As briefing continues in the Virginia and Florida (+ 19 other states) cases — next hearings will be in October and September, respectively — I wanted to highlight the filing of another serious lawsuit, which I’d mentioned previously in a roundup of legal action. Our friends at the Goldwater Institute have filed a challenge on behalf of a small-business owner, three congressmen (Reps. Jeff Flake, Trent Franks, and John Shadegg, all Republicans of Arizona), and 29 Arizona state legislators. This new lawsuit, known as Coons v. Geithner, argues that the federal health care bill exceeds Congress’s powers, violates individual rights, interferes with the authority of states, and violates the separation of powers by setting up a new bureaucracy without meaningful congressional oversight or judicial review. The legal team is led by experienced constitutional litigator Clint Bolick (whose excellent book David’s Hammer Cato published a few years ago). You can read the press release here, find out more about the lawsuit here, and download the complaint here.

A front-page story in today’s New York Times begins:

Michael R. Bloomberg is a former Wall Street mogul with a passion for the rights of a private property owner.

The story is about the not-really-at-Ground-Zero mosque, of course.

Bloomberg has a passion for property rights — except when the property owner wants to allow smoking on his own property or just wants to keep the property he owns even if a richer person wants it.

Cal Thomas, who bills himself as “America’s #1 nationally syndicated columnist,” rose to fame as the vice president of Jerry Falwell’s Moral Majority in its heyday, though you won’t find that fact in any of his official biographies. But you could figure it out by reading his columns. In his latest, on the California gay marriage decision, he ranges from factual inaccuracy to a revelation of just how reactionary and authoritarian he really is, to a really striking biblical citation.

He starts by denouncing the “decision by a single, openly gay federal judge.” Not true. Judge Vaughn Walker may be gay, but he has never said so. And Salon magazine demonstrates that any such “evidence” is extraordinarily thin. So this is an extraordinary statement by a man who calls himself a journalist of 40 years’ standing. Not to mention an offensive suggestion that gay people shouldn’t serve as judges. Thomas went so far as to call former attorney general Ed Meese, who recommended Walker to President Ronald Reagan, to ask how such a thing could have happened, and Meese assures him, “There was absolutely no knowledge, rumor or suspicion” of Vaughn Walker being a homosexual at the time of his nomination by Ronald Reagan. Well, thank God. You’d hate to think that Ronald Reagan would have put an accomplished Republican lawyer on the federal bench if he’d been a homosexual.

Thomas goes on to complain that this (not) “openly gay federal judge” has struck down “the will of 7 million Californians.” Well, yes. Of course, 6.4 million Californians voted the other way, so I guess on net he struck down the will of 600,000 Californians. And that’s what judges do when they strike down unconstitutional laws. The Supreme Court in Brown v. Board and Loving v. Virginia “struck down the will of tens of millions of Americans.” Libertarians and conservatives asked the Court in the Kelo case to strike down the duly enacted eminent-domain laws of Connecticut.

The sentence continues: The judge also struck down “tradition dating back millennia” — though for much of that time marriage involved one man and more than one woman. And of course traditions are not to be followed blindly. No doubt Cal Thomas thinks that millions, even billions, of Jews, Muslims, Hindus, and Buddhists should leave the faiths of their fathers and follow Christ.

And then the sentence moves to Thomas’s real concern: The judge also struck down “biblical commands, which the judge decided, in his capacity as a false god, to also invalidate.” Does Thomas really believe that the judges of the United States, operating under a Constitution that makes no mention of God, should obey “biblical commands”? It’s true that the Virginia trial judge who convicted the Lovings of miscegenation did rule that “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” He thought he was following biblical commands. But the Supreme Court overruled that judge.

Thomas is fulminating against gay marriage and against “judicial vigilantism.” But his real objections to American law and life go much deeper:

We have been spiraling downward for some time, beginning in the ’50s with the Playboy philosophy that gave men permission to avoid the bonds of marriage if they wanted to have sex. In rapid succession came the birth control pill (sex without biological consequences), “no-fault divorce” (nullifying “until death us do part”), cohabitation, easily available pornography, and a tolerance for just about anything except those who deem something intolerable.

Cal Thomas would like to take American life back somewhere before the 1950s, before adults could make their own decisions about sex, before birth control and cohabitation and tolerance. The American people may still be split 50–50 on gay marriage, but they would overwhelmingly reject Thomas’s reactionary vision for society.

How reactionary? Well, consider this:

Muslim fanatics who wish to destroy us are correct in their diagnosis of our moral rot: loss of a fear of God, immodesty, especially among women, materialism and much more.

Which sort of follows from his earlier point:

No less a theological thinker than Abraham Lincoln concluded that our Civil War might have been God’s judgment for America’s toleration of slavery. If that were so, why should “the Almighty,” as Lincoln frequently referred to God, stay His hand in the face of our celebration of same-sex marriage?

A more loving Christian might think that God would punish a nation that practiced slavery, but not a nation that allowed everyone to make a commitment to the person they loved. But surely Katrina, the financial crisis, 9/11, and the BP oil spill are enough punishment, even for a nation that displays a “tolerance for just about anything.” Anything that’s peaceful, anyway, as Leonard Read put it.

Toleration really is the thing that Thomas doesn’t like:

What we tolerate, we get more of, and we have been tolerating a lot since the Age of Aquarius generation began the systematic destruction of what past generations believed they had sacrificed, fought and died to protect.

I wonder how many American soldiers really believed that they went into battle to prevent gay people from marrying the person they love. I’ll bet more of them said they were fighting to protect our freedom, our Constitution, and indeed our religious freedom — for everyone.

Thomas ends his column with a biblical citation for those who want to “understand what happens to people and nations that disregard God”:

“In those days Israel had no king; everyone did as he saw fit.” (Judges 21:25)

Two books later in the Old Testament, in I Samuel 8, the story of Israel and its lack of a king is continued. This is actually one of the most famous passages in the history of liberty and of Western civilization. As we’ll see in a moment, the rest of the story served as a constant reminder that the origins of the State were by no means divinely inspired:

1: And it came to pass, when Samuel was old, that he made his sons judges over Israel.

3: And his sons walked not in his ways, but took bribes, and perverted judgment.
4: Then all the elders of Israel came to Samuel,
5: And said unto him, Behold, thou art old, and thy sons walk not in thy ways: now make us a king to judge us like all the nations.

6: But the thing displeased Samuel, And Samuel prayed unto the LORD.

7: And the LORD said unto Samuel, Hearken unto the voice of the people

9: yet protest solemnly unto them, and shew them the manner of the king that shall reign over them.

10: And Samuel told all the words of the LORD unto the people that asked of him a king.
11: And he said, This will be the manner of the king that shall reign over you: He will take your sons, and appoint them for himself, and some shall run before his chariots.
12: And he will set them to ear his ground, and to reap his harvest, and to make his instruments of war, and his chariots.
13: And he will take your daughters to be cooks, and to be bakers. 14: And he will take your fields, and your vineyards, and your oliveyards, even the best of them, and give them to his servants.
15: And he will take the tenth of your seed, and of your vineyards, and give to his officers, and to his servants.
16: And he will take your menservants, and your maidservants, and your goodliest young men, and your asses, and put them to his work.
17: He will take the tenth of your sheep: and ye shall be his servants.
18: And ye shall cry out in that day because of your king which ye shall have chosen; and the LORD will not hear you in that day.

19: Nevertheless the people refused to obey the voice of Samuel; and they said, Nay; but we will have a king over us;
20: That we also may be like all the nations; and that our king may judge us, and go out before us, and fight our battles.

21: And Samuel heard all the words of the people, and he rehearsed them in the ears of the LORD.
22: And the LORD said to Samuel, Hearken unto their voice, and make them a king.

God’s warning to the people of Israel — you will be sorry if you choose a king to rule over you — resonated not just in ancient Israel but on down to modern times. Thomas Paine cited it in Common Sense to remind Americans that “the few good kings” in the 3000 years since Samuel could not “blot out the sinfulness of the origin” of monarchy. The great historian of liberty, Lord Acton, assuming that all 19th-century British readers were familiar with it, referred casually to Samuel’s “momentous protestation.” And now Cal Thomas thinks this seminal warning against tyranny is a capstone to his tirade against freedom, tolerance, and equality under the law. How sad.

The Electronic Frontier Foundation trumpets a surprising privacy win last week in the U.S. Court of Appeals for the D.C. Circuit. In U.S. v. Maynard (PDF), the court held that the use of a GPS tracking device to monitor the public movements of a vehicle—something the Supreme Court had held not to constitute a Fourth Amendment search in U.S. v Knotts—could nevertheless become a search when conducted over an extended period. The Court in Knotts had considered only tracking that encompassed a single journey on a particular day, reasoning that the target of surveillance could have no “reasonable expectation of privacy” in the fact of a trip that any member of the public might easily observe. But the Knotts Court explicitly reserved judgment on potential uses of the technology with broader scope, recognizing that “dragnet” tracking that subjected large numbers of people to “continuous 24-hour surveillance.” Here, the DC court determined that continuous tracking for a period of over a month did violate a reasonable expectation of privacy—and therefore constituted a Fourth Amendment search requiring a judicial warrant—because such intensive secretive tracking by means of public observation is so costly and risky that no reasonable person expects to be subject to such comprehensive surveillance.

Perhaps ironically, the court’s logic here rests on the so-called “mosaic theory” of privacy, which the government has relied on when resisting Freedom of Information Act requests. The theory holds that pieces of information that are not in themselves sensitive or potentially injurious to national security can nevertheless be withheld, because in combination (with each other or with other public facts) permit the inference of facts that are sensitive or secret. The “mosaic,” in other words, may be far more than the sum of the individual tiles that constitute it. Leaving aside for the moment the validity of the government’s invocation of this idea in FOIA cases, there’s an obvious intuitive appeal to the idea, and indeed, we see that it fits our real world expectations about privacy much better than the cruder theory that assumes the sum of “public” facts must always be itself a public fact.

Consider an illustrative hypothetical. Alice and Bob are having a romantic affair that, for whatever reason, they prefer to keep secret. One evening before a planned date, Bob stops by the corner pharmacy and—in full view of a shop full of strangers—buys some condoms. He then drives to a restaurant where, again in full view of the other patrons, they have dinner together. They later drive in separate cars back to Alice’s house, where the neighbors (if they care to take note) can observe from the presence of the car in the driveway that Alice has an evening guest for several hours. It being a weeknight, Bob then returns home, again by public roads. Now, the point of this little story is not, of course, that a judicial warrant should be required before an investigator can physically trail Bob or Alice for an evening. It’s simply that in ordinary life, we often reasonably suppose the privacy or secrecy of certain facts—that Bob and Alice are having an affair—that could in principle be inferred from the combination of other facts that are (severally) clearly public, because it would be highly unusual for all of them to be observed by the same public. Even more so when, as in Maynard, we’re talking not about the “public” events of a single evening, but comprehensive observation over a period of weeks or months. One must reasonably expect that “anyone” might witness any of such a series of events; it does not follow that one cannot reasonably expect that no particular person or group would be privy to all of them. Sometimes, of course, even our reasonable expectations are frustrated without anyone’s rights being violated: A neighbor of Alice’s might by chance have been at the pharmacy and then at the restaurant. But as the Supreme Court held in Kyllo v US, even when some information might in principle be possible to obtain public observation, the use of technological means not in general public use to learn the same facts may nevertheless qualify as a Fourth Amendment search, especially when the effect of technology is to render easy a degree of monitoring that would otherwise be so laborious and costly as to normally be infeasible.

Now, as Orin Kerr argues at the Volokh Conspiracy, significant as the particular result in this case might be, it’s the approach to Fourth Amendment privacy embedded here that’s the really big story. Orin, however, thinks it a hopelessly misguided one—and the objections he offers are all quite forceful. Still, I think on net—especially as technology makes such aggregative monitoring more of a live concern—some kind of shift to a “mosaic” view of privacy is going to be necessary to preserve the practical guarantees of the Fourth Amendment, just as in the 20th century a shift from a wholly property-centric to a more expectations-based theory was needed to prevent remote sensing technologies from gutting its protections. But let’s look more closely at Orin’s objections.

First, there’s the question of novelty. Under the mosaic theory, he writes:

[W]hether government conduct is a search is measured not by whether a particular individual act is a search, but rather whether an entire course of conduct, viewed collectively, amounts to a search. That is, individual acts that on their own are not searches, when committed in some particular combinations, become searches. Thus in Maynard, the court does not look at individual recordings of data from the GPS device and ask whether they are searches. Instead, the court looks at the entirety of surveillance over a one-month period and views it as one single “thing.” Off the top of my head, I don’t think I have ever seen that approach adopted in any Fourth Amendment case.

I can’t think of one that explicitly adopts that argument. But consider again the Kyllo case mentioned above. Without a warrant, police used thermal imaging technology to detect the presence of marijuana-growing lamps within a private home from a vantage point on a public street. In a majority opinion penned by Justice Scalia, the court balked at this: The scan violated the sanctity and privacy of the home, though it involved no physical intrusion, by revealing the kind of information that might trigger Fourth Amendment scrutiny. But stop and think for a moment about how thermal imaging technology works, and try to pinpoint where exactly the Fourth Amendment “search” occurs. The thermal radiation emanating from the home was, well… emanating from the home, and passing through or being absorbed by various nearby people and objects. It beggars belief to think that picking up the radiation could in itself be a search—you can’t help but do that!

When the radiation is actually measured, then? More promising, but then any use of an infrared thermometer within the vicinity of a home might seem to qualify, whether or not the purpose of the user was to gather information about the home, and indeed, whether or not the thermometer was precise enough to reveal any useful information about internal temperature variations within the home. The real privacy violation here—the disclosure of private facts about the interior of the home—occurs only when a series of very many precise measurements of emitted radiation are processed into a thermographic image. To be sure, it is counterintuitive to describe this as a “course of conduct” because the aggregation and analysis are done quite quickly within the processor of the thermal camera, which makes it natural to describe the search as a single act: Creating a thermal image. But if we zoom in, we find that what the Court deemed an unconstitutional invasion of privacy was ultimately the upshot of a series of “public” facts about ambient radiation levels, combined and analyzed in a particular way. The thermal image is, in a rather literal sense, a mosaic.

The same could be said about long-distance spy microphones: Vibrating air is public; conversations are private. Or again, consider location tracking, which is unambiguously a “search” when it extends to private places: It might be that what is directly measured is only the “public” fact about the strength of a particular radio signal at a set of receiver sites; the “private” facts about location could be described as a mere inference, based on triangulation analysis (say), from the observable public facts.

There’s also a scope problem. When, precisely, do individual instances of permissible monitoring become a search requiring judicial approval? That’s certainly a thorny question, but it arises as urgently in the other type of hypothetical case alluded to in Knotts, involving “dragnet” surveillance of large numbers of individuals over time. Here, too, there’s an obvious component of duration: Nobody imagines that taking a single photograph revealing the public locations of perhaps hundreds of people at a given instant constitutes a Fourth Amendment search. And just as there’s no precise number of grains of sand that constitutes a “heap,” there’s no obvious way to say exactly what number of people, observed for how long, are required to distinguish individualized tracking from “dragnet” surveillance. But if we anchor ourselves in the practical concerns motivating the adoption of the Fourth Amendment, it seems clear enough that an interpretation that detected no constitutional problem with continuous monitoring of every public movement of every citizen would mock its purpose. If we accept that much, a line has to be drawn somewhere. As I recall, come to think of it, Orin has himself proposed a procedural dichotomy between electronic searches that are “person-focused” and those that are “data-focused.” This approach has much to recommend it, but is likely to present very similar boundary-drawing problems.

Orin also suggests that the court improperly relies upon a “probabilistic” model of the Fourth Amendment here (looking to what expectations about monitoring are empirically reasonable) whereas the Court has traditionally relied on a “private facts” model to deal with cases involving new technologies (looking to which types of information it is reasonable to consider private by their nature). Without recapitulating the very insightful paper linked above, the boundaries between models in Orin’s highly useful schema do not strike me as quite so bright. The ruling in Kyllo, after all, turned in part on the fact that infrared imaging devices are not in “general public use,” suggesting that the identification of “private facts” itself has an empirical and probabilistic component. The analyses aren’t really separate. What’s crucial to bear in mind is that there are always multiple layers of facts involved with even a relatively simple search: Facts about the strength of a particular radio signal, facts about a location in a public or private place at a particular instant, facts about Alice and Bob’s affair. In cases involving new technologies, the problem—though seldom stated explicitly—is often precisely which domain of facts to treat as the “target” of the search. The point of the expectations analysis in Maynard is precisely to establish that there is a domain of facts about macro-level behavioral patterns distinct from the unambiguously public facts about specific public movements at particular times, and that we have different attitudes about these domains.

Sorting all this out going forward is likely to be every bit as big a headache as Orin suggests. But if the Fourth Amendment has a point—if it enjoins us to preserve a particular balance between state power and individual autonomy—then as technology changes, its rules of application may need to get more complicated to track that purpose, as they did when the Court ruled that an admirably simple property rule was no longer an adequate criterion for identifying a “search.” Otherwise we make Fourth Amendment law into a cargo cult, a set of rituals whose elegance of form is cold consolation for their abandonment of function.

In the years since September 11, 2001, the secret digital surveillance state has grown enormously. Given heightened security measures, heightened anxiety, and cheaper-than-ever data collection and storage, such growth was perhaps inevitable.

But what are the proper limits on the secret collection of information? Where do our constitutionally guaranteed civil liberties stand in this new era? Do the federal government’s increased powers of surveillance even accomplish the security tasks at hand?

Constitutional lawyer and columnist Glenn Greenwald argues in this month’s Cato Unbound that the digital surveillance state is out of control. It’s also failed to deliver on its promises of greater security. Rather than helping to find the needle in the haystack, we have only made the haystack bigger.

Commenting on Greenwald’s essay will be Professor John Eastman, of Chapman University Law School; Paul Rosenzweig, now of the Heritage Foundation and formerly Deputy Assistant Secretary for Policy in the Department of Homeland Security; and the Cato Institute’s own Julian Sanchez, a prolific journalist on the interface of technology and civil liberties. Please stop by through the rest of this month for a discussion of one of our country’s most pressing issues in both civil liberties and national security.

You may remember the case of Anthony Graber, the Maryland motorcyclist charged with violating the state’s wiretapping statute for recording his traffic stop and posting it on YouTube. I’ve said several times over the last few months that these charges are based on a misreading of the law; minus a “reasonable expectation of privacy,” recording an oral communication does not violate the wiretapping statute.

As it turns out, the Maryland Attorney General agrees.

The Maryland Attorney General has released an opinion advising a state legislator that, contrary to the claims of Harford County State’s Attorney Joseph Cassilly, a traffic stop is probably not an instance where a police officer can claim a reasonable expectation of privacy.

The AG’s opinion provides a thorough survey of Maryland’s and other states’ decisions on the issue, giving three possible interpretations of the wiretap statute as applied to a citizen recording a traffic stop.

First, a court might agree with the theory that police encounters are private conversations, but the AG found that this “seems an unlikely conclusion … particularly when they occur in a public place and involve the exercise of police powers.” That sounds familiar.

Second, a court might conclude that the Maryland statute forbids only the surreptitious recording of a police stop. The opinion deems this an unlikely outcome due to differences between the language of the Maryland law and the wiretapping statutes of Massachusetts and Illinois.

The opinion settles on its third possible outcome, agreeing with what I, Radley Balko, Carlos Miller, the Maryland ACLU, the Maryland courts, other Maryland State’s Attorneys, and the Maryland Attorney General’s previous opinions have said: the Maryland wiretap statute does not permit the prosecution of citizens for recording the actions of public officials in public places.

Graber’s court date is set for October. The AG’s opinion should halt his prosecution and further abuse of the Maryland wiretap statute.

Oregon officials told a 7‑year-old with a lemonade stand that she needed to obtain a temporary restaurant license or incur a fine.

I’m rendered speechless, but Josh Blackman exploits the “teaching moment”:

If you are generally opposed to any notion of the right to pursue an honest living, ask yourself, why does it bother you so much that this little girl cannot sell lemonade. Then, ask yourself what you think about other regulations that stifle the entrepreneur. This story does not tug on our heart strings simply because she is adorably selling lemonade for 50 cents a cup (suggested price) at a fair. It tugs on our heart strings because the state is unnecessarily clamping down on this little girl’s ability to make some money.

More from Tim Sandefur.