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Published: Sun, 21 Jan 2018 00:00:00 -0500

Last Build Date: Sun, 21 Jan 2018 21:36:01 -0500


D.C. Prosecutors Dismiss 129 Inauguration Day Protest Cases

Fri, 19 Jan 2018 16:45:00 -0500

Federal prosecutors have dismissed all charges against 129 of the defendants arrested in connection with the protests in downtown D.C. on Inauguration Day. The decision comes one month after a local Superior Court jury acquitted the first six of the so-called "J20" protesters. Fifty-nine protesters still face charges. The group was arrested after some demonstrators broke store windows, started fires, and clashed with riot police in Washington's downtown business district. Civil libertarians harshly criticized the arrests, pointing out that the defendants included people who did not appear to have committed any violence or vandalism; the government was prosecuting them under a theory of liability that could criminalize a broad range of nonviolent dissent. Privacy advocates also criticized the digital search warrants sought in connection with the case, one of which compelled a webhost to reveal the I.P. addresses of every vistor to a site afiliated with the protests. In a "Notice of Intent to Proceed" filed with the court, lead prosecutor Jennifer Kerkhoff and U.S. Attorney Jessie Liu did not concede the innocence of the defendants whose cases were being dismissed. But "in light of the legal rulings by the court and the jury's verdicts in the first trial of these cases," they decided to proceed only with those defendants who "(1) engaged in identifiable acts of destruction, violence, or other assaultive conduct; (2) participated in the planning of the violence and destruction; and/or (3) engaged in conduct that demonstrates a knowing and intentional use of the black-bloc tactic on January 20, 2017, to perpetrate, aid or abet violence and destruction." The mention of a "black-bloc tactic" refers to the prosecution's initial theory of the case. Prosecutors claimed that by dressing in masks and black clothes while marching together with individuals who assaulted police and destroyed property, each defendant had aided and abetted those crimes, whether or not they had not committed them personally. Even before the jury's not guilty verdict in December, that theory found a skeptical response in court. In early November, Judge Lynn Leibovitz ruled that one of the two charges with which all of the arrested demonstrators were charged, Felony Engaging in a Riot, didn't actually exist under D.C. law. (In the district, federal prosecutors prosecute local laws.) Then, before the case was submitted to the jury, Judge Leibovitz took the unusual step of acquitting the defendants of the other Riot Act felony charge herself. That acquittal from the bench requires a judge to hold that the government has produced so little evidence that no reasonable juror could possibly find proof of guilt beyond a reasonable doubt. The jury was left to consider only the related lesser charges stemming from specific acts of alleged property damage, plus misdemeanor riot charges. It returned a verdict of not guilty to each. At a hearing this afternoon, Kerkhoff claimed that the government has identified specific video clips and or items of physical evidence that prove each of the remaining defendants committed at least one specific criminal act. One defendant still facing charges is Aaron Cantú, a staffer at the Santa Fe Reporter. Charges had been dismissed early on against six other journalists who said they were merely covering the protest rather than rioting, but prosecutors contend that Cantú participated in the destruction. (Another reporter, independent videographer Alexei Wood, was found not guilty at the first trial.) The next group of remaining defendants are scheduled to be tried beginning March 26.[...]

Stop Warrantless Snooping on Americans

Wed, 17 Jan 2018 00:01:00 -0500

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 cou[...]

Senate Votes to Shut Down Rand Paul Filibuster Against Surveillance Act Renewal

Tue, 16 Jan 2018 20:05:00 -0500

The Senate joined the House today in rejecting reforms to federal surveillance laws to make sure that the private communications of Americans are not snooped on by officials without warrants. The Senate voted 60-38 this afternoon in favor of cloture to end debate and to prevent any amendments prior to a formal up-down vote on the FISA Amendments Reauthorization Act of 2017. (Small clarification: Debate will be limited to 30 hours prior to the vote. So Paul and Wyden and others will be able to speak at length, but they won't be able to stop the vote.) This bill, should it pass, will renew and expand the snooping powers of Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments for another six years. Though the law has the world "foreign" in its name, the reality is that it has been used to collect and access communications from Americans, often without warrants and without our knowledge. A bipartisan group of lawmakers, led by Sens. Rand Paul (R-Ky.) and Ron Wyden (D-Ore.) have been trying to amend the bill so that it would require the FBI and National Security Agency (NSA) to get warrants in order to query or access any communications records (like emails or phone calls) from American citizens when they get drawn into international surveillance. In a press conference before the vote today, they were joined by other supporters in the Senate, including Sen. Elizabeth Warren (D-Mass.), who said, "The United States should not be in the business of warrantless searches of dragnet surveillance of American citizens. … Opposing warrantless mass surveillance is not a partisan issue." Today's vote means reforms to provide stronger Fourth Amendment protections from unwarranted searches will not happen and a filibuster can't actually stop the scheduled vote. The USA RIGHTS Act is essentially dead, unless the full vote fails. (Spoiler: Since the renewal bill survived a cloture vote, it won't fail.) So what did the Senate actually vote for in the FISA Amendments Reauthorization Act of 2017? This bill doesn't just renew Section 702 for six years; it also codifies permission for the FBI to access and use data secretly collected from Americans for a host of domestic federal crimes that have nothing to do with protecting America from foreign threats. It has added some unusually worded warrant requirements that will protect some people—but only when they're actually suspected and are being investigated for criminal activities. Furthermore the bill will give the NSA permission to attempt to restart what are known as "about" searches, access to communications that merely reference a foreign target, not just communications to and from that target. The NSA voluntarily ended these types of searches once it became clear they were gaining access communications that they had no authority to be viewing. This bill will allow them to attempt to restart it unless Congress acts separately to stop it. The vote was a nailbiter: They needed exactly 60 votes to end debate and prevent a filibuster. "Credit" for the passage of a bill that strips away a little bit more of Americans' privacy rights goes not just to fearmongering Republicans insisting that adding warrant protections expose us somehow to terror attacks, but to Sen. Claire McCaskill (D-Mo.), who cast the final vote to end debate and push the bill forward. Also worth noting: While Sen. Ted Cruz (R-Texas) had been fairly quiet during the public discussion and lead-up to the vote, he voted against cloture, siding with Paul and Wyden. Below, Paul gave an impassioned speech before the cloture vote that pretty much previewed what he would have been talking about if he had gotten the chance to filibuster: Senator @RandPaul: "I rise in opposition to the government listening to your phone calls, reading your emails or reading your text messages without a warrant." #FISA #Section702 — CSPAN (@cspan) January 16, 2018 He has promised more debate this week, but unless something shocking happens, it's ov[...]

House Votes to Renew, Expand Authority to Snoop on Americans

Thu, 11 Jan 2018 10:40:00 -0500

Members of the House rejected today an effort to mandate that federal officials obtain warrants to access data collected secretly about Americans as part of the push to renew foreign intelligence surveillance authorizations. The USA RIGHTS Act, pushed in the house by Reps. Justin Amash (R-Mich.) and Zoe Lofgren (D-Calif.) was not adopted. After an intense debate, the vote failed 183-233. The USA RIGHTS Act was an attempt to fix some serious privacy problems with the Foreign Intelligence Surveillance Act (FISA) authorities under Section 702. Though FISA is supposed to be used for snooping on foreign targets, it has been brought to bear against Americans and used for domestic crime cases, secretly and without warrants. Section 702 was set to expire at the end of 2017 and civil rights groups and privacy-minded lawmakers demanded reforms so that the FBI and National Security Administration (NSA) would be required to get warrants before accessing or even querying these databases for information and communications from Americans. That's what the USA RIGHTS Act was meant to do, and it failed. About two-thirds of the Republicans voted against the amendment and about two-thirds of the Democrats voted for it, so it wasn't really a "party line" vote, but the Democrats could have pushed it through had they all supported it. Several ranking Democrats openly supported increasing the powers of a surveillance state, even under a president they loathe. (House Minority Leader Nancy Pelosi and Intelligence Committee Ranking Member Adam Schiff, both Democrats, voted against Amash.) Instead, the House voted 256 to 164 in favor of the FISA Amendments Reauthorization Act of 2017. This bill doesn't just renew Section 702 for six years; it also codifies permission for the FBI to access and use data secretly collected by Americans for a host of criminal cases that have nothing to do with protecting America from foreign threats. There had been some attempts to get some warrant demands in the bill, but as surveillance expert Marcy Wheeler has noted, the law was worded so that it applies only if you're a suspect of a crime. That is to say, people suspected of criminal activity have greater privacy protections under the law than those who just have their data and communications snatched up en masse. The American Civil Liberties Union is not thrilled. A response from Neema Singh Guliani, their policy counsel: "The House voted today to give President Trump and his administration more spying powers. The government will use this bill to continue warrantless intrusions into Americans' private emails, text messages, and other communications. "No president should have this power. Yet, members of Congress just voted to hand it to an administration that has labeled individuals as threats based merely on their religion, nationality, or viewpoints. The Senate should reject this bill and rein in government surveillance powers to bring Section 702 in line with the Constitution." Now the reauthorization goes to the Senate, where Sens. Rand Paul (R-Ky.) and Ron Wyden (D-Ore.) have sponsored the Senate version of the USA RIGHTS Act. They have both already tweeted their responses to what happened in the House today: No American should have their right to privacy taken away! #FILIBUSTER — Senator Rand Paul (@RandPaul) January 11, 2018 If this #Section702 bill comes to the Senate, I will filibuster it. — Ron Wyden (@RonWyden) January 11, 2018 It's filibuster time! Clearly Paul and others need to try to book some time on Fox and Friends and try to convince President Donald Trump to switch his position back to opposing domestic surveillance. Update: Amash tweeted his response to the amendment's failure: Thank you to the 183 Republicans and Democrats who voted yes on the Amash-Lofgren #USARIGHTS Amendment. We fell short today, but a large, growing coalition is standing up for the American people. We'll never stop defending the #4thAmendment, our #Constitution, and all our rights.&mda[...]

Florida Couple Fined $50 Per Day for 'Illegal' Treehouse on Their Own Property

Wed, 10 Jan 2018 16:45:00 -0500

(image) A private treehouse overlooking the ocean should have been a source of relaxation and fun for Florida couple Lynn Tran and Richard Hazen. But the hideaway, built on beachfront property they owned on Anna Maria Island, wound up rooting them in a prolonged legal battle with local authorities.

After exhausting their options in Florida, Tran and Hazen appealed to the U.S. Supreme Court—which rejected the case on Monday. The Second District Court of Appeal rejected the case in 2015. That means the couple has no recourse but to respect a circuit court judge's initial ruling to take the treehouse down.

Tran and Hazen built their treehouse in 2011, after local authorities informed them that no special permit would be required to built it. The structure cost them about $25,000.

But in 2013, an anonymous complaint to Holmes Beach city officials noted that the treehouse had actually been built on land where such structures were prohibited. A subsequent inspection from Holmes Beach code enforcement determined that Tran and Hazen's treehouse was in multiple violations of the city code. It also faulted the couple for failing to get proper building permits.

Now the city is fining the couple $50 every day the treehouse remains up.

The kicker? Tran and Hazen can't start tearing down the treehouse until they get the proper permits for tearing down a Holmes Beach home.

Amash, Paul, and Others Trying to Stop Congress from Expanding Domestic Surveillance Powers

Wed, 10 Jan 2018 12:20:00 -0500

Rep. Justin Amash (R-Mich.) and a bipartisan group of 42 lawmakers are going to try to stop Congress from expanding the feds' ability to snoop on American citizens. If they fail, Rand Paul (R-Ky.) is threatening a filibuster in the Senate. This week the House is considering legislation to renew Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments. This law grants intelligence agencies the authority to snoop on foreign targets on foreign soil without warrants, overseen by a secretive FISA court. This is done in the name of stopping espionage and terrorism. But the surveillance powers have also been secretly used on Americans to track down evidence of other crimes, without a warrant, circumventing both the Fourth Amendment and the FISA Amendments' stated intent. "We think that is unconstitutional, hugely problematic, and we're here to defend the rights of the American people," Amash said this morning at a press conference attended by members of both parties in both houses of Congress. Section 702 had been set to expire at the end of 2017 if it was not renewed. But several lawmakers refused to vote for its renewal unless it is reformed to protect Americans against warrantless surveillance. Unable to reach an agreement, lawmakers kicked the can down the road and just renewed Section 702 unchanged until January 19. Tomorrow, the House may take up one proposed renewal bill. Unfortunately, the bill they're considering is absolutely awful. The FISA Amendments Reauthorization Act of 2017—pushed by the intelligence committees of both the House and the Senate—explicitly authorizes the exact violations of citizens' privacy that Amash and company are trying to stop. Rather than demanding that the FBI and NSA get warrants before they access Americans' private data and communications, it does the opposite: It gives the feds formal permission to snoop on citizens for a list of federal crimes without getting a warrant first. Amash has introduced a substitute amendment in the House that would replace the text with the contents of the USA RIGHTS Act. This is an alternative bill sponsored by Sens. Rand Paul (R-Ky.) and Ron Wyden (D-Ore.) in the Senate and by Amash, Ted Poe (R-Texas), and Zoe Lofgren (D-Calif.) in the House. The USA Rights Act would restrain the feds from using information collected in secret unwarranted FISA searches as evidence in court cases. It would also forbid "about" searches, where feds snoop on communications that are "about" a target as opposed to just communications to and from that target. And it would forbid "reverse targeting," where the feds snoop on foreign targets for the purpose of accessing the communications of the Americans talking to them. At today's press conference, Paul said he would filibuster any plan to renew Section 702 without warrant protections for Americans. To judge from the turnout this morning, it looks like he won't be alone if he does. I've written extensively about the difference between these two bills under consideration and what they do. If you need a refresher, check out this primer. Or read what Paul himself had to say at Reason about FISA reauthorization here.[...]

Washington, California Trying to Punish Businesses that Overly Cooperate with Feds on Immigration

Mon, 08 Jan 2018 13:30:00 -0500

Can a state government punish a private business for voluntarily cooperating or assisting federal officials in enforcing federal immigration laws? We may find out in both Washington State and California, as the conflict between the states and the feds over immigration enforcement heats up. In Washington, state Attorney General Bob Ferguson is suing Motel 6. The budget national hotel chain got some media attention last fall after employees told the Phoenix New Times in Arizona it was quietly sending the names of its customers to Immigration and Customs Enforcement (ICE) officials so they could possibly track down people staying there who were in the country illegally. In a statement after filing suit, Ferguson says they found that Motel 6 locations in Washington State were also cooperating with ICE and passing along "the personal information of at least 9,151 guests to ICE, even though its privacy policy assured consumers it would protect this information." Ferguson says Motel 6's cooperation is a violation of the customers' privacy in that they did so without a warrant or subpoena and that their cooperation was based on the perceived national identity of guests (meaning they suspected they were from outside the country based on name and ethnicity). Ferguoson says these acts violate Washington's privacy and discrimination laws and the state's constitution. The reference to Washington's state constitution is relevant because the state has its own privacy laws. Historically, our private information as citizens does not have the same Fourth Amendment protection from unwarranted searches when it's held by a third party (like a hotel). It's known as the third-party doctrine, is based on Supreme Court precedents from the 1970s, and plays a huge role in the various legal challenges and fights to stop unwarranted surveillance and access to our phone and computer data. States are certainly permitted to establish stricter boundaries that restrain local and state police from accessing third-party data about private people without warrants. In fact, that's awesome. And that's what Washington State has done. But attempting to force private companies from following those guidelines in their interactions with federal officials takes the law to a different place. ICE is not constrained by Washington State's privacy laws when collecting third-party information. But is Motel 6 when communicating with ICE officials? We may end up seeing more cases just like this thanks to new laws in California that came into effect with the new year. California has implemented a new law that prohibits private employers from voluntarily consenting to allow federal immigration officials to search "nonpublic areas of a place of labor" if they do not have a warrant. It further forbids employers from voluntarily allowing immigration officials access to employee records if the officials do not have a warrant or subpoena. Fines for violating this law range from $2,000 to $10,000 per incident. That California implemented such a law is itself rather fascinating—and a sign of what resistance to the Trump administration leads to—because just three years ago the state was insisting that its own law enforcement officers did have a limited right to access registries of hotel guests without having to get warrants. The case of Los Angeles v. Patel went all the way to the Supreme Court, and the court ruled 5-4 that the Los Angeles Police Department could not demand access to a hotel's guest registry without at least allow the hotel an avenue for appeal. Here's a fun twist: Former California Attorney General Kamala Harris (now a senator) took the side of the City of Los Angeles and the LAPD to engage in unwarranted collection of hotel guest registries for crimefighting purposes. Her office submitted an amicus brief to the Supreme Court encouraging them to find for the city. But now that the Trump administrati[...]

Demise of Trump Voter Fraud Commission Is a Victory for Federalism

Thu, 04 Jan 2018 10:20:00 -0500

Yesterday, the White House announced that President Trump has issued an executive order shutting down his Presidential Advisory Commission on Election Integrity, which was planning to investigate alleged voter fraud around the country. The Commission was headed by Vice President Mike Pence (chair of the commission) and Vice Chairman Kris Kobach, the highly partisan Secretary of State of Kansas known for initiating dubious prosecutions, and promoting highly restrictive voting laws. Kobach oversaw most of the commission's activities. The White House statement accompanying the order said that Trump decided to shut down the commission because "many states have refused to provide the Presidential Advisory Commission on Election Integrity with basic information relevant to its inquiry." The statement also noted that Trump chose not to "engage in endless legal battles" to get the states to turn over the information - a strong indication that the administration probably expected to lose many of those battles. Forty-four states, as well as the District of Columbia, rejected some or all of Kobach's demands that they turn over information such as the names, addresses, party registrations, and last four digits of Social Security numbers of voters. State officials cited concerns about privacy and state sovereignty as reasons to reject the Commission's demands. The objecting states included many with Republican-controlled state governments. Mississippi GOP Secretary of State Delbert Hosemann suggested that the Commission should "go jump in the Gulf of Mexico and Mississippi is a great State to launch from." He rejected the request because "our State's right to protect the privacy of our citizens by conducting our own electoral processes." State governments' successful resistance to the Commission's demands is a victory for privacy, and also for federalism as a constraint on overreaching by the federal government. It is dangerous to trust the feds with sensitive information on voters across the country - especially, but certainly not exclusively, when the presidency is held by a man with as little respect for civil liberties as Trump. This issue, along with others such as the litigation challenging the administration's efforts to punish sanctuary cities, is an example of how state and local governments (many of them liberal Democratic ones) are using federalism to resist Trump. In many cases, the legal doctrines in question were first developed by conservative judges, often over the bitter opposition of the left. Perhaps these cases will help lead the left to rethink some of their traditional skepticism about federalism and judicial enforcement of constitutional constraints on federal power, as some liberals have already begun to do. At the same time, we should not be overly optimistic, as "fair weather federalism" is a longstanding problem on both sides of the political spectrum. Most election law experts believe that in-person voter fraud is extremely rare, and that there is no evidence support Trump's claims that it is widespread, and accounted for his loss of the popular vote in the 2016 election. But even if you believe it is a more serious problem than most experts conclude, a commission headed by a highly biased figure like Kobach was hardly the right way to seek solutions. Moreover, subject to the constraints imposed by constitutional rights, the Constitution leaves most issues of election administration to state governments. It is they who should deal with voter fraud. Federal control over election procedures would potentially enable the party that controls Congress and the White House to bias voting rules around the country in its own favor. Similar abuses can and do occur at the state level, as well. But at least pro-Democratic bias in liberal states is offset by Republican bias in conservative ones, and vice versa. Kobach claims that [...]

Will the Government Ban Human Driving?

Tue, 02 Jan 2018 16:10:00 -0500

When self-driving vehicles become safer than human-driven ones, the government will ban people from driving. Or that, at least, is the claim made in some recent articles in Automotive News and National Review. Bob Lutz, former vice chairman and head of product development at General Motors, declares in Automotive News that vehicles "will no longer be driven by humans because in 15 to 20 years—at the latest—human-driven vehicles will be legislated off the highways." By the time 20 to 30 percent of vehicles on the roads are fully autonomous, Lutz argues, officials "will look at the accident statistics and figure out that human drivers are causing 99.9 percent of the accidents." Most self-driving vehicles, he believes, will be standardized modules ordered and operated by big transportation fleet companies; riders will summon them with the touch of a screen or a voice command to a digital assistant. Human driving of high-end specialty vehicles will continue, Lutz predicts, but only as an elite pastime confined to country clubs and the equivalent of motorsport dude ranches. "The era of the human-driven automobile, its repair facilities, its dealerships, the media surrounding it—all will be gone in 20 years," he writes. Similarly, National Review's Charles C.W. Cooke writes: "At some point in the future, be it years, decades, or a century hence, the federal government will seek to ban driving." Cooke agrees that those seeking to ban human driving will base their arguments on the dramatically lower level of highway carnage that self-driving vehicles will bring about. Lutz is more or less resigned to a future where human driving is banned, but Cooke fiercely argues for resisting any such ban. Indeed, he urges the adoption of a constitutional amendment: "Congress shall make no law restricting adults from driving licensed vehicles." In the 20th century, Cooke points out, automobiles were machines of liberation enabling people to go where they wanted when they wanted without having to tell anyone what they were up to. In contrast, the fleet owner of automous vehicles would know where the car picked you up, where it let you out, and how many passengers traveled with you. The company will probably also monitor you via video to make sure you don't vandalize the module. Cooke argues that such a vehicle "would become a telescreen on wheels—an FBI-approved bug, to be slipped beneath the chassis in plain sight of the surveilled. At a stroke, my autonomy would be gone." Cooke has a point. Still the fact is that our robocar travels will add only a bit more to the copious data exhaust we already leave in our wakes as we wander through the world using our credit cards, Apple Pay, ride-hailing services, E-Z passes, and mobile telephones. Protecting our privacy from government snooping will take far more than guaranteeing folks the right to drive themselves. (For example, the U.S. Supreme Court is currently considering a case in which police demanded without a warrant the geolocation cell phone data that they used to prosecute a suspected armed robber.) Whether or not human driving is ever actually banned, a good first step toward for protecting our privacy, including our privacy while traveling in self-driving vehicles, would be the adoption of the Geolocational and Privacy Surveillance Act. This law would require the government to show probable cause and get a warrant before acquiring the geolocational information of any U.S. person. The act would apply "to all law enforcement acquisitions of the geolocational information of individual Americans without their knowledge, including acquisition from commercial service providers as well as direct acquisitions using 'Stingrays' and similar devices or tracking devices covertly installed by the government." The act would require a warrant for real-time tracking of a person's m[...]

No Foreign Spy Program Reauthorization Without Citizen Protections

Tue, 02 Jan 2018 12:45:00 -0500

The federal government's greatest constitutional responsibility is keeping America safe and secure. One of many tools in its arsenal is the Foreign Intelligence Surveillance Act (FISA), which was meant to strengthen our ability to monitor foreign threats. Since the intention of FISA is to spy on foreigners, we don't require that the government obey the Constitution. The Fourth Amendment protections of privacy are not extended to foreigners. Congress agreed to a less-than-constitutional standard as long as the targets were foreigners in foreign lands. Even many privacy advocates can accept this lower standard for foreign intelligence. But few, if any, privacy advocates believe that information vacuumed up without constitutional protections should be used against Americans accused of domestic wrongdoing. Unfortunately, that's what we believe is happening now. In the vast dragnet of data files collected on foreigners under Section 702 of FISA, millions of bits of information are also collected on Americans. We don't know the exact amount because our overlords in the intelligence community won't tell us. Apologists for any and all spying on anyone anywhere, foreign or domestic, want to permanently reauthorize this program. Permanent reauthorization would mean Congress would never again debate or oversee any abuses in this spy program. I can't think of an approach more callous in its disregard for our cherished Bill of Rights. I will do whatever it takes, including filibuster, to prevent any reauthorization without new constitutional controls on this program. Are Americans currently caught up in this bulk collection of data? If so, how many innocent Americans are being swept up in this program? Well, that's part of the problem. Good luck finding out, even if you've been elected to Congress. One grave danger we know about is so-called "incidental" data being used to prosecute Americans in domestic criminal cases. Such evidence should be inadmissible because it was collected without Fourth Amendment protections. Some reformers believe that the government should not be able to search this massive database, or any database for that matter, without a judicial warrant. Absolutely, a warrant should be required, but really no information gathered without constitutional protection should be used, with or without a warrant, in domestic crime. Should there be any exceptions? If a judge grants a warrant and a search discovers an American who has communicated with a foreign threat and can now be convicted of a national security or terrorism crime, then by all means, prosecution should be allowed to proceed. But, if a search of the 702 data discovers incidental malfeasance such as a tax infraction, that data, with or without a warrant, should never be used in domestic prosecution. Furthermore, the government should be disallowed from taking that information and developing a parallel construction of a case, where the illegally obtained information is not used in court but is used by law enforcement to develop other information to mount a prosecution. 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. Some argue that "if you have nothing to hide, you have nothing to fear," but this is a slap in the face to our constitutional standard of "innocent until proven guilty." Madison wrote that the chains of the Constitution are necessary because men are not angels. Bias enters into the minds of even the most well-meaning of souls. Questions remain about whether high-ranking Obama administration officials, such as Susan Rice, "unmasked" Trump transition officials for political reasons. Questions remain about who in government feloniously leaked General Flynn's telephone conversation to the[...]

Sex and Transgender Employees: A Thought Experiment

Tue, 02 Jan 2018 08:33:00 -0500

The discussion of accommodating patient modesty-based preferences (see this post about the cervical smear test and the transgender nurse) led me to a hypothetical that I thought I'd raise. I realize that it's unusual, and may be on one end of the spectrum of when gender should matter; but like many possible edge cases, it can help us think through other cases as well, and decide which ones (if any) are analogous to it. I'd especially like to hear from people who would generally come down on the transgender rights side of the debate in most other employment contexts. Let's assume a country or state in which brothel prostitution is legal (as it is in some Nevada counties and in some European countries). And let's assume a brothel that caters to many sexual orientations, and as a result has both male and female prostitutes working in it. (I'm not sure whether brothels do indeed follow this business model, but say that they do.) Finally, let's assume that street prostitution and even online direct-contact prostitute hiring is still illegal, so the brothels are the only game in town. A gay man comes to the brothel, and says "I'd like a man to perform oral sex on me"; he's not picky about the man. They go to the room and start to get down to business -- but the gay man realizes that the man is physically a woman. (Perhaps the prostitute strips down, and the situation becomes evident, or the customer feels something unexpected during foreplay, or the customer just recognizes that this is someone who he has heard is transgender; assume there's no doubt about the physical fact.) "Wait, I asked for a man!," the customer says. "I am a man," the prostitute says; "I self-identify as a man. And what do you care about whether I have a penis? You're just asking me for oral sex." "I don't care how you self-identify," the customer says, "I want someone who is physically a man, even if I'm not going to be touching his genitals." The customer leaves (without paying) and complains to the brothel. What do you think is the sound answer here? A. The brothel operator should be legally forbidden from assigning prostitutes based on sex at all, at least when it comes to oral sex. The patron's desire for a prostitute of a particular sex is not rational -- the physical act, after all, is the same regardless of the performing party's sex. And such customer preferences, including nonrational ones, can't justify gender identity discrimination in employment. (To be sure, unlike the man in our hypothetical, customers of brothels often care about other aspects of a prostitute's physical appearance, and most physical appearance discrimination is not illegal, at least in most places in the U.S.; but the point of gender identity discrimination law is in part to bar discrimination based on certain aspects of physical appearance.) B. The brothel operator should be legally free to assign prostitutes based on sex, but the prostitute's self-identified sex is all that can matter. Once the objecting customer hears from the prostitute, "I self-identify as a man," that should be enough for the customer. (Again, we're talking about a sex act that's physically identical regardless of the prostitute's genital equipment.) C. The brothel operator should be legally free to assign prostitutes based on sex as the customer understands the sex. If the customer says, "No, I want to have oral sex performed on me by someone who has a penis, even if I don't actually touch the penis during the act," then the brothel operator should be free to accommodate that. It seems to me pretty clear that the answer is (C) -- that while human sexual reactions may not be rational, they are legitimate features of people's preferences that merit accommodating, even in a regime that generally bans sex discrimination and that requ[...]

Patient Privacy and Transgender Medical Professionals

Sun, 31 Dec 2017 17:47:00 -0500

The Sunday Times (Nicholas Hellen) reports: A woman who requested a female [National Health Service] nurse to perform her cervical smear test was "embarrassed and distressed" after a person with stubble and a deep voice summoned her for the intimate procedure. The nurse's view, apparently, was, "My gender is not male. I'm a transsexual." But the patient objected, writing: [It was] weird where somebody says to you: "My gender is not male" and you think: "Well, what does that even mean? You are clearly a man." ... [The nurse] had an obviously male appearance ... close-cropped hair, a male facial appearance and voice, large number of tattoos and facial stubble .... People who are not comfortable about this are presented as bigots and this is ... kind of how I was made to feel about it. The NHS apologized to the patient, according to the Central and North West London NHS Foundation Trust: We apologised to this patient for the recording error and because the staff member accepted they didn't manage the situation appropriately; the patient needed to feel listened to. Trust policy is to consider seriously all requests for clinicians of a particular gender. Here's my thinking on this: Medical care facilities are generally legally allowed to accommodate patients' preference for male or female doctors or nurses for various intimate medical procedures, and it's good that they do so for those patients who have such a preference (and I realize that not all patients do). In the U.S., for instance, even when sex-based job assignments are generally forbidden, they are allowed when sex is a "bona fide occupational qualification," and such privacy considerations are indeed viewed as BFOQs. To quote Veleanu v. Beth Israel Medical Center (S.D.N.Y. 2000) -- a nonprecedential decision, but one that summarizes well the view of courts, [T]he Court assumes that defendants harbored a plan for women-only health facilities and that they endeavored to accommodate patients' requests to see female doctors. That a medical entity may seek to respond to some medical treatment requests of its female patients -- an expression of preference particular to the health care field -- does not, of itself, indicate that it discriminates against male doctors. Veleanu has not introduced any evidence to substantiate any connection. An OB/GYN physician, like Veleanu, provides intimate and sensitive personal care to a women's body. Because such care implicates the patients' privacy rights, personal dignity and self-respect, the Court believes that health care presents unique circumstances that may justify reasonable efforts to accommodate a patient's expression of preference of doctor by gender, and that female patients may have a legitimate privacy interest in seeking to have female doctors perform their gynecologicalexaminations. Indeed, other district courts have consistently recognized that privacy interests may justify adjustment of sex-based requirements for certain jobs. See Jones v.. Hinds Gen. Hosp., 666 F.Supp. 933 (S.D.Miss.1987) (hospital could terminate female nurse assistant in favor of male orderlies on the basis of gender in order to preserve privacy interests of male patients); Norwood v. Dale Maintenance Sys., Inc., 590 F.Supp. 1410, 1416-17 (N.D.Ill.1984) (allowing opposite sex attendant into washrooms while in use is intrusion on personal privacy warranting sex-based hiring policy); Backus v. Baptist Med. Ctr., 510 F.Supp. 1191, 1194 (E.D.Ark.1981), vacated as moot, 671 F.2d 1100 (8th Cir.1981) (hiring of male nurse would invade the privacy of obstetrical patients in hospital where nurse was obliged to perform sensitive and intimate tasks); Fesel v. Masonic Home of Delaware, Inc., 447 F.Supp.1346, 1353 (D.Del.1978), aff'd, 591 F.2d 1334 (3d Cir.19[...]

Congress Kicks Surveillance Debate into 2018

Wed, 27 Dec 2017 14:05:00 -0500

(image) As 2017 comes to a close, Congress, still divided over how (or whether) to limit federal surveillance authorities, has kicked the can down the road to at least January 19.

As part of a continuing resolution to keep the federal government running for a few more weeks, Congress extended the deadline to decide what to do about Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments.

Section 702 grants the FBI and National Security Agency (NSA) the authority to engage in covert, unwarranted surveillance of foreign targets overseas. It is a source of public controversy in recent years because it has become clear and public that the federal government has been using this authority to secretly collect data and communications from and about American citizens and using it as evidence for domestic crime investigations, without getting warrants and without citizens knowing it was happening.

Section 702 expires at the end of the year, or it would have if not for the continuing resolution passed right before Christmas. Before renewing Section 702, civil rights activists groups and privacy rights-oriented lawmakers want to make sure the law's text is reformed so that the use of unwarranted surveillance against American citizens is restricted.

But Congressional leadership, White House officials, and the intelligence community are reluctant to see any changes that might restrict surveillance powers. Right before the holiday, the House tried and failed to advance an absolutely terrible renewal bill that would have given the FBI and NSA formal permission to use unwarranted surveillance to investigate a whole bunch of domestic crimes in this law aimed at foreign targets.

That effort failed and this short-term renewal means the fight is far from over. Technically, the FBI and NSA say that they don't actually have to start winding down their surveillance until April, so there's still time to fight over how to reword the law (for information on which bills are currently in circulation, written in plain English, read here).

But the continuing resolution briefly postponed budget fights to keep the government open. There's still a very high likelihood that some sort of surveillance renewal could get jammed into a spending bill that gets passed with little discussion. Senators like Rand Paul (R-Kentucky) and Ron Wyden (D-Ore.) say they'll fight efforts to pass a Section 702 renewal without any debate in Congress. And they've put together the bill that best protects American citizens from unwarranted surveillance.

We thought this fight might be over by the end of the year, but it's going to keep going into 2018.

Senators Warn DHS About Using Facial Scans on Americans at Airports

Wed, 27 Dec 2017 11:25:00 -0500

Sens. Mike Lee (R-Utah) and Ed Markey (D-Mass.) are teaming up to try to stop the Department of Homeland Security from violating Americans' privacy with facial recognition scanning programs at airports. The two senators sent a letter to the DHS over the holiday weekend pointing out that the pilot project begun by President Barack Obama's administration and continued under President Donald Trump was not intended to be used on U.S. citizens and expressed concerns about flaws with the systems that could result in Americans being denied access to flights. The DHS has begun scanning the faces of people boarding international flights at a handful of U.S. airports, ostensibly to catch illegal immigrants still in the states on expired visas. There are plans to roll out scanners to all airports eventually. This program includes scanning the faces of American citizens, not just foreign travelers. This necessarily means the government is attempting to order citizens to participate in intrusive biometric scanning in order to truly prove who we are. Suddenly, passports are not enough. Americans are permitted to opt out and the images are stored for just two weeks. But over the summer DHS warned that biometric scanning could eventually become mandatory and the images could end up being used for other purposes. As the letter from Lee and Markey note, Congress authorized the pilot program to scan foreign travelers, but specifically declined to authorize biometric scanning of U.S. citizens. The two senators are further concerned about the failure rate and flaws with the technology that could result in as many as one in 25 travelers being misidentified by the facial recognition tools and possibly denied the ability to travel. Their letter coincides with a new report on problems with implementation of biometric scanning in airports by Georgetown Law's Center on Privacy and Technology. The report notes the implementation of the screening program could cost $1 billion, "Yet curiously, neither Congress nor DHS has ever justified the need for the program." The explanation for the program has been to help fight visa overstay travel fraud, where a foreign visitor arranges to stay in the country by having an impersonator leave with his or her visa. But, the report notes, the DHS has not adequately studied the extent of this problem nor explained how implementing additional biometric scanning would be helpful to stop the problem. In fact, DHS officials have themselves questioned whether such scanning would be useful. It still has not completed a planned study to report on the extent of visa overstay problems and the value of biometric scanning to stop it. In the meantime, there are obvious and predictable concerns that the images of American citizens collected from biometric scanning will bleed out of DHS's control and be used for other purposes. American citizens make 50 million trips of year and the Georgetown Law report notes the DHS might extend biometric scans passively into the airports themselves in order to track and identify people. One neither has to be cynical nor paranoid to see this system being used for purposes other than what the government intended. Just as intrusive searches by the Transportation Security Administration (TSA) are more likely to help the feds fight its foolish war on drugs rather than a war on terrorism, this scanning would most certainly be applied to other purposes. Every surveillance tool that the government insists is used to protect Americans from foreigners ultimately gets used on Americans too. Read the Georgetown study here. And check out Shikha Dalmia's story from Reason magazine's December issue about how overzealous and misguided immigration law enforceme[...]