Congress with “few and defined” powers. As the Supreme Court held in the Obamacare case, Congress doesn’t have the power to “regulate an individual from cradle to grave.”  

Topics: 
Law and Civil Liberties

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