Topic: Law and Civil Liberties

Three Keys to Surveillance Success: Location, Location, Location

The invaluable Chris Soghoian has posted some illuminating—and sobering—information on the scope of surveillance being carried out with the assistance of telecommunications providers.  The entire panel discussion from this year’s ISS World surveillance conference is well worth listening to in full, but surely the most striking item is a direct quotation from Sprint’s head of electronic surveillance:

[M]y major concern is the volume of requests. We have a lot of things that are automated but that’s just scratching the surface. One of the things, like with our GPS tool. We turned it on the web interface for law enforcement about one year ago last month, and we just passed 8 million requests. So there is no way on earth my team could have handled 8 million requests from law enforcement, just for GPS alone. So the tool has just really caught on fire with law enforcement. They also love that it is extremely inexpensive to operate and easy, so, just the sheer volume of requests they anticipate us automating other features, and I just don’t know how we’ll handle the millions and millions of requests that are going to come in.

To be clear, that doesn’t mean they are giving law enforcement geolocation data on 8 million people. He’s talking about the wonderful automated backend Sprint runs for law enforcement, LSite, which allows investigators to rapidly retrieve information directly, without the burden of having to get a human being to respond to every specific request for data.  Rather, says Sprint, each of those 8 million requests represents a time when an FBI computer or agent pulled up a target’s location data using their portal or API. (I don’t think you can Tweet subpoenas yet.)  For an investigation whose targets are under ongoing realtime surveillance over a period of weeks or months, that could very well add up to hundreds or thousands of requests for a few individuals. So those 8 million data requests, according to a Sprint representative in the comments, actually “only” represent “several thousand” discrete cases.

As Kevin Bankston argues, that’s not entirely comforting. The Justice Department, Soghoian points out, is badly delinquent in reporting on its use of pen/trap orders, which are generally used to track communications routing information like phone numbers and IP addresses, but are likely to be increasingly used for location tracking. And recent changes in the law may have made it easier for intelligence agencies to turn cell phones into tracking devices.  In the criminal context, the legal process for getting geolocation information depends on a variety of things—different districts have come up with different standards, and it matters whether investigators want historical records about a subject or ongoing access to location info in real time. Some courts have ruled that a full-blown warrant is required in some circumstances, in other cases a “hybrid” order consisting of a pen/trap order and a 2703(d) order. But a passage from an Inspector General’s report suggests that the 2005 PATRIOT reauthorization may have made it easier to obtain location data:

After passage of the Reauthorization Act on March 9, 2006, combination orders became unnecessary for subscriber information and [REDACTED PHRASE]. Section 128 of the Reauthorization Act amended the FISA statute to authorize subscriber information to be provided in response to a pen register/trap and trace order. Therefore, combination orders for subscriber information were no longer necessary. In addition, OIPR determined that substantive amendments to the statute undermined the legal basis for which OIPR had received authorization [REDACTED PHRASE] from the FISA Court. Therefore, OIPR decided not to request [REDACTED PHRASE] pursuant to Section 215 until it re-briefed the issue for the FISA Court. As a result, in 2006 combination orders were submitted to the FISA Court only from January 1, 2006, through March 8, 2006.

The new statutory language permits FISA pen/traps to get more information than is allowed under a traditional criminal pen/trap, with a lower standard of review, including “any temporarily assigned network address or associated routing or transmission information.” Bear in mind that it would have made sense to rely on a 215 order only if the information sought was more extensive than what could be obtained using a National Security Letter, which requires no judicial approval. That makes it quite likely that it’s become legally easier to transform a cell phone into a tracking device even as providers are making it point-and-click simple to log into their servers and submit automated location queries.  So it’s become much more  urgent that the Justice Department start living up to its obligation to start telling us how often they’re using these souped-up pen/traps, and how many people are affected.  In congressional debates, pen/trap orders are invariably mischaracterized as minimally intrusive, providing little more than the list of times and phone numbers they produced 30 years ago.  If they’re turning into a plug-and-play solution for lojacking the population, Americans ought to know about it.

If you’re interested enough in this stuff to have made it through that discussion, incidentally, come check out our debate at Cato this afternoon, either in the flesh or via webcast. There will be a simultaneous “tweetchat” hosted by the folks at Get FISA Right.

Likely Supreme Court Tie Would Be a Loss to Property Owners

Today, the Supreme Court heard argument in Stop the Beach Renourishment v. Florida Department of Environmental Protection, which is a Fifth Amendment Takings Clause challenge involving beachfront property (that I previously discussed here).

Essentially, Florida’s ”beach renourishment” program created more beach but deprived property owners of the rights they previously had – exclusive access to the water, unobstructed view, full ownership of land up to the “mean high water mark,” etc. That is, the court turned beachfront property into “beachview” property.  After the property owners successfully challenged this action, the Florida Supreme Court – “SCOFLA” for those who remember the Bush v. Gore imbroglio – reversed the lower court (and overturned 100 years of common property law), ruling that the state did not owe any compensation, or even a proper eminent domain hearing.

As Cato adjunct scholar and Pacific Legal Foundation senior staff attorney Timothy Sandefur noted in his excellent op-ed on the case in the National Law Journal, “[T]he U.S. Constitution also guarantees every American’s right to due process of law and to protection of private property. If state judges can arbitrarily rewrite a state’s property laws, those guarantees would be meaningless.”

I sat in on the arguments today and predict that the property owners will suffer a narrow 4-4 defeat.  That is, Justice Stevens recused himself – he owns beachfront property in a different part of Florida that is subject to the same renourishment program – and the other eight justices are likely to split evenly.  And a tie is a defeat in this case because it means the Court will summarily affirm the decision below without issuing an opinion or setting any precedent.

By my reckoning, Justice Scalia’s questioning lent support to the property owners’ position, as did Chief Justice Roberts’ (though he could rule in favor of the “judicial takings” doctrine in principle but perhaps rule for the government on a procedural technicality here).  Justice Alito was fairly quiet but is probably in the same category as the Chief Justice.  Justice Thomas was typically silent but can be counted on to support property rights.  With Justices Ginsburg, Breyer, and Sotomayor expressing pro-government positions, that leaves Justice Kennedy, unsurprisingly, as the swing vote.  Kennedy referred to the case as turning on a close question of state property law, which indicates his likely deference to SCOFLA.

For more analysis of the argument, see SCOTUSblog.  Cato filed an amicus brief supporting the land owners here, and earlier this week I recorded a Cato Podcast to that effect. Cato also recently filed a brief urging the Court to hear another case of eminent domain abuse in Florida, 480.00 Acres of Land v. United States.

Virginia Messes With Yoga Instructors’ Chi

Not to be too much of a megaphone for the Institute for Justice, but the “merry band of litigators” has struck again, this time going after the rigid rules stopping Virginians from finding inner peace.  It seems that in the fair commonwealth, you need a permit to teach yoga, which process entails paying $2500 and getting your “curriculum” approved by state bureaucrats, as well as other barriers to entry. For more details, see IJ’s case page and read this editorial in the Richmond Times-Dispatch.

Also, check out IJ’s video:

Tacoma Police Killings

National Review Online invited me to offer comments on the four police officers who were murdered in Tacoma, Washington.  Here’s an excerpt:

The vicious killing of the police officers in Tacoma, Washington, may well have political repercussions for Mike Huckabee, as others have noted here. The primary suspect is Maurice Clemmons, who in 1989 received a 95-year prison sentence that was later commuted, in 2000, by then–Governor Huckabee. Whenever Clemmons has been free, he seems to have perpetrated still more violent crimes, according to the news stories.

I would, however, caution against a blanket condemnation of pardons, as well as any hasty move to simply abolish parole. The American criminal-justice system is thoroughly swamped. Right now there are more than 7 million people under criminal-justice “supervision.” About 2.5 million are behind bars, and about 4.5 million are on probation or parole. This system is greatly overburdened by non-violent drug offenders. Conditions vary by jurisdiction, but in general there is no prison space left. So it is unrealistic for us to say, “If a prisoner violates parole, send him back to jail immediately!”

Liberals thought it was unfair for Bush 41 to attack Michael Dukakis for his decision to release violent offenders like Willie Horton.  It was not unfair at all because it raised good questions about Dukakis’s judgment.

The best way to curb violent crime is to lock up violent criminals.  Sounds like a no-brainer but our system is swamped with drug offenders.  Problems fester while the pols try to deflect criticism away from themselves.

The Swiss Minaret Ban: Some Things Never Change

minaretIn the Letter Concerning Toleration, John Locke wrote,

Nobody… neither single persons, nor Churches, nay, nor even commonwealths, have any just title to invade the civil rights and worldly goods of each other, upon pretence of religion. Those that are of another opinion would do well to consider with themselves how pernicious a seed of discord and war, how powerful a provocation to endless hatreds, rapines, and slaughters they thereby furnish unto mankind. No peace and security, no, not so much as common friendship, can ever be established or preserved amongst men, so long as this opinion prevails, that dominion is founded in grace, and that religion is to be propagated by force of arms.

A lot has changed since 1685, of course, but some things never will. Even today, the only way that people of different faiths (and of no faith) will ever be able to coexist in the same society is to divorce religion from state compulsion. Separation of church and state is a bargain that everyone can live with. It might just be the only bargain that treats everyone fairly, which is why it’s so important in a globalized, multiethnic world.

For the most part, we in the West have moved steadily toward Locke’s advice. This week the Swiss took a serious step backward:

In a vote that displayed a widespread anxiety about Islam and undermined the country’s reputation for religious tolerance, the Swiss on Sunday overwhelmingly imposed a national ban on the construction of minarets, the prayer towers of mosques, in a referendum drawn up by the far right and opposed by the government.

The referendum, which passed with a clear majority of 57.5 percent of the voters and in 22 of Switzerland’s 26 cantons, was a victory for the right. The vote against was 42.5 percent. Because the ban gained a majority of votes and passed in a majority of the cantons, it will be added to the Constitution.

The Swiss Constitution guarantees freedom of religion, but the rightist Swiss People’s Party, or S.V.P., and a small religious party had proposed inserting a single sentence banning the construction of minarets, leading to the referendum.

The Swiss government said it would respect the vote and sought to reassure the Muslim population — mostly immigrants from other parts of Europe, like Kosovo and Turkey — that the minaret ban was “not a rejection of the Muslim community, religion or culture.”

…Of 150 mosques or prayer rooms in Switzerland, only 4 have minarets, and only 2 more minarets are planned. None conduct the call to prayer. There are about 400,000 Muslims in a population of some 7.5 million people. Close to 90 percent of Muslims in Switzerland are from Kosovo and Turkey, and most do not adhere to the codes of dress and conduct associated with conservative Muslim countries like Saudi Arabia, said Manon Schick, a spokeswoman for Amnesty International in Switzerland.

“Most painful for us is not the minaret ban, but the symbol sent by this vote,” said Farhad Afshar, who runs the Coordination of Islamic Organizations in Switzerland. “Muslims do not feel accepted as a religious community.”

It’s transparently false to say that the minaret ban is “not a rejection of the Muslim community.” Of course it is a rejection of the Muslim community. It is a calculated, symbolic rejection. They didn’t go banning cloisters or mikvehs, after all. And because none of the existing minarets perform the daily calls to prayer, they can’t even say that the measure prevents noise pollution. (An excuse that would, if we were at all serious about it, ban Catholic church bells, while leaving the silent minarets untouched.)

As Locke might have observed, the Swiss ban on minarets isn’t going to calm religious tensions. It’s only going to make them worse, because now we know that the state is willing and able to use its power to disfavor a religion. It’s an open invitation, yet again, to everyone with a religious agenda: Use force, not persuasion. After all, that’s how they do it in (civilized, peace-loving) Switzerland!

Still more unfortunate is that Muslims feel the need to ask the government for acceptance in the first place. Someone should tell them that this is totally unbefitting a proud faith like their own, which should stand or fall on divine truth, not on popular referendum. A government that kept out of religious matters would neither restrict Islam nor feel the need to be falsely reassuring about it. And, under such a government, people of all religious persuasions would have a lot less to worry about.

Again, Locke is instructive:

Is it permitted to speak Latin in the market-place? Let those that have a mind to it be permitted to do it also in the Church. Is it lawful for any man in his own house to kneel, stand, sit, or use any other posture; and to clothe himself in white or black, in short or long garments? Let it not be made unlawful to eat bread, drink wine, or wash with water in the Church. In a word, whatsoever things are left free by law in the common occasions of life, let them remain free unto every Church in divine worship.

And, for the squeamish, Locke adds:

If anything pass in a religious meeting seditiously, and contrary to the public peace, it is to be punished in the same manner, and no otherwise, than as if it had happened in a fair or market.

Some things never change.

Is Cato ‘Liberal’ on Criminal Law Issues?

Kent Scheidegger, who blogs over at Crime and Consequences, takes issue with the recent New York Times article that said liberal and conservative groups are finding common ground on criminal justice issues.  He makes some fair observations but then he had this to say about Cato:

The picture is somewhat complicated by the existence of libertarian groups such as Cato that side with conservatives on economic issues and liberals on criminal law issues, but that is an issue of taxonomy rather than realignment.

I don’t think that’s accurate at all.  To begin with, Cato has been very critical of gun control regulations.  A few other issues where we part company with our liberal friends include hate crime legislation (and the role of the federal government more generally), welfare/social spending, and the rights of businesspeople.  There are doubtless more issues, but this should suffice.  I might add that ending the misguided drug war is a major objective, but there are plenty of conservatives who agree with libertarians on that topic.

More Cato scholarship here.