Topic: Law and Civil Liberties

Using Guns to Protect Liberty

Tomorrow the Supreme Court will hear oral argument in McDonald v. Chicago – the Second Amendment case with implications far beyond gun rights.  The Court is quite likely to extend the right to keep and bear arms to the states and thereby invalidate the Chicago handgun ban at issue, but the way in which it does so could revolutionize constitutional law.

In response to the oppression of freed slaves and abolitionists in southern and border states after the Civil War, the Fourteenth Amendment’s drafters sought to protect individual rights from infringement by state and local governments.  The amendment’s Due Process Clause and Privileges or Immunities Clause provided overlapping but distinct protections for these rights.  The Court decided in the 1873 Slaughter-House Cases, however, that the Privileges or Immunities Clause only protected Americans’ rights as national, not state, citizens.  This reactionary holding eviscerated the clause, rendering it powerless to protect individual rights from state interference.

McDonald provides the Court an opportunity to overturn the Slaughter-House Cases and finally restore the Privileges or Immunities Clause to its proper role as a check against government intrusion on individual rights.  Doing so would secure Americans’ natural rights, such as the freedom of contract and the right to earn an honest living, without enabling judges to invent constitutional rights to health care or welfare payments.  For a more detailed discussion of McDonald’s potential implications, and how the Court should rule, see my recent op-ed here.

I will also be participating in several public events this week on McDonald, the Fourteenth Amendment, and firearm regulation.  Today at 4:00 p.m., I will be speaking at a Cato policy forum, which will be broadcast live on C-SPAN and which you may watch online here.  Tomorrow at 3:30 p.m., I will participate in a post-argument discussion of McDonald at the Georgetown University Law Center, which event is cosponsored by the Federalist Society and the Georgetown Journal of Law and Public Policy (where Josh Blackman and I recently published a lengthy article on the subject).  And on Wednesday at noon, I will be participating in a Cato Capitol Hill briefing on McDonald and the future of gun rights at the Rayburn House Office Building, room B-340 (more information here).

Patriot Act Update

It looks as though we’ll be getting a straight one-year reauthorization of the expiring provisions of the Patriot Act, without even the minimal added safeguards for privacy and civil liberties that had been proposed in the Senate’s watered down bill.  This is disappointing, but was also eminently predictable: Between health care and the economy, it was clear Congress wasn’t going to make time for any real debate on substantive reform of surveillance law. Still, the fact that the reauthorization is only for one year suggests that the reformers plan to give it another go—though, in all probability, we won’t see any action on this until after the midterm elections.

The silver lining here is that this creates a bit of breathing room, and means legislators may now have a chance to take account of the absolutely damning Inspector General’s report that found that the FBI repeatedly and systematically broke the law by exceeding its authorization to gather information about people’s telecommunications activities. It also means the debate need not be contaminated by the panic over the Fort Hood shootings or the failed Christmas bombing—neither of which have anything whatever to do with the specific provisions at issue here, but both of which would have doubtless been invoked ad nauseam anyway.

On Fourth Amendment Privacy: Everybody’s Wrong

Everybody’s wrong. That’s sort of the message I was putting out when I wrote my 2008 American University Law Review article entitled “Reforming Fourth Amendment Privacy Doctrine.”

A lot of people have poured a lot of effort into the “reasonable expectation of privacy” formulation Justice Harlan wrote about in his concurrence to the 1967 decision in U.S. v. Katz. But the Fourth Amendment isn’t about people’s expectations or the reasonableness of their expectations. It’s about whether, as a factual matter, they have concealed information from others—and whether the government is being reasonable in trying to discover that information.

The upshot of the “reasonable expectation of privacy” formulation is that the government can argue—straight-faced—that Americans don’t have a Fourth Amendment interest in their locations throughout the day and night because data revealing it is produced by their mobile phones’ interactions with telecommunications providers, and the telecom companies have that data.

I sat down with podcaster extraordinaire Caleb Brown the other day to talk about all this. He titled our conversation provocatively: “Should the Government Own Your GPS Location?

Ending Don’t Ask Don’t Tell

Contrary to the claims of some conservatives, gays can and do serve in the military. This video highlights the story of a combat medic at Fort Hood, Texas, one of the major troop installations in the United States. Warning: long video (13 minutes).

Sergeant Darren Manzella served as a combat medic, and his chain of command investigated the claim that he was gay. Manzella provided pictures and video of him with his boyfriend, but found “no evidence of homosexuality.”

The story makes clear that Manzella gave them plenty evidence of homosexuality, but it didn’t make any sense to get rid of a good soldier in a critical field when he wanted to continue serving and there was a war going on.

The British and Israeli armed forces allow gays to serve openly and still have first-rate combat units.  When Admiral Mullen, Chairman of the Joint Chiefs of Staff, says it is time to repeal DADT and believes that we can do so without compromising readiness, objections based on domestic politics, and not on military grounds, lose a lot of credibility.

School Webcams and Strange Gaps in Surveillance Law

Last week, I noted the strange story of a lawsuit filed by parents who allege that their son was spied on by school officials who used security software capable of remotely activating the webcams in laptops distributed to students. A bit more information on that case has since come out. The school district has issued a statement which doesn’t get into the details of the case, but avers that the remote camera capability has only ever been used in an effort to locate laptops believed to have been lost or stolen. (That apparently includes a temporary “loaner computer that, against regulations, might be taken off campus.”)  They do, however, acknowledge that they erred in failing to notify parents about this capability.  The lawyer for the student plaintiff is now telling reporters that school officials called his client in to the vice principal’s office when they mistook his Mike and Ike candies for illegal drugs.

Perhaps most intriguingly, a security blogger has done some probing into the technical capabilities of the surveillance software used by the school district. The blogger also rounds up comments from self-identified students of the high school, many of whom claim that they noticed the webcam light on their school-issued laptops flickering on and off—behavior they were told was a “glitch”—which may provide some reason to question the school’s assertion that this capability was only activated in a handful of cases to locate lost laptops. The FBI, meanwhile, has reportedly opened an investigation to see whether any federal wiretap laws may have been violated.

It’s this last item I want to call attention to. The complaint against the school district states a number of causes of action.  The most obvious one—which sounds to me like a slam dunk—is a Fourth Amendment claim. But there are also a handful of claims under federal wiretapping statutes, specifically the Electronic Communications Privacy Act and the Stored Communications Act. These are more dubious, and rest on the premise that the webcam image was an “electronic communication” that school officials “intercepted” (as those terms are used in the statute), or alternatively that  the activation of the security software involved “unauthorized” access by the school to its own laptop. The trouble is that courts considering similar claims in the past have held that federal electronic surveillance law does not cover silent video surveillance—or rather, the criminal wiretap statutes don’t.

That leads to a strange asymmetry in a couple of different ways. First, intelligence surveillance covered by the Foreign Intelligence Surveillance Act does include silent video monitoring. Second, it seems to provide less protection for a type of monitoring that is arguably still more intrusive. If officials had turned on the laptop’s microphone, that would fall under ECPA’s prohibition on intercepts of “oral communications.” And if the student had been engaged in a video chat using software like Skype, that would clearly constitute an “electronic communication,” even if the audio were not intercepted. But at least in the cases I’m familiar with, the courts have declined to apply that label to surreptitiously recorded silent video—which one might think would be the most invasive of all, given that the target is completely unaware of being observed by anybody.

One final note: The coverage I’m seeing is talking about this as though it involves one school doing something highly unusual. It’s not remotely clear to me that this is the case. We know that at least one other school district employs similar monitoring software, and a growing number of districts are experimenting with issuing laptops to students. I’d like to see reporters start calling around and find out just how many schools are supplying kids with potential telescreens.

Was it Terrorism?

A man with a gripe against the system crashed a plane into an IRS office. The first thing people ask is whether this was  a crime or domestic terrorism as if the two categories are mutually exclusive.

The official definition is “the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives” (28 C.F.R. Section 0.85).

Unlawful use of force and violence? Check.

Requisite grievance? Check. And how. If this manifesto is genuine, the man responsible had an axe to grind with the IRS, politicians, GM executives, drug and insurance companies, the Catholic Church, tax-exempt religious organizations generally, corrupt unions, Arthur Andersen executives, former Senator Patrick Moynihan, wealthy loan companies, his accountant, George W. Bush, communists, and capitalists.

That hasn’t stopped people from trying to lay this man at the feet of political opponents.

This guy’s political affiliation was “crazy.”  Everyone should move on and not try to score political points with this incident.

Whether or not he meets the definition, it’s better to deny this man and those like him any credibility with the word “terrorist.” As my colleague Jim Harper said (twice) about the man who shot Dr. George Tiller, this is an unproductive debate that fulfills their desire to be something more than a pathetic murderer.

Net Neutrality Regulation: A Solution in Search of a Problem

This Reason.tv video illustrates the weak case for network neutrality regulation of Internet service providers.

In the AT&T case, which the video touches on, an AT&T web site blocked some (barely) controversial statements by Eddie Vedder—the Pearl Jam lead singer who stopped mattering a really long time ago. This was an error, and it was contrary to AT&T policy, according to this August 2007 story. Yet the example is one of a few used to argue for net neutrality regulations.

Do we really want the government treading any of this ground?

Most people would probably agree that web site operators should be free to publish or not publish whatever they want. Regulations barring web sites from editing out controversial political statements, or requiring them to broadcast them, would be facially unconstitutional. Strangely, proponents of net neutrality regulation tout this kind of regulation as a virtue at the Internet’s transport layer.