Hearings were held on both sides of the Hill last week to consider a trio of surveillance powers set to expire under PATRIOT Act sunset rules. But the stage is set for a much broader fight over the sweeping expansion of search and surveillance authority seen over the past eight years; the chairmen of both the House and Senate Judiciary Committees have announced their intention to use the occasion to revisit the entire edifice of post‑9/11 surveillance law. Two major reform bills have already been introduced: Sen. Russ Feingold’s JUSTICE Act and Sen. Patrick Leahy’s USA PATRIOT Sunset Extension Act. Both would preserve the core of most of the new intelligence tools while strengthening oversight and introducing more robust checks against abuse or overreach. The JUSTICE Act, however, is both significantly broader in scope and frequently establishes more stringent and precisely crafted civil liberties safeguards. Most observers expect the Leahy bill to provide the basis for the legislation ultimately reported out of Judiciary, the central question being how much of JUSTICE will be incorporated into that legislation during markup later this week. While the surveillance authorities and oversight measures covered in each bill are varied and complex, it’s worth examining the differences in some detail.
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Cyberbullying Bill on the March
Federal prosecutors moved to criminalize internet harassment last year by prosecuting Lori Drew. Lori Drew, as you may recall, is a Missouri woman who created a fictional MySpace profile named “Josh” and started an online relationship with Megan Meier, a teenage girl who may have spread gossip about Drew’s daughter at the local high school. After “Josh” broke up with her, Megan Meier killed herself.
While this is despicable conduct, Missouri prosecutors found that Drew had broken no criminal statute and could not be prosecuted.
Enter Thomas O’Brien, U.S. Attorney for the Central District of California. O’Brien filed charges against Drew based on alleged violations of the Computer Fraud and Abuse Act (CFAA). O’Brien alleged that by violating MySpace’s policy requiring factual information in the user profile and affirming the click-to-agree contract, Lori Drew had committed a crime akin to hacking or unauthorized access of computer data. Because of MySpace’s ties to the Central District of California, Lori Drew was haled into court halfway across the country.
Though the jury convicted Drew and reduced the felony charges to misdemeanors, District Judge George Wu threw out the conviction because the statute would allow the prosecution of nearly anyone on the internet. The decision is available here. The government has since filed a notice of appeal. Orin Kerr notes that the appeal may face additional hurdles – the line of cases that the government used to interpret the statute so broadly has been overturned by the Ninth Circuit.
Several members of Congress have since jumped on the Named Victim Act bandwagon, sponsoring the Megan Meier Cyberbullying Prevention Act. The Act goes far beyond the issue of unauthorized access, criminalizing any rude speech delivered via the internet, cell phone, or text message:
‘(a) Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.
‘(b) As used in this section–
‘(1) the term ‘communication’ means the electronic transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received; and
‘(2) the term ‘electronic means’ means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.’.
The scope of this law is breathtaking. Had a rough breakup with your significant other? Engaged in a flame war on a website’s comment section? We’ve got a law against that, you know.
The House Judiciary Committee will be holding a hearing on this law tomorrow. Cato Adjunct Scholar Harvey Silverglate, author of Three Felonies a Day: How the Feds Target the Innocent, will be testifying. Silverglate will also be at a book forum on Thursday at Cato, which can be watched live here.
Three Felonies a Day
Harvey Silverglate’s new book, Three Felonies a Day: How the Feds Target the Innocent, is receiving a good bit of press. L. Gordon Crovitz has a good piece up at the Wall Street Journal discussing federal overcriminalization and how it impacts information technology. National Review Online has an audio interview with Silverglate discussing how federal law often strays from traditional notions of criminal intent, making innocent activity potentially criminal.
Silverglate will be speaking at Cato on Thursday at a book forum with Tim Lynch. Tim’s recent book In the Name of Justice looks at the evolution of strict liability statutes and other developments in criminal law with chapters from prominent legal thinkers. Washington Times columnist Tony Blankley will be serving as guest moderator. Admission is free; registration information is available here, and the event can be watched live at the link.
Another “Victory” in the War on Drugs
A grandmother in Indiana has been arrested for purchasing cold medicine. We can all sleep more safely now that this hardened criminal has been taught a lesson. The Terre Haute News reports:
When Sally Harpold bought cold medicine for her family back in March, she never dreamed that four months later she would end up in handcuffs.
Now, Harpold is trying to clear her name of criminal charges, and she is speaking out in hopes that a law will change so others won’t endure the same embarrassment she still is facing.
…Harpold is a grandmother of triplets who bought one box of Zyrtec‑D cold medicine for her husband at a Rockville pharmacy. Less than seven days later, she bought a box of Mucinex‑D cold medicine for her adult daughter at a Clinton pharmacy, thereby purchasing 3.6 grams total of pseudoephedrine in a week’s time.
Those two purchases put her in violation of Indiana law 35–48‑4–14.7, which restricts the sale of ephedrine and pseudoephedrine, or PSE, products to no more than 3.0 grams within any seven-day period.
When the police came knocking at the door of Harpold’s Parke County residence on July 30, she was arrested on a Vermillion County warrant for a class‑C misdemeanor, which carries a sentence of up to 60 days in jail and up to a $500 fine.
PATRIOT Act Provision Used for Drug Cases
The PATRIOT Act contained a number of tools that expanded the power of federal law enforcement officials. One of these, the “sneak and peak” warrant, allows investigators to break into the home or business of the warrant’s target and delay notification of the intrusion until 30 days after the warrant’s expiration. This capability was sold to the American people as a necessary tool to fight terrorism.
In Fiscal Year 2008, federal courts issued 763 “sneak and peak” warrants. Only three were for terrorism cases. Sixty-five percent were drug cases. The report is available here.
Ryan Grim has more on this, including video of Sen. Russ Feingold (D‑WI) grilling Assistant Attorney General David Kris.
Honduras’ Interim Government Falls Into Zelaya’s Trap
Once again, and as a response to the return of deposed president Manuel Zelaya to Tegucigalpa, the interim government of Honduras has overreacted by decreeing a 45-day suspension of constitutional guarantees such as the freedom to move around the country and the right to assemble. The government is even imposing some restrictions on freedom of the press. More disturbingly, today the army shut down a radio station and a TV station supportive of Zelaya.
As I’ve written before, these measures are unnecessary, counterproductive and unjustified. While Zelaya’s supporters are known for repeatedly relying on violence, their actions have been so far contained by the police and the army. Zelaya himself is secluded at the Brazilian Embassy, and while he is using it as a command center to make constant calls for insurrection, the authorities have so far been in control of the situation.
One of the most troubling aspects of the suspension of constitutional guarantees is that they effectively obstruct the development of a clean, free, and transparent election process. Let’s remember that Honduras is holding a presidential election on November 29th, and many regard this electoral process as the best way to solve the country’s political impasse, particularly at an international level.
There can’t be a free and transparent presidential election while basic constitutional rights have been suspended. By adopting these self-defeating measures, the interim government of Honduras is lending a hand to Zelaya and his international allies in their effort to disrupt the country’s election process.
Nanny State Doesn’t Like Competition
“A Michigan woman who lives in front of a school bus stop says the state is threatening her with fines and possibly jail time for babysitting her neighbors’ kids until the bus comes,” CNN reports.
Lisa Snyder of Middleville, Mich., says she takes no money for watching the three children for 15–40 minutes each day so that the neighbors can get to work on time.
The Department of Human Services, acting on a complaint that Snyder was operating an illegal child care home, demanded she either get a license, stop watching the kids or face the consequences, WZZM says.
Snyder calls the whole thing “ridiculous” and tells the Grand Rapids TV station that “we are friends helping friends!”
A DHS spokesperson tells the station that it has no choice but to comply with state law, which is designed to protect Michigan children.
She’s not getting paid. She’s possibly not even letting the neighbor kids into her house. The kids are waiting for a school bus in front of her house, and she’s told her neighbors she’ll keep an eye on their kids. And the government wants her to get a license. (Something similar is happening in Britain.) This is what people mean when they warn that an ever-expanding government threatens the values of neighborliness and community. When the government provides services for free, or when it erects obstacles to individuals’ providing those services, it reduces private provision and simultaneously increases the demand for government services. If you make it illegal for neighbors to watch one another’s kids, you weaken ties of neighborhood and community.
Our nanny-state government not only wants to take care of us from cradle to pre‑K to K‑12 to homebuying to medical care to retirement to grave, it not only considers adult Americans “just like your teenage kids, [not] acting in a way that they should act,” it not only wants to “nudge” us into acting the way it thinks we should, now it thinks that neighbors should have to get a license to keep an eye on the kids congregating in front of their homes. It’s enough to make you think we have too much government.