Topic: Law and Civil Liberties

Use Your Law Deferment to Work for Liberty!

Many law firms are asking their incoming first-year associates to defer their start dates (from a few months to a full year) and are offering stipends to these deferred associates to work at public interest organizations. Cato has been running a deferred associates program for the last few months and we are now extending it for as long as top-notch candidates want to ride out the economy with us.

The Cato Institute invites third-year law students and others facing firm deferrals to apply to work at our Center for Constitutional Studies. This is an opportunity to assist projects ranging from Supreme Court amicus briefs to policy papers to the Cato Supreme Court Review. Start and end dates are flexible. Interested students and graduates should email a cover letter, resume, transcript, and writing sample, along with any specific details of their deferment (timing, availability of stipend, etc.) to Jonathan Blanks at jblanks [at] cato.org.

Please feel free to pass the above information to your friends and colleagues. For information on Cato’s programs for non-graduating students, contact Joey Coon at jcoon [at] cato.org (jcoon [at] cato.org.)

Big Out-of-Control Government Has Had Better Days at the Supreme Court

This morning at the Supreme Court, the federal government argued for the continued existence of the Public Company Accounting Oversight Board (PCAOB, pronounced peek-a-boo) – and by extension the nefarious financial regulatory scheme known as Sarbanes-Oxley.  Cato filed a brief supporting a free market advocacy group and an accounting firm, who sued PCAOB for violating both the Appointments Clause and general constitutional separation-of-powers principles.

Passed with scant deliberation in the wake of the Enron and WorldCom scandals, the Sarbanes-Oxley Act of 2002 established PCAOB to oversee the accounting practices of the nation’s public companies.  As my piece with Cato legal associate Travis Cushman details today, PCAOB enjoys the rare authority to make its own laws, collect taxes, inspect records, prosecute infractions, make judgments, and impose sanctions.

Traditionally, independent agencies that serve such executive functions must be accountable to the president.  PCAOB members, however, may only be removed “for cause” by members of the Securities and Exchange Commission, who in turn may only be removed “for cause” by the president.  I previously blogged about the case, Free Enterprise Fund v. PCAOBhere, here, and here.

As far as how the argument went, I think the forces of limited constitutional government have eked out a 5-4 victory.  Justices Ginsburg, Breyer, and Sotomayor were extremely hostile to the challengers’ argument, while the Chief Justice and Justices Scalia and Alito were supportive.  (Scalia at one point joked that he had no less power than the president – meaning not very much – to influence PCAOB.)  Justice Stevens only spoke up once but seemed to show a leaning towards the government position.  Justice Thomas, while remaining silent, can be expected to support the view of D.C. Circuit Judge Brett Kavanaugh – whose blistering yet scholarly dissent likely prompted the Court to take up the case.

And so the ruling rests, as often happens with the most interesting cases, on the shoulders of Justice Kennedy.  I remain cautiously optimistic that Kennedy will decide to uphold constitutional checks and balances and strike down what has become an unholy new branch of government.

Two curious notes from the argument: 1. Petitioners’ counsel Michael Carvin referenced Cato’s brief in discussing PCAOB’s overreach internationally – seeking to regulate even foreign accounting standards – without oversight from the State Department or the SEC, let alone the president; 2. PCAOB brought its own lawyer to argue alongside the solicitor general, begging the question: if PCAOB is subservient to the SEC and/or the president, why does it need its own counsel to represent its own views?

Adding Free Speech Insult to Property Rights Injury

My friend and former law firm colleague Mark Sigmon – who co-authored Cato’s brief in the New Haven firefighters case – is representing a man facing daily fines for displaying a large political message on his house.

David Bowden was upset about the way he had been treated by the town of Cary, NC, regarding damage to his property during a road-widening project.  This past July, Bowden hired someone to paint “Screwed By The Town of Cary” on the front of his house.  A few weeks ago, the town gave Bowden seven days to remove the sign or face daily fines – $100 for the first day, $250 for the second, $500 for each subsequent day – for violating a local sign ordinance. That’s when Mark, who’s affiliated with the ACLU of North Carolina, filed a lawsuit on Bowden’s behalf.   The complaint alleges that the town violated Bowden’s rights to free speech and to petition his government under the First Amendment and similar provisions of North Carolina’s constitution.

While the facts of this case are a bit colorful – and I’m sure Mark is enjoying the notoriety (here’s his appearance on Fox & Friends) – this is no laughing matter.  The town appears to be compounding the damage it did to a resident’s property rights by now violating his rights to speech and political expression. At least now the town has agreed to refrain from enforcing its ordinance and levying fines until the case is resolved – which is essentially a capitulation to Bowden’s request for a preliminary injunction.

For more news on this story go here, here, and here. And you can read the ACLU’s press release and access all the legal pleadings in the case here.

The Virtual Fourth Amendment

I’ve just gotten around to reading Orin Kerr’s fine paper “Applying the Fourth Amendment to the Internet: A General Approach.”  Like most everything he writes on the topic of technology and privacy, it is thoughtful and worth reading.  Here, from the abstract, are the main conclusions:

First, the traditional physical distinction between inside and outside should be replaced with the online distinction between content and non-content information. Second, courts should require a search warrant that is particularized to individuals rather than Internet accounts to collect the contents of protected Internet communications. These two principles point the way to a technology-neutral translation of the Fourth Amendment from physical space to cyberspace.

I’ll let folks read the full arguments to these conclusions in Orin’s own words, but I want to suggest a clarification and a tentative objection.  The clarification is that, while I think the right level of particularity is, broadly speaking, the person rather than the account, search warrants should have to specify in advance either the accounts covered (a list of e-mail addresses) or the method of determining which accounts are covered (“such accounts as the ISP identifies as belonging to the target,” for instance).  Since there’s often substantial uncertainty about who is actually behind a particular online identity, the discretion of the investigator in making that link should be constrained to the maximum practicable extent.

The objection is that there’s an important ambiguity in the physical-space “inside/outside” distinction, and how one interprets it matters a great deal for what the online content/non-content distinction amounts to. The crux of it is this: Several cases suggest that surveillance conducted “outside” a protected space can nevertheless be surveillance of the “inside” of that space. The grandaddy in this line is, of course, Katz v. United States, which held that wiretaps and listening devices may constitute a “search” though they do not involve physical intrusion on private property. Kerr can accomodate this by noting that while this is surveillance “outside” physical space, it captures the “inside” of communication contents. But a greater difficulty is presented by another important case, Kyllo v. United States, with which Kerr deals rather too cursorily.

In Kyllo, the majority—led, perhaps surprisingly, by Justice Scalia!—found that the use without a warrant of a thermal imaging scanner to detect the use of marijuana growing lights in a private residence violated the Fourth Amendment. As Kerr observes, the crux of the disagreement between the majority and the dissent had to do with whether the scanner should be considered to be gathering private information about the interior of the house, or whether it only gathered information (about the relative warmth of certain areas of the house) that might have been obtained by ordinary observation from the exterior of the house.  No great theoretical problem, says Kerr: That only shows that the inside/outside line will sometimes be difficult to draw in novel circumstances. Online, for instance, we may be unsure whether to regard the URL of a specific Web page as mere “addressing” information or as “content”—first, because it typically makes it trivial to learn the content of what a user has read, and second, because URLs often contain the search terms manually entered by users. A similar issue arose with e-mail subject lines, which now seem by general consensus to be regarded as “content” even though they are transmitted in the “header” of an e-mail.

Focus on this familiar (if thorny) line drawing problem, however, misses what is important about the Kyllo case, and the larger problem it presents for Kerr’s dichotomy: Both the majority and the dissent seemed to agree that a more sophisticated scanner capable of detecting, say, the movements of persons within the house, would have constituted a Fourth Amendment search. But reflect, for a moment, on what this means given the way thermal imaging scanners operate. Infrared radiation emitted by objects within the house unambiguously ends up “outside” the house: A person standing on the public street cannot help but absorb some of it. What all the justices appeared to agree on, then, is that the collection and processing of information that is unambiguously outside the house, and is conducted entirely outside the house, may nevertheless amount to a search because it is surveillance of and yields information about the inside of the house. This means that there is a distinction between the space where information is acquired and the space about which it is acquired.

This matters for Kerr’s proposed content/non-content distinction, because in very much the same way, sophisticated measurement and analysis of non-content information may well yield information about content. A few examples may help to make this clear. Secure Shell (SSH) is an encrypted protocol for secure communications. In its interactive mode, SSH transmits each keystroke as a distinct packet—and this packet transmission information is non-content information of the sort that might be obtained, say, using a so-called pen/trap order, issued using a standard of mere “relevance” to an investigation, rather than the “probable cause” required for a full Fourth Amendment search—the same standard Kerr agrees should apply to communications. Yet there are strong and regular patterns in the way human beings type different words on a standard keyboard, such that the content of what is typed—under SSH or any realtime chat protocol that transmits each keystroke as a packet—may be deducible from the non-content packet transmission data given sufficiently advanced analytic algorithms. The analogy to the measurement and analysis of infrared radiation in Kyllo is, I think, quite strong.

It is not hard to come up with a plethora of similar examples. By federal statute, records of the movies a person rents enjoy substantial privacy protection, and the standard for law enforcement to obtain them—probable cause showing of “relevance” and prior notice to the consumer—is higher than required for a mere pen/trap. Yet precise analysis of the size of a file transmitted from a service like Netflix or iTunes could easily reveal either the specific movie or program downloaded, or at the least narrow it down to a reasonably small field of possibilities. Logs of the content-sensitive advertising served by a service like Gmail to a particular user may reveal general information about the contents of user e-mails. Sophisticated social network analysis based on calling or e-mailing patterns of multiple users may reveal, not specific communications contents, but information about the membership and internal structure of various groups and organizations. That amounts to revealing the “contents” of group membership lists, which could have profound First Amendment implications in light of a string of Supreme Court precedents making it clear that state compelled disclosure of such lists may impermissibly burden the freedom of expressive association even when it does not run afoul of Fourth Amendment privacy protections. And running back to Kyllo, especially as “smart” appliances and ubiquitous networked computing become more pervasive, analysis of non-content network traffic may reveal enormous amounts of information about the movements and activities of people within private homes.

Here’s one way to describe the problem here: The combination of digital technology and increasingly sophisticated analytic methods have complicated the intuitive link between what is directly observed or acquired and what is ultimately subject to surveillance in a broader sense. The natural move here is to try to draw a distinction between what is directly “acquired” and what is learned by mere “inference” from the information acquired. I doubt such a distinction will hold up. It takes a lot of sophisticated processing to turn ambient infrared radiation into an image of the interior of a home; the majority in Kyllo was not sympathetic to the argument that this was mere “inference.” Strictly speaking, after all, the data pulled off an Internet connection is nothing but a string of ones and zeroes. It is only a certain kind of processing that renders it as the text of an e-mail or an IM transcript. If a different sort of processing can derive the same transcript—or at least a fair chunk of it—from the string of ones and zeroes representing packet transmission timing, should we presume there’s a deep constitutional difference?

That is not to say there’s anything wrong with Kerr’s underyling intuition.  But it does, I think, suggest that new technologies will increasingly demand that privacy analysis not merely look at what is acquired but at what is done with it. In a way, the law’s hyperfocus on the moment of acquisition as the unique locus of Fourth Amendment blessing or damnation is the shadow of the myopically property-centric jurisprudence the Court finally found to be inadequate in Katz. As Kerr intimates in his paper, shaking off the digital echoes of that legacy—with its convenient bright lines—is apt to make things fiendishly complex, at least in the initial stages.  But I doubt it can be avoided much longer.

The ‘Honest Services’ Law

Next week the Supreme Court will be hearing two criminal cases involving the controversial “honest services” law that has been used by federal prosecutors in recent years to police ethics in government and business.  By focusing attention on the (sometimes)  shady dealings of their targets, federal prosecutors have been able to deflect attention away their own actions, at least with regard to this statute.  No longer. 

We have a preview of next week’s Supreme Court argument because Justice Scalia filed an opinion in February lamenting the fact that the Court had just declined to hear an appeal involving the honest services statute.  Here is an excerpt from Scalia’s opinion:

It is practically gospel in the lower courts that the statute “does not encompass every instance of official misconduct,” United States v. Sawyer, 85 F. 3d 713, 725 (CA1 1996). The Tenth Circuit has confidently proclaimed that the statute is “not violated by every breach of contract, breach of duty, conflict of interest, or misstatement made in the course of dealing,” United States v. Welch, 327 F. 3d 1081, 1107 (CA10 2003). But why that is so, and what principle it is that separates the criminal breaches, conflicts and misstatements from the obnoxious but lawful ones, remains entirely unspecified. Without some coherent limiting principle to define what “the intangible right of honest services” is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.

Is it the role of the Federal Government to define the fiduciary duties that a town alderman or school board trustee owes to his constituents? It is one thing to enact and enforce clear rules against certain types of corrupt behavior, e.g., 18 U. S. C. §666(a) (bribes and gratuities to public officials), but quite another to mandate a freestanding, open-ended duty to provide”honest services” — with the details to be worked out case by-case.

Read the whole thing (pdf).  A few weeks after Scalia filed this opinion, the Court evidently reconsidered and accepted several appeals involving the honest services law.  

For additional information, here is a podcast interview and an article I prepared for the Washington Legal Foundation.  For more detailed info on the cases before the Supreme Court, go to SCOTUS blog

For info on trends in the criminal law more generally, go here, here, and here.

A Victory for Property Rights

Ilya Shapiro warns us that the U.S. Supreme Court probably will not uphold property rights in a case involving Florida beachfront property.  But property rights did receive an unexpected boost in New York yesterday, where an appeals court overturned a taking for the benefit of Columbia University.

Reports the New York Times:

A New York appeals court ruled Thursday that the state could not use eminent domain on behalf of Columbia University to obtain parts of a 17-acre site in Upper Manhattan, setting back plans for a satellite campus at a time of discord over government power to acquire property.

In a 3-to-2 decision, a panel of the Appellate Division of State Supreme Court in Manhattan annulled the state’s 2008 decision to take property for the expansion project, saying that its condemnation procedure was unconstitutional.

The majority opinion was scathing in its appraisal of how the “scheme was hatched,” using terms like “sophistry” and “idiocy” in describing how the state went about declaring the neighborhood blighted, the main prerequisite for eminent domain.

The $6.3 billion expansion plan is not dead; an appeal has been promised, and Columbia still controls most of the land. But at a time when the government’s use of eminent domain on behalf of private interests has become increasingly controversial, the ruling was a boon for opponents.

“I feel unbelievable,” said Nicholas Sprayregen, the owner of several self-storage warehouses in the Manhattanville expansion area and one of two property owners who have refused to sell to the university. “I was always cautiously optimistic. But I was aware we were going against 50 years of unfair cases against property owners.”

New York state is not a particularly friendly venue to property rights, but the judges rightly saw through the claims made by state official to justify seizing property from a private person for the benefit of a private organization.  The ruling could be reversed, but nevertheless is an important affirmation that property rights warrant constitutional and legal protection even in New York.

Iranian Thugs Take Crackdown Worldwide

Political repression is old news.   Thuggish regimes have been holding their citizens prisoner for centuries.  But Iran’s government now is borrowing an innovative Soviet and Nazi tactic:  targeting family members of dissenters, even those living in the U.S.

Reports the Wall Street Journal:

His first impulse was to dismiss the ominous email as a prank, says a young Iranian-American named Koosha. It warned the 29-year-old engineering student that his relatives in Tehran would be harmed if he didn’t stop criticizing Iran on Facebook.

Two days later, his mom called. Security agents had arrested his father in his home in Tehran and threatened him by saying his son could no longer safely return to Iran.

“When they arrested my father, I realized the email was no joke,” said Koosha, who asked that his full name not be used.

Tehran’s leadership faces its biggest crisis since it first came to power in 1979, as Iranians at home and abroad attack its legitimacy in the wake of June’s allegedly rigged presidential vote. An opposition effort, the “Green Movement,” is gaining a global following of regular Iranians who say they never previously considered themselves activists.

The regime has been cracking down hard at home. And now, a Wall Street Journal investigation shows, it is extending that crackdown to Iranians abroad as well.

In recent months, Iran has been conducting a campaign of harassing and intimidating members of its diaspora world-wide – not just prominent dissidents – who criticize the regime, according to former Iranian lawmakers and former members of Iran’s elite security force, the Revolutionary Guard, with knowledge of the program.

Unfortunately, there is little the West can do.  Despite the seemingly common belief in hawkish circles that Washington merely need speak the word and other nations will obey,  there is no magic wand that President Obama can wave to democratize Iran.  And refusing to engage Iran over its nuclear program would do nothing to aid human rights activists while losing the admittedly faint hope of resolving the issue diplomatically.

However, there is reason for hope.  The crackdown bespeaks desperation.  The militarized regime continues to lose credibility, including religious backing.  Reports the New York Times:

Iran’s most senior cleric denounced the role of the volunteer militia force known as the Basij in the crackdown against protesters, saying the force’s actions were against religion and “in the path of Satan.”

The cleric, Grand Ayatollah Hossein Ali Montazeri, condemned the force in a statement posted on an opposition Web site, mowjcamp.com, decreeing that “the assailants have acted against religion and must pay blood money” to those who were wounded or to their families.

Ultimately, the Iranian people can count only on themselves to achieve freedom.  But people of good will around the world should offer their support in the continuing battle against tyranny.