Topic: Telecom, Internet & Information Policy

DNA and Doctrine in the Supreme Court

This week, the Supreme Court considered whether collecting DNA from an arrestee was an unreasonable Fourth Amendment search.

Or at least that would have been a good way for the Court to frame the question.

Instead, much of the oral argument in Maryland v. King dealt with the question whether swabbing the cheek of an arrestee to take a DNA sample upsets one’s reasonable expectations of privacy. The “reasonable expectation of privacy” test is doctrine that arose from Justice Harlan’s concurrence in Katz v. United States. The test asks whether a person claiming the Fourth Amendment’s protections had a subjective expectation of privacy and whether it is “one that society is prepared to recognize as ‘reasonable.’”

The government’s case rests on that framing, which is why Deputy Solicitor General Michael Dreeben began his argument by saying that arrestees are “on the gateway into the criminal justice system. They are no longer like free citizens who are wandering around on the streets retaining full impact Fourth Amendment rights. The arrest itself substantially reduces the individual’s expectation of privacy.”

It’s true that an arrestee has his privacy and other liberties invaded various ways. What problem is it if a bit of DNA is collected at the same time? It’s pretty much like finger printing, the argument goes…

The “reasonable expectation” test is almost never faithfully followed by courts. My guess is that the Court will not assess whether King himself actually expected “privacy.” That would encompass everything from believing that none of his mucus membranes would be collected by a government agent, to believing that his genetic material would neither be analyzed nor preserved in a Maryland lab for further analysis somewhere in an uncertain future.

When it applies the objective part of the test, there is a chance, but I’ll be surprised if any justice actually examines the difference in experience between fingerprinting and DNA collection, such as by comparing the slim privacy invasion when one person touches another’s hands to the real invasion that occurs when a person puts something in another person’s mouth. Doing so in its exercise of free-form interest balancing could, but probably wouldn’t, overcome the government’s interest in using “the fingerprinting of the 21st Century” to catch crooks.

Rather than using doctrine and making policy judgments, the Court should assess the government’s actions as the Fourth Amendment commands. The law does not invite the Court to examinine what people may or may not think about “privacy.” It bars the government from committing unreasonable searches and seizures.

If one examines the case guided by the words of the Fourth Amendment, what happened is far more clear. Taking a bodily specimen from Alonzo King was, in natural language, a seizure. Processing that specimen to create an identity profile was a further examination, bringing otherwise concealed information into law enforcement’s view. And comparing King’s identity profile to cold-case profiles was incontrovertibly looking for something. This is all searching using that seized bodily material.

Now, was the search reasonable?

Having been picked up on a variety of assault charges, King’s mouth was swabbed and his DNA taken, processed, and used to investigate whether genetic material matching his was associated with any other cases. It’s the equivalent of taking keys on the person of an arrestee and looking through his house for evidence of other crimes. There was no relationship between King’s alleged wrongdoing and the investigation conducted using his DNA.

Perhaps it is reasonable to conduct a free-form search into the biography of a person who has been arrested–that is, a person about which a law enforcement officer says he has probable cause to arrest–but it is unlikely. The Fourth Amendment’s particularity requirement suggests that it is unreasonable to investigate a person arrested for one crime to see what other, unrelated crimes he may have committed.

Counsel for the State of Maryland rested her argument heavily on the use of information about other crimes in bail decisions. This falls apart under the same logic, unless the Court is going to produce a rule that the Fourth Amendment allows the government carte blanche to search and seize when a bail hearing is pending. And the DNA results came back months after Alonzo King’s arraignment.

Why You Shouldn’t Believe the Cyber-War Hype

Constantine von Hoffman explains it on CIO.com:

Cyber war is not what the Chinese currently appear to be up to. That’s called spying. If you doubt it consider what Rep. Mike Rogers, chair of the House Intelligence Committee, said Sunday on one of those talk shows that no one outside of D.C. watches:

“They use their military and intelligence structure to [steal] intellectual property from American businesses, and European businesses, and Asian businesses, repurpose it and then compete in the international market against the United States.”

If stealing secrets is an act of war then America is currently at war with all of its allies.

That’s some crisp contrarianism, and I like the dig at D.C.’s self-importance.

At around the time I was reading this article yesterday, an email arrived in my inbox touting an upcoming book event on “Cyber Warfare: How Conflicts in Cyberspace Are Challenging America and Changing the World.”

Oh, there’s no shortage of challenges laid before all actors trying to secure computers, networks, and data, but don’t mistake the number of vulnerabilities or threats with the likelihood they will manifest themselves, or the consequence if they do. The “cyberwar” frame is inapt, and looking at cybersecurity through a geopolitical lens is not likely to produce policies that cost-effectively protect our wealth and values.

Secret Spying and the Supreme Court’s Constitutional Catch-22

The memory of the abuses perpetrated by colonial officials wielding “general warrants” inspired the framers of our Constitution’s Fourth Amendment to constrain the government’s power to invade citizens’ privacy. With today’s 5-4 ruling in Clapper v. Amnesty International, the Supreme Court has announced that the modern equivalent of those general warrants—dragnet surveillance “authorizations” under the FISA Amendments Act—will be effectively immune from Fourth Amendment challenge.

The FAA permits the government to secretly vacuum up Americans’ international communications on a massive scale, without any individualized suspicion—and at least some of that surveillance has already been determined to have violated the constitution by a secret intelligence court. Yet today’s majority has all but guaranteed no court will be able to review the constitutionality of the law as a whole by imposing a perverse Catch-22: Even citizens at the highest risk of being wiretapped may not bring a challenge without proof they’re in the government’s vast database. The only problem is the government is never required to reveal who has been spied on.

In essence, the Court has said that even if the law is unconstitutional, even if it has violated the Fourth Amendment rights of thousands of Americans, there’s no realistic way to get a court to say so.

Precisely when secrecy shields the government from public political accountability, the Clapper ruling announces, the Constitution is powerless to protect us as well.

I’ll have a more detailed analysis of the ruling (and dissent) tomorrow.

Legislative Data and Wikipedia Workshop—March 14th and 15th

In my paper, “Publication Practices for Transparent Government,” I talked about the data practices that will produce more transparent government. The government can and should improve the way it provides information about its deliberations, management, and results.

“But transparency is not an automatic or instant result of following these good practices,” I wrote, “and it is not just the form and formats of data.”

It turns on the capacity of the society to interact with the data and make use of it. American society will take some time to make use of more transparent data once better practices are in place. There are already thriving communities of researchers, journalists, and software developers using unofficial repositories of government data. If they can do good work with incomplete and imperfect data, they will do even better work with rich, complete data issued promptly by authoritative sources.

We’re not just sitting around waiting for that to happen.

Based on the data modeling reported in “Grading the Government’s Data Publication Practices,” and with software we acquired and modified for the purpose, we’ve been marking up the bills introduced in the current Congress with “enhanced” XML that allows computers to automatically gather more of the meaning found in legislation. (Unfamiliar with XML? Several folks have complimented the explanation of it and “Cato XML” in our draft guide.)

No, we are not going to replace the lawyers and lobbyists in Washington, D.C., quite yet, but our work will make a great deal more information about bills available automatically.

And to build society’s capacity “to interact with the data and make use of it,” we’re hoping to work with the best outlet for public information we know, Wikipedia, making data about bills a resource for the many Wikipedia articles on legislation and newly passed laws.

Wikipedia is a unique project, both technically and culturally, so we’re convening a workshop on March 14th and 15th to engage Wikipedians and bring them together with data transparency folks, hopefully to craft a path forward that informs the public better about what happens in Washington, D.C. We’ve enlisted Pete Forsyth of Wiki Strategies to help assemble and moderate the discussion. Pete was a key designer of the Wikimedia Foundation’s U.S. Public Policy Initiative—a pilot program that guided professors and students in making substantive contributions to Wikipedia, and that led to the establishment of the Foundation’s Global Education Program.

The Thursday afternoon session is an open event, a Wikipedia tutorial for the many inexperienced editors among us. It’s followed by a Sunshine Week reception open to all who are interested in transparency.

On Friday, we’ll roll up our sleeves for an all-day session in which we hope Wikipedians and experienced government data folks will compare notes and produce some plans and projects for improving public access to information.

You can view a Cato event page about the workshop here. To sign up, go here, selecting which parts of the event you’d like to attend. (Friday attendance requires a short application.)

Why Have a Machine-Readable Federal Government Organization Chart?

When I write and talk about getting better data about the federal government, its activities, and spending, I mostly have in mind strengthening public oversight by bringing computers to bear on the problem. You don’t have to know much about transparency, organizational management, or computing to understand that having a machine-readable government organization chart is an important start.

There should be a list, that computers can process, showing what agencies, bureaus, programs, and projects exist in the federal government and how they are related. Then budgets, bills in Congress, spending programs and actual outlays, regulations, guidance documents, and much more could be automatically tied to the federal organizational units affected and involved.

But it’s not only public oversight that would benefit from such a list.

Mike Riggs at Reason magazine has found that the Office of Management and Budget’s sequestration report issued last September listed a cut to the National Drug Intelligence Center’s budget even though the NDIC went out of business last June.

The first line item on page 121 of the OMB’s September 2012 report says that under sequestration the National Drug Intelligence Center would lose $2 million of its $20 million budget. While that’s slightly more than 8.2 percent (rounding error or scare tactic?), the bigger problem is that the National Drug Intelligence Center shuttered its doors on June 15, 2012–three months before the OMB issued its report to Congress.

That’s embarrassing for the administration, as it should be. Riggs asks, “Might there be other errors in the OMB’s report?”

Getting organized is not just about public oversight. Another reason to have a machine-readable federal government organization chart is to improve internal management and controls. This kind of mistake should be nearly impossible. People at OMB should be able to download the list of government entities at any time, day or night, and be sure that it is the correct listing that uniquely identifies and distinguishes all the organizational units of the federal government at that moment. We should be able to download it, too.

Unfortunately, OMB controller Danny Werfel has been riding the brake on transparency. He and the Obama administration as a whole should be stepping on the gas. In early February, the Sunlight Foundation found that more than $1.5 trillion in federal spending for fiscal year 2011 was misreported on USASpending.gov.

Laws of Creation: Property Rights in the World of Ideas

“What can be said about copyright that doesn’t anger somebody somewhere?”

“Not very much,” I said in answer to my own rhetorical question at the beginning of a December book forum on Copyright Unbalanced: From Incentive to Excess (Mercatus Center, 2012).

Copyright and other intellectual property laws are controversial: Some libertarians regard inventions of the mind as the rightful property of their creators. The Framers, they point out, empowered Congress to secure these rights to authors and inventors. Others lament these laws as information regulations that conflict with natural rights.

The latest turn in the copyright controversy is the Librarian of Congress’s decision no longer to exempt the unlocking of (newly purchased) mobile phones from the proscriptions of the Digital Millennium Copyright Act. In other words, consumers can no longer use their phones on a different network without the original carrier’s permission, even after their contracts have expired.

Derek Khanna, the former Republican Study Committee staffer fired after penning a memorandum strongly critical of current copyright law, called it in The Atlantic the “Most Ridiculous Law of 2013 (So Far),” and a petition asking the president to reverse the Librarian’s ruling has more than 87,000 of the 100,000 it requires to get the White House’s response.

We won’t necessarily get into that particular issue on March 20th when we hear from Ronald Cass and Keith N. Hylton, authors of the book Laws of Creation: Property Rights in the World of Ideas. But Cass and Hilton argue against the notion that changing technology undermines the case for intellectual property rights. Indeed, they argue that technological advances only strengthen the case for intellectual property rights. 

In the view of Cass and Hylton, the easier it becomes to copy innovations, the harder to detect copies and to stop copying, the greater the disincentive to invest time and money in inventions and creative works. Intellectual property laws are needed as much as ever.

Register now for this March 20 noon-time event. It’s the latest in a long series of Cato events examining copyright and intellectual property, subjects on which libertarians often find themselves divided.

More Internet Sales Taxes—and Your Privacy Compromised

Yesterday, Senator Mike Enzi (R-Wyo.) and 19 cosponsors introduced a bill to promote the collection of taxes on Internet sales. I can’t recall seeing a bill so universally condemned in the libertarian, free-market, anti-tax, and pro-innovation communities. The National Taxpayers Union issued a press release, a “myths & facts” one-pager, and wrote it up on their blog for good measure. Here’s the Heartland Institute’s press release. The Competitive Enterprise Institute calls it a raw deal. R Street seems to hate this bill with a burning passion. Our sweethearts at NetChoice went with a Valentine’s theme.

[Update: The Center for Freedom and Prosperity also does not like this bill.]

[Update 2: Americans for Tax Reform does not like Internet sales taxes.]

I think differently from these groups. Oh no, I don’t think it’s a good idea to let state and local tax authorities impose complex taxes on businesses around the country just because they sell online. Doing so would cause Internet sales taxes to soar because tax authorities would be able to impose taxes on people who can’t vote them out of office.

But I think it’s important not to forget the consequences for privacy if Congress were to approve interstate tax collection like this.

Dig down into the bill and you start to see what it takes for states and localities to tax products sent into their states by remote sellers.

For purposes of [collecting taxes], the location to which a remote sale is sourced refers to the location where the item sold is received by the purchaser, based on the location indicated by instructions for delivery that the purchaser furnishes to the seller. When no delivery location is specified, the remote sale is sourced to the customer’s address that is either known to the seller or, if not known, obtained by the seller during the consummation of the transaction, including the address of the customer’s payment instrument if no other address is available.

That means that sellers all over the country would have to turn the addresses of the people they sell to over to state tax authorities. You could design a system to minimize the privacy problems here, but not eliminate them—especially when the time comes for the officials in one state to audit the sales in another.