Topic: Law and Civil Liberties

Police Misconduct — The Worst Case in September

Over at Cato’s Police Misconduct web site, we have selected the worst case for the month of September.  It was the Connecticut State Troopers who were caught on tape harassing a protester and fabricating charges against him.

According to news reports, Michael Picard was protesting near a DUI checkpoint.  He had his cell phone camera out and was recording the scene.  When a trooper noticed what he was doing, he angrily approached Picard and seized his phone saying it was illegal to record him.  This is when things got interesting.  Unbeknownst to the trooper, Picard’s cell phone was still recording as the trooper went back to his patrol car to confer with his colleagues.  The troopers were anxious to “hit” Picard with some kind of charge, but they became frustrated with their options.  Picard had a firearm, but a valid concealed carry permit.  Picard did record them with his cell phone, but that’s legal too.  What to do?  To “cover their ass,” they decide to fabricate a story that several citizens were complaining about Picard’s supposedly “disruptive actions,” but these “witnesses” did not want to stay on the scene, so the troopers just had to take action on their own.

The charges against Picard were quickly dismissed.  The ACLU has now filed a lawsuit on behalf of Picard.

The cell phone recording of the incident can be found here.  Because the phone is evidently sitting on the roof of the patrol car, the value is in what can be heard, not seen. Listen and decide for yourself.

You just never know what kind of government agents you may encounter.  Those who choose to film the police are especially vulnerable.  We must all remember to lawyer-up when necessary.

 

Bulk-Scanning E-mail for Spy Agencies

Reuters dropped a bombshell story Tuesday afternoon, reporting that in 2015 Yahoo agreed to scan all their users’ incoming e-mails on behalf of a U.S. intelligence agency, hunting for a particular “character string” and turning over messages where it found a match to the government. Yet the vagueness of the story—which appears to be based on sources with limited access to the details of the surveillance—leaves a maddening number of unanswered questions.  Yahoo did not greatly help matters with a meticulously worded non-denial, calling the story “misleading” without calling it substantively false, and asserting that the “scanning described in the article does not exist on our systems.” (Obvious follow-up questions: Did it exist in 2015? Does it now exist on some other systems?)  Then, on Wednesday, Charlie Savage and Nicole Perlroth of The New York Times published a follow-up article fleshing out some of the details: The bulk scan was conducted pursuant to an order from the secretive Foreign Intelligence Surveillance Court, and hunted for a “digital signature” associated with a foreign state-sponsored terror group.

A Report on Urban Policy from DC’s Front Lines

A law-abiding resident has few options to protect herself, if she is luckless enough to live in the Nation’s Capital. This truth became abundantly clear this weekend, when a neighborhood drunk attempted to break into my apartment way past either of our bedtimes. Once the situation resolved, I became hell-bent on determining how someone in my circumstances should respond in case next time they fared less agreeably.

A cursory web search of DC urban policy was less-than-encouraging: in the Nation’s Capital, urban policy so markedly favors the assailant that the victim’s best tool in the event of an emergency seems to be something like practicing jujitsu moves in the corner while she runs the clock out.

Conventionally speaking, there are two options when you are assaulted; lethal or nonlethal resistance. Guns fall into the former category, but leaving the matter of D.C.’s gun laws aside – as bewildering as they are – the perhaps more asinine urban policies are those surrounding non-lethal deterrents.

Non-lethal deterrents include 1) self defense sprays (mace or pepper spray) and 2) tasers. If you’re a woman, don’t own a gun, and would like to protect yourself, your best option is probably a good self-defense spray, followed by a taser or knife, except that in D.C. all of these options are either sometimes or always illegal.

For self-defense sprays, this is because certain sprays do not meet the requirements the City Council has set forth, requirements like containing approved chemicals from a list, being labeled with “clearly written instructions for use, and dated with [their] anticipated useful life.” (Apparently, in a life-or-death situation you should be thinking about whether you’ve labeled your itty bitty mace keychain’s expiration date properly.)

City council members are also rarefied luddites, insisting that your self defense spray use an aerosol-propelled mechanism, rather than the more effective, recent innovations that use a incendiary charge to direct the spray, like the Kimber Pepperblaster.*

Did the New York Times Violate the Law by Publishing Trump’s Tax Return, or Is the Law Unconstitutional?

After the New York Times published the 1995 tax returns of Donald Trump, Callum Borchers at the Washington Post and others have said it might be illegal. Trump’s lawyer claimed that publishing the returns was illegal without Trump’s consent, and, being Trump’s lawyer, he of course threatened “prompt initiation of appropriate legal action.”
 
Adding to the confusion, during a panel discussion at Harvard Law School in mid-September, Bob Woodward, associate editor of the Washington Post, and Dean Baquet, executive editor of the New York Times, presciently discussed whether they would publish Trump’s tax returns if they got ahold of them. “You know what your lawyers would tell you,” Woodward said, ”if you publish them, you go to jail.” Baquet said he would “seriously fight to publish [Trump’s] tax returns.”
 
For federal tax returns, there is a specific statute that prohibits publishing without consent (26 U.S.C. § 7213(a)(3)). But the Times only published the first page of Trump’s New York, New Jersey, and Connecticut tax returns (not the federal tax returns) so that statute would not apply. 
 
Of those states, only New York has a privacy statute that could be construed to apply to non-government employees/contractors like the Times. Not to make your brain atrophy from an overdose of legalese, but the New York statute prohibits
any person who, pursuant to this section, is permitted to inspect any report or return or to whom a copy, an abstract or a portion of any report or return is furnished, or to whom any information contained in any report or return is furnished, to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any report or return required under this article.
This bit of printed chloroform is a convoluted statute (welcome the study of law), but the fairest reading is that the phrase “pursuant to this section”—i.e., the entire section describing the “general powers of the tax commission”—applies only to those who are “permitted to inspect any report or return” under New York law, such as some government contractors. The other entities listed, such as those “to whom a copy, an abstract or a portion of any return is furnished,” can be anyone, even those who obtained a return not “pursuant to this section.” That includes the Times.
 
So, let’s assume that what the New York Times did was against the law. A more interesting question is: would that law be constitutional under the First Amendment? After all, prohibiting someone from divulging information to the public is clearly an abridgement of speech, so would the law fall under an exception to the general rule that the government cannot prohibit speech?
 
The most relevant case would be Bartnicki v. Vopper from 2001. That case dealt with a radio commentator who broadcast a tape of an illegally recorded conversation between a chief union negotiator and a union president. The federal statute at issue prohibited people from “willfully disclosing the contents” of any communication that the person knew or had reason to know “was obtained through an illegal interception.” The Court struck the statute down as unconstitutional because it “implicates the core purposes of the First Amendment” by imposing “sanctions on the publication of truthful information of public concern.” Publishing crucial and truthful information about a presidential candidate a month before the election certainly implicates matters of “public concern.”
 
Finally, because the New York law makes it illegal to merely “divulge or make known” tax return information,  it is broader than laws that prohibit someone from releasing a tax return that he knows (or has reason to know) was obtained illegally. In other words, it prohibits even more speech than the law in Bartnicki. Therefore, it seems likely that the law would be struck down as unconstitutional. 

Of Millionaire “Fugitives” and the Rule of Law

Megaupload.com was once the 13th most popular website on the internet, with more than 82 million unique visitors and a billion total page views during its seven-year operation. The site allowed people to store files on the cloud for later use—and some users inevitably stored copyrighted TV shows, films, songs, and software. In 2012, the U.S. government charged the site’s owner, Kim Dotcom, and its operators with conspiracy to commit copyright infringement. The defendants are currently resisting extradition to the United States (Dotcom lives in New Zealand), as is their right under extradition treaties.

In 2014, the seemingly frustrated government moved to seize the defendants’ considerable assets in a civil-forfeiture action, claiming that the assets are probably connected to the alleged criminal activity. The government had a major problem, however, as the assets that they were seeking to seize were not located in the United States, but in Hong Kong and New Zealand. Under traditional rules of in rem jurisdiction—a legal theory that allows courts to gain jurisdiction over property—the court must have “control” over the property to entertain the claims, which the district court did not have in this case.

The district court, however, ignored fundamental principles of statutory construction, and agreed with the government’s argument that a federal statute—conferring only venue to the district courts in cases where property was located outside of the United States—also expanded the court’s jurisdiction and fundamentally altered the traditional requirement that courts have control over the property to assert jurisdiction over it.

This misreading of the statute also created a serious constitutional issue under Article III. It is a fundamental constitutional rule that federal courts can’t issue mere “advisory” opinions. When a court lacks control over property located in a foreign country, it necessarily relies on another sovereign to enforce that order, making it advisory as to how the other sovereign should enforce the judgement.

To make matters worse, the court here also “disentitled” the defendants from presenting evidence that their property was not subject to seizure. Under civil-forfeiture laws, the government can take property without an underlying criminal conviction based only on the allegation of a crime. Those whose property has been seized can get it back by proving that their property is “innocent.” The government, however, is preventing the defendants from even making that argument. Using the “fugitive disentitlement” doctrine, the government is blocking the defendants from challenging the forfeiture.

You Have a Constitutional Right to Record Public Officials in Public

Millions have watched cellphone videos of police violating Americans’ rights. United States Customs and Border Protection (“CBP”) is trying to make sure the same doesn’t happen to them by banning video and photography—not in secure spaces or regarding special operations, but out in the open in the ordinary court of business.

In a case out of California, two citizens were taking pictures of border crossings from public sidewalks of what they believed were environmental problems and unlawful searches. CBP agents saw them, arrested them, seized their cameras, and deleted their pictures. The district court acknowledged that the recordings were protected by the First Amendment but found the government’s reasons for suppressing them to be so compelling that individual constitutional rights could be ignored in the name of national security.

Now before the U.S. Court of Appeals for the Ninth Circuit, Cato has filed an amicus brief supporting the photographers’ ability to record government officials in public. Americans have a First Amendment right to record law enforcement agents because it’s a way of accurately depicting government operations. The ability to describe government operations allows citizens to criticize those actions and petition for redress of grievances—a core purpose of the First Amendment. Even a Homeland Security report on “Photographing the Exterior of Federal Facilities” recognizes “that the public has a right to photograph the exterior of federal facilities from publically accessible spaces such as streets, sidewalks, parks and plazas.

Be Smart and Lawyer-up!

Last week we hosted a book forum for Professor James Duane’s new title, You Have the Right to Remain Innocent.  In addition to teaching you something about constitutional and criminal law, this lecture offers valuable practical advice that can help you and your friends to avoid prosecution and imprisonment and save thousands of dollars in legal fees.  As Duane notes, the key thing to remember is that there is a fundamental discrepancy between what the police say to us and what they say to their own children regarding police investigations.

Here’s an excerpt from his book:

There are many ignorant sentimentalists who believe that our government is deserving of our loyal cooperation and support, and that every good patriot with an innocent conscience should be glad to answer any questions from government agents.  That is hogwash….You cannot write tens of thousands of criminal statutes, including many touching upon conduct that is neither immoral or dangerous, write those laws as broadly as you can imagine, scatter them throughout the thousands of pages of United States Code–and then expect decent, law-abiding, unsuspecting citizens to cooperate with an investigation into whether they may have violated some law they have never even heard about.  The next time some police officer or government agent asks you whether you would be willing to answer a few questions about where you have been and what you have been doing, you must respectfully but very firmly decline.

The slim book is just 120 pages.  Read the whole thing so you’ll have the confidence to assert your rights under pressure.

Here is the lecture:

Don’t keep this valuable information to yourself.  Blast it out to friends and family members on social media.

Related Cato work here and here.  The full book forum, with comments from Georgetown Law Professor Randy Barnett, here.