Topic: Law and Civil Liberties

Cell Phone Searches? There’s an App for That.

Police hoping to rummage through a suspect’s cell phone after an arrest must apply for a warrant, the Ohio Supreme Court has ruled. That apparently makes it the first court to address a question I first wrote about two years ago, after Adam Gershowitz broached it in a law review article.

Normally, when police arrest someone—and recall that even trivial offenses may provide formal grounds for arrest—they’re entitled to conduct an incidental search of the person and their immediate vicinity, nominally for the purpose of uncovering any weapons and preventing the destruction of contraband.  The new wrinkle as Gershowitz noted, is that we’ve begun routinely carrying vast stores of personal data around with us in our pockets: photos, correspondence, music and movies,  Internet browsing histories, even whole libraries of books.  What’s more, these little archives are typically connected, sometimes automatically, to still more personal information held remotely: mailboxes, calendars, bank accounts, purchasing histories, or in principle just about anything accessible online.

Suddenly a narrow, reasonable-sounding exception to the ordinary Fourth Amendment warrant requirement starts looking like a pretty huge loophole.  The quantity of personal “papers and effects” that can be stored in an ordinary phone would have filled a house just a few decades ago. But if those smartphones are subject to “search incident to arrest,” there’s no longer any need to bother with judicial authorization for the search of a private home. And since a legal system governed by precedent subjects digital technologies to the tyranny of bad metaphors, there’s a disarmingly strong argument to be made that smartphones should be treated like any other physical “closed container”—a digital backpack or purse, at least with respect to the data stored locally on the phone.

This case involved more conventionally phone-like information: calling records. But the Court nevertheless saw the danger inherent in treating portable data storage devices as mere “containers,” holding that searches of phones were reasonable only to the extent they could be linked to the twin justifications of safety and preventing destruction of evidence.  But as the ruling and dissent both note, there are a handful of precedents that appear to cut in the other direction. The question now is whether other courts will follow Ohio’s lead or remain mired in inapposite comparisons to knapsacks and cigarette packs.

Bill of Rights Day

Since today is Bill of Rights Day, it seems like an appropriate time to pause and consider the condition of the safeguards set forth in our fundamental legal charter.

Let’s consider each amendment in turn.

The First Amendment says that Congress “shall make no law … abridging the freedom of speech.” Government officials, however, insist that they can make it a crime to mention the name of a political candidate in an ad in the weeks preceding an election. They also insist upon gag orders in thousands of federal investigations.

The Second Amendment says the people have the right “to keep and bear arms.” Government officials, however, insist that they can make it a crime to keep and bear arms.

The Third Amendment says soldiers may not be quartered in our homes without the consent of the owners. This safeguard is doing so well that we can pause here for a laugh.

The Fourth Amendment says the people have the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Government officials, however, insist that they can storm into homes in the middle of the night after giving residents a few seconds to answer their “knock” on the door.

The Fifth Amendment says that private property shall not be taken “for a public use without just compensation.” Government officials, however, insist that they can take away our property and give it to others who covet it.

The Sixth Amendment says that in criminal prosecutions, the person accused shall enjoy a speedy trial, a public trial, and an impartial jury trial. Government officials, however, insist that they can punish people who want to have a trial. That is why 95% of the criminal cases never go to trial. The handful of cases that do go to trial are the ones you see on television — the late Michael Jackson and Scott Peterson, etc.

The Seventh Amendment says that jury trials are guaranteed even in petty civil cases where the controversy exceeds “twenty dollars.” Government officials, however, insist that they can impose draconian fines against people without jury trials. (See “Seventh Amendment Right to Jury Trial in Nonarticle III Proceedings: A Study in Dysfunctional Constitutional Theory,” 4 William and Mary Bill of Rights Journal 407 (1995)).

The Eighth Amendment prohibits cruel and unusual punishments. Government officials, however, insist that jailing people who try in ingest a life-saving drug is not cruel.

The Ninth Amendment says that the enumeration in the Constitution of certain rights should not be construed to deny or disparage others “retained by the people.” Government officials, however, insist that they will decide for themselves what rights, if any, will be retained by the people.

The Tenth Amendment says that the powers not delegated to the federal government are to be reserved to the states, or to the people. Government officials, however, insist that they will decide for themselves what powers are reserved to the states, or to the people.

It’s a depressing snapshot, to be sure, but I submit that the Framers of the Constitution would not have been surprised by the relentless attempts by government to expand its sphere of control. The Framers themselves would often refer to written constitutions as mere “parchment barriers” or what we would describe as “paper tigers.” They nevertheless concluded that putting safeguards down on paper was better than having nothing at all. And lest we forget, that’s what millions of people around the world have — nothing at all.

Another important point to remember is that while we ought to be alarmed by the various ways in which the government is attempting to go under, over, and around our Bill of Rights, the battle will never be “won.” The price of liberty is eternal vigilance. To remind our fellow citizens of their responsibility in that regard, the Cato Institute has distributed more than three million copies of our “Pocket Constitution.” At this time of year, it’ll make a good stocking stuffer. Each year we send a bunch of complimentary copies to the White House, Congress, and the Supreme Court so you won’t have to.

Finally, to keep perspective, we should also take note of the many positive developments we’ve experienced in America over the years. And for some positive overall trends, go here.

It’s PATRIOTic to Panic!

According to Politics Daily columnist Patricia Murphy vital provisions of the PATRIOT Act are in danger of expiring! Which means that scary terrorists could already be hiding under your bed ZOMG!!!1!!1!

Let’s take a slow deep breath or two, shall we? As I’ve been discussing here for some time, there are three national security surveillance provisions due to sunset at the end of this year. It has also been clear for weeks now that, with health care taking center stage, Congress was unlikely to come to an agreement on the details of reform and reauthorization before recess. And while Politics Daily may have just “learned Thursday” that congressional advocates for civil liberties reforms would be comfortable with a temporary renewal of the expiring provisions to allow more extended debate, anyone who’s been paying the slightest bit of attention has heard them say as much all along. Which, given the tenor of press coverage, is a good thing: The easiest thing to do would be a straight reauthorization that avoided much-needed changes and took an issue that tends to make Democrats skittish off the table.  But the chance that legislators will simply allow the expiring provisions to lapse is, to a first approximation, zero. The brevet renewal will probably be dropped into the Defense Appropriations Bill before Congress this week.

Since the article dwells at some length on the Fort Hood shootings and the risk of homegrown terrorism, it’s worth reiterating: The never-invoked “Lone Wolf” provision, which is among those expiring, does not apply to actual “homegrown terrorists”—that is, permanent residents or citizens like Nidal Hassan.  Those people can still be surveilled using ordinary Title III criminal wiretap warrants. Nor, despite what the article claims, would law enforcement “lose the ability” to conduct roving wiretaps or demand business records even if Congress somehow failed to pass a reauthorization. Roving taps would remain available under the criminal statute, though under a slightly heightened standard—which, again, is what you’d have to use anyway to go after a genuine homegrown terrorist who wasn’t a member of a foreign group like al-Qaeda. Ordinary FISA wiretaps, requiring investigators to specify the phone lines and Internet accounts covered, would still be available. (These represent the overwhelming majority of the thousands of FISA warrants issued each year.) The “business records” provisions of the Foreign Intelligence Surveillance Act similarly predates PATRIOT, and would remain in existence for use against actual “agents of a foreign power,” though again, the standard for issuance would be raised. A plethora of other mechanisms for obtaining third party records—grand jury subpoenas, National Security Letters (issued without that pesky judicial oversight), court orders—would remain in place.

So, in sum: If by some unfathomable happenstance these few provisions were allowed to lapse for a few months while Congress hashed out the details of a renewal and reform bill, there’s no reason to think it would be an especially serious problem given the array of new tools we’ve made available to terror investigators over the past eight years. But even if you’re the nervous sort, the point is moot, because there is no realistic chance that the PATRIOT provisions in question will be allowed to lapse. There never has been: A temp extension has quite clearly been on the table all along. Though I suppose that’s not the kind of headline that drives clicks.

Keeping Pandora’s Box Sealed

In today’s Washington Times, Ken Klukowski and Ken Blackwell co-authored an op-ed about McDonald v. Chicago and the Privileges or Immunities Clause titled, “A gun case or Pandora’s box?

If that title sounds familiar, it should. Josh Blackman and I have co-authored a forthcoming article called “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment.“  As Josh put it in his reply to the Kens, “imitation is the most sincere form of flattery.”

Going beyond the title, there are several errors in the piece,  which I will briefly recap:

First, the Kens argue that the Supreme Court should uphold the Slaughter-House Cases, out of a fear that reversal – and thereby a reinvigoration of Privileges or Immunities – would empower judges to strike down state and local laws. What they neglect to mention is that it has been the role of the judiciary since Marbury v. Madison to strike down laws that violate the Constitution. There is near-universal agreement across the political spectrum that Slaughter-House was wrongly decided, causing the Supreme Court to abdicate its constitutional duty by ignoring the Privileges or Immunities Clause for 125 years. The Kens want to continue this mistaken jurisprudence.

Next, the Kens describe the Privileges or Immunities Clause as a general license for courts to strike down any law they do not like. This is not accurate. Neither the Privileges or Immunities Clause nor any other part of the Fourteenth Amendment empowers judges to impose their policy views. Instead, “privileges or immunities” was a term of art in 1868 (the year the Fourteenth Amendment was ratified) referring to a specific set of common law, pre-existing rights, including the right to keep and bear arms. The Privileges or Immunities Clause is thus no more a blank check for judges to impose their will than the Due Process Clause – the exact vehicle the Kens would use to “incorporate” the Second Amendment.

To set the record straight, Josh and I are working on an op-ed – not so much to respond to the Kens’ flawed analysis but to present the correct historical and textual view of the Privileges or Immunities Clause. To see our arguments in greater detail, read our article and Cato’s McDonald brief, both of which I’ve previously blogged about here , here, and here.

The Reid Individual Mandate: An Affront to the Constitution

Cato chairman Bob Levy and I have an oped in today’s Philadelphia Inquirer explaining why the individual mandate in Majority Leader Harry Reid’s (D-NV) health care bill is unconstitutional.  (Our colleague Ilya Shapiro blogs about a similar piece by our colleague Randy Barnett.)

In sum, supporters of an individual mandate claim that two powers granted to Congress by the states in the Constitution — the Commerce Clause and the taxing power — give Congress the legal authority to force Americans to purchase health insurance.  We reject both theories.

First, the behavior that Congress seeks to regulate — the non-purchase of health insurance — is neither interstate, nor is it commerce.  Unfortunately, under the Supreme Court’s tortured interpretation of the Commerce Clause, that isn’t dispositive, so we explain why even the Court’s Commerce Clause jurisprudence doesn’t allow for an individual mandate.

Second, the individual mandate cannot be justified by pointing to Congress’s taxing power, because the tax it would impose is neither an excise tax, nor an income tax, nor a direct tax apportioned according to population.

Game over.  All your base are belong to us.

We’ve already received many responses to the oped, some of them intelligent.  One reader asks how we can describe the non-purchase of health insurance as “a non-act that harms no one”:

We all know that when folks without insurance go to the emergency room, those of us with insurance are harmed in the form of higher premiums.

Originally, we had included a section expanding on our “harms no one” claim that would have addressed this point, but we dropped it for brevity.  Here it is:

Most uninsured people don’t end up in an emergency room.  As for those who do, research shows that the uninsured as a group more than pay their own way. Many simply pay their bills without imposing costs on anyone. And because they typically pay premium prices for medical care — far more than is ordinarily reimbursed by public or private insurance — they more than offset the cost of uncompensated care to the uninsured overall, according to MIT economist Jonathan Gruber and others.

Even if we ignore that evidence, uncompensated care to the uninsured accounts for about 2.2 percent of national health expenditures.  The left-leaning Urban Institute writes, “Private insurance premiums are at most 1.7 percent higher because of the shifting of the costs of the uninsured to private insurers in the form of higher charges.”  That’s hardly a crisis.

And think about it: an uninsured person is wheeled into an emergency room, unconscious and bleeding.  Is this person able to harm anyone?  Is this person in a position to impose costs on you?  Of course not.

What imposes costs on you are the laws that require the doctors and hospitals to treat those patients without regard to ability to pay — and the ethical codes that would impel doctors to treat them even if there were no such laws.  If you have a problem with those laws/codes, make them the focus of your ire.  If you support them, surely you can’t be upset that they increase your premiums by 1.7 percent.  Isn’t that a small price to pay to live in a compassionate society?

But if you’re still angry about that 1.7 percent, bear in mind that the Reid individual mandate — which is essentially a bailout for private health insurance companies — would increase the cost of insurance for some people by 30 percent and would require additional taxes on top of that.

Fortunately, there are much better ways to reform health care.

“Send Us Your Tired, Your Poor, But Only if They’re ‘Culturally Unique’ ”

That’s the title of a Wall Street Journal article detailing the latest idiocy to come out of our immigration system.  It seems that if you’re a musician trying to get a visa to perform in the United States, you have to prove to some bureaucrat’s satisfaction that your music either is “culturally unique” or has “achieved international recognition and acclaim.”  (Query: Does the Department of Homeland Security now require immigration caseworkers to have degrees in musicology or fine arts?)

The article chronicles the various travails of performers who are either so innovative – perish the thought! – as to not fit into an easily defined cultural category or haven’t yet reached U2-like levels of popularity. 

Reads one denial: “The evidence repeatedly suggests the group performs a hybrid or fusion style of music … [which] cannot be considered culturally unique to one particular country, nation, society, class, ethnicity, religion, tribe or other group of persons.”

Reads another: “Being internationally acclaimed is not equivalent to performing on stages overseas.”

You can’t make this stuff up!  It reminds me of my own immigration plight – which ended happily earlier this year – whereby I shot myself in the foot by, among other ridiculous things, getting my education in the United States instead of acquiring legal expertise abroad (at lesser institutions, making myself less valuable to the U.S. legal market).

I’ve heard some talk that Congress will take up immigration reform after it finishes with health care, though I can’t imagine that happening in an election year.  In any event, I’ve long believed that our immigration non-policy is the worst part of the U.S. government (which should say something, coming from someone at Cato).

For more on our work on immigration policy, go here.

Health Care Mandate Is Unconstitutional — and Don’t Leave Home Without the Cato Constitution

Yesterday the Heritage Foundation released a new paper on the unconstitutionality of the proposed health care mandate.  Think tanks aren’t normally in the habit of promoting their peer institutions’ work, but this paper is incredibly timely and its lead author is Cato senior fellow Randy Barnett.  You really should go read it.

Interestingly, at the event unveiling the paper, Eugene Volokh (of UCLA Law School and the Volokh Conspiracy blog) at one point wanted to quote the Constitution and realized he wasn’t carrying one! Eugene asked if anyone had a Heritage Constitution.  Former Attorney General Ed Meese, now chairman of Heritage’s Center for Legal and Judicial Studies, saved the day by passing Eugene his… handy, dandy, Washington Post-bestselling Cato Constitution.  It seems that General Meese likes our version because it’s smaller and so fits easier into your pocket.  (I would add that it also features the Declaration of Independence – as does Heritage’s – as well as a preface by my boss, Roger Pilon.)

You can watch the entire health care event, which features Senator Orrin Hatch along with Randy and Eugene, here (the Constitution bit starts at about 40:15; I ask a question at 1:04:46).  The bottom line – beyond the health care abomination – is that you should always carry your Cato pocket Constitution wherever you go.  Like Josh Blackman, I keep one in every suit jacket (as well as backpacks, totebags, briefcases, and roll-aboards).  You never know when you – or someone else – may need it.

They also make great stocking stuffers and gifts for any night of Hanukkah (as does the latest Cato Supreme Court Review, though you may need a slightly larger stocking).