Archive for the ‘Law’ Category
The Senate has already voted to remove your privacy protections, and now the House follows suit. Goodbye, privacy. It was great while it lasted.
Brian Fung reports in the Washington Post:
House Republicans voted overwhelmingly Tuesday, by a margin of 215-205, to repeal a set of landmark privacy protections for Web users, issuing a sweeping rebuke of Internet policies enacted under the Obama administration. It also marks a sharp, partisan pivot toward letting Internet providers collect and sell their customers’ Web browsing history, location information, health data and other personal details.
Congress’s joint resolution empowers Internet providers to enter the $83 billionmarket for online advertising now dominated by Google and Facebook. It is likely to lend momentum to a broader GOP rollback of Obama-era technology policies, and calls into question the fate of other tech regulations such as net neutrality, which was approved in 2015 over strident Republican objections and bans Internet providers from discriminating against websites. And it is a sign that companies such as AT&T, Comcast and Verizon will be treated more permissively at a time when conservatives control all three branches of government.
Supporters of Tuesday’s repeal vote argued the privacy regulations, written by the Federal Communications Commission, stifle innovation by forcing Internet providers to abide by unreasonably strict guidelines.
“[Consumer privacy] will be enhanced by removing the uncertainty and confusion these rules will create,” said Rep. Marsha Blackburn (R-Tenn.), who chairs the House subcommittee that oversees the FCC.
Internet providers can collect enormous amounts of personal information because they can see all of the online activities of users as they browse different sites on the Web, critics of the legislation said. And unlike search engines or streaming video sites, which consumers can easily abandon if they do not agree with their privacy practices, it is far more difficult to choose a different Internet provider. Many Americans have a choice of only one or two broadband companies in their area, according to federal statistics.
Privacy advocates called the House vote “a tremendous setback for America.”
“Today’s vote means that Americans will never be safe online from having their most personal details stealthily scrutinized and sold to the highest bidder,” said Jeffrey Chester, executive director of the Center for Digital Democracy. “Donald Trump, by giving away our data to the country’s leading phone and cable giants, is further undermining American democracy.” . . .
It’s odd that the GOP favors this. It certainly doesn’t seem conservative to me. But then neither does trashing the environment.
Quinta Jurecic writes at Lawfare:
This morning, the Washington Post reported that the Justice Department sought to prevent former Acting Attorney General Sally Yates from testifying before the House Permanent Select Committee on Intelligence (HPSCI) as part of the committee’s investigation into Russian interference in the presidential election.
According to the Post, the department informed Yates that many of the topics on which she was set to testify, including former National Security Advisor Lt. Gen. Michael Flynn’s contacts with the Russian ambassador to the United States, were likely protected by executive privilege. Yates’s lawyer responded with letters to Acting Assistant Attorney General Samuel Ramer and White House Counsel Don McGahn asserting that Yates’s testimony was not privileged.
Yates had been scheduled to testify in an open hearing before HPSCI today, along with former Director of National Intelligence James Clapper and former CIA Director John Brennan. However, on Friday March 24th, the day after Yates’s lawyer mailed his letter to Ramer and the same day that the letter was sent to McGahn, HPSCI Chairman Devin Nunes canceled the committee’s scheduled open hearing in which Yates was set to testify. The Post also reports that by the day before Nunes canceled the hearing, both Yates and Brennan had informed government officials that their scheduled testimony on Tuesday would likely contradict statements by the White House.
Nunes originally announced that the open hearing with Yates, Brennan, and Clapper had been canceled to make way for a closed hearing with testimony from FBI Director James Comey and NSA Director Admiral Michael Rogers in response to Nunes’s hazy concerns about possible incidental collection of Trump transition team communications. Yesterday, however, Nunes stated that the closed hearing had been canceled as well.
HPSCI Ranking Member Adam Schiff has suggested that Yates’s response was connected to Nunes’s decision to cancel the hearing. Earlier reports indicated that Nunes publicly declared the hearing’s cancellation without first informing Schiff or the other members of the committee, and Schiff stated publicly in a press conference following Nunes’s announcement of the canceled hearing that Nunes had previously tried to cancel or close the hearing, only to face pushback from Schiff.
The latest Post report is particularly noteworthy given concerns in recent days over Nunes’s possible coordination with the White House regarding his series of public disclosures on incidental collection. Yesterday, CNN reported that Nunes was seen on the White House grounds the night before his twin press conferences on March 22nd. Additionally, in his press conference on Friday, Schiff also suggested that Nunes had canceled the hearing after “strong pushback from the White House” following the first HPSCI open hearing, asking, “What other explanation can there be?”
There sure seems to be a lot of news about the sort of thing Radley Balko tracks. From his lunchtime links:
- Chicago cops raid the wrong family.
- The Huffington Post has found that key evidence was omitted from the prosecutor’s report in the case of Darren Rainey, the man essentially scalded to death when Miami prison guards left him in a hot shower.
- Lawsuit: Nebraska family claims their lives were ruined when husband/father was arrested on child porn charges based solely on an auto-generated tip from Microsoft. The charges were dropped when police couldn’t find the images on the man’s computer.
- More progress on forfeiture reform, this time in Idaho and Mississippi.
- Ex-Brooklyn assistant district attorney charged with illegally wiretapping phones.
- Meanwhile, the U.S. Attorney’s Office in Kansas has been accused of spying on on more than 700 criminal defense lawyers as they visited their clients in prison.
- In Louisiana, 17 alleged gang members have been locked up for over a year, with no trial in sight. But the problem goes well beyond Louisiana.
- FBI agents continue to pose as journalists while conducting criminal investigations. This puts journalists at risk.
- Investigation shows corrupt cops in East Cleveland, Ohio, framed dozens of drug suspects.
- Detroit officials argue that unlicensed dogs are “contraband,” and therefore the city isn’t liable when police officers kill them.
There are more at link.
This country seems to be in a bad way in the way it treats those without power: the poor, minorities, the mentally ill, Native Americans, immigrants (legal or not), and so on.
Radley Balko writes in the Washington Post:
Back in 1970, Congress passed a couple of bills authorizing the “no-knock raid.” This was an issue that President Richard Nixon had pushed during the 1968 presidential campaign. Prior to the late 1960s, police did sometimes enter residences without knocking, but they’d only decide to do so under “exigent circumstances,” such as pursuing a fleeing fugitive or hearing screaming from inside of a house. They would then need to justify their actions to a judge. Nixon wanted cops to be able to get warrants authorizing no-knock raids ahead of time, particularly in drug cases.
This wasn’t something police chiefs or sheriffs were asking for. It wasn’t a tool they thought they needed, at least at the time. Instead, it was the brainchild of Don Santarelli, a young Senate staffer hired by the Nixon campaign to come up with wedge issues to appeal to Nixon’s “silent majority.” Letting cops bust down the doors of suspected drug offenders may have violated a centuries-old principle called the “Castle Doctrine” — the notion that the government should only be able to violate the sanctuary of the home under extraordinary circumstances — but it played well with Nixon’s favorite demographic. (Santarelli has since expressed regret for this policy.) The first bill Congress passed allowed the no-knock for federal agents conducting drug investigations all over the country. The second authorized the no-knock warrant for cops in Washington, D.C. Because Congress has jurisdiction over D.C., Nixon had decided to make the city a guinea pig for his anti-crime policies.
Federal agents embraced the policy, and commenced kicking down doors all over America, often with tragic consequences. But in D.C., it was a different story. Police Chief Jerry Wilson — a man well ahead of his time — thought the policy was dangerous, was reckless and ran roughshod over the civil rights of his constituents. He also feared that it would poison the relationship between police and the city’s residents. So he refused to implement it.
Over Wilson’s tenure, crime dropped in D.C., even as it soared in much of the rest of the country. So the Nixon administration didn’t seem to mind that Wilson hadn’t instituted one of its key policies. It was happy to take credit for the drop in crime. Congress would later repeal both no-knock bills, although the policy would come back in the 1980s and has been with us ever since.
Last week, I thought about Wilson’s stand against an aggressive law-and-order administration when the Trump administration posted the names of police agencies that refused to detain suspected undocumented immigrants long enough for federal officials to take custody of them. This will apparently be a weekly endeavor, an effort to shame local authorities for not sufficiently aiding in deportations. Like the threat to cut federal funding to sanctuary cities, President Trump’s aim here is to punish municipalities for not sufficiently contributing to his deportation goals.
It’s also a direct attack on policing and federalism, two institutions Trump and his administration claim to hold in high esteem. Throughout the 2016 campaign, Trump and his supporters painted him as the candidate who will support cops, who would give police officers the tools they need to do their jobs. Trump would be a stark contrast to the Obama administration, which Trump, Attorney General Jeff Sessions and campaign surrogates reprimanded as too critical of law enforcement and too eager to impose federal authority on local police agencies.
Sessions, for example, called the use of consent decrees between the federal government and police agencies in which the Justice Department has found a pattern of civil rights violations — which increased significantly under the Obama administration — “one of the most dangerous . . . exercises of raw power.” Trump himself has repeatedly argued that the administration’s federal oversight has made police officers afraid to do their jobs, and has blamed President Barack Obama’s Justice Department at least in part for the rise in crime in some American cities.
But the decision among some police agencies to refuse to hunt down or hold undocumented immigrants for federal authorities isn’t a protest for open immigration or a way of undermining Trump. It’s about good policing. First, there’s the problem of complying with the law. As the New York Times argued in a recent editorial, complying with White House demands would likely violate the Constitution:
If a police department is about to release someone who posts bail, it can’t prolong the detention — in essence, arrest that person again — just because ICE asks it to. Federal courts have repeatedly ruled that the local police cannot be forced to honor a detainer in violation of the Constitution. That is, without an arrest warrant from a judge. Which an ICE detainer is not.
The list appears to have been pretty ad hoc and sloppily assembled. It was clearly designed more to shame agencies that have publicly opposed Trump than to be a comprehensive list of those that haven’t complied. For example, more than 60 percent of the ignored detainers listed for the first week were in Travis County, Tex. That county’s sheriff’s department instituted a new policy last month restricting its cooperation with ICE. But there’s a good reason the sheriff’s department there wants to make its own decisions about when to ask for deportations:
Maj. Wes Priddy, of the Travis County Sheriff’s Office, said the agency does detain criminals convicted of serious crimes for immigration officials.
But he said his department does not turn over people awaiting trial.
“We do honor ICE detainers. But we do it selectively and in a manner which we can abide by our policy,” Priddy said, adding that in the past, immigration officials have deported people before trial, depriving defendants of their day in court and, in some cases, denying closure to crime victims. “We want to make sure that justice is served on the local level as well.”
In other words, local officials have determined that in some instances, trying serious crimes in court is more important to the local community than deporting an accused undocumented immigrant. That’s precisely the sort of decision a true federalist would let states and municipalities decide on their own. Instead, Trump wants a one-size-fits-all immigration policy — his policy — for every police agency in the United States.
But it’s worse even than that. Trump also made crime a key part of his campaign. He demagogued and exaggerated the rise in violent crime in some cities. Police officials, especially those in large cities with large populations of undocumented immigrants, aren’t opposing Trump’s immigration policies out of spite or distaste for him. They’re opposing them because they fear those policies will lead to more crime, not less. Over and over, in city after city, law enforcement officials have stated that when you create a climate of fear in immigrant communities, it makes undocumented people, their friends and their families less willing to report crimes, and less likely to cooperate with police investigations. This is why groups such as the Major Cities Chiefs Association have expressed concern about Trump’s threats to sanctuary cities, and why police officers in those cities say Trump is making their jobs more difficult. From the L.A. Times: . . .
Continue reading. There’s a lot more.
I think the lead/crime hypothesis is standing up very well. Here’s the latest from Devin Drum.
I think borders generally are starting to close as countries batten down the hatches, as it were, in anticipation of the disruptions that climate change will bring. Certainly the U.S. military has been studying the national-security aspects of climate change. (OTOH, I know a young man who has a good job and a college degree, who totally denies the reality of climate change, seeing it as a political movement and conspiracy of scientists, with absolutely nothing to back it up. His attitude is not all that uncommon, I think.)
Murtaza Hussain reports in The Intercept:
A LAWSUIT FILED today by the Knight First Amendment Institute, a public interest legal organization based at Columbia University, seeks to shed light on invasive searches of laptops and cellphones by Customs and Border Protection officers at U.S. border crossings.
Documents filed in the case note that these searches have risen precipitously over the past two years, from a total of 5,000 searches in 2015 to 25,000 in 2016, and rising to 5,000 in the month of February 2017 alone. Among other questions, the lawsuit seeks to compel the federal government to provide more information about these searches, including how many of those searched have been U.S. citizens, the number of searches by port of entry, and the number of searches by the country of origin of the travelers.
Civil rights groups have long claimed that warrantless searches of cellphones and laptops by government agents constitute a serious invasion of privacy, due to the wealth of personal data often held on such devices. It is common for private conversations, photographs, and location information to be held on cellphones and laptops, making a search of these items significantly more intrusive than searching a simple piece of luggage.
A number of recent cases in the media have revealed instances of U.S. citizens and others being compelled by CBP agents to unlock their devices for search. In some instances, people have claimed to have been physically coerced into complying, including one American citizen who said that CBP agents grabbed him by the neck in order to take his cellphone out of his possession.
The legality of warrantless device searches at the border remains a contested issue, with the government asserting, over the objections of civil liberties groups, that Fourth Amendment protections do not apply at ports of entry. Some particularly controversial cases of searches at the border have involved journalists whose electronic data contains sensitive information about the identity of sources. Last year, a Canadian journalist was detained for six hours before being denied entry to the United States after refusing to unlock devices containing sensitive information. It has also been alleged that border agents are disproportionately targeting Muslim Americans and people with ties to Muslim-majority countries for both interrogation and device searches.
This February, Sen. Ron Wyden sent a letter to Department of Homeland Security head John Kelly stating that . . .
I’m really excited about this, and more hopeful about the US than I have been for a long time.
David Daley writes in Salon:
Gerrymandering, the process of drawing distorted legislative districts to undermine democracy, is as old as our republic itself. Just as ancient: the Supreme Court’s unwillingness to get involved and determine a standard for when a partisan gerrymander has gone too far.
That might be changing. During the 2000s, Justice Anthony Kennedy expressed openness to a judicial remedy, if an evenhanded measure could be devised to identify when aggressive redistricting was no longer just politics as usual.
When the pivotal swing justice looks for a standard, law professors and redistricting nerds get to work. There are now several cases related to the extreme maps drawn after the 2010 census – by Republicans in Wisconsin and North Carolina, and by Democrats in Maryland – on a collision course with the Supreme Court.
The case with the most promise to deliver a lasting judicial remedy is Whitford v. Gill, from Wisconsin, which advances a fascinating standard called the “efficiency gap.” It is the brainchild of law professor Nicholas Stephanopoulos and political scientist Eric McGhee, but has an elegant simplicity that is easily understandable outside of academia. If gerrymandering is the dark art of wasting the other party’s votes – either by “packing” them into as few districts as possible, or “cracking” them into sizable minorities in many seats – the efficiency gap compares wasted votes that do not contribute to victory.
In November, a panel of federal judges smiled upon this standard and ruled that the state assembly districts drawn by a Republican legislature in the Whitford case represented an unconstitutional partisan gerrymander. “Although Wisconsin’s natural political geography plays some role in the apportionment process, it simply does not explain adequately the sizable disparate” advantage held by Republicans under these new maps, wrote the court.
The judges ordered new state assembly maps in time for the 2018 election – a big deal, considering these district lines have helped give Republicans their largest legislative majorities in several decades, despite years in which Democratic candidates receive more votes. But just as important, it accepted the “efficiency gap” rationale and sent it toward Justice Kennedy. If Kennedy finds it workable, it would become much more difficult for politicians to choose their own voters and rig maps in their favor.
If this case makes history, it will be thanks to the commitment of lawyers and political scientists, but also to the Wisconsin citizens who launched it, starting with regular meetings at a Madison tea room. The plaintiff whose name could become synonymous with taming the gerrymander and restoring fairness and competitiveness to our elections is a retired law professor named Bill Whitford. We sat down at a redistricting conference at Duke University this month to discuss his case, the efficiency gap and all the luck it has required along the way.
Let me start with the obvious questions: How did you become interested in redistricting? And how did you become the plaintiff in what could be the most important Supreme Court decision on partisan gerrymandering ever?
I’ve been a political junkie from the word go. I grew up in Madison. My mother was very political. By the time I was 13 or 14, I was a big-D Democrat, working on campaigns. I was chairman of the Young Democrats as an undergraduate at the University of Wisconsin. Then I went to law school straight out of college, mostly interested in constitutional law. Baker v. Carr was decided [in 1962] while I was in law school. I wrote my very first academic article, as a student, on Baker v. Carr.
That’s amazing: Baker v. Carr is the decision that allows the federal courts to get involved in redistricting matters. The hunt for redistricting’s holy grail – a standard to measure partisan gerrymandering, the goal of Whitford – begins there.
Yes, it argued even then about what the standard should be. I got a job as a law school professor teaching assigned contracts, and then went a different way in terms of my academic specialties. But I always remained a Democratic activist interested in politics and redistricting. That’s my birthright, I guess!
Your retirement comes 50 years after the Baker decision, and at a time when Wisconsin is the new ground zero of the gerrymandering fight. Republicans captured both chambers of the state legislature in 2010, Scott Walker became governor, and the maps they enacted in 2011 are some of the most tilted any state has seen in four decades. Democrats win more votes, but Republicans win an outrageous 2012 Assembly supermajority anyway. How did you join the fight?
There was a group that met and talked in the Watts Tea Room in Madison that grew out of the lack of success of the first legal challenge to these maps. [The court found an unconstitutional racial gerrymander in that case and forced several largely Latino districts in Milwaukee to be redrawn.] I wasn’t a part of the original group, but the guy who was as responsible as anybody for it was a Wisconsin legislator and redistricting guru named Fred Kessler. We’d been active in Young Democrats as undergraduates. He knew that I was retiring and asked me if I would like to join the group. That’s how I became involved in this case.
Let me get this straight: You’re saying that we’re this close to a national standard on partisan gerrymandering because a group of frustrated old friends and retirees had a regular meeting at a Madison tea room and put this whole thing together?
Well, some of the members of that group were lawyers in the earlier case. They were very aware of the kind of information [about the behind-the-scenes GOP redistricting chicanery] that was available in discovery. We knew we had a lot of smoking-gun evidence that would indicate partisan intent, and it turned out that we had even more than we thought. But by then we also had the results of the 2012 elections, where Democrats got a majority of the statewide vote but only 39 percent of the seats. By any measure for partisan effect, that was pretty good data. Then we began shopping for lawyers and we stumbled onto Nick Stephanopoulos and Ruth Greenwood.
That’s remarkable luck: Nick and Eric McGhee had been studying the Wisconsin redistricting. Using a new standard they developed called the efficiency gap to quantify the impact of a partisan gerrymander, they discovered that you had one of the most unrepresentative legislatures in any state over the last several decades. How did you stumble across this?
One of the roles I played in the group was to reach out to professors in academia, both to feel them out for ideas and to see if they thought we had a decent test case. We thought we had a very good fact situation for a test case, but there was also the issue of whether we should wait for the 2020 cycle before it wound up in court. Rick Pildes of NYU Law School was one of these people. I just called him up cold.
Turns out, Rick got the original Stephanopoulos and McGhee draft paper where they explained the efficiency gap. As part of the election-law community, he’d been asked to make comments. He alerted us to this and suggested Eric would make a good expert witness. I read the article and saw that he talked all about Wisconsin. That’s how we got into the efficiency gap. Then in my initial phone call with Nick, he mentioned that his girlfriend was the incoming voting rights director for the Chicago Lawyers Committee for Civil Rights. Ruth and Nick soon came to Madison and started meeting with the group.
How do you explain the efficiency gap to your friends and neighbors? It’s complicated and involves math. What’s the elevator pitch?
I simply start out talking about “packing and cracking.” They’re the essential tools of gerrymandering. I don’t really stress the efficiency gap. If I had to explain the efficiency gap, I’d go to the concept of lots of wasted votes – but I would first start off with packing and cracking, then explain wasted votes in the context of packing and cracking.
And what do we mean by “wasted votes” in this context? . . .