The Electronic Frontier Foundation has unearthed an interesting case of an improper use of surveillance in an investigation where the FBI had obtained “roving wiretap” authority. In a bizarre turn, the Bureau ended up eavesdropping on young children rather than their adult suspects for five days. The case is generating some attention because that same “roving wiretap” authority is one of the three surveillance powers set to expire in late May. The thing is, on the basis of what I can glean from the heavily redacted document EFF obtained via a Freedom of Information Act request, it’s not a case involving misuse of the roving authority. But it is a good concrete example of why the roving authority needs to be modified.
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Constitutional Law
My Cato Talk on Schools for Misrule
The March 3 event, in which I was joined by Cato’s Roger Pilon and by distinguished federal judge Douglas Ginsburg of the D.C. Circuit, is now online. You can also watch it (possibly in a larger format) at the Cato multimedia site.
If that’s not enough (or if you’d like something suitable for car listening) my appearance on Milt Rosenberg’s Extension 720, one of the nation’s great radio interview programs, is available as an audio podcast here from Chicago’s WGN. (Talkers magazine has described Rosenberg as the “nation’s leading author interviewer. A Chicago institution for the literate.”) And my speaking travels continue this week with a private Manhattan Institute event Wednesday evening, a talk at lunchtime Thursday before the American University Federalist Society chapter in Washington with Prof. Steven Vladeck commenting, and Cato’s own Policy Perspectives 2011 event in New York City on Friday.
You can buy the book here. Star libertarian lawprof Randy Barnett (just profiled in the Boston Globe) gave the book one of my favorite blurbs:
While the public loves to bash lawyers, judges, and politicians, law professors have escaped all blame. Olson provides the inside story of how progressive political ideology became the reigning orthodoxy of elite legal education, providing the legal theories responsible for an overweening government committed to mandating, prohibiting, or regulating every aspect of American life in the “public interest.” I wish I could say he exaggerates but, sadly, the legal foundation of the road to serfdom was devised by law professors.
Contracts and ‘Reasonable Expectations of Privacy’
Chris Soghoian looks at a recent ruling related to the ongoing investigation of Wikileaks, in which a judge rejected a challenge from several users whose Twitter account information had been obtained by the government. Thanks to a shortsighted Supreme Court ruling from the 1970s, people are presumed to waive their “reasonable expectation of privacy” in data voluntarily conveyed to third parties, which means many types of sensitive records can routinely be obtained by the government without the need for a full-blown Fourth Amendment search warrant based on probable cause. In some cases, a mere subpoena, or even a government agency’s certification that the records are “relevant” to an investigation, will suffice.
Recently, however, some courts have sought to rein in the scope of this “third party doctrine” on the grounds that the logic of the ruling that established it doesn’t apply to many types of data generated and recorded in the modern technological context. So, for instance, the Third Circuit recently held that while some cell phone companies keep relatively detailed records of the locations of the phones they serve—information automatically generated when the phone is turned on and getting service—the “cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way” and, moreover, “it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information.” The targets of the government’s request here—not a search warrant but a court order based on a showing of mere “relevance” to an investigation—argue that IP addresses logged by Twitter when users connect to the service should be treated in the same way.
The judge in the Wikileaks/Twitter case was unmoved by this sort of argument, observing that Twitter users signify via click that they “agree” to a lengthy series of terms of service, and that those terms include a link to a privacy policy, which indicates that such information maybe stored. Many privacy advocates object that it is unreasonable to infer the waiver of constitutional rights from clickwrap agreement to legal boilerplate terms that, as studies consistently show, nobody actually reads. That’s a fair enough point, but I’d like to point out a little asymmetry here.
ObamaCare Implementation Meets Resistance in More States
Republican governors Rick Scott (FL), Sean Parnell (AK), and Bobby Jindal (LA) have flatly refused to implement ObamaCare. Efforts to create an ObamaCare health insurance “Exchange” are meeting resistance in other states too. According to Politico:
In South Carolina, tea party activists have been picking off Republican co-sponsors of a health exchange bill, getting even the committee chairman who would oversee the bill to turn against it.
A Montana legislator who ran on a tea party platform has successfully blocked multiple health exchange bills, persuading his colleagues to instead move forward with legislation that would specifically bar the state from setting up a marketplace.
And in Georgia, tea party protests forced Gov. Nathan Deal to shelve exchange legislation that the Legislature had worked on for months.
According to NewHampshireWatchdog.org:
New Hampshire’s Executive Council voted unanimously [to table] a request from the state Insurance Commissioner to accept $666,000 to study how to set up a health insurance exchange called for under the Patient Protection and Affordable Care Act.
Councilor David Wheeler (R‑Milford) argued that the study would take New Hampshire down the path of ObamaCare…Councilor Chris Sununu (R‑Newfields) worried that it would provide ammunition to those seeking to increase state control over health care, and might put state taxpayers on the hook for the cost on an exchange.
Reason’s Peter Suderman writes:
At first glance, the law seems like a trap for those who both oppose the law and favor federalism: ObamaCare calls on states to set up exchanges; in any state that does not sufficiently comply by 2013, the federal government will simply swoop in and set up an exchange on its own. That leaves governors who oppose the law in something of a bind: Either take control and set up a state-run exchange, or let the federal government step in and run things itself…But there are a number of reasons why governors in that position might want to sit out the implementation process. For one thing, states won’t have much flexibility to design the exchanges as they see fit, despite the administration’s protestations to the contrary.… For governors who oppose the law, refusing to set up the exchanges is also a smart move politically.…
If these state governments are skeptical enough of the law’s constitutionality to sign onto a lawsuit challenging it, they probably shouldn’t be devoting time and resources to implementing it either.
ObamaCare Implementation: What Rivkin Said, and Why
A couple of people have asked me about a comment David Rivkin made at Cato’s recent conference on the first anniversary of ObamaCare.
Rivkin is representing the 26 states suing to overturn ObamaCare in Florida v. HHS, the case in which a federal judge declared ObamaCare unconstitutional and void. In his most recent ruling in that case, Judge Roger Vinson allowed the Obama administration to keep implementing and enforcing the law, in part because the fact that most of the plaintiff states are also implementing the law “undercut” their request that he stop the Obama administration from doing so. I (and others) have been urging states to follow the lead of Republican governors Rick Scott (FL), Sean Parnell (AK), and Bobby Jindal (LA) by refusing and returning all Obama funds and refusing to implement any type of health insurance “Exchange.”
According to Politico, when asked about the impact of states implementing the law, Rivkin said:
The decision to take money or not take money is a quintessentially political decision that does not impede legal claims… If a given state wants to continue complying with Obamacare and receiving money, that’s not impairing our ability to challenge the law.
Consider that answer in context. Rivkin is representing 26 states, and as their attorney he has a duty to them. Asking him if plaintiff states implementing ObamaCare are undermining the lawsuit is basically to ask, “Aren’t 23 of your clients making your job harder?” What should he have said? Yes? Of course not. As a good lawyer should, he responded that those states are doing nothing to inhibit his ability to litigate the case. He said nothing about whether those states’ actions could affect the outcome of his case (which they might), nor the likelihood that the law will be repealed (which they obviously do). On those questions, he’s the wrong guy to ask.
Civil Forfeiture vs. Truth and Justice
Civil asset forfeiture strikes at the heart of property rights. Authorities simply seize private property without all the messiness of convicting someone of a crime. It’s blatantly unconstitutional and it shouldn’t happen, but it does. What’s worse, many state governments offer little to no information to the public about what they’re doing with those ill-gotten gains.
A new report and video from the Institute for Justice illustrates the case of Georgia quite well. The video was produced by IJ’s multitalented Isaac Reese.
IJ’s Scott Bullock participated in a lively discussion of their “Policing for Profit” (PDF) report last April here at Cato.
Food Vigilantes On Patrol in Philly
Kids represent special cases in the libertarian commitment to individual liberty, and for a good reason. They are, it is generally thought, not necessarily able to know what is best for them. The solution is to leave child-rearing to the parents, but what do we do about parents who are abusive or negligent? Lots of room for discussion there. But a recent story about one “solution” to the problem of childhood obesity made my skin crawl. Apparently some adults have taken to standing guard outside corner stores, harrassing kids when they exit. From the New York Times:
PHILADELPHIA — Tatyana Gray bolted from her house and headed toward her elementary school. But when she reached the corner store where she usually gets her morning snack of chips or a sweet drink, she encountered a protective phalanx of parents with bright-colored safety vests and walkie-talkies.
The scourge the parents were combating was neither the drugs nor the violence that plagues this North Philadelphia neighborhood. It was bad eating habits.
“Candy!” said one of the parents, McKinley Harris, peering into a small bag one child carried out of the store. “That’s not food.”
The parents standing guard outside the Oxford Food Shop are foot soldiers in a national battle over the diets of children that has taken on new fervor.
This started because a Philadelphia school principal was fustrated and concerned about the diets of her pupils. She was worried about the effect it was having on their health and ability to learn. Ok. She banned soda and sweet snacks from the school, but still kids were eating…well, the stuff kids will eat and, after pressuring local store owners to stop serving the kids yielded unsatisfactory results, she called in the heavies:
Frustrated that her pressure on stores had not worked, Ms. Brown called on parents and Operation Town Watch Integrated Services, which typically helps neighborhoods fight crime and drugs.
“I need you to go to those stores and say, ‘Look, can you not sell to our kids between 8:15 and 8:30?’ ”Ms. Brown said, kicking off the effort in January. “ ‘We don’t want them to eat sugary items. There is a breakfast program right here. And if you don’t do this, we’re going to have to boycott for a while.’ ”
The kids are putting up quite the show of resistance, though:
Mr. Harris… and three other parents took the first corner store watch, with mixed results. Tatyana continued past the store without stopping, but others bought the usual fare.
“Ha, ha, ha,” one young girl said, scoffing at Mr. Harris.
“I bought everything!” another bragged.
(The kids apparently stopped going to the corner stores after a while, but the article didn’t say whether they had acually stopped eating the bad foods, or if they just went elsewhere for their fix).
Clearly there is some room for debate about what to do when kids are not being looked after. But vigilante groups, checking on what other people’s children are eating? Too far, IMHO.