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Preview: Jacob Sullum: Reason Magazine articles.

Jacob Sullum: Reason.com articles.





Updated: 2018-01-18T00:00:00-05:00

 



Stop Warrantless Snooping on Americans

2018-01-17T00:01:00-05:00

Over the course of two hours last Thursday morning, Donald Trump offered two diametrically opposed takes on a surveillance bill making its way through Congress. Both were wrong. The FISA Amendments Reauthorization Act of 2017, which the House approved last week and the Senate is considering this week, has nothing to do with purported wiretapping at Trump Tower or any other direct surveillance of the Trump campaign, as the president initially suggested. But neither is its impact limited to "foreign bad guys on foreign land," as Trump said in a corrective tweet after alarmed advisers explained his administration's position to him. The bill would renew for six years Section 702 of the Foreign Intelligence Surveillance Act (FISA), which authorizes warrantless collection of communications between people in the United States and people in other countries when "a significant purpose" of the snooping is obtaining "foreign intelligence information." Although the official target is supposed to be a "non-U.S. person" (i.e., neither a U.S. citizen nor a legal permanent resident) who is believed to be located in a foreign country, the National Security Agency "incidentally" gathers a great deal of information about Americans, including their international emails, chat sessions, and phone calls. Once the information has been collected, the FBI can peruse it at will, looking for evidence of crimes that may have nothing to do with foreign intelligence (itself a very broad category), let alone terrorism or national security. Section 702 thus gives the FBI and other law enforcement agencies a way to dodge the Fourth Amendment's ban on unreasonable searches and seizures, which is generally understood to require a warrant based on probable cause for surveillance that reveals the content of private conversations. The bill that the House approved implicitly acknowledges this problem by requiring a warrant to search Section 702 data about Americans—but only when the FBI is looking for information about someone who is already the target of a criminal investigation (and only when the investigation is not related to national security). Criminal suspects, in other words, would receive more privacy protection than people who the government has no reason to believe have broken the law. The FISA Amendments Reauthorization Act also opens the door to reviving a suspended program that collected international communications "about" a foreign intelligence target. That kind of surveillance can pick up exchanges where neither party is the target and, due to technical problems in screening out domestic internet traffic, even when both parties are in the United States. Last week, by a vote of 233 to 183, the House rejected an amendment that would have required a warrant for searches of Section 702 data and for surveillance partly motivated by a desire to collect information about Americans. That amendment, known as the USA RIGHTS Act, also would have explicitly banned "about" surveillance and limited the use of Section 702 information to cases involving foreign intelligence or national security. The legislators who supported the USA RIGHTS Act included conservative Republicans such as James Sensenbrenner (Wis.) and Ted Poe (Texas) as well as progressive Democrats such as Jared Polis (Colo.) and Barbara Lee (Calif.). They were united by a belief that constitutional rights must be respected even when they inconvenience people who think invoking national security should be the end of the argument. "Our Founders gave us the Fourth Amendment to prevent a tyrannical government from invading our privacy, and we are fools to relinquish that hard-won right because of fear," writes Sen. Rand Paul (R-Ky.), who cosponsored the USA RIGHTS Act in the Senate and has vowed to fight reauthorization of Section 702 without reforms. "The Founders did not include the Fourth Amendment in the Bill of Rights as a suggestion." When the president thought Section 702 was used to "badly surveil and abuse the Trump Campaign," he was indignant. If only he could spare some of[...]



Federalists Can’t Support a Cannabis Crackdown

2018-01-10T00:01:00-05:00

Before last Thursday, state-licensed marijuana merchants operated in a highly uncertain legal environment, subject to the whims of federal prosecutors who could at any moment decide to shut them down, take their property, and send them to prison. Now that Attorney General Jeff Sessions has clarified the Justice Department's policy regarding the cannabis industry, state-licensed marijuana merchants operate in a highly uncertain legal environment, subject to the whims of federal prosecutors who could at any moment decide to shut them down, take their property, and send them to prison. Sessions calls this "a return to the rule of law." The description is dubious, not only because the situation for state-legal marijuana growers and distributors is fundamentally unchanged but also because the cannabis crackdown threatened by Sessions offends a basic principle of constitutional law: The federal government may not exercise powers it was never granted. U.S. attorneys prosecute a minuscule percentage of marijuana violations, and they have very broad discretion to decide which ones are worth their time. Sessions rescinded Justice Department guidelines that said a violator's compliance with state law was one factor prosecutors should consider. The reasoning, as explained in a 2013 memo from James Cole, then the deputy attorney general, was that state-regulated marijuana businesses are less likely to impinge on "federal enforcement priorities" such as stopping interstate smuggling and sales to minors. Cole did not tell U.S. attorneys to leave state-legal cannabusinesses alone, but since 2013 they generally have. It's not clear whether Sessions' memo will change that. Sessions called the marijuana-specific guidelines "unnecessary" and said prosecutors should be guided by "the Department's well-established general principles." Last week the interim U.S. attorneys in Colorado and the Southern District of California, both Sessions appointees, said they would continue as before. But given Sessions' well-known opposition to marijuana legalization, his memo was widely seen as portending more aggressive enforcement of the federal ban. That prospect provoked bipartisan criticism from state officials and members of Congress, uniting Democrats who support drug policy reform with Republicans who support federalism. Sessions' boss counts himself in the latter group, and he has repeatedly applied the principle of state autonomy to marijuana. In July 2016, for instance, a TV reporter in Colorado Springs asked Donald Trump what he thought about using federal power to shut down the state-authorized cannabis industry in states such as Colorado. "I wouldn't do that, no," Trump replied. "I'm a states person. I think it should be up to the states, absolutely." That position is broadly popular. Last summer a Quinnipiac University poll found that 75 percent of Americans, including 59 percent of Republicans, opposed "enforcing federal laws against marijuana" in the 29 states that "have already legalized medical or recreational marijuana." Refraining from such interference also happens to be what the Constitution requires. Under the 10th Amendment, "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Unlike alcohol prohibition, the national marijuana ban was never authorized by a constitutional amendment. Its purported legitimacy instead relies on reading the power to regulate interstate commerce so broadly that it accommodates nearly anything Congress wants to do. In 2005 the Supreme Court said the Commerce Clause covers every last speck of cannabis in the country, even if it never crosses state lines, down to the plant in a cancer patient's closet or the bag of buds in her nightstand. "If Congress can regulate this under the Commerce Clause," noted dissenting Justice Clarence Thomas, "then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers." Rep[...]



Stop Pretending Sober Drivers Are Stoned

2018-01-03T00:01:00-05:00

Last year Kali Su Schram was sentenced to six months in jail because of a fatal traffic accident she did not cause, thanks to Michigan's unjust and unscientific definition of drugged driving. Schram had the right of way when a bicyclist suddenly appeared in front of her at an intersection, but she was blamed anyway because she had a detectable amount of THC in her blood. California, where state-licensed marijuana stores began serving recreational consumers on Monday, takes a more rational approach to driving under the influence of cannabis, requiring evidence of impairment. But three of the eight states where marijuana is legal for nonmedical use have adopted versions of the Michigan model, falsely equating impairment with arbitrary levels of THC in the blood. In Michigan any amount of THC suffices for a DUI conviction. The cutoff in Nevada, where legal recreational sales began last year, is two nanograms per milliliter, which is not quite as strict but still criminalizes driving by many marijuana users who pose no threat to the public. Because THC is absorbed by fatty tissue, it can be detected in the blood of frequent cannabis consumers as long as a month after last use. In a 2009 study, a frequent pot smoker had a THC level of seven nanograms on the first day of abstinence, then between two and four nanograms during the next six days. A 2015 study found that a cannabis consumer tested at or above five nanograms as long as five days after last use. Five nanograms is the legal cutoff in Washington, where any driver who hits that level is automatically guilty of DUI. Colorado allows juries to infer impairment at a THC level of five nanograms or more but lets defendants rebut that inference. In 2015 Melanie Brinegar, a medical marijuana patient who tested at 19 nanograms after she was pulled over for driving with an expired tag, used the latter provision to win an acquittal. Even though Brinegar's THC concentration was nearly four times the level that Colorado treats as presumptively equivalent to driving under the influence, she persuaded a jury that she wasn't. In 2013 KIRO-TV, the CBS station in Seattle, found that regular cannabis consumers could pass driving tests at even higher THC levels. Nor does a five-nanogram rule make sense for less frequent users. According to experiments at the National Advanced Driving Simulator in Iowa City, occasional cannabis consumers with THC levels exceeding 13 nanograms, more than twice Washington's cutoff, show lane weaving similar to drinkers with a blood alcohol concentration of 0.08 percent, the usual DUI threshold. "Per se" rules that define stoned driving based on THC in the blood appeal to politicians and the general public because they look similar to state laws that define drunk driving based on alcohol in the blood. But the latter policy, while problematic because of individual variability, has a much stronger scientific basis. "Whereas the impairment effects for various concentration levels of alcohol in the blood or breath are well understood," the National Highway Traffic Safety Administration notes, "there is little evidence available to link concentrations of other drugs to driver performance." Hence "specific drug concentration levels cannot be reliably equated with a specific degree of driver impairment." A 2016 report from the AAA Foundation for Traffic Safety noted that THC blood levels do not predict performance on roadside sobriety tests. It said "there is no evidence from the data collected…that any objective threshold exists that established impairment." As Staci Hoff, research director at the Washington Traffic Safety Commission, noted in a TV interview last summer, "More and more research is coming out debunking this mythical link between THC level in the blood and level of impairment." Instead of adopting pseudoscientific DUI standards that unfairly and irrationally treat sober drivers as if they were stoned, states that legalize marijuana should follow California's example by requiring pro[...]



The Buck Stops Over There

2017-12-27T00:01:00-05:00

After he won what he erroneously described as an Electoral College "landslide," Donald Trump explained away his failure to attract the support of most voters by conjuring "millions of people who voted illegally"—a massive fraud that somehow went completely undetected by election officials throughout the country. A few days after taking office, Trump revived that fantastical claim, setting a pattern for the excuse making and blame shifting that would mark the first year of his presidency. Here are some of the highlights. Smooth talk. A hasty, half-baked executive order that Trump issued on January 27 immediately blocked entry by travelers from seven Muslim-majority countries, including legal permanent residents of the United States and people who had already received visas. Despite the ensuing chaos as hundreds of people were detained at airports around the country, Trump insisted that "we had a very smooth rollout of the travel ban," blaming any problems on the judges who blocked its enforcement. Who's the boss? After the first travel ban got bogged down in the courts, Trump issued a revised version that was designed to be more legally defensible. Then he acted as if he had nothing to do with the executive order he had signed, tweeting, "The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version." Secretarial oversight. "It is so pathetic that the Dems have still not approved my full Cabinet," Trump complained on March 3. At that point the White House still had not sent the Republican-controlled Senate the nomination paperwork for the two Cabinet jobs that remained vacant. Tax dodge. After making an issue of his tax returns by repeatedly promising to release them but never actually doing so, Trump blamed the news media for creating a phony controversy. "Nobody cares about my tax return except for the reporters," he said on May 4, contradicting polls finding that most Americans think he should make the information public. Comey cover. When Trump fired FBI Director James Comey in May, the White House said he did so at the recommendation of Deputy Attorney General Rod Rosenstein, who argued that Comey deserved to be sacked because he had treated Hillary Clinton unfairly while investigating her email practices as secretary of state. Trump, who had long complained that Comey went too easy on Clinton, later admitted the Rosenstein memo was nothing more than window dressing for a decision he had already made. 'They lost Ryan.' After a Navy SEAL, William Ryan Owens, was killed during a raid in Yemen on January 29, Trump made it clear that his role as commander in chief did not mean he bore any responsibility for the operation. "This was a mission that was started before I got here," Trump said on Fox News a month later. "This was something that…they wanted to do. They came to see me, and they explained what they wanted to do, the generals, who are very respected….and they lost Ryan." 'They have decision-making ability.' Even after Trump had been on the job more than eight months, he was not prepared to accept responsibility for military mishaps on his watch. He emphasized that he did "not specifically" authorize an October 4 mission in Niger that ended with four American soldiers dead, because "my generals and my military, they have decision-making ability." Careless condolence. When Trump called the widow of Sgt. La David Johnson, one of the soldiers killed in Niger, his awkward attempt at condolences, which included a statement to the effect that Johnson "knew what he signed up for," offended her. Instead of apologizing, Trump blamed the controversy on a congresswoman who was present during the call and accurately reported the widow's reaction. Trump is hardly the first president to blame other people for his failures, but he does so more promiscuously and preposterously than any of his recent predecessors. I'd say these episodes reveal a man who seems constitutionally in[...]



Trump's Phony Postcard Tax Return

2017-12-20T00:01:00-05:00

At a meeting with congressional leaders last month, Donald Trump kissed a postcard-sized tax form, expressing his commitment to simplification of the hideously complex Internal Revenue Code. "Over 90 percent of Americans are going to fill out taxes on that postcard," Treasury Secretary Steve Mnuchin promised on Sunday. That's not really true, because the bill that emerged from Congress this week does little to simplify the tax code and in some ways makes it even more complicated. The tax return on a postcard, originally a symbol of radical reform, has become a gimmick aimed at distracting the public from a revenue collection system that is just as confusing, frustrating, intrusive, and manipulative as ever. Hoover Institution economists Robert Hall and Alvin Rabushka promoted the idea of a "postcard tax return" in their 1985 book The Flat Tax, tying it to the elimination of deductions, credits, and every tax bracket but one. Under Hall and Rabushka's plan, everyone would pay a single rate on all forms of income after subtracting a "personal allowance" aimed at maintaining progressivity. The postcard tax return touted by Trump and Mnuchin, by contrast, is tied to a tax bill that retains seven income brackets (while redefining them and fiddling with the rates) and all the major tax breaks, including the ones for charitable donations, mortgage interest, and state and local taxes. The limits that the bill imposes on the latter two deductions will make tax preparation more rather than less complicated, since filers will have to figure out how much of those expenditures can be subtracted from their taxable income. The Trump administration's postcard promise is based on a trick that the Tax Policy Center's Roberton Williams highlighted last year: shifting the figuring off the main form. Most of the items on the "Simple, Fair 'Postcard' Tax Filing" that the president kissed, such as "wage and compensation income," "contributions to specified savings plans," "earned income credit," and child credits (doubled under the tax bill but still phased out as income rises), require additional consultation, consideration, and calculation. The main rationale for the claim that the tax bill simplifies returns is the near-doubling of the standard deduction (which is coupled with the elimination of personal and dependent exemptions). That change is expected to reduce the share of filers who itemize from 30 percent to 6 percent. The problem is that taxpayers still won't know whether the standard deduction exceeds their potential itemized deductions unless they go to the trouble of documenting the latter throughout the year and running the numbers when they prepare their returns. That work also does not show up on the postcard return. The tax bill introduces new wrinkles, including a 20-percent deduction for "pass-through" income from businesses such as partnerships and sole proprietorships, which is reported on individual returns. The upshot is that the tax rate for pass-through income will be lower than the individual income rate (but higher than the new, lower corporate rate), inviting new forms of tax gamesmanship. The last thing our tax system needs is more complexity. According to the Tax Foundation, the Internal Revenue Code, which totals 2.4 million words, is nearly six times as long as it was in 1955 and almost twice as long as it was in 1985. That's not including 7.7 million words of tax regulations or 60,000 pages of relevant case law. The Tax Foundation says complying with IRS filing requirements consumed nearly 9 billion hours last year, at a cost of more than $400 billion. That's not including billions of dollars in costs resulting from suboptimal economic decisions encouraged by the tax code, or the damage done to principles of fairness when the law is so complicated that the average person cannot reasonably be expected to understand it. The president said he wanted to "make the tax code simple, fair and easy t[...]



Scared Cops Are Scary

2017-12-13T00:01:00-05:00

The jurors who acquitted Philip Brailsford of second-degree murder last week were told to judge him based on "how a reasonable officer would act, versus a regular person with no police training," as The Arizona Republic put it. That distinction was crucial, because a "regular person" would never get away with shooting an unarmed man who was crawling on the floor, sobbing, and begging for his life. Like other recent cases in which jurors failed to hold police officers accountable for the unnecessary use of deadly force, Brailsford's acquittal shows that cops benefit from a double standard. Unlike ordinary citizens, they can kill with impunity as long as they say they were afraid, whether or not their fear was justified. Daniel Shaver got drunk and did something stupid. But he did not deserve or need to die for it. On January 18, 2016, Shaver, who was 26 and lived in Granbury, Texas, was staying at a La Quinta Inn in Mesa, a Phoenix suburb, while working on a job for his father-in-law's pest control company. After inviting two other hotel guests to his room for a drink, he showed them an air rifle he used for work, at one point sticking it out a window to demonstrate the scope's range. Alarmed by the rifle's silhouette, a couple who had been using the hotel's hot tub informed the staff. That's how Brailsford and five other Mesa officers ended up confronting Shaver in a fifth-floor hallway. The bodycam video of the encounter, which was not publicly released until after the verdict, shows that Shaver, who according to the autopsy had a blood alcohol concentration more than three times the legal threshold for driving under the influence, was confused by the strange and contradictory orders that Sgt. Charles Langley barked at him. Instead of simply handcuffing Shaver as he lay face down with his hands behind his head, under the guns of three officers, Langley inexplicably told the terrified and intoxicated man to crawl toward him. While crawling, eyes on the floor, Shaver paused and reached toward his waistband, apparently to pull up the athletic shorts that had slipped down as he moved. That is when Brailsford fired five rounds from his AR-15 rifle. "He could have easily and quickly drawn a weapon down on us and fired without aiming," Brailsford said later. Yet neither of the other two officers who had guns drawn on Shaver perceived the threat that Brailsford did. One of those officers testified that he would not fire based purely on the "draw stroke" Brailsford thought he saw. He would also consider the context, such as whether a suspect is belligerent and threatening or, like Shaver, compliant, apologetic, and tearful. Brailsford said he was trained to ignore context. "We're not trained necessarily to pay attention to what a suspect is saying," he testified. "We're supposed to watch their actions and what they do with their hands." The jury apparently accepted the counterintuitive argument that police, because of their special training, are apt to be less careful with guns than the average citizen would be. A similar dispensation seemed to be at work last June, when Minnesota jurors acquitted former St. Anthony police officer Jeronimo Yanez of manslaughter after he panicked during a traffic stop and shot a driver who was reaching for his license. Even more astonishing was the failure of South Carolina jurors to reach a verdict in the trial of former North Charleston police officer Michael Slager, who shot an unarmed motorist in the back as he ran away. Last May, five months after that mistrial, Slager signed a federal plea agreement in which he admitted the shooting was not justified. All three of these officers said they were afraid, but that is not enough to justify the use of deadly force. When juries fail to ask whether police have good reason to fear the people they kill, regular people have good reason to fear police. © Copyright 2017 by Creators Syndicate Inc. [...]



Chris Christie’s Situational Federalism

2017-12-06T00:01:00-05:00

As a candidate for the 2016 Republican presidential nomination, Chris Christie promised to stop states such as Colorado from legalizing marijuana. As governor of New Jersey, Christie insists that the federal government has no business stopping his state from legalizing sports betting—an argument that got a mostly friendly reception at the Supreme Court on Monday. The most likely explanation for Christie's situational federalism is that he does not mind if people bet on sports but cannot abide pot smoking. But there is a legal rationale for Christie's apparent inconsistency, and it says a lot about the extent to which the federal government has usurped powers that the 10th Amendment reserves to the states. Christie is challenging the Professional and Amateur Sports Protection Act (PASPA), a 1992 statute that says states may not "authorize by law" any form of betting on athletic contests. PASPA, which was intended to "stop the spread of legalized gambling on sports events," exempted Nevada, which had legalized sports betting in 1949, and three states with sports lotteries. PASPA also allowed New Jersey to establish a system of regulated sports betting in Atlantic City, provided state legislators acted within a year. They missed that deadline, but they finally passed such a law in 2012, the year after New Jersey voters overwhelmingly approved a constitutional amendment authorizing it. Several sports leagues and the National Collegiate Athletic Association successfully challenged New Jersey's law under PASPA. In 2014 the state legislature tried again, selectively repealing New Jersey's ban on sports betting so that it no longer applied at casinos and racetracks. The U.S. Court of Appeals for the 3rd Circuit said the selective repeal was tantamount to licensing and therefore violated PASPA. The appeals court rejected New Jersey's argument that requiring it to maintain the ban on sports betting amounts to unconstitutional "commandeering" of state officials in the service of a federal policy goal. The Supreme Court was much more receptive to that claim on Monday, when at least five justices seemed inclined to agree that PASPA impermissibly intrudes on state prerogatives. It is well established that Congress has no authority to dictate the content of state laws. Still, as New Jersey's lawyer, Theodore Olson, was forced to concede, a valid federal law "preempts" any state law that's inconsistent with it. PASPA does not preempt state law, Olson said, because it is "a direct command to the states without any effort to regulate sports wagering." In other words, Congress could have imposed its own ban on sports betting, just as it imposed its own ban on marijuana, in which case any state law inconsistent with that prohibition would be preempted. As Olson noted, the issue of preemption is "in play right now" because marijuana has been legalized for medical use in 29 states, eight of which also allow recreational use. While merely eliminating state penalties for marijuana offenses does not violate the Controlled Substances Act, licensing marijuana suppliers arguably does. That might be what Christie had in mind when he promised to "crack down and not permit" marijuana legalization if elected president. "Marijuana is an illegal drug under federal law," Christie told radio host Hugh Hewitt in 2015, "and the states should not be permitted to sell it and profit from it." Can it really be true that the Constitution allows federal interference with state policy as long as Congress frames it as preemption rather than a "direct command"? Only if you accept the Supreme Court's implausible understanding of the power to "regulate commerce…among the several states," which supposedly authorizes Congress to prohibit sports betting, cannabis consumption, and pretty much anything else it does not like, even if those activities never cross state lines. A properly constrained [...]



The FDA Warms to Vaping

2017-12-01T12:00:00-05:00

In July, the Food and Drug Administration (FDA) extended the deadline for e-cigarette manufacturers to seek regulatory approval of their products. On the face of it, the change was merely a four-year stay of execution. But the agency also signaled a new receptiveness to vaping as a harm-reducing alternative to smoking, which suggests the reprieve could turn into a commutation.

That would be good news for smokers who want to quit. For too long, American public health officials have been unreasonably hostile to e-cigarettes, which deliver nicotine in an aerosol that is far less hazardous than tobacco smoke and offers a closer simulation of the real thing than nicotine gum or patches do.

FDA Commissioner Scott Gottlieb seems to appreciate the public health potential of this innovation. "The overwhelming amount of death and disease attributable to tobacco is caused by addiction to cigarettes," he said in a press release. "Envisioning a world where cigarettes would no longer create or sustain addiction, and where adults who still need or want nicotine could get it from alternative and less harmful sources, needs to be the cornerstone of our efforts."

The FDA said "a key piece" of its new approach is "demonstrating a greater awareness that nicotine—while highly addictive—is delivered through products that represent a continuum of risk and is most harmful when delivered through smoke particles in combustible cigarettes." The agency wants to strike "an appropriate balance between regulation and encouraging development of innovative tobacco products that may be less dangerous than cigarettes."

Toward that end, the FDA is giving e-cigarette companies until August 8, 2022, to apply for permission to keep their products on the market under regulations published last year. The agency says it will use the extra time to seek additional public comment and develop clearer guidance for the industry.

The regulations require manufacturers of vaping equipment and e-liquids to demonstrate that approval of their products "would be appropriate for the protection of the public health." It is not clear what that means in practice, but the FDA projected that applications would cost hundreds of thousands of dollars per product, and many observers thought that was an underestimate. The burden was expected to drive most companies out of business.

If the FDA is serious about promoting "less harmful sources" of nicotine, it will develop transparent, straightforward, and practical criteria for approving current and new vaping products. Standing between smokers and products that can save their lives is surely not "appropriate for the protection of the public health."




Your Secrets Are Not Safe With Anyone

2017-11-29T00:01:00-05:00

Timothy Carpenter specialized in stealing cellphones, the same devices that betrayed him. Based on four months of cellphone location data from the companies that provided Carpenter's mobile phone service, the FBI placed him near four stores while they were being robbed. Carpenter argues that the FBI should have obtained a warrant before looking at those records. His case, which the Supreme Court will hear today, gives the justices a chance to reconsider a misbegotten and increasingly obsolete rule that threatens everyone's privacy in an age when people routinely store large volumes of sensitive personal information outside their homes. That rule, as summarized by the Court in a 1976 case dealing with bank records, holds that "the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose." The "third-party doctrine" means the Fourth Amendment's ban on unreasonable searches and seizures imposes no restrictions whatsoever on the government's power to examine the most intimate details of your life should you be foolhardy enough to entrust them to someone else. On its face, this license applies not just to cellphone records, which given modern habits can show where you are and where you've been at almost any given moment, but to remotely stored email, text messages, calendars, browsing and shopping histories, documents, photographs, videos, and audio recordings. Under the third-party doctrine, all of this material receives only as much protection as legislators decide to give it. No wonder that Justice Sonia Sotomayor was moved to suggest in 2012 that "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." As Sotomayor noted, "This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks." The Court decided that case, which involved a suspected drug dealer whose movements police monitored for a month via a GPS tracker attached to his car, based on the trespass required to plant the device. But five justices endorsed the view that tracking someone for as long as a month reveals so much personal information that it qualifies as a search under the Fourth Amendment even if it does not involve a physical intrusion. While that position makes considerable sense as far as expectations of privacy go, defining a search based on the length of surveillance or the quantity of information collected requires distinctions that are bound to be fuzzy, arbitrary, or both. A brief that the Institute for Justice filed in Carpenter's case suggests a more promising approach. Drawing on the work of law professors William Baude (University of Chicago) and James Stern (William & Mary), the I.J. brief recommends a "positive law model" based on the principle that "when government officials use their power to obtain information in a manner that would be prohibited for private actors, those officials must demonstrate the reasonableness of their actions under the Fourth Amendment." That approach, I.J. notes, "is far more protective of an individual's privately shared information than the current Third Party Doctrine." Since federal law prohibits cellphone companies from disclosing location records to private parties "without the express prior authorization of the customer," a police demand for that information would clearly implicate the Fourth Amendment, and in all likelihood require a warrant, under the positive law model. The same would be true of any other information that private parties cannot legally obtain without the subject'[...]



When Good-Faith Medicine Raises ‘Red Flags’

2017-11-22T00:01:00-05:00

Forest Tennant, who has been treating and researching pain at his clinic in West Covina, California, since 1975, is well-known as an expert in the field, having published more than 200 articles in medical journals and given more than 130 presentations at professional conferences. According to the Drug Enforcement Administration (DEA), all of that was an elaborate cover for drug trafficking. Or so you would have to surmise from the affidavit supporting the search warrant that the DEA served on Tennant's offices and home last week, which describes "invalid prescriptions," "red flags of diversion and fraud," and "combinations of drugs that are consistent with 'pill mill' prescribing practices." The allegations and insinuations show how the DEA has tried to criminalize differences of opinion about pain treatment, encouraging doctors to think about their legal exposure first and their patients second. Tennant says the "red flags" perceived by the DEA are consistent with a practice like his, which specializes in treating severe, intractable pain caused by conditions such as arachnoiditis, Ehlers-Danlos syndrome, reflex sympathetic dystrophy, and post-viral neuropathy. "We only take people who have failed the standard treatments," he says. Tennant's willingness to take hard cases explains why some of his patients live in other states, a fact the DEA considers suspicious. "We only see them in conjunction with their local doctors," he says. In addition to severe pain, Tennant's patients often have metabolic abnormalities that make them less sensitive to opioids and have developed tolerance after years of pain treatment. Those factors explain the doses that struck the DEA as suspiciously high and the drug combinations it deemed reckless. By the time Tennant starts treating them, his patients are already taking large doses of opioids, often in combination with muscle relaxants and benzodiazepines. "We didn't start anybody on high dosages," Tennant says. "We took them to study them to figure out how to get them off of high dosages, and that has remained our goal." In nine out of 10 cases, Tennant says, he has been able to reduce patients' opioid doses substantially, by as much as 80 percent. At the same time, he defends the use of high doses for patients who need them, a stance that bothers the DEA. The search warrant affidavit cites a 2009 article in which Tennant and two other doctors defended the prescription of "ultra-high opioid doses" for certain patients with severe chronic pain. The affidavit also notes that Tennant championed the California Pain Patient's Bill of Rights, a 1997 law affirming that "opiates can be an accepted treatment" for "severe intractable pain." The DEA seems to be arguing that Tennant's sincere medical opinions and advocacy on behalf of pain patients should be considered evidence of criminal activity. The DEA suggests that speaking fees Tennant received from Insys, which makes the oral fentanyl spray Subsys, amounted to kickbacks. The DEA also implies that it's improper to prescribe Subsys for anything other than cancer pain, the application for which it was approved by the Food and Drug Administration. Tennant notes that it's common practice for doctors who have experience with a drug to get paid for training colleagues to use it. He says Subsys "turned out to be somewhat disappointing," but he prescribes it for half a dozen patients who find it useful for breakthrough pain, including a few who do not have cancer—"off-label" uses that are perfectly legal. Tennant, who has testified against "pill mills," says his clinic looks quite different: It has a six-hour intake process, sees a maximum of 10 people a day, and has "big thick charts" for its patients, who come with their families and tend to be middle-aged. He adds that his practice, which treat[...]



Trump’s ‘Great Relationship’ With a Vicious Drug Warrior

2017-11-15T00:01:00-05:00

When Maximo Garcia heard that he was on a list of local drug suspects in Mayombo, he tried to clear his name with the police chief, explaining that he no longer used drugs and had never sold them. Four days later, the Philippine news site Rappler reports, a masked gunman shot up Garcia's house as he and his family were eating lunch, wounding him and killing his 5-year-old granddaughter. So it goes in Philippine President Rodrigo Duterte's war on drugs, which has claimed somewhere between 7,000 and 13,000 lives since he took office in June 2016. Although Duterte's bloody crusade has drawn international criticism, Donald Trump evidently did not think the subject was worth broaching during his meeting with Duterte in Manila on Monday. Trump, who this week bragged about his "great relationship" with Duterte, had previously praised his Philippine counterpart's "unbelievable job on the drug problem." Trump meant that as a compliment, but the viciousness of Duterte's anti-drug campaign does beggar belief. "If you know any addicts," Duterte told a crowd of supporters after taking office, "go ahead and kill them yourself, as getting their parents to do it would be too painful." A few months later, he likened himself to Hitler, saying "there's 3 million drug addicts" in the Philippines, and "I'd be happy to slaughter them." Police officers and vigilantes have taken Duterte at his word, assassinating people identified, rightly or wrongly, as drug users or dealers. Duterte says the carnage is not really a human rights issue, because drug users are not really human. "Crime against humanity?" Duterte said during an August 2016 speech to soldiers. "Are they humans? What is your definition of a human being?" He dismisses the deaths of children killed by bullets intended for drug suspects—children like Maximo Garcia's granddaughter—as "collateral damage." Even while endorsing murder as a morally legitimate response to drug abuse, Duterte periodically insists that he does not condone lawbreaking. Yet he has created an atmosphere of impunity by promising to pardon police officers accused of using unnecessary deadly force. The thousands of drug suspects killed by police officers in the last 16 months supposedly offered violent resistance. But investigations by Amnesty International, Human Rights Watch, and news outlets such as Rappler and The New York Times have found that police routinely plant drugs and weapons to justify what amount to summary executions. Last August police in Manila shot and killed 17-year-old Kian delos Santos, claiming he had fired a gun at them. A police photo showed a pistol and two packets of methamphetamine next to his body. But witnesses contradicted the official account, and video from a neighborhood security camera showed police dragging the boy, still alive, into the alley where his body was found. That incident sparked public outrage in the Philippines, leading to charges against the officers who killed the teenager. We may never know how many innocent people have been killed in similar circumstances, but without surveillance footage to prove it. The U.S. State Department notes that "extrajudicial killings" in the Philippines "increased sharply" last year, amid "numerous reports that the [Philippine National Police] committed arbitrary or unlawful killings in connection with a government-directed campaign against illegal drugs." In a November 2 letter to President Trump, Reps. Randy Hultgren (R-Ill.) and James McGovern (D-Mass.), who co-chair the Tom Lantos Human Rights Commission, urged him to "impress upon President Duterte the United States' profound concern over reported extra-judicial killings associated with the Philippine government's 'war on drugs.'" This week's meeting was Trump's chance to qualify his earlier prais[...]



Murderers Slip Through the Screen

2017-11-08T00:01:00-05:00

Last week Sayfullo Saipov, who was approved as an immigrant in 2010, used a pickup truck to murder eight people on a bike path in Manhattan. This week Devin Kelley, who was repeatedly approved as a gun buyer in recent years, used a rifle to murder 26 people at a church in a small Texas town. The deadliest terrorist attack in New York City since 9/11 and the deadliest mass shooting in Texas history illustrate the limits of screening as a defense against violence. We would like to think that the right combination of exclusion criteria and background checks can reliably prevent mass murder, but experience tells us otherwise. Responding to Saipov's attack, Donald Trump promised on Twitter that "the United States will be immediately implementing much tougher Extreme Vetting Procedures," because "the safety of our citizens comes first!" But it is hard to imagine what procedure could have predicted Saipov's seven-year journey from eager immigrant to Islamic terrorist. According to the Uzbek government, Saipov was raised in Tashkent by an affluent family and never had any trouble with the law or gave any indication of extremism. As the winner of a diversity lottery visa, he underwent background checks, security screening, and interviews before entering the United States. Saipov, who had worked as an accountant for a hotel in Tashkent, hoped to get a job in the hospitality industry despite his limited English skills. Instead he ended up working as a truck driver, moved around a lot, and became increasingly embittered and alienated over the years. Although Saipov was not very observant at first and did not know much about his religion (according to a local imam), he was drawn to Islamic extremism. The path he followed was shaped by his post-immigration experience, and he might never have been radicalized if he had landed the sort of job he wanted or if the trucking businesses he started had been more successful. Kelley, by contrast, showed clear signs of violent tendencies years before he opened fire on parishioners at the First Baptist Church in Sutherland Springs. As an airman in 2012, he was convicted of beating his wife and son by a general court martial, which punished him with 12 months of confinement, a reduction in rank, and a bad conduct discharge. Under federal law, Kelley was triply disqualified from buying a gun: His assault on his wife was the equivalent of a misdemeanor involving domestic violence, his aggravated assault on his son was the equivalent of a felony, and his separation from the Air Force, since it was ordered by a general court martial, was the equivalent of a dishonorable discharge. But the Air Force did not report Kelley's convictions to the National Crime Information Center, so they did not show up in the FBI's background checks when he bought his weapons. The Air Force is investigating what went wrong in this case and promises to improve its reporting, which until now seems to have been limited almost entirely to dishonorable discharges. But even an improved database cannot be expected to have much of an impact on mass shootings, since the perpetrators of such crimes typically do not have disqualifying criminal or psychiatric records. The idea that screening can prevent mass shootings is nevertheless powerfully appealing. After the October 1 shooting that left 58 dead in Las Vegas, Sen. Christopher Murphy (D-Conn.), who argues that Congress is complicit in gun violence because of its failure to "do something," told CNN's Jake Tapper "the most important intervention is background checks." Murphy wants to require background checks for all gun transfers, not just those involving federally licensed dealers. But as Tapper pointed out, the Las Vegas shooter "passed his background checks" because "th[...]



Can You Go to Jail for Handing Out Pamphlets?

2017-11-01T12:00:00-04:00

A pamphlet from the Fully Informed Jury Association (FIJA) argues that jurors have a right and a responsibility to judge the law as well as the facts, which might lead them to acquit a technically guilty defendant in the interest of justice. Although that position is controversial, especially among judges and prosecutors, the pamphlet is indisputably a form of speech protected by the First Amendment—unless you try to distribute it in front of a courthouse.

Or so say prosecutors in Mecosta County, Michigan. Last summer they persuaded a jury to convict local activist Keith Wood, who was arrested in 2015 for handing out FIJA flyers near the county courthouse, of a misdemeanor. District Judge Kimberly Booher sentenced him to eight weekends in jail, $545 in fines, 120 hours of community service, and six months of probation.

The law under which Wood was convicted applies to "a person who willfully attempts to influence the decision of a juror in any case by argument or persuasion, other than as part of the proceedings in open court in the trial of the case." Wood, who is free while he appeals his conviction, argues that there was no decision to influence. The only case pending at the courthouse on the day he distributed the flyers involved a man accused of illegally filling a wetland on his own property, and it was settled by a guilty plea.

Wood's lawyer, David Kallman, also argues that none of the passers-by who received pamphlets qualified as a juror. "We argued, and the Michigan Supreme Court has agreed in earlier case precedent, that a person is not a juror until sworn in to serve on a jury in a case," he says. Since no jury was ever chosen in the wetland case, Kallman argues, there were no jurors to persuade.

During his trial, Wood testified that he had ordered the FIJA flyers after taking an interest in that case. But Kallman emphasized that Wood never discussed the case with the people who took pamphlets, which contained only general information about juror rights.

"By prosecuting Mr. Wood," Kallman said in a 2015 motion, "the State is engaged in nothing less than tyranny and oppression. Few legal principles are more clear than the one stating that 'handing out leaflets in the advocacy of a politically controversial viewpoint…is the essence of First Amendment expression.'" After refusing to dismiss the charge against Wood, Judge Booher told Kallman he could not mention the First Amendment during the trial.




Scarlet-Letter Passports Are Unjust and Irrational

2017-11-01T00:01:00-04:00

The notice, which will appear on the second-to-last page of U.S. passports, is officially known as an "endorsement," but it is more like a badge of shame. "The bearer was convicted of a sex offense against a minor," it says, "and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l)." The scary notation, which was revealed this week, is the State Department's response to a 2016 law requiring that the passports of certain registered sex offenders include a "unique identifier" to help maintain their status as pariahs wherever they travel. Although the warning is supposedly aimed at stopping sexual predators from abusing children in other countries, it will mark the passports of many people who pose no such threat. The "unique identifier" is mandated by the International Megan's Law (IML), which purports to prevent "child sex tourism," a crime that seems to be pretty rare. From 2003 through 2009, according to an earlier version of the bill, the Justice Department "obtained 73 convictions of individuals from the United States charged with committing sexual crimes against minors in other countries"—an average of about 10 per year. Instead of focusing on people who have demonstrated a propensity to commit such crimes, the IML casts a wide net that covers offenders who have never assaulted a child, let alone traveled to another country for that purpose. The Americans whose passports will brand them as international child molesters include people convicted of misdemeanors as well as felonies, people who committed their offenses as minors, people who were convicted decades ago and have never reoffended, people who as teenagers had consensual sex with other teenagers, and people who committed noncontact offenses such as sexting, streaking, public urination, and looking at child pornography. At a party 15 years ago, when she was 19, Shawna Clouatre hooked up with a boy who turned out to be 14. As a result, she was forced to register as a sex offender for life, which among other things means she has trouble keeping jobs and is not allowed to take her own children to the park. In a heartbreaking interview with documentarian David Feige, the young Oklahoma mother talks wistfully about her dreams of traveling the world, rendered impractical by the lifetime probation imposed after her youthful mistake. Even if she managed to overcome that obstacle, the passport notation required by the IML would ensure that she was viewed with unjustified fear and suspicion wherever she might go. Last year four sex offenders challenged the IML in federal court, claiming it violates their Fifth Amendment right to due process and the constitutional ban on retroactive punishment. The plaintiffs argued that the "Scarlet Letter" and "international travel blacklist" created by the IML will expose them and their traveling companions to harassment, impinging on their freedom to travel, to earn a living, and to visit relatives in other countries. One plaintiff, who "was convicted of a felony sex offense involving a minor over twenty-five years ago," is "an officer of a corporation with facilities and customers in Europe and Asia, and routinely travels to various countries within Europe and Asia for business purposes." Another plaintiff, who committed a crime minor enough that he was sentenced only to probation and was initially told he would not have to register as a sex offender, will nevertheless have to carry a special passport. A federal judge dismissed the lawsuit, saying the IML easily passes the "rational basis" test. "Under rational basis review," she explained, "a law 'may be overinclusive, underinclusive, illogical, and unscientific and yet pass constitutional muste[...]



Enlisting Marijuana and MDMA to Fight PTSD

2017-10-29T07:00:00-04:00

After deploying to Iraq for a seven-month tour of duty in 2004, Nigel McCourry recalls, "I was engaged in a fight every day, whether it was gunshots or bombs blowing up next to me or land mines. It was the most intense experience of my life." That experience did not end when McCourry, a U.S. Marine, returned to the United States. "It didn't matter if it was a year or four years or six years after coming back from Iraq," he says. "There was no sense of separation of time. The experience was so fresh that I was constantly reliving it. I was alive in it." Separation was also elusive for Roberto Pickering, another Marine, who arrived in Iraq a year before McCourry and served nine months there. "We saw a lot of heavy combat during the initial invasion of Iraq," he says, and "I lost a few very close friends who were in my unit." After he got back to the U.S., he "lost another couple of friends in further deployments of the unit." Finding it impossible to achieve emotional distance from their experiences in Iraq, both men struggled to make new connections or renew old ones. Even getting a decent night's sleep was a challenge. "I ended up drinking a lot, basically as a way of forcing myself to pass out at night," McCourry says. Pickering was "self-medicating heavily with alcohol and severely suffering a depression." Years of anxiety and alienation left McCourry despondent. "I had this war inside of me that would flare up without warning," he says. "I couldn't live with it anymore. I got to the point where the thought of living day in and day out like that for the rest of my life was so miserable I wanted absolutely nothing to do with it." Pickering could not hold a job. "I was incapacitated," he says. "I was a zombie." For both men, the journey back to the land of the living began with illegal drugs. McCourry enrolled in a study of MDMA-assisted psychotherapy and was amazed by how quickly it made a difference. After years of insomnia and nightmares, he was suddenly able to sleep through the night. Within two years he felt like this "huge healing event had taken place," because he finally "had this sense of separation from the experiences of Marine combat." Pickering used marijuana to replace alcohol and the "kamikaze cocktail" of prescription drugs—sleeping pills, anti-anxiety meds, mood stabilizers—that had previously left him foggy. "It got my head back on straight," he says. "I still struggle sometimes, but I'm leaps and bounds beyond where I was." Psychiatrists call the problems Pickering and McCourry encountered after serving in Iraq post-traumatic stress disorder (PTSD). People who qualify for that diagnosis find themselves re-experiencing a traumatic event (through nightmares or flashbacks, for example); avoiding trauma-related thoughts, feelings, or reminders; and experiencing negative emotions that may include depression, isolation, and excessive guilt or blame. They are also prone to "fight or flight" symptoms such as hypervigilance, a heightened startle reaction, irritability, and difficulty sleeping or concentrating. Research suggests about 30 percent of Vietnam War veterans experience PTSD at some point in their lives. In the late 1980s, the National Vietnam Veterans Readjustment Study found that 15 percent were at that point diagnosed with the disorder. Annual rates for veterans of the Gulf War and the wars in Iraq and Afghanistan seem to be in the same ballpark: somewhere between 11 percent and 20 percent, according to studies cited by the Department of Veterans Affairs (V.A.). By comparison, the annual incidence of PTSD among adults in the general population is about 3 percent. Nearly 1 million veterans are receiving comp[...]