Topic: Law and Civil Liberties

More Contempt for Private Property

By
Radley Balko

The New Hampshire Supreme Court has upheld yet another outrageous seizure of private property. From a editorial in the Manchester Union-Leader condemning the ruling:

The state Supreme Court ruled on Tuesday that the government can keep and destroy more than 500 CDs taken from Michael Cohen, owner of Pitchfork Records in Concord, in 2003 even though the state failed to prove that a single disk was illegal.

Cohen was arrested for attempting to sell bootleg recordings. But the police case collapsed when it turned out that most of the recordings were made legally. Police dropped six of the seven charges, and Cohen went to trial on one charge. He beat it after the judge concluded that the recording was legal.

However, the police refused to return Cohen’s CDs. In the state Supreme Court’s Tuesday ruling, Chief Justice John Broderick, writing for the majority, reasoned so poorly that it appeared as if he’d made up his mind ahead of time.

[…]

The majority concedes that no crime or illegal act was proven, but allows the confiscation anyway by concluding that a crime might have been committed. The majority used words such as “apparently,” “likely” and “would have” to describe the alleged illegal activity.

It should go without saying that speculation by a few judges that a crime might have been committed is a frightening basis for taking someone’s property.

Nearly all of the outrages we write about at Cato – foreiture cases, the Kelo case, no-knock and paramilitary raids, and the smoking bans David Boaz blogged about earlier –are the result of the wholesale disintegration of respect for property rights in America. A country that truly believes in private property wouldn’t allow government agents to seize and keep it without due process. Nor would it allow government agents to break down doors to private homes in the middle of the night to enforce consensual crimes – some 40,000 times per year. Nor would it allow the state to take the property of one citizen and give it to another, for purpses of increasing the tax base. Nor would it allow the state to tell a private business owner whom he can and can’t serve, and what terms, in the interest of controlling the private behavior of his customers.

It isn’t surprising that these violations of property rights spill over into violations of personal and economic freedom. Property rights are the very foundation of our civil liberties. A government that’s quick to restrict what its citizens can do with their private property won’t hesitate to restrict, for example, free speech (see campaign finance “reform”). A government that refuses to recognize a man’s property in his own body (re: drug prohibition) won’t hesitate to those laws by confiscating actual, physical property without due process.

The founders of course understood the fundamental connection between private property and civil liberties. James Madison was particularly eloquent on the point:

This term in its particular application means “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”

In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.

[…]

In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.

Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.

[…]

If the United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and the property in rights: they will rival the government that most sacredly guards the former; and by repelling its example in violating the latter, will make themselves a pattern to that and all other governments.

When government has no respect for our rights of property, we oughtn’t be surprised when, likewise, it fails to respect our property in our rights.

Topics: 
General, Law and Civil Liberties

Data Mining or the Fourth Amendment?

By
Jim Harper

Boalt Hall Law Professor and Visiting AEI Scholar John Yoo writes in a short piece on the AEI website that we should consider using data mining to pursue terrorists. He makes at least two errors: one historical and one statistical.

Discussing the recent vogue for making U.S. law more like Britain’s, Yoo writes:

[I]ncreasing detention time or making warrants easier to come by merely extends an old-fashioned approach to catching terrorists. These tools require individualized suspicion and “probable cause”; police must have evidence of criminal activity in hand. Such methods did not prevent 9/11, and stopping terrorists, who may have no criminal record, requires something more.

It’s hard to put aside that the vogue for making U.S. law more like Britain’s would undo part of what the Revolutionary War was fought for. And Yoo’s placement of the phrase “probable cause” in quotes — I hope that’s not to suggest that the language of the Fourth Amendment is quaint.

But putting all that aside, Yoo’s first error has to do with more-recent history. He argues that traditional investigative methods “did not prevent 9/11.” But traditional investigative methods weren’t applied to the problem. 

Operatives like Khalid al Midhar — an individual with jihadist connections known to the United States — entered the country, left in June 2000, and returned July 4, 2001 on a visa the United States gave him. As the 9/11 Commission pithily noted, “No one was looking for him.” Traditional investigative methods can’t be said to have failed when they weren’t being used.

Yoo’s second error is to believe that data mining can help locate terrorists. Data mining cannot be made useful in counterterrorism: The absence of terrorism patterns means that it is impossible to develop useful algorithms. The corresponding statistical likelihood of false positives would cause the results of a data mining operation to waste the time and energy of investigators while threatening civil liberties. 

Data mining does give a “lift” to marketers’ attempts to find people with certain propensities and interests. But the ”failure rate” (if the goal is to find new, willing customers) is typically above 95%. This is with hundreds of thousands, or even millions, of patterns to work with. Data mining also helps ferret out credit card fraud — again, using the thousands of instances of this crime that happen each year to develop useful algorithms.

Probability theory teaches that the percentage of false positives a test produces will rise dramatically as the incidence of the sought-after condition drops. If you’re searching American society for left-handed people (8–15% of the population) a data mining operation might work pretty well.  If you’re searching for the 10, 12, or two terrorists in the United States, an imperfect test will be useless, time-wasting, and thus harmful to the national security mission.

No, the Fourth Amendment is good policy as well as a part of the not-old-fashioned Constitution. It is better to focus investigations, not broaden them. The best way to find wrongdoing is to look where there is probable cause to believe something is afoot.

Topics: 
Foreign Policy and National Security, Law and Civil Liberties, Telecom, Internet & Information Policy

Presidential Public Financing Failure

By
John Samples

The push is on to revamp and re-fund the public financing of presidential campaigns. 

Brad Smith and Robert Bauer have raised a number of doubts about the presidential system. A while ago, I wrote a policy analysis examining the effects of the presidential system. My new book, The Fallacy of Campaign Finance Reform, extends that argument.

Here I focus on one question:

The 1976 campaign finance law provided generous subsidies to presidential candidates pursuing party nominations and running in the general election. You would think that the availability of public money would increase the absolute number of candidates for the presidency compared to elections prior to 1976. Has the presidential system led to more candidates for the presidency, more choices for voters, and more competition for the highest office?

Apart from the major party candidates, nine presidential candidates in the general elections since 1948 have received more than 1 percent of the total vote in an election. Five of those candidates ran after the presidential system was created in 1976. Not all five accepted public financing. Ross Perot did not accept taxpayer financing in 1992, preferring to spend $65 million of his own money on his candidacy. Ed Clark, the Libertarian candidate in 1980, also did not take taxpayer financing. 

In all, six of the nine non-major party candidates who have made a mark in presidential elections since 1948 ran their campaigns without the help of the taxpayer. Moreover, the two top vote-getters during the period — George Wallace in 1968 and Ross Perot in 1992 — made do without subsidies.

The presidential system might be credited with three additional presidential campaigns in seven general elections (Ralph Nader in 2000, Ross Perot in 1996, and John Anderson in 1980). Nader received 2.7 percent of the vote, Perot got 8.4 percent, and Anderson obtained 6.6 percent. None of those candidates received a single electoral vote.

I wrote that the system “might be credited.” We should not conclude that because those candidates did use public money, they would not have made their races if the presidential system had not given them money. The private system in place in the seven general elections prior to 1976 produced four serious candidates apart from the major party candidates. Had the system not been enacted, Nader, Perot, and Anderson might also have raised enough money to challenge the major party candidates.

What about the party nominations? Most of the money paid out by the presidential system has gone to fund the conventions of the two major political parties (10 percent of all funding) and the major parties’ candidates in the general election (61 percent of all funding).

Candidates running in the primaries have received a little over $506 million, or about 29 percent of all outlays by the presidential system. That money has funded 83 candidates in the primaries. Of those, 71 were candidates for the nominations of the two major political parties. Of those 71, 55 candidates received over 1 percent of the total number of votes cast in a party’s presidential primaries for a given year, an average of 7.8 candidates each presidential election.

How does that compare with the number of primary candidates prior to the presidential funding system? The seven elections prior to 1976 included an average of 10.7 candidates in the party primaries. If we measure competitiveness by entry into a race, the years prior to public subsidy of presidential campaigns seem somewhat more competitive than the years after 1974. 

What’s the verdict? U.S. taxpayers have given candidates almost $2 billion to campaign for the presidency. That money has not bought more choice in the party primaries or in general presidential elections.

Topics: 
Cato Publications, Government and Politics, Law and Civil Liberties

Another Asset Forfeiture Outrage

By
Radley Balko

The Eighth Circuit Court of Appeals has ruled that police may keep the $124,700 they seized from Emiliano Gonzolez, an immigrant who by all appearances was attempting to use the money to start a legitimate business.

This is an outrageous ruling. Consider:

  • Gonzolez was never charged with any crime in relation to the money, much less convicted.
  • Gonzolez has an explanation for the money that a lower court found both “plausible” and “consistent.” He brought several witnesses forward to corroborate his story (in the preposterous land of asset forfeiture, property can be guilty of a crime, and the burden is often on the person the police seized the property from to prove he obtained it legally).
  • The government offered no evidence to counter Gonzolez’s explanation.

    • Instead, the court ruled that the mere fact that Gonzolez was carrying a large sum of money, that he had difficulty understanding the officer’s questions, that he incorrectly answered some of those questions (due, Gonzolez says, to fears that if police knew he was carrying that much money, they might confiscate it — imagine that!), and that a drug dog alerted to the car Gonzolez was driving (which, as dissenting judge Donald Lay noted, was a rental, likely driven by dozens of people before Gonzolez), was enough to “convict” the money of having drug ties, even if there wasn’t enough evidence to charge Gonzolez.The court ruled that despite the fact that Gonzolez’s witnesses were credible enough to, in person, convince a lower court he was telling the truth, on appeal, it, the appellate court, reading those witnesses’ testimony on paper, simply didn’t believe them.

    So the police get to keep the lifelong savings Gonzolez, his friends, and relatives had pooled to start a business. No charge and no conviction were necessary.

    The opinion itself — like most asset forfeiture cases — reads like something from a third-rate military junta. Actual excerpts:

  • “Possession of a large sum of cash is ‘strong evidence’ of a connection to drug activity.”
  • “…while an innocent traveler might theoretically carry more than $100,000 in cash across country and seek to conceal funds from would-be thieves on the highway, we have adopted the common-sense view that bundling and concealment of large amounts of currency, combined with other suspicious circumstances, supports a connection between money and drug trafficking.”
  • “Gonzolez had flown on a one-way ticket, which we have previously acknowledged is evidence in favor of forfeiture.”
  • While the claimants’ explanation for these circumstances may be “plausible,” we think it is unlikely. We therefore conclude that the government proved by a preponderance of the evidence that the defendant currency was substantially connected to a narcotics offense.”

    • My emphasis added on the last point. The absurdity of these cases never fails to amaze when you actually see them in print. The money, not Gonzolez, was found guilty of drug crimes.

    The Civil Asset Forfeiture Reform Act of 2000 was supposed to rein in seizure outrages like this one. Critics of the bill at the time noted that it didn’t go nearly far enough.

    Looks like they may have been right.

    Check here for Cato’s research on asset forfeiture.

    • Topics: 
    Cato Publications, Law and Civil Liberties

    From Your Blog to God’s Ears

    By
    David Boaz

    Have blogs become part of the mainstream? Consider the evidence of a front-page story in Saturday’s New York Times, which reports on reaction to the federal court ruling that the NSA wiretapping program is illegal. The first three legal experts quoted are bloggers; two of the quotes are from the blogs, one appears to be from an interview with a lawyer-blogger. Stop writing those law review articles, legal scholars, and get thee to Blogger.

    Topics: 
    General, Law and Civil Liberties, Telecom, Internet & Information Policy

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