Topic: Law and Civil Liberties

Policing for Profit

The Institute for Justice has produced a study, Policing for Profit, which highlights the abuse of civil asset forfeiture laws. Law enforcement agencies are empowered across the nation to seize and keep property suspected of involvement in criminal activity. Unlike criminal  asset forfeiture, however, with civil forfeiture, a property owner need not be found guilty of a crime—or even charged—to permanently lose her cash, car, home or other property.

Most state laws are written in such a way as to encourage police agents to pursue profit instead of seeking the neutral administration of justice. The report grades each state and the federal government on its forfeiture laws and other measures of abuse. The results are appalling: Six states earned an F and 29 states and the federal government received a grade of D.

Institute for Justice has more on the report here, including a video showing the injustice created by these laws.

Cato is holding an event to highlight the findings of this report on Wednesday, April 28. Please join us for a discussion of policing, constitutional rights, and government accountability. You can register here.

School Laptop Spycams Took 56,000 Pictures

Last week, I wrote that we’d learned that the Lower Merion School District may have gathered many more photos of more students than had previously been revealed. Now, the Philadelphia Inquirer has put a number on it: A security program installed on laptops assigned to students captured 56,000 images over the course of two years, including screenshots (showing programs in use and private messages being sent) and surreptitious webcam photos of students at home.

Many of these images, it should be noted at the outset, do appear to have come from laptops that really had been stolen. Almost two-thirds of the total came from six laptops that had been stolen from a high school gym, and which kept transmitting for  almost six months, though even there it’s a close question whether a warrant should have been obtained. (Why it took six months to recover the laptops with an active security program running is a good question for another time.) But many of those pictures seem much harder to justify:

[I]n at least five instances, school employees let the Web cams keep clicking for days or weeks after students found their missing laptops, according to the review. Those computers - programmed to snap a photo and capture a screen shot every 15 minutes when the machine was on - fired nearly 13,000 images back to the school district servers.

Emphasis added. The district also says it only once activated the tracking program because a student had not paid the $55 insurance fee required before taking a laptop home. Blake Robbins, the student whose lawsuit brought the story to national attention, says that one case was his.  That raises obvious questions about whether school officials might have exercised their discretion to activate the tracking program more readily in the case of particular students. The activation procedure itself hardly imbues one with great confidence: Apparently 10 school officials had the authority to request laptop tracking, which they might do with a simple informal e-mail.

Just turn this over in your head for a moment. You’ve got ten different administrators—and in practice, the network techs themselves—able to turn a child’s home laptop into a remote surveillance camera just by sending an e-mail reporting that a laptop is missing, or that a fee didn’t get paid on time. The laptop can take thousands of photos over the course of days or weeks, with neither parents nor students any the wiser until a scandal forces closer scrutiny. If Robbins hadn’t been confronted, or if administrators had made a point of deleting these pictures of children at home rather than keeping them lying around in storage indefinitely, there’s no reason to think anyone would ever have known.  How many tens of thousands of parents have kids in one-to-one school laptop programs now? What don’t they know?

Court Ruling Is About Free Speech, Not Animal Cruelty

As expected from the oral argument in U.S. v. Stevens last fall - when Justice Alito was alone in expressing some support for the government’s position - the Court on Tuesday upheld the First Amendment by declining to add a category of unprotected speech. This was not, after all, a case about the “human sacrifice channel” or Michael Vick’s greatest dog fights. Indeed, cruelty to animals should be and is punished everywhere in the country. Instead, at issue here was a broadly drawn “depiction of animal cruelty” statute that could have ensnared Spanish tourism brochures or hunting instructional videos. More fundamentally, the Court rightly rejected the government’s proposed weighing of the “value” of speech against its “social cost.” That’s simply not the way Americans view the First Amendment.

The case is also notable because a solid majority of the Court rejected the “speech balancing test” defended by Solicitor General Elena Kagan, often mentioned as being on the short list of candidates to succeed retiring Justice John Paul Stevens.  Chief Justice Roberts’ opinion, joined by all of the panel’s liberal justices, went so far as to call that argument by Kagan “startling and dangerous.”  That is the kind of legal reproach that tends to be revisited at confirmation hearings.

Don’t Confuse Me with the Facts

Opposition is building to the proposed D.C. Voting Rights Act because it also restricts D.C.’s draconian gun-control laws. Mary G. Wilson, president of the League of Women Voters of the United States, and Billie Day, president of the League of Women Voters of the District of Columbia, said today that “asking citizens to sacrifice their safety in order to have representation in Congress is unacceptable.”

And on NPR’s Morning Edition today, we heard the thoughts of D.C. councilwoman Mary Cheh, my con law professor: “I would rather wait to eternity before I bow down to the gun lobby and say ‘The only way I’m gonna get this is if we give up the right to protect ourselves.’”

The District’s gun laws protect us? By keeping guns out of the hands of criminals?

Students Have the Right to Free Speech, Too

A northern Texas school district attempted to banish all religious expression from its schools by prohibiting virtually all non-verbal student speech in any school-related context.  Officials used this broad policy to promote an anti-religious orthodoxy and root out any and all religious speech. The Supreme Court made clear, however, in its seminal school speech case, Tinker v. Des Moines Independent Community School District, that students enjoy First Amendment rights, and that core political and religious speech cannot be suppressed without showing that the speech will “materially and substantially disrupt” the educational process.

Here, the Fifth Circuit upheld all of the district’s regulations and found that Tinker did not supply the relevant legal standard.  It instead applied the intermediate scrutiny “time, place, and manner” test of United States v. O’Brien. At issue is whether the school district’s speech policy should be evaluated under Tinker’s “substantial disruption” standard or under O’Brien’s intermediate scrutiny.

Cato, joined by three groups that promote religious liberty, filed a brief asking the Supreme Court to take up the case because the Fifth Circuit’s approach permits schools to enforce sweeping speech codes by which virtually all speech may be prohibited.  Permitting a wholesale content- and viewpoint-neutral ban on all speech or a form of speech as an alternative to the Tinker standard will result in the erosion and eventual elimination of student speech rights.

The name of the case is Morgan v. Plano Independent School District; the Court will likely decide by the end of June whether to hear the case this fall.


The Latest ‘Intelligence Gap’

Stop me if you think you’ve heard this one before. The Washington Post reports that the National Security Agency has halted domestic collection of some type of communications metadata—the details are predictably fuzzy, though I’ve got a guess—in order to allay the concerns of the secret FISA Court that the NSA’s activity might not be technically permissible under the Foreign Intelligence Surveillance Act. Naturally, there’s the requisite quote from the anonymous concerned intel official:

“This is a basic tool we used to have, and it’s now gone,” said one intelligence official familiar with the impasse. “Every day, every week that goes by, there’s just one more week of information that we’re not collecting. You sit there and say, ‘This is unbelievable that we have this gap.’”

I want to take claims like these with due gravity, but I can’t anymore.  Because we’ve heard them again and again over the past decade, and they’ve proven to be bogus every time.  We were told that the civil liberties restrictions built into pre-9/11 surveillance law kept the FBI from searching “20th hijacker” Zacarias Moussaoui’s laptop—but a bipartisan Senate panel found it wasn’t true. We were told limits on National Security Letters were FBI delaying agents seeking vital records in their investigations—but the delay turned out to have been manufactured by the FBI itself. Most recently, we were warned that the FISA Court had somehow imposed a requirement that a warrant be obtained in order to intercept purely foreign telephone calls that were traveling through U.S. wires.  Anyone who understood the FISA law realized that this couldn’t possibly be right—and as Justice Department officials finally admitted under pressure, that wasn’t true either.  But this time there’s a really real for serious “intelligence gap” and we’ll all be blown up by scary terrorists any minute if it’s not fixed?  Pull the other one.

That said, Republicans are claiming the problem requires a mere “technical fix” to FISA, so we should at least be able to get a rough sense of what the issue is, if Congress actually decides to act.  Democrats, by contrast, appear to think NSA can “address the court’s concerns without resorting to legislation.” The word “resort” here seems depressingly apt: They’ll ask for a legislative tweak if there’s absolutely no way to shoehorn what they want to do into the statute through clever lawyering in an ex parte proceeding in front of a highly deferential court, but it’s a last resort.

As for what the problem might be, I can think of a couple of possibilities off the top of my head.  A few years back, the FISA pen register provision was amended to effectively build into the legal order for a standard pen register, which records data about calls or e-mails made and received, language mirroring a legal demand for subscriber records known as a 2703(d) order in the criminal context.  Law enforcement routinely uses that combination of a 2703(d) plus a pen register to get location tracking information for cell phones. But the evidentiary standard for getting a 2703(d) order is (very) slightly higher than the standard for a pen register alone, and federal law prohibits the use of a pen register alone to gather location data. So there might be a question about whether FISA pen registers alone can be used for cell phone location tracking purposes.

Alternatively, given that Internet communications aren’t just “metadata” and “content” but rather a whole series of layers containing different types of information, there could be a question about just how far down “metadata” goes. This might be especially tricky for protocols where quite a lot of information about the content of the communication—which is supposed to require a full probable cause warrant—can be gleaned from sophisticated analysis of the size and timing of packets in the stream.

These are, of course, blind guesses.  What’s disturbing is how much blind guessing the FISA court itself may be doing.  The new hiatus, the Post tells us via an anonymous source, came about when the FISA Court “got a little bit more of an understanding”of what the NSA was up to. Their enhanced understanding concerns data that NSA has been getting with the court’s approval for “several years,” according to the Post. And there you have the real “intelligence gap” in modern surveillance: We have a Court going through a pantomime of oversight over thousands of highly technologically sophisticated interception programs, but it may take a few years for them to really understand what they’ve been signing off on.

We’ll understand still less about the rationale for any “technical fix” to FISA that Congress might approve, if they deign to go that route. But we’ll be reassured that it’s very important, necessary to keep us safe from the terrorist hordes, and nothing worth bothering our pretty heads about.

The Court Looks at Freedom of Association

On Monday morning the Supreme Court will hear oral argument in a case that illustrates clearly how modern American anti-discrimination law can be used to undermine basic human rights. The case, Christian Legal Society v. Martinez, arose after the Hastings College of Law, a large public law school in San Francisco, denied CLS the same recognition and support it granted to some 60 other student organizations on the ground that CLS, contrary to the Hastings nondiscrimination policy, discriminates by requiring that its members and officers abide by certain key tenets of the Christian faith. In a word, in the name of anti-discrimination, Hastings, a government institution, is discriminating against CLS, which is simply exercising its speech, religious, and associational rights.

Cato filed an amicus brief in the case, written by Richard A. Epstein, professor of law at the University of Chicago. To barely summarize our argument, freedom is at the core of the American vision, including freedom of private association. But association has two sides: the right to associate with willing others; and the right not to associate with others, for whatever reason, which amounts to the right to discriminate. Public institutions, by contrast, belong to all of us, so they may discriminate only for reasons closely connected to their missions. Since individuals will associate only if they think themselves better off by doing so, social welfare is improved when government protects private rights of association while itself studiously avoiding discrimination.

Our history in this area has been uneven, of course. Although economic association was generally protected, slavery and Jim Crow were stark exceptions, along with certain other restrictions on personal association. As Progressive Era attacks on the distinction between private and public grew, however, freedom of association in the economic sphere came to be restricted, first by regulatory and later by anti-discrimination laws. Yet in time, courts began carving out exceptions for “personal” or “intimate” association – drawing lines not nearly as bright as that between private and public.

Those decisions today constitute a body of precedents that prohibit government from directly discriminating against parties who are exercising their rights of “expressive association.” But they also protect against indirect discrimination through the imposition of “unconstitutional conditions.” Thus, Hastings cannot tell CLS, “You’re free to go elsewhere to practice your religion, but if you enter our ‘limited public forum,’ which is open to others, you’ve got to give up one or more of your constitutionally protected rights.” In other words, although Hastings doesn’t have to recognize or support any student organizations, once it opens its doors to some, it must do so for all. To do otherwise is to engage in forbidden viewpoint discrimination. Read Cato’s brief for the full story.