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Free speech – OpenLearn – Open University

 Free Speech  Comments Off on Free speech – OpenLearn – Open University
Oct 192015

David Edmonds: This is Ethics Bites, with me David Edmonds.

Nigel Warburton: And me Nigel Warburton.

David: Ethics Bites is a series of interviews on applied ethics, produced in association with The Open University.

Nigel: For more information about Ethics Bites, and about the Open University, go to

David: For John Stuart Mill the limit of freedom of speech in a civilized society was roughly the point where a speaker was inciting violence. But perhaps it isn’t as simple as that. For free speech, in the well-known example, doesnt entitle us to shout “Fire! in a crowded theatre. Where then should we draw the line, and why? Tim Scanlon, Professor in Harvard Universitys philosophy department, has spent much of his career reflecting about issues of toleration and free speech. His initial writings on the topic stressed that the value of free speech lay in autonomy in particular, the right of individuals to have access to information so as to be able to think for themselves. Now he has a more nuanced view which takes into account the interests of both speaker and listener, and empirical considerations about the danger of granting powers of regulation to the state.

Nigel: Tim Scanlon, welcome to Ethics Bites.

Tim Scanlon: Im glad to be here. Thank you very much.

Nigel: Now the topic were focusing on today is free speech. Presumably youre an advocate of free speech at some level, but lets start by getting clear what do we mean by free speech?

Tim: By free speech I mean the need for restrictions on the way in which governments can regulate speech. Whether speech is free in a further sense, that is whether people have opportunities, is a very important thing, but its not the issue of free speech.

Nigel: Thats really interesting, because you immediately began by talking about regulation and controlling what can be said.

Tim: Well certainly speaking is not without costs: what people can say can cause injury, can disclose private information, can disclose harmful public information. Its not a free zone where you can do anything because nothing matters. Speech matters. But because it matters its very important that governments who want to regulate speech, for example to prevent things that would be embarrassing to politicians, or otherwise upset the government, its important that that power should be restricted.

Nigel: The word speech seems to imply something spoken, but clearly speech stands for expression here, its not just speech is it?

Tim: No, its not just speech. In one respect, what defines our thinking about free speech is not the particular acts that constitute speech, but rather the reasons one has for wanting other people to notice for wanting to make some kind of communication with others. Speech is just one way of doing it. How you dress, how you act in public. All those things can signal to other people your values, what kind of life you favour, and the fact that the way you act, as well as the way you speak, can signal those things provide reasons for other people to want to prevent you from doing those things – because they dont want those signals to be out there in the public space. The question of free speech is the question of how that impulse to regulate what can be out there in the public space need itself be controlled.

Nigel: Ok, well lets think about the justifications for controlling free speech. Youve devoted quite a lot of your life to thinking philosophically about the limits of toleration. Whats the philosophical underpinning of your position?

Tim: Well one philosophical underpinning in driving any of this has to be understanding the reasons why people should care about having these opportunities that might be restricted. I began by talking about how free speech has to do with limitations on government power. But of course the value thats at stake is affected by things other than what the government does, its also affected by how corporations can control access to television and other important media. So here we have two sides. On the one hand, philosophically one of the first things you want to do in understanding free speech is to understand what are the values that are at stake, why should we care about it? Thats much broader than the question of government regulation. On the other hand, if you think mainly in terms of constitutional provisions, restrictions on the law, there were talking particularly about government.

Nigel: Often people talk about free speech as arising from individual autonomy. We should have a freedom to be who we are and to express ourselves in the way that we wish to. Its a basic right of humans to express themselves…

Tim: I dont know if I want to say its a basic right. I want to say that people have reasons, all kinds of reasons, to want to be able to express themselves. Although when were talking about the permissible limits on speech we need to focus not only on the interests that people have in wanting to get their own ideas out there, but also the interests that people have as potential audience members to have access to what other people want to say. Philosophical discussions of the topic divide, to some extent, as to whether they focus mainly on speaker values or audience values, and I think its important to take both into account.

Nigel: OK, well with speaker values the justification tends to be in terms of autonomy; but with audience values we start talking about the consequences for the audience. The classic case there is with John Stuart Mill talking about the limits of free speech being set at the point where you harm another individual.

Tim: Thats true although, in a way, autonomy based views on the whole tend to focus on audience values – because its the audience who wants to have access to information to make up their minds. In so far as autonomy refers to the interests we have in being able to form our own opinions about how to live, what to do, how to vote, an autonomy based view tends to focus on audience values. By and large we think of speakers as already knowing what they want and what they value, and wanting to express it. Thats a kind of freedom: but it may not be helpful to call it autonomy. In general, its a case of once burnt twice shy. That is, having originally in my first publication given a theory of free speech that focused on autonomy, Ive since come to think that its a word thats probably a good idea to avoid. Because it can mean so many different things. On the one hand it can mean freedom, that is the ability to do things, on the other hand it can be a particular value, or in Kants case a particular inner power. Its a misused word so I like to avoid it.

Nigel: Perhaps it would be easier to focus on a particular case to bring out the sort of considerations that are relevant here. If we take the case of people expressing contempt for a particular racial group – some people might argue that is a consequence of free speech that people should be allowed to say offensive things. How would you approach that case.

Tim: Well there seems to be a divide on this across different countries. That is, in the United States the law and much of academic opinion is much more in favour of the idea that free speech is incompatible with having laws that ban speech simply because theyre offensive – laws for incitement against racial hatred or expressing contempt for other groups are by and large held to be unconstitutional in the United States whereas in Britain, France, Canada, laws are quite different.

Now Im in this sense typical of my country. Im inclined to be rather suspicious of laws that restrict speech on the grounds that it gives offence to a particular group. Not that I favour speech that does that, I think its terrible; the question is whether you want to have a law that restricts it. And the natural question is why on earth shouldnt you? After all it does harm people. Immigrant groups, racial minorities, are in a vulnerable position vulnerable because they suffer from status harm. Widespread opinion that they are in some way inferior, ought not to be associated with, ineligible for various jobs, and so on.

So why shouldnt speech that supports and perpetuates those attitudes be restricted? The problem is that there are so many ways in which speech can be offensive to different people, that if we start allowing offence to be a ground for restriction its very easy to generalise it, and the restrictions on speech, particularly on political speech, become too tight in my opinion.

Now theres an empirical question here, and I think the jury is out. Canada has laws against speech that foments racial hatred, and Britain does, and so on. So against the free speech advocates of my sort you can say, well they have these laws, the sky hasnt fallen. Political speech continues. On the other hand race relations havent improved much either. So the jury is to some degree out. And with respect to the UK I think its fair to say that a somewhat greater tolerance for restrictions on expression hasnt served the political culture well. Theres also much more tolerance of restrictions on disclosures of official secrets and so on and I think these havent helped political discussion in the UK. So I think the US has benefited to some degree to what might seem to some people an overly rigorous protection of free speech.

Nigel: That strikes me as a slippery slope argument: the idea that you cant take one step down the slope without ending up at the bottom. So you cant take one step by restricting certain sorts of hateful speech because the consequence will be that all kinds of other sorts of speech will be restricted.

Tim: Well in the first instance its not a slippery slope argument. It is a question about what would be the effect of having that particular restriction. So I think the case turns on that. I then move to saying if you look more generally, the more permissive attitude towards restrictions on speech hasnt been a good thing. The view of free speech that Ive come to does give a heavy weight to calculations of that kind. The question is, is a particular regulatory power, the power to restrict speech on certain grounds, is that a power we can give to government without placing important speaker and audience interests unacceptably at risk? Thats the question. And the view that there is a right to speak in certain ways comes down to the claim that if the government were allowed to prevent speech of that kind that would be a dangerous power, that we shouldnt allow, because the values of being able to speak and the values of being able to have access wouldnt be adequately served; and thats an empirical question which powers are dangerous, but thats my view.

Nigel: And the danger that youre speaking of, is that the danger that effective government wont be possible because there wont be sufficient airing of different views?

Tim: Thats one value. That is preserving the kind of opportunity to speak and influence people, and the kind of opportunity on the part of voters to be informed that we need to have a functioning democracy. Thats certainly one value. But there are also more personal values. People have good reason outside of politics to want to be able to influence the development of their society culturally, to express their attitudes about sex about art about how to live. Audiences benefit from having access to these expressions. We want to hear a diversity of views.

On the other hand people want to protect what the dominant attitudes in society are. They dont want people to express permissive attitudes towards sex or attitudes about religion that they disagree with, because that may cause the culture to evolve in ways in which they would prefer it didnt evolve. We all have feelings of that kind; I dont think its just these awful intolerant people. I feel that my society places a greater emphasis on sex, sexual attractiveness and so on than would be desirable. I dont like living in a society thats saturated with these feelings; but thats the price of living in a free society.

I also think religion is growing in its influence and so the sense that one ought to be religious or pay deference to religion is growing in strength in the United States, from my point of view that doesnt make it a society more like the one I would like to live in. But thats the price of living in a free society. There are these ebbs and flows of cultural opinion and if you want to live on terms of freedom with other people you have to be willing to accept the society that results from everybody having access to a public space you just have to accept it.

Nigel: I can see how censoring somebodys political opinions might be dangerous to good government. But censoring somebodys freedom to print pornographic images for instance, how can that harm good government?

Tim: My point in my answer to your last question was that providing the conditions necessary for good government isnt the only thing thats at stake in free speech. People who have views about, say, particular sexual relations, want to be able to express this not only as a matter of self expression, but they want to be in contact with other people who have similar views. And when regulation of that kind of expression is allowed the first thing thats likely to happen is that the minority views of this are the most likely to get restricted, and I think thats a cost. I dont like living in a society where there’s lots of pornography and people very interested in that, but, youve got to live with it.

Nigel: Another area where its difficult to see where to draw the line is with factual information that could be used in terrorist activity. So for instance if somebody wants to publish the details of how to make a certain kind of bomb on the internet, is it appropriate to censor them?

Tim: I think it is. I dont think we dont have an interest in access to information about how to manufacture bombs which is parallel to our interest to wanting to have information about what the government is actually doing, or to be able to communicate with others about sexual, moral or religious matters. So I dont think theres a similar threat to our interests as potential speakers or to our interests as audiences who want to be able to form our opinion about things if technical information about armaments and explosives is restricted.

The main worry there seems to me to be at the margin; whether some kinds of information about technical questions about military armaments become important political things that we need to know about. Like we need to know whether a missile defence system would actually work! Now theres a fair amount of distance between having a recipe for making nerve gas at home and having some information about how well the governments attempt to build a missile defence system have actually worked. But in between, there might be a worry. But on the whole Im relatively comfortable with the idea that technical information about the production of armaments is something that its permissible to regulate.

Nigel: Weve talked quite a lot about the differences between the law in the States and the UK, Im intrigued to know whether you think that the kinds of principles that you come up with in your philosophy are universalizable across societies and countries, or whether they are restricted to the particular circumstances of particular countries at particular times?

Tim: On the whole I come down on the universal side. I once had an experience speaking to a seminar that involved people from 27 different countries, academics and non academics. And theyd asked for a presentation on free speech. So I said the question of free speech is the question of whether the power to regulate speech in a certain way is the power that its too dangerous for governments to have. And thats a question of whether, if they had that power, the interests of speakers or audiences would be unduly restricted. And those who believe in free speech also have to believe that we should forbid governments from having this power at acceptable cost. And in the discussion, people all objected; they said your discussion entirely focused on things in the United States. It maybe alright in the United States to prevent the government from restricting speech, but that wouldnt work in India, someone said. Because in India if you allowed people to say certain things, then some people would riot. And a Turkish man said, a man in our law school thinks that bourgeois rights are nonsense, and obviously he cant be allowed to say that kind of thing; but you dont have that problem in the United States. The effect of this discussion was to reinforce my universalist tendencies and to think that things arent that different all over. Because, of course, exactly those questions come up in almost any society.

Now of course societies vary; the risks may be greater in some societies than in others. But on the whole theres a lot of commonality there. As far as the question of riots is concerned, this is whats known in the United States legal arguments as the hecklers veto. If you allow the threat of a riot to be a reason to prevent somebody from speaking all a group has to do to stop somebody from speaking is to threaten to riot. So the first response of the State has to be to stop the riot or put the speech in a venue where it can be protected; those are things the state can do.

Places where people dont believe in free speech, I think they dont believe in free speech largely for the reasons Ive just mentioned, they may think, well in a stable society its ok, but for us the risks are too great. Its possible that sometimes theyre right about that, but on the whole I think its a matter of not having enough faith in your fellow citizens and being too worried about what the consequences will be. Of course its in the interests of governments to encourage these fears, because its in the interests of governments to be able to regulate speech. Not because theyre evil, but just because theyre people who have their objectives and they want to be able to pursue those objectives in what seems to be the most effective way. Governments everywhere have reason to want to restrict speech; so everywhere we need laws to prevent them from doing that.

Nigel: Free speech is one of those ideas that people are prepared to die for. How would you place free speech relative to other important rights or ideas that animate people in political situations?

Tim: Well free speech first has a particular instrumental value, because its very important as a way of preventing other kinds of rights violations. People can be imprisoned in secret and one of the best ways of trying to stop that kind of thing is to try to bring it into the public sphere where political opposition can be mobilised. So freedom of speech has an important instrumental role in protecting other rights. There are cases where freedom of speech can seem to conflict with other rights. For example the right to a fair trial. In order to have a fair trial we need to prevent people from being convicted in advance in the press, so the jury cant be convened that won’t already have made up its mind about guilt. That is a clash.

When there is a clash of values of that kind one has to try to work out a strategy to deal with it. I think on the whole, by sequestering juries, by allowing defence attorneys to examine juries in advance and to ask them about their prejudices, on the whole I think one can protect the right to a fair trial, without placing many restrictions on what can be said. I dont want to say there is never a conflict, there can be, but I think on the whole its possible to work them out.

Nigel: Tim Scanlon, thank you very much.

Tim: Thank you, its been a pleasure talking with you.

David: Ethics Bites was produced in association with The Open University. You can listen to more Ethics Bites on, where youll also find supporting material, or you can visit to hear more philosophy podcasts.

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Free speech – OpenLearn – Open University

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NSA warrantless surveillance (200107) – Wikipedia, the …

 NSA  Comments Off on NSA warrantless surveillance (200107) – Wikipedia, the …
Sep 192015

The NSA warrantless surveillance controversy (“warrantless wiretapping”) concerns surveillance of persons within the United States during the collection of allegedly foreign intelligence by the U.S. National Security Agency (NSA) as part of the touted war on terror. Under this program, referred to by the Bush administration as the terrorist surveillance program,[1] part of the broader President’s Surveillance Program, the NSA was authorized by executive order to monitor, without search warrants, the phone calls, Internet activity (Web, e-mail, etc.), text messaging, and other communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lies within the U.S. However, it has been discovered that all U.S. communications have been digitally cloned by government agencies, in apparent violation of unreasonable search and seizure. The excuse given to avoid litigation[citation needed] was that no data hoarded would be reviewed until searching it would be legal. But no excuse has been offered the initial seizure of the data which is also illegal,[citation needed] according to the U.S. Constitution.[citation needed]

Critics, however, claimed that the program was in an effort to attempt to silence critics of the Bush Administration and its handling of several controversial issues during its tenure. Under public pressure, the Bush administration allegedly ceased the warrantless wiretapping program in January 2007 and returned review of surveillance to the FISA court.[2] Subsequently, in 2008 Congress passed the FISA Amendments Act of 2008, which relaxed some of the original FISA court requirements.

During the Obama Administration, the NSA has allegedly continued operating under the new FISA guidelines despite campaign promises to end warrantless wiretapping.[3] However, in April 2009 officials at the United States Department of Justice acknowledged that the NSA had engaged in “overcollection” of domestic communications in excess of the FISA court’s authority, but claimed that the acts were unintentional and had since been rectified.[4]

All wiretapping of American citizens by the National Security Agency requires a warrant from a three-judge court set up under the Foreign Intelligence Surveillance Act. After the 9/11 attacks, Congress passed the Patriot Act, which granted the President broad powers to fight a war against terrorism. The George W. Bush administration used these powers to bypass the FISA court and directed the NSA to spy directly on al-Qaeda in a new NSA electronic surveillance program. Reports at the time indicate that an “apparently accidental” “glitch” resulted in the interception of communications that were purely domestic in nature.[5] This action was challenged by a number of groups, including Congress, as unconstitutional.

The exact scope of the program remains secret, but the NSA was provided total, unsupervised access to all fiber-optic communications going between some of the nation’s largest telecommunication companies’ major interconnected locations, including phone conversations, email, web browsing, and corporate private network traffic.[6] Critics said that such “domestic” intercepts required FISC authorization under the Foreign Intelligence Surveillance Act.[7] The Bush administration maintained that the authorized intercepts were not domestic but rather foreign intelligence integral to the conduct of war and that the warrant requirements of FISA were implicitly superseded by the subsequent passage of the Authorization for Use of Military Force Against Terrorists (AUMF).[8] FISA makes it illegal to intentionally engage in electronic surveillance under appearance of an official act or to disclose or use information obtained by electronic surveillance under appearance of an official act knowing that it was not authorized by statute; this is punishable with a fine of up to $10,000 or up to five years in prison, or both.[9] In addition, the Wiretap Act prohibits any person from illegally intercepting, disclosing, using or divulging phone calls or electronic communications; this is punishable with a fine or up to five years in prison, or both.[10]

After an article about the program, (which had been code-named Stellar Wind), was published in The New York Times on December 16, 2005, Attorney General Alberto Gonzales confirmed its existence.[11][12][13]The Times had posted the exclusive story on their website the night before, after learning that the Bush administration was considering seeking a Pentagon-Papers-style court injunction to block its publication.[14]Bill Keller, the newspaper’s former executive editor, had withheld the story from publication since before the 2004 Presidential Election, and the story that was ultimately published was essentially the same as reporters James Risen and Eric Lichtblau had submitted in 2004. The delay drew criticism from some in the press, arguing that an earlier publication could have changed the election’s outcome.[15] In a December 2008 interview with Newsweek, former Justice Department employee Thomas Tamm revealed himself to be the initial whistle-blower to The Times.[16] The FBI began investigating leaks about the program in 2005, with 25 agents and 5 prosecutors on the case.[17]

Gonzales said the program authorized warrantless intercepts where the government had “a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda” and that one party to the conversation was “outside of the United States.”[18] The revelation raised immediate concern among elected officials, civil right activists, legal scholars and the public at large about the legality and constitutionality of the program and the potential for abuse. Since then, the controversy has expanded to include the press’ role in exposing a classified program, the role and responsibility of the US Congress in its executive oversight function and the scope and extent of presidential powers under Article II of the Constitution.[19]

In mid-August 2007, a three-judge panel of the United States Court of Appeals for the Ninth Circuit heard arguments in two lawsuits challenging the surveillance program. The appeals were the first to reach the court after dozens of civil suits against the government and telecommunications companies over NSA surveillance were consolidated last year before the chief judge of the Northern District of California, Vaughn R. Walker. One of the cases is a class-action lawsuit against AT&T, focusing on allegations that the company provided the NSA with its customers’ phone and Internet communications for a vast data-mining operation. Plaintiffs in the second case are the al-Haramain Foundation Islamic charity and two of its lawyers.[20][21]

On November 16, 2007, the three judgesM. Margaret McKeown, Michael Daly Hawkins, and Harry Pregersonissued a 27-page ruling that the charity, the Al-Haramain Islamic Foundation, could not introduce a key piece of evidence in its case because it fell under the government’s claim of state secrets, although the judges said that “In light of extensive government disclosures, the government is hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret.”[22][23]

In an August 14, 2007, question-and-answer session with the El Paso Times which was published on August 22, Director of National Intelligence Mike McConnell confirmed for the first time that the private sector helped the warrantless surveillance program. McConnell argued that the companies deserved immunity for their help: “Now if you play out the suits at the value they’re claimed, it would bankrupt these companies”.[24] Plaintiffs in the AT&T suit subsequently filed a motion with the court to have McConnell’s acknowledgement admitted as evidence in their case.[25]

The program may face an additional legal challenge in the appeal of two Albany, New York, men convicted of criminal charges in an FBI anti-terror sting operation. Their lawyers say they have evidence the men were the subjects of NSA electronic surveillance, which was used to obtain their convictions but not made public at trial or made available in response to discovery requests by defense counsel at that time.[26]

In an unusual related legal development, on October 13, 2007, The Washington Post reported that Joseph P. Nacchio, the former CEO of Qwest Communications, is appealing an April 2007 conviction on 19 counts of insider trading by alleging that the government withdrew opportunities for contracts worth hundreds of millions of dollars after Qwest refused to participate in an unidentified National Security Agency program that the company thought might be illegal. According to court documents unsealed in Denver in early October as part of Nacchio’s appeal, the NSA approached Qwest about participating in a warrantless surveillance program more than six months before the Sep 11, 2001, attacks which have been cited by the government as the main impetus for its efforts. Nacchio is using the allegation to try to show why his stock sale should not have been considered improper.[27] According to a lawsuit filed against other telecommunications companies for violating customer privacy, AT&T began preparing facilities for the NSA to monitor “phone call information and Internet traffic” seven months before 9/11.[28]

On August 17, 2007, the Foreign Intelligence Surveillance Court said it would consider a request filed by the American Civil Liberties Union which asked the intelligence court to make public its recent, classified rulings on the scope of the government’s wiretapping powers. Judge Colleen Kollar-Kotelly, presiding judge of the FISC, signed an order calling the ACLU’s motion “an unprecedented request that warrants further briefing.”[29] The FISC ordered the government to respond on the issue by August 31, saying that anything involving classified material could be filed under court seal.[30][31] On the August 31 deadline, the National Security Division of the Justice Department filed a response in opposition to the ACLU’s motion with the court.[32]

In previous developments, the case ACLU v. NSA was dismissed on July 6, 2007 by the United States Court of Appeals for the Sixth Circuit.[33] The court did not rule on the spying program’s legality. Instead, its 65-page opinion declared that the American Civil Liberties Union and the others who brought the case including academics, lawyers and journalists did not have the legal standing to sue because they could not demonstrate that they had been direct targets of the clandestine surveillance.[34] Detroit District Court judge Anna Diggs Taylor had originally ruled on August 17, 2006 that the program is illegal under FISA as well as unconstitutional under the First and Fourth amendments of the United States Constitution.[35][36][37]Judicial Watch, a watchdog group, discovered that at the time of the ruling Taylor “serves as a secretary and trustee for a foundation that donated funds to the ACLU of Michigan, a plaintiff in the case.”[38] On February 19, 2008, the U.S. Supreme Court, without comment, turned down an appeal from the American Civil Liberties Union, letting stand the earlier decision dismissing the case.[39]

On September 28, 2006 the U.S. House of Representatives passed the Electronic Surveillance Modernization Act (H.R. 5825).[40] That bill now has been passed to the U.S. Senate, where three competing, mutually exclusive, billsthe Terrorist Surveillance Act of 2006 (S.2455) (the DeWine bill), the National Security Surveillance Act of 2006 (S.2455) (the Specter bill), and the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 (S.3001) (the Specter-Feinstein bill) were themselves referred for debate to the full Senate by the Senate Judiciary Committee on September 13, 2006.[41] Each of these bills would in some form broaden the statutory authorization for electronic surveillance, while still subjecting it to some restrictions. The Specter-Feinstein bill would extend the peacetime period for obtaining retroactive warrants to seven days and implement other changes to facilitate eavesdropping while maintaining FISA court oversight. The DeWine bill, the Specter bill, and the Electronic Surveillance Modernization Act (passed by the House) would all authorize some limited forms or periods of warrantless electronic surveillance subject to additional programmatic oversight by either the FISC (Specter bill) or Congress (DeWine and Wilson bills).

On January 17, 2007, Attorney General Alberto Gonzales informed U.S. Senate leaders by letter that the program would not be reauthorized by the President.[2] “Any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court,” according to his letter.[42]

On September 18, 2008, the Electronic Frontier Foundation (EFF), an Internet-privacy advocacy group, filed a new lawsuit against the NSA, President George W. Bush, Vice President Dick Cheney, Cheney’s chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales and other government agencies and individuals who ordered or participated in the warrantless surveillance. They sued on behalf of AT&T customers to seek redress for what the EFF alleges to be an illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. An earlier, ongoing suit by the EFF may be bogged down by the recent changes to FISA provisions, but these are not expected to impact this new case.[43][44]

On January 23, 2009, the administration of President Barack Obama adopted the same position as his predecessor when it urged U.S. District Judge Vaughn Walker to set aside a ruling in Al-Haramain Islamic Foundation et al. v. Obama, et al.[45] The Obama administration also sided with the former administration in its legal defense of July 2008 legislation that immunized the nation’s telecommunications companies from lawsuits accusing them of complicity in the eavesdropping program, according to testimony by Attorney General Eric Holder.[46]

On March 31, 2010, Judge Vaughn R. Walker, chief judge of the Federal District Court in San Francisco, ruled that the National Security Agency’s program of surveillance without warrants was illegal when it intercepted phone calls of Al Haramain. Declaring that the plaintiffs had been “subjected to unlawful surveillance”, the judge said the government was liable to pay them damages.[47]

In 2012, the Ninth Circuit vacated the judgment against the United States and affirmed the district court’s dismissal of the claim against Mueller.[48]

The Trailblazer Project, an NSA IT project that began in 2000, has also been linked to warrantless surveillance. It was chosen over ThinThread, which had included some privacy protections. Three ex-NSA staffers, William Binney, J. Kirke Wiebe, and Ed Loomis, all of whom had quit NSA over concerns about the legality of the agency’s activities, teamed with Diane Roark, a staffer on the House Intelligence Committee, to ask the Inspector General to investigate. A major source for the IG report was Thomas Andrews Drake, an ex-Air Force senior NSA official with an expertise in computers. Siobhan Gorman of The Baltimore Sun published a series of articles about Trailblazer in 20062007.

The FBI agents investigating the 2005 The New York Times story eventually made their way to The Baltimore Sun story, and then to Binney, Wiebe, Loomis, Roark, and Drake. In 2007 armed FBI agents raided the houses of Roark, Binney, and Wiebe. Binney claimed they pointed guns at his head. Wiebe said it reminded him of the Soviet Union. None were charged with crimes except for Drake. In 2010 he was indicted under the Espionage Act of 1917, as part of Obama’s unprecedented crackdown on leakers.[49][50] The charges against him were dropped in 2011 and he pled to a single misdemeanor.

The 1978 Foreign Intelligence Surveillance Act (FISA) regulates U.S. government agencies’ carrying out of physical searches, and electronic surveillance, wherein a significant purpose is the gathering of foreign intelligence information. “Foreign intelligence information” is defined in 50 U.S.C.1801 as information necessary to protect the U.S. or its allies against actual or potential attack from a foreign power, sabotage or international terrorism. FISA defines a “foreign power” as a foreign government or any faction(s) of a foreign government not substantially composed of US persons, or any entity directed or controlled by a foreign government. FISA provides for both criminal and civil liability for intentional electronic surveillance under color of law except as authorized by statute.

FISA provides two documents for the authorization of surveillance. First, FISA allows the Justice Department to obtain warrants from the Foreign Intelligence Surveillance Court (FISC) before or up to 72 hours after the beginning of the surveillance. FISA authorizes a FISC judge to issue a warrant for the electronic cameras if “there is probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power.” 50 U.S.C. 1805(a)(3). Second, FISA permits the President or his delegate to authorize warrantless surveillance for the collection of foreign intelligence if “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party”. 50 U.S.C. 1802(a)(1).[51]

Soon after the September 11, 2001 attacks U.S. President George W. Bush issued an executive order that authorized the National Security Agency (NSA) to conduct surveillance of certain telephone calls without obtaining a warrant from the FISC as stipulated by FISA (see 50 U.S.C.1802 50 U.S.C.1809 ). The complete details of the executive order are not known, but according to statements by the administration,[52] the authorization covers telephone calls originating overseas from or to a person suspected of having links to terrorist organizations such as al-Qaeda or its affiliates even when the other party to the call is within the US. The legality of surveillance involving US persons and extent of this authorization is at the core of this controversy which has steadily grown to include:

About a week after the 9/11 attacks, Congress passed the Authorization for Use of Military Force Against Terrorists (AUMF) which authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

The administration has argued that the language used in the AUMF implicitly authorized the President to exercise those powers “incident to the waging of war”, including the collection of enemy intelligence, FISA provisions notwithstanding.[8]

On January 20, 2006, Senator Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee along with lone co-sponsor Senator Ted Kennedy (D-MA) introduced S. Res. 350, a resolution “expressing the sense of the Senate that Senate Joint Resolution 23 (107th Congress), as adopted by the Senate on September 14, 2001, and subsequently enacted as the Authorization for Use of Military Force does not authorize warrantless domestic surveillance of United States citizens.”[55][56] This non-binding resolution died in the Senate without being brought up for debate or being voted upon.[57]

Because of its highly classified status, little is publicly known about the actual implementation of the NSA domestic electronic surveillance program. Mark Klein, a retired AT&T communications technician, submitted an affidavit including limited technical details known to him personally in support of a class-action lawsuit filed by the Electronic Frontier Foundation in federal district court in San Francisco in January 2006 on behalf of AT&T customers who alleged that they had been damaged by the telecommunications corporation’s cooperation with the NSA. The lawsuit is called Hepting v. AT&T.[60][61]

A January 16, 2004 statement by Mr. Klein includes additional technical details regarding the secret 2003 construction of an NSA-operated monitoring facility in Room 641A of 611 Folsom Street in San Francisco, the site of a large SBC phone building, three floors of which are occupied by AT&T.[62][63]

According to Klein’s affidavit, the NSA-equipped room uses equipment built by Narus Corporation to intercept and analyze communications traffic, as well as perform data-mining functions.[64]

In an article appearing in the January/February 2008 issue of the Institute of Electrical and Electronics Engineers journal of Security and Privacy, noted technology experts from academia and the computing industry analyzed potential security risks posed by the NSA program, based on information contained in Klein’s affidavits as well as those of expert witness J. Scott Marcus, a designer of large-scale IP-based data networks, former CTO at GTE Internetworking and at Genuity, and former senior advisor for Internet Technology at the US Federal Communications Commission.[65] They concluded that the likely architecture of the system created serious security risks, including the danger that such a surveillance system could be exploited by unauthorized users, criminally misused by trusted insiders, or abused by government agents.[66]

Journalist Barton Gellman reported in the Washington Post that David Addington who was at that time legal counsel to former Vice President Dick Cheney was the author of the controlling legal and technical documents for the NSA surveillance program, typing the documents on a TEMPEST-shielded computer across from his desk in room 268 of the Eisenhower Executive Office Building and storing them in a vault in his office.[67][68][69]

The NSA surveillance controversy involves legal issues that fall into two broad disciplines: statutory interpretation and Constitutional law. Statutory interpretation is the process of interpreting and applying legislation to the facts of a given case. Constitutional law is the body of law that governs the interpretation of the United States Constitution and covers areas of law such as the relationship between the federal government and state governments, the rights of individuals, and other fundamental aspects of the application of government authority in the United States.[70]

However, there are analogies between the NSA Spying Scandal (20012007) and Hewlett-Packard spying scandal (2006)[71] that may ease to predict the court outcomes. HP, in order to find the leak source of its board strategic minutes revealed to press, employed several contractors to investigate the leak issue but without engaging any external legal firm and supervisory stakeholder. Contractors, under supervision of the HP’s internal investigation team, confidentially used false pretense and social security numbers a spying technique namely Pretexting for obtaining phone records of suspicious board members and several journalists. Later on, the HP’s surveillance extended beyond the board of directors leaking issue and became a conspiracy for interest of the probe initiators; through which it was claimed that the informational privacy rights of even innocent employees and directors of the board, who had nothing to do with the board leaks, were violated.

In October 2006, HP’s chairwoman Patricia Dunn and HP’s former chief ethics officer Kevin Hunsaker and several private investigators were charged for criminal cases under California Penal Code such as

All of these charges were dismissed.[72]

18 U.S.C.2511(2)(f) provides in relevant part that “the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in 50 U.S.C.1801(f) … and the intercept of domestic [communications] may be conducted.” The interpretation of this clause is central to the controversy because both sides agree that the NSA program operates outside of the procedural framework provided by FISA. The interpretive conflict arises because other provisions of FISA, including the criminal sanctions subpart 50 U.S.C.1809 include an “unless authorized by statute” provision, raising the issue of statutory ambiguity. The administration’s position is that the AUMF is an authorizing statute which satisfies the FISA criteria.

The U.S. Supreme Court faced a similar issue in Hamdi v. Rumsfeld where the government claimed that the AUMF authorized the President to detain U.S. citizens designated as an enemy combatant despite its lack of specific language to that intent and notwithstanding the provisions of 18 U.S.C.4001(a) which requires that the United States government cannot detain an American citizen except by an act of Congress. In that case, the Court ruled:

[B]ecause we conclude that the Government’s second assertion [“that 4001(a) is satisfied, because Hamdi is being detained “pursuant to an Act of Congress” [the AUMF] is correct, we do not address the first. In other words, for the reasons that follow, we conclude that the AUMF is explicit congressional authorization for the detention of individuals … and that the AUMF satisfied 4001(a)’s requirement that a detention be “pursuant to an Act of Congress”

In Hamdan v. Rumsfeld however, the court rejected the government’s argument that the AUMF implicitly authorized the President to establish military commissions in violation of the UCMJ. The opinion of the Court held:

Neither of these congressional Acts, [AUMF or ATC] however, expands the President’s authority to convene military commissions. First, while we assume that the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U.S. 507 (2004)) (plurality opinion), and that those powers include the authority to convene military commissions in appropriate circumstances, see id., at 518; Quirin, 317 U. S., at 2829; see also Yamashita, 327 U. S., at 11, there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ. Cf. Yerger, 8 Wall., at 105 (“Repeals by implication are not favored”)

Determining when explicit congressional authorization is and is not required appears by this decision to require a court to first determine whether an implicit authorization would amount to a “repeal by implication” of the governing Act.

The exclusivity clause also raises a separation of powers issue. (See Constitutional law issues below)

The arguments against the legality of the NSA fall into two broad categories, those who argue that FISA raises no Constitutional issues and therefore the NSA program is illegal on its face

Common to both of these views is the argument that the participation of “US persons” as defined in FISA 50 U.S.C.1801 renders the objectional intercepts “domestic” in nature.[73] Those advocating the “no constitutional issue” position, argue that Congress has the authority it needs to legislate in this area under Article I and the Fourth Amendment[74] while those who see a constitutional conflict[75] acknowledge that the existing delineation between Congressional and Executive authority in this area is not clear[76] but that Congress, in including the exclusivity clause in FISA, meant to carve out a legitimate role for itself in this arena.

The administration holds that an exception to the normal warrant requirements exists when the purpose of the surveillance is to prevent attack from a foreign threat. Such an exception has been upheld at the Circuit Court level when the target was a foreign agent residing abroad,[77][78] a foreign agent residing in the US,[79][80][81][82] and a US citizen abroad.[83] The warrantless exception was struck down when both the target and the threat was deemed domestic.[84] The legality of targeting US persons acting as agents of a foreign power and residing in this country has not been addressed by the US Supreme Court, but has occurred at least once, in the case of Aldrich Ames.[85]

The Administration’s position with regard to statutory interpretation, as outlined in the DOJ whitepaper, is to avoid what it has termed the “difficult Constitutional questions” by

This argument, as outlined in the DOJ whitepaper, is based on the language of the AUMF, specifically, the acknowledgment of the President’s Constitutional authority contained in the preamble; “Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States”, and the language in the resolution itself;

[Be it resolved] [t]hat the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The administration also adds that the program is legal under Title II of the USA PATRIOT Act entitled Enhanced Surveillance Procedures,[citation needed] although it is not relying upon the domestic law enforcement provisions of the PATRIOT Act for authorization of any of the NSA program activities.[citation needed] The President had said prior to this, that Americans’ civil liberties were being protected and that purely domestic wiretapping was being conducted pursuant to warrants under applicable law, including the Patriot Act.[87]

These arguments must be compared to the language of the FISA itself, which states:

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.[88]

Because the law only authorizes the President to bypass the FISA court during the first 15 days of a war declared by Congress (see “Declaration of war”), the administration’s argument rests on the assumption that the AUMF gave the President more power than was understood as absolutely implicit in any Congressional “declaration of war” at the time of the statute’s enactment. However, as a “declaration of war by the Congress” encompasses all military actions so declared, no matter how small, brief or otherwise constrained by Congress, the above citation could be seen as setting not a default or typical level of Presidential wartime authority, but instead a presumptive minimum, which might more often than not be extended (explicitly or implicitly) by Congress’s war declaration.

According to Peter J. Wallison, former White House Counsel to President Ronald Reagan: “It is true, of course, that a president’s failure to report to Congress when he is required to do so by law is a serious matter, but in reality the reporting requirement was a technicality that a President could not be expected to know about.”[89] In regard to this program, a Gang of Eight (eight key members of Congress, thirteen in this case between the 107th and 109th Congressional Sessions) have been kept informed to some degree:

Under the National Security Act of 1947, 501503, codified as 50 USC 413-413b,[90] the President is required to keep Congressional intelligence committees “fully and currently” informed of U.S. intelligence activities, “consistent with … protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters.” For covert actions, from which intelligence gathering activities are specifically excluded in 413b(e)(1), the President is specifically permitted to limit reporting to the so-called “Gang of Eight”.[91]

The administration contends that with regard to the NSA surveillance program, the administration fulfilled its notification obligations by briefing key members of Congress (thirteen individuals in this case between the 107th and 109th Congressional sessions) have been briefed on the NSA program more than a dozen times[citation needed] but they were forbidden from sharing information about the program with other members or staff.[citation needed]

On January 18, 2006 the Congressional Research Service released a report, “Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions”.[92][93] That report found that “[b]ased upon publicly reported descriptions of the program, the NSA surveillance program would appear to fall more closely under the definition of an intelligence collection program, rather than qualify as a covert action program as defined by statute”, and, therefore, concluded there was no specific statutory basis for limiting briefings on the terrorist surveillance program to the Gang of Eight.[94] However, the report goes on to note in its concluding paragraph that limited disclosure is also permitted under the statute “in order to protect intelligence sources and methods”.[95]

Thus, although the specific statutory “Gang of Eight” notification procedure for covert action would not seem to apply to the NSA program, it is not clear if a limited notification procedure intended to protect sources and methods is expressly prohibited. Additionally, should the sources and methods exception apply it will require a factual determination as to whether it should apply to disclosure of the program itself or only to specific sensitive aspects.

The constitutional debate surrounding executive authorization of warrantless surveillance is principally about separation of powers (“checks and balances”). If, as discussed above, no “fair reading” of FISA can be found in satisfaction of the canon of avoidance, these issues will have to be decided at the appellate level, by United States courts of appeals. It should be noted that in such a separation of powers dispute, the burden of proof is placed upon the Congress to establish its supremacy in the matter: the Executive branch enjoys the presumption of authority until an Appellate Court rules against it.[citation needed]

Article I vests Congress with the sole authority “To make Rules for the Government and Regulation of the land and naval Forces” and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The U.S. Supreme Court has used the “necessary and proper” clause of Article I to affirm broad Congressional authority to legislate as it sees fit in the domestic arena[citation needed] but has limited its application in the arena of foreign affairs. In the landmark Curtiss-Wright decision, Justice Sutherland writes in his opinion of the Court:

The [“powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs”] are different, both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.

Article II vests the President with power as “Commander in Chief of the Army and Navy of the United States,” and requires that he “shall take Care that the Laws be faithfully executed”.

The U.S. Supreme Court has historically used Article II to justify wide deference to the President in the arena of foreign affairs.[citation needed] Two historical and recent Supreme Court cases define the secret wiretapping by the NSA. Quoting again from the Curtiss-Wright decision:

It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relationsa power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.

The extent of the President’s power as Commander-in-Chief has never been fully defined, but two U.S. Supreme Court cases are considered seminal in this area:[96][97]Youngstown Sheet and Tube Co. v. Sawyer and Curtiss-Wright.

In addition, two relatively new cases, Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, have clarified, and in the case of Hamdan limited, the scope of executive power to detain and try suspected terrorists as enemy combatants.

In Hamdan, the Court’s opinion in footnote 23, rejected the notion that Congress is impotent to regulate the exercise of executive war powers:

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.

Whether “proper exercise” of Congressional war powers includes authority to regulate the gathering of foreign intelligence, which in other rulings[citation needed] has been recognized as “fundamentally incident to the waging of war”, is a historical point of contention between the Executive and Legislative branches.[8][98]

As noted in “Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information”, published by The Congressional Research Service:

A review of the history of intelligence collection and its regulation by Congress suggests that the two political branches have never quite achieved a meeting of the minds regarding their respective powers. Presidents have long contended that the ability to conduct surveillance for intelligence purposes is a purely executive function, and have tended to make broad assertions of authority while resisting efforts on the part of Congress or the courts to impose restrictions. Congress has asserted itself with respect to domestic surveillance, but has largely left matters involving overseas surveillance to executive self-regulation, subject to congressional oversight and willingness to provide funds.

The same report makes clear the Congressional view that intelligence gathered within the U.S. and where “one party is a U.S. person” qualifies as domestic in nature and as such completely within their purview to regulate, and further that Congress may “tailor the President’s use of an inherent constitutional power”:

The passage of FISA and the inclusion of such exclusivity language reflects Congress’s view of its authority to cabin the President’s use of any inherent constitutional authority with respect to warrantless electronic surveillance to gather foreign intelligence.

The Senate Judiciary Committee articulated its view with respect to congressional power to tailor the President’s use of an inherent constitutional power:

The Fourth Amendment to the United States Constitution is part of the Bill of Rights and helps guard against “unreasonable” searches and seizures by agents of the government. It is solely a right of the people that neither the Executive nor Legislative branch can lawfully abrogate, not even if acting in concert: no statute can make an unreasonable search reasonable, nor a reasonable search unreasonable.

The term “unreasonable” is deliberately imprecise but connotes the sense that there is a rational basis for the search and that it is not an excessive imposition upon the individual given the motivation for and circumstances of the search, and is in accordance with customary societal norms. It is conceived that a judge will be sufficiently distanced from the authorities seeking a warrant that they can render an impartial decision unaffected by any prejudices or improper motivations they (or the legislators who enacted a law they are seeking to enforce) may harbor.

An individual who believes their Fourth Amendment rights have been violated by an unreasonable search or seizure may file a civil suit for monetary compensation and seek a court-ordered end to a pattern or practice of such unlawful activities by government authorities, although the plaintiff will need to have evidence that such a wiretap is taking place in order to show standing (Amnesty International v. Clapper). Such civil rights violations are sometimes punishable by state or federal law. Evidence obtained in an unlawful search or seizure is generally inadmissible in a criminal trial.

The law countenances searches without warrant as “reasonable” in numerous circumstances, among them (see below): the persons, property, and papers of individuals crossing the border of the United States and those of paroled felons; in prisons, public schools and government offices; and of international mail. Although these are undertaken as a result of statute or Executive order, they should not be seen as deriving their legitimacy from these, rather, the Fourth Amendment explicitly allows reasonable searches, and the government has instituted some of these as public policy.

The Supreme Court held in Katz v. United States (1967), that the monitoring and recording of private conversations within the United States constitutes a “search” for Fourth Amendment purposes, and therefore the government must generally obtain a warrant before undertaking such domestic recordings.

The Supreme Court has also held in Smith v Maryland (1979) that citizens have no Fourth Amendment expectation of privacy in the business records (sometimes termed metadata) of their communications. This means that the court can subpoena data such as the numbers that an individual has phoned, when and, to a limited degree, where (subject to Jones v. United States) the phone conversation occurred, although a full judicial warrant would be required for the government to acquire or admit audio content from the telephone call. Under Section 215 of the PATRIOT act, the FBI can subpoena some or all such records from a business record holder using a warrant applied for in the Foreign Intelligence Surveillance Court.

The protection of “private conversations” has been held to apply only to conversations where the participants have not only manifested a desire but also a reasonable expectation that their conversation is indeed private and that no other party is listening in. In the absence of such a reasonable expectation, the Fourth Amendment does not apply, and surveillance without warrant does not violate it. Privacy is clearly not a reasonable expectation in communications to persons in the many countries whose governments openly intercept electronic communications, and is of dubious reasonability in countries against which the United States is waging war.

The law also recognizes a distinction between domestic surveillance taking place within U.S. borders and foreign surveillance of non-U.S. persons either in the U.S. or abroad.[99] In United States v. Verdugo-Urquidez, the Supreme Court reaffirmed the principle that the Constitution does not extend protection to non-U.S. persons located outside of the United States, so no warrant would be required to engage in even physical searches of non-U.S. citizens abroad.

The U.S. Supreme Court has never ruled on the constitutionality of warrantless searches targeting foreign powers or their agents within the US. There have been, however, a number of Circuit Court rulings upholding the constitutionality of such warrantless searches.[100] In United States v. Bin Laden, the Second Circuit noted that “no court, prior to FISA, that was faced with the choice, imposed a warrant requirement for foreign intelligence searches undertaken within the United States.”[101] Assistant Attorney General William Moschella in his written response to questions from the House Judiciary Committee explained that in the administration’s view, this unanimity of pre-FISA Circuit Court decisions vindicates their argument that warrantless foreign-intelligence surveillance authority existed prior to FISA and since, as these ruling indicate, that authority derives from the Executive’s inherent Article II powers, they may not be encroached by statute.[102] In 2002, the United States Foreign Intelligence Surveillance Court of Review (Court of Review) met for the first time and issued an opinion (In re: Sealed Case No. 02-001) which seems to echo that view. They too noted all the Federal courts of appeal having looked at the issue had concluded that there was constitutional power for the president to conduct warrantless foreign intelligence surveillance. Furthermore, based on these rulings it “took for granted such power exits” and ruled that under this presumption, “FISA could not encroach on the president’s constitutional power.” Professor Orin Kerr argues in rebuttal that the part of In re: Sealed Case No. 02-001 that dealt with FISA (rather than the Fourth Amendment) was nonbinding obiter dicta and that the argument does not restrict Congress’s power to regulate the executive in general.[103]

Harold Koh, dean of Yale Law School, Suzanne Spaulding, former general counsel for the Intelligence Committees of the House and Senate, and former Counsel to the President John Dean, contend that FISA clearly makes the wiretapping illegal and subject to the criminal penalties of FISA,[104] (in seeming disagreement with the FISA Court of Review finding above) and that the president’s own admissions already constitute sufficient evidence of a violation of the Fourth Amendment, without requiring further factual evidence. Professor John C. Eastman, in his analysis, prepared at the behest of the House Judiciary Committee, comparing the CRS and DOJ reports, concluded instead that under the Constitution and ratified by both historical and Supreme Court precedent, “the President clearly has the authority to conduct surveillance of enemy communications in time of war and of the communications to and from those he reasonably believes are affiliated with our enemies. Moreover, it should go without saying that such activities are a fundamental incident of war.”[105]

Orin S. Kerr, associate professor of law at The George Washington University Law School[106] and a leading scholar in the subjects of computer crime law and internet surveillance,[107] points to an analogy between the NSA intercepts and searches allowed by the Fourth Amendment under the border search exception.

The border search exception permits searches at the border of the United States “or its functional equivalent.” (United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985)). The idea here is that the United States as a sovereign nation has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.)…At the same time, I don’t know of a rationale in the case law for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the “functional equivalent of the border,” much like airports are the functional equivalent of the border in the case of international airline travel…the most persuasive case on point: United States v. Ramsey, [held] that the border search exception applies to all international postal mail, permitting all international postal mail to be searched.

Evidence gathered without warrant may raise significant Fourth Amendment issues which could preclude its use in a criminal trial. As a general rule of law, evidence obtained improperly without lawful authority, may not be used in a criminal prosecution.[citation needed] The U.S. Supreme Court has never addressed the constitutionality of warrantless searches (which has been broadly defined by the court to include surveillance) targeting foreign powers or their agents, the admissibility of such evidence in a criminal trial nor whether it is permissible to obtain or use evidence gathered without warrant against US persons acting as agents of a foreign power.[citation needed]

The National Security Act of 1947[108] requires Presidential findings for covert acts. SEC. 503. [50 U.S.C. 413b] (a) (5) of that act states: “A finding may not authorize any action that would violate the Constitution or any statute of the United States.”

On August 17, 2006, Judge Anna Diggs Taylor of the United States District Court for the Eastern District of Michigan ruled in ACLU v. NSA that the Terrorist Surveillance Program was unconstitutional under the Fourth and First Amendments and enjoined the NSA from using the program to conduct electronic surveillance “in contravention of [FISA or Title III]”.[36] In her ruling,[109] she wrote:

The President of the United States, a creature of the same Constitution which gave us these Amendments, has indisputably violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.

Even some legal experts who agreed with the outcome have criticized the reasoning set forth in the opinion.[110] Others have argued that the perceived flaws in the opinion in fact reflect the Department of Justice’s refusal to argue the legal merits of the program (they chose to focus solely on arguments about standing and state secrets grounds).[111]

On October 4, 2006, a panel of the United States Court of Appeals for the Sixth Circuit unanimously ruled that the government can continue the program while it appeals the lower court decision.[112][113]

On July 6, 2007 the Sixth Circuit dismissed the case, finding that the plaintiffs had no standing.

The Court found that:[114]

[T]he plaintiffs do not and because of the State Secrets Doctrine cannot produce any evidence that any of their own communications have ever been intercepted by the NSA, under the TSP, or without warrants. Instead, they assert a mere belief, which they contend is reasonable and which they label a well founded belief,…

Implicit in each of the plaintiffs’ alleged injuries is the underlying possibility which the plaintiffs label a “well founded belief” and seek to treat as a probability or even a certainty that the NSA is presently intercepting, or will eventually intercept, communications to or from one or more of these particular plaintiffs, and that such interception would be detrimental to the plaintiffs’ clients, sources, or overseas contacts. This is the premise upon which the plaintiffs’ entire theory is built.

But even though the plaintiffs’ beliefs based on their superior knowledge of their contacts’ activities may be reasonable, the alternative possibility remains that the NSA might not be intercepting, and might never actually intercept, any communication by any of the plaintiffs named in this lawsuit.

Corporate secrecy is also an issue. Wired reported: In a letter to the EFF, AT&T objected to the filing of the documents in any manner, saying that they contain sensitive trade secrets and could be “used to ‘hack’ into the AT&T network, compromising its integrity.”[115] However, Chief Judge Vaughn Walker stated, during the September 12, 2008 hearing in the class-action lawsuit filed by the EFF, that the Klein evidence could be presented in court, effectively ruling that AT&T’s trade secret and security claims were unfounded.

The majority of legal arguments supporting the NSA warrantless surveillance program have been based on the War Powers Resolution. There have not been any other noteworthy types of supporting legal arguments. The War Powers Resolution has been questioned as unconstitutional since its creation, and its adaptation to the NSA warrantless surveillance program has been questionable.

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NSA warrantless surveillance (200107) – Wikipedia, the …

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Respected /r/Bitcoin Moderators Being Removed By Theymos

 Bitcoin  Comments Off on Respected /r/Bitcoin Moderators Being Removed By Theymos
Sep 112015

Bitcoin and free speech should go hand in hand, but not all internet-based platforms are planning to let just anything slip by without repercussions. While there is a certain need to tone down user comments and discussions at times, publicly censoring Bitcoin discussions because moderators can, is taking things a few steps too far. By the look of things, the Bitcoin subReddit is undergoing some moderator changes for the umpteenth time.

Also read: In Depth Interview With Lyn Ulbricht: Family, Activism, and Justice

It is a public secret that the level of free speech over at the Bitcoin subReddit is only extending to a select few posters, whereas everyone else will regularly see posts downvoted or deleted without obvious reason. These shenanigans have been going on for quite some time, and despite public outrage from the Reddit community, things are getting progressively worse.

Users are being shadowbanned left, right, and center on the Bitcoin subReddit, simply because their opinions do not match those of the moderators in charge. Furthermore, the recent heated debate on Bitcoin Core and Bitcoin XT development caused more shadowbans in a week compared to the total amount of bans issued for as long as the subReddit exists.

While there is a clear need for moderation on the Bitcoin subReddit at certain times, restricting free speech altogether is not the right course of action. Several moderators, who are often labeled as Theymos lackies or even Theymos cronies are always at the forefront of controversial bans, post removals and downvoted comments.

There was a sliver of light at the end of this long and dark tunnel, as some of the older moderators started being more active on the Bitcoin subReddit. Unfortunately, not all of them are being kept around for too long, depending on how well they behave in terms of siding with other moderators. Some people like to kiss ass, whereas others do not, this is simply the way the world works today.

Should an /r/Bitcoin moderator find himself in the latter category, chances are very real to see moderator status being taken away by Theymos himself. A recent post on Reddit, started by user hardleft121, details how his moderator privileges were taken away by Theymos. Admittedly, hardleft121 also indicates this wasnt exactly what he had expected, as he felt he did not pull his weight. But what is most important: hardleft121 clearly states being a moderator on this subReddit is far from fun.

In a clear show of disrespect, Theymos decided to remove moderator privileges from a loyal Reddit contributor who even donated Bitcoins to clean up this mess in the first place. This is not the first time Bitcoin funds is being poorly managed by Theymos and his group of thugs, as he is sitting on a lot of Bitcoins originally contributed to the Bitcointalk forums for upgrades and expansion. Neither of those has happened in an effective manner, despite minor tweaks over the years.

A large part of the Bitcoin Reddit community recognizes hardleft121 as one of the true spirits of what this subReddit should have been. However, the reality is a far cry away from what /r/Bitcoin should be all about, as moderators enforce people to push the agenda of Theymos, rather than creating an open platform where free speech reigns supreme.

The worst part about this whole ordeal is how moderators are removed without prior warning. One day, a /r/Bitcoin moderator wakes up, logs into Reddit, and sees a message saying they have been removed from the team. No warnings, no further explanation, nothing at all. Being kicked to the curb is a saying that comes to mind rather quickly.

This is not the first time the Bitcoin subReddit is under scrutiny by the Bitcoin community. Just a few weeks ago, censorship started rearing its ugly head once again, as Theymos and consorts started removing any posts related to Bitcoin XT. While the /r/Bitcoin moderators are entitled to their opinion, they should by no means enforce it upon the entire Reddit community.

What are your thoughts on the old guard of /r/Bitcoin moderators being removed from power? Let us know in the comments below!

Source: Reddit

Images courtesy of Reddit, Shutterstock, Theplanetd

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Respected /r/Bitcoin Moderators Being Removed By Theymos

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Liberty House – 207 Photos – American (New) – Jersey City …

 Liberty  Comments Off on Liberty House – 207 Photos – American (New) – Jersey City …
Aug 082015

I was here last night for dinner, with 3 girlfriends. We made a reservation weeks prior, simply due to the fact that it’s the holiday season and we figured it would be busy!

Once we walked in, we were greeted by the hostess, she showed us to our table and gave us the drink menu. Within 5 minutes we were introduced to our waiter, he took our drink order, told us the specials and left us with menus.

Being that this was all of our first times here we order a little bit of everything. For starters, drinks, obviously the most important, 3 cosmos and an extra dirty martini, all super yummy, yet a tiny bit to strong. For appetizer we ordered the sushi special, which was average, I’ve had better sushi at a take out place. The sausage risotto, which had wayyyyyy to much blue cheese on it, the organic salad, just your plain old salad, and the calamari, which was actually perfectly cooked. For dinner, we ordered the hanger steak, short ribs and the cod special. Presentation was very nice portion size was decent, but in my opinion a little small considering the large price tag. Everything was fresh though! For dessert we ordered the apple strudel, which was alright, not the best I’ve had. All that for 4 people came to $238, my opinion, just a tad pricey!!!

The view is great, but, during the winter you can’t really sit outside and enjoy the view, and to be honest, I’m not paying for the view, I’m paying for the food!

Service was great! Our server was clearly knowledgeable of the food he was serving which is great!

All in all, I would come back! Maybe during the summer so I can enjoy the view!

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Liberty House – 207 Photos – American (New) – Jersey City …

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So You Think You Know the Second Amendment? – The New Yorker

 Second Amendment  Comments Off on So You Think You Know the Second Amendment? – The New Yorker
Jul 222015

Does the Second Amendment prevent Congress from passing gun-control laws? The question, which is suddenly pressing, in light of the reaction to the school massacre in Newtown, is rooted in politics as much as law.

For more than a hundred years, the answer was clear, even if the words of the amendment itself were not. The text of the amendment is divided into two clauses and is, as a whole, ungrammatical: A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. The courts had found that the first part, the militia clause, trumped the second part, the bear arms clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear armsbut did not give individuals a right to own or carry a weapon.

Enter the modern National Rifle Association. Before the nineteen-seventies, the N.R.A. had been devoted mostly to non-political issues, like gun safety. But a coup dtat at the groups annual convention in 1977 brought a group of committed political conservatives to poweras part of the leading edge of the new, more rightward-leaning Republican Party. (Jill Lepore recounted this history in a recent piece for The New Yorker.) The new group pushed for a novel interpretation of the Second Amendment, one that gave individuals, not just militias, the right to bear arms. It was an uphill struggle. At first, their views were widely scorned. Chief Justice Warren E. Burger, who was no liberal, mocked the individual-rights theory of the amendment as a fraud.

But the N.R.A. kept pushingand theres a lesson here. Conservatives often embrace originalism, the idea that the meaning of the Constitution was fixed when it was ratified, in 1787. They mock the so-called liberal idea of a living constitution, whose meaning changes with the values of the country at large. But there is no better example of the living Constitution than the conservative re-casting of the Second Amendment in the last few decades of the twentieth century. (Reva Siegel, of Yale Law School, elaborates on this point in a brilliant article.)

The re-interpretation of the Second Amendment was an elaborate and brilliantly executed political operation, inside and outside of government. Ronald Reagans election in 1980 brought a gun-rights enthusiast to the White House. At the same time, Orrin Hatch, the Utah Republican, became chairman of an important subcommittee of the Senate Judiciary Committee, and he commissioned a report that claimed to find clearand long lostproof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms. The N.R.A. began commissioning academic studies aimed at proving the same conclusion. An outr constitutional theory, rejected even by the establishment of the Republican Party, evolved, through brute political force, into the conservative conventional wisdom.

And so, eventually, this theory became the law of the land. In District of Columbia v. Heller, decided in 2008, the Supreme Court embraced the individual-rights view of the Second Amendment. It was a triumph above all for Justice Antonin Scalia, the author of the opinion, but it required him to craft a thoroughly political compromise. In the eighteenth century, militias were proto-military operations, and their members had to obtain the best military hardware of the day. But Scalia could not create, in the twenty-first century, an individual right to contemporary military weaponslike tanks and Stinger missiles. In light of this, Scalia conjured a rule that said D.C. could not ban handguns because handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

So the government cannot ban handguns, but it can ban other weaponslike, say, an assault rifleor so it appears. The full meaning of the courts Heller opinion is still up for grabs. But it is clear that the scope of the Second Amendment will be determined as much by politics as by the law. The courts will respond to public pressureas they did by moving to the right on gun control in the last thirty years. And if legislators, responding to their constituents, sense a mandate for new restrictions on guns, the courts will find a way to uphold them. The battle over gun control is not just one of individual votes in Congress, but of a continuing clash of ideas, backed by political power. In other words, the law of the Second Amendment is not settled; no law, not even the Constitution, ever is.

Photograph by Mario Tama/Getty.

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So You Think You Know the Second Amendment? – The New Yorker

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Tax Havens

 Tax Havens  Comments Off on Tax Havens
Jun 032015

Offshore tax havens were once associated with very wealthy individuals, which is no longer the case nowadays. More than a decade ago we, a group of lawyers and accountants, started using offshore havens for our own investment purposes. The use of offshore entities in tax havens proved to be a wise and rewarding decision. We started off by providing these same services to friends and family, and then in 2002 we expanded our services, which proved to be a success, because we are still offering very personal services for our friends and families and a large customer base and at low-costs.

We have our sister companies or our lawyers licensed to provide offshore services in all tax havens that we offer, so you can be assured that our services are regulated and in all these districts, strict confidentiality is assured by law.

We sell two several types of tax free or low tax company packages. The International Business Corporation, IBC , the Limited Liability Company, LLC, the UK Limited Liability Partnership and US LLCs.

We offer fast, low cost and professional offshore company incorporation services online in Anguilla, Belize, BVI, Dominica, Gibraltar, Nevis, Panama and Seychelles. We also make sure we have the full range of supplementary services, such as bank accounts in well established banks in Europe and the Caribbean.

We offer offshore trust formation services in Belize and Nevis, two places that, in our opinion, offer best legislation for the trust . The trust is well suited for asset protection and wealth planning.

We offer offshore foundations formation, and registration services offshore foundations which have a similar concept to the trust, but have a legal personality on their own and are based on a mixture of civil and common law concepts. Offshore Private Interest Foundations have gained significant popularity among professionals and private investors and have been successfully utilized for asset protection and inheritance planning. We sell foundations from countries that have rewritten modern and attractive laws for the foundation . The following offshore foundations are offered by our company: Anguilla Foundation, Belize International Foundation, Nevis Multiform Foundation and Panama Private Interest Foundation.

Inour highly litigated world every business person orwealthy individual has toadopt some kind ofasset protection structure. Properly utilized offshore asset protection strategies will protect your wealth and property inthe best possible manner. Weoffer specially designed bulletproof offshore asset protection packages that include the trust orfoundation, anLLCor anIBC.

Our main clients are businessmen and individual investors who wish toreorganize orexpand their businesses inamore profitable way, save ontax payments orsafeguard their investments inasafe haven environment. Wealso provide services tocorporate clients, some ofwhom are multinational well recognized companies.

Please take your time tobrowse through our website. Wehope that you find the answers toyour questions and chooseus tobecome your offshore service provider.

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Volokh Conspiracy: Federal court rejects Third Amendment claim against police officers

 Fifth Amendment  Comments Off on Volokh Conspiracy: Federal court rejects Third Amendment claim against police officers
Mar 242015

Back in 2013, a lot of attention focused on a Third Amendment claim against Henderson, Nevada police officers. I wrote about the case here. The Third Amendment, which forbids the quartering of soldiers in private homes without the owners consent, is often the butt of jokes because it is so rarely litigated. But in this case, a Nevada family claimed that local police had violated the Amendment by forcibly occupying their home in order to gain a tactical advantage against suspected criminals in the neighboring house.

In this recent ruling, federal district court Judge Andrew Gordon dismissed the Third Amendment claim [HT: VC reader Sean Flaim]. Although it occurred several weeks ago, the ruling seems to have gotten very little attention from either the media or legal commentators outside Nevada. That is unfortunate, because the ruling raises important issues about the scope of the Third Amendment, and its applicability against state and local governments. A Here are the key passages from the opinion:

In the present case, various officers of the HPD and NLVPD entered into and occupied Lindas and Michaels home for an unspecified amount of time (seemingly nine hours), but certainly for less than twenty-four hours. The relevant questions are thus whether municipal police should be considered soldiers, and whether the time they spent in the house could be considered quartering. To both questions, the answer must be no.

I hold that a municipal police officer is not a soldier for purposes of the Third Amendment. This squares with the purpose of the Third Amendment because this was not a military intrusion into a private home, and thus the intrusion is more effectively protected by the Fourth Amendment. Because I hold that municipal officers are not soldiers for the purposes of this question, I need not reach the question of whether the occupation at issue in this case constitutes quartering, though I suspect it would not.

This reasoning is very plausible and quite possibly correct. But it may too readily conclude that municipal police can never be considered soldiers for purposes of the Amendment. When the Amendment was enacted in 1791, there were virtually no professional police of the sort we have today. The distinction between military and law enforcement officials was far less clear than in the world of 2015. Moreover, many parts of the Bill of Rights were in part of inspired by abuses committed by British troops attempting to enforce various unpopular laws enacted by Parliament.

A second complicating factor is the increasing militarization of police forces in many parts of the country, which has resulted in cops using weapons and tactics normally associated with military forces. If a state or local government decides to quarter a SWAT team in a private home, it is not clear whether that is meaningfully different from placing a National Guard unit there.

In sum, Judge Gordon may well be right that the officers involved in this case are not plausibly considered soldiers under the Third Amendment. But he is too quick to conclude that no municipal police officer could ever qualify as such.

The issue of how long the soldiers (or militarized police) have to stay in a private home before their occupation of it qualifies as quartering is also a tough question. Without actually resolving the issue, Judge Gordon suspects that a 9 to 24 hour period is too short. I am not convinced. It seems to me that spending one night in the house does qualify as quartering, albeit for only a brief period. Just as the First Amendment covers even brief restrictions on freedom of speech and the Fifth Amendment requires compensation for the taking of even small amounts of private property, so the Third Amendment forbids even brief involuntary quartering of troops in private homes.

It is also worth noting that the Third Amendment is (along with the Seventh Amendment) one of the few parts of the Bill of Rights that has not yet been incorporated against state governments by the Supreme Court. Judge Gordon follows a 1982 Second Circuit decision in concluding that the Amendment does apply to state governments. I think that is almost certainly the right conclusion. Over the last few decades, leading scholars on different sides of the political spectrum have converged on the conclusion that the Fourteenth Amendment was originally understood to incorporate all of the individual rights protected by the Bill of Rights. It would be anomalous for courts to refuse to apply the Third Amendment to the states when almost all of the rest of the Bill of Rights does apply to them. A future Supreme Court decision on the subject would need to address the issue in more detail than Judge Gordon gives it here.

The difficult issues raised by the militarization of police forces suggest that it may be time to stop treating the Third Amendment as just a punchline for clever legal humor. Contrary to popular belief, there have been some egregious violations of the Amendment in the past, and we should not be too quick to assume such things wont recur.

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Volokh Conspiracy: Federal court rejects Third Amendment claim against police officers

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Oklahoma fraternity’s racist song: Opinion Show for March 18, 2015 – Video

 Misc  Comments Off on Oklahoma fraternity’s racist song: Opinion Show for March 18, 2015 – Video
Mar 242015

Oklahoma fraternity's racist song: Opinion Show for March 18, 2015
Elizabeth Sullivan leads the discussion as to whether the Oklahoma fraternity's racist song video that was made public recently and the punishment violates the First Amendment right to…


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Spotlight On: Tribal Worldwides Director of SEO, Steve Liu

 SEO  Comments Off on Spotlight On: Tribal Worldwides Director of SEO, Steve Liu
Mar 092015

Tribal Worldwide’s director of SEO, Steve Liu, established the search practice of the agency when he joined in 2012. He now leads the department, working on anything and everything SEO, including keyword search, content strategy, link strategy, and social media.

Search Engine Watch (SEW):Some say that SEO is dead. What are your thoughts on that?

Steve Liu (SL): I think there are two schools of thought on SEO. One school is you use technical tactics. For example, you use certain keywords, and you try to acquire links. Another school is you try to optimize user experience. Instead of saying we need to start using these keywords in this content, we say that we want to understand our users, and we want to understand what our users want to read. In that process we can use certain types of words.

The best way I can answer this is that if your definition of “SEO” is merely a collection of techniques and tricks meant to reverse-engineer and manipulate Google’s algorithm then yes, SEO died a long time ago.

On the other hand, if your definition of “SEO” is having a deep understanding of your users’ needs, understanding what words they use in searching for answers, understanding what kinds of content they want to consume to find answers, and understanding how this information is shared, then SEO is alive and well.

Put another way, up to a few years ago SEO was typically done in a silo companies would develop their Web properties and then almost as an afterthought send it to a SEO consultant or agency to “do SEO.” I think today, proper SEO should be approached less as a one-off, specialized task and more so integrated into every part of building digital projects, serving as continual validation of a site’s technical development, UX, content strategy, and outreach strategy.

SEW: In your opinion, which one is more important, keyword ranking or traffic?

SL: Honestly, at the end of the day, neither of these things mean anything if you don’t care about conversion or the engagement on your site. I think keyword rank and traffic are both important, but they are almost secondary to helping users accomplish what they want to accomplish on your site.

I think different clients have different philosophies. From my perspective, both are important.

SEW: It appears that SEO isn’t just about keyword search anymore and has evolved into many things. This is evident in the areas that your team has been working on. What evolutionary changes have you seen in SEO in the past few years?

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Argument analysis: How does requiring a warrant interfere with surprise police searches of hotel guest registers?

 Fourth Amendment  Comments Off on Argument analysis: How does requiring a warrant interfere with surprise police searches of hotel guest registers?
Mar 072015

The first case argued Tuesday morning, City of Los Angeles v. Patel, was about whether a Los Angeles ordinance that requires motel operators to allow the police to examine hotel guest registers, without seeking a warrant first, is constitutional. The en banc Ninth Circuit ruled that is is not, because the ordinance lacks an essential procedural safeguard pre-compliance judicial review. Prior to argument, many observers thought this meant that some judicial administrative warrant process was required. But now, after reviewing the argument transcript, confusion regarding exactly what the plaintiffs are seeking, as expressed by more than one Justice, may lead to reversal and remand rather than a substantive Fourth Amendment ruling.


Recall from the preview that a group of motel owners sued Los Angeles, seeking to invalidate a municipal ordinance that requires them to make information about guests that they are required by law to record, available to any [LAPD] officer for inspection at a time and in a manner that minimizes any interference with the operation of the business. But no trial or evidentiary hearing was ever held; instead, the parties stipulated to a few facts and then agreed that the sole issue remaining was a facial constitutional challenge to the ordinance.

One stipulation was that, under the law in question, the motel operators have been subject and continue to be subject to searches and seizures of their motel registration records by the [LAPD] without consent or warrant. The Ninth Circuit ultimately ruled that this without a warrant stipulation rendered the law unconstitutional under the Fourth Amendment.

In its petition for certiorari, Los Angeles presented what amounts to three questions: (1) whether facial challenges to ordinances and statutes are ever permissible under the Fourth Amendment; (2) whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry; and, if so, (3) whether the ordinance is unconstitutional because it does not require a warrant or other pre-compliance judicial review. Whether the Court should answer all of these questions, or whether the first one is instead dispositive, seemed to be a primary focus of oral argument yesterday.

Tuesdays oral argument and expectations of privacy

Observers, including this observer, sometimes forget how much close attention the Justices pay to the questions presented. At Tuesdays argument, Joshua Rosenkranz (arguing on behalf of the city) went immediately to the third question that is, the substantive constitutionality of the ordinance in question. The parties (and the Ninth Circuit) appeared to consider the second question to be moot, because they agreed by the time of argument that motel operators do have some limited expectation of privacy in their registers. But Justice Anthony Kennedy appeared to still be concerned: If a member of this Court sits down to write the opinion, does he or she have to use the phrase reasonable expectation of privacy, or do we just forget [it]? Then referencing prior administrative search cases, he asked whether the phrase closely regulated is another way to talk about reasonable expectation of privacy?

Both Rosenkranz and Deputy Solicitor General Michael Dreeben (arguing on behalf of the federal government in support of Los Angeles) quickly picked up on the point: noting that the ordinance has been on the books for many years, Rosenkranz argued that no one goes into the hotel business unaware that their registers will be inspected. Dreeben later chose to begin his argument by proposing a much narrower basis: the ordinance involves an entry only into the public lobby area of a motel. Although Chief Justice John Roberts and Justice Sonia Sotomayor quickly took issue with Dreebens suggestion, the second question (whether there is a reasonable expectation of privacy and, if so, how that affects the case) does not appear to be dead.

The substantive merits: The warrant requirement argument appears to be obscured.

With only twenty minutes (because the city was sharing its time with the federal government), Rosenkranzs opening argument otherwise focused entirely on the merits of the ordinance; the facial challenge aspect of the case was not raised until Dreeben stood up. Rosenkranz began by dramatically asserting that this case is about whether to deprive cities of one of the most effective tools they have to deter human trafficking and other short-term criminal activity in motels. He argued that it is necessary to allow frequent, unannounced spot inspections in real time without notice.

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Argument analysis: How does requiring a warrant interfere with surprise police searches of hotel guest registers?

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Phil Robertson Thinks STDS Are The Revenge Of The Hippies

 Misc  Comments Off on Phil Robertson Thinks STDS Are The Revenge Of The Hippies
Feb 282015

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February 27, 2015 04:00 PM by Stephanie Gustafson

If you or somebody you know has suffered from a sexually transmitted disease, you can place all of the blame for this predicament on the hippies. At least, thats what Phil Robertson thinks! TheDuck Dynastyrecently received the Andrew Breitbart Defender of the First Amendment Award at the Conservative Political Action Conference and his acceptance speech is already causing quite the stir on Facebook!

Phil Robertson managed to keep a low profile for the last few months of 2014, but that has all changed now that the reality star has once again been highlighted as a conservative role model. No longer content to sit back and keep his mouth shut, Phil is once again trying his best to get a rise out of his many haters on Twitter. Thus far, hes proven incredibly successful, having caused plenty of outrage with his long, rambling speech at CPAC.

Grateful to be recognized for his commitment to First Amendment rights, Phil used his acceptance speech as another excuse to talk at length about sexual sin. He advised his fans, Youre disease-free and shes disease free, you marry, you keep your sex right there. You wont get sick from a sexually transmitted disease.

This is all pretty normal stuff for Phil and really, for the entireDuck Dynasty clan. But he certainly didnt stop there. Things began to get bizarre when the reality star mused about beatniks and hippies, claiming that the 110 million Americans with sexually transmitted diseases were the revenge of the hippies. According to Phil, the age of rock n roll was the beginning of the end.

What do you think of Phil Robertsons latest tirade? Feel free to share your opinion in the comments section below!


Sadie Robertson Ready To Take Her Next Big Step In Showbiz Phil Robertson To Receive Andrew Breitbart Defender Of The First Amendment Award Sadie Robertson Sounds Off On Engagement Rumors

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Phil Robertson Thinks STDS Are The Revenge Of The Hippies

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Second Amendment protects people with old, nonviolent …

 Second Amendment  Comments Off on Second Amendment protects people with old, nonviolent …
Feb 242015

In D.C. v. Heller, the Supreme Court stated that (emphasis added, citations omitted, as usual),

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

[Footnote: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]

The question, then, is whether this presumpti[on] of validity can ever be rebutted for instance, if a persons felony conviction is many decades in the past, is for a not very serious felony, or both. Todays Suarez v. Holder (M.D. Pa. Feb. 18, 2015) concludes that the presumption was indeed rebutted in this case, where the past felony conviction was in 1990, the claimants last misdemeanor conviction was in 1998, and the claimant has otherwise shown that he is now a law-abiding citizen (here by, among other things, having gotten a security clearance for his work with Department of Defense clients). And this is so even though the 1990 felony conviction was for illegal carrying of a gun (and the facts showed that he was drunk at the time), and the 1998 misdemeanor conviction was for drunk driving:

Defendants assert that Plaintiff has not shown that he is no more dangerous than a typical law-abiding citizen and poses no continuing threat to society. First, they emphasize that at the time of Plaintiffs arrest, he was carrying a .357 Magnum handgun and two loaded speed-loaders while intoxicated to the point that he was placed under arrest for driving under the influence. They argue that possessing a firearm while intoxicated poses such a danger that many jurisdictions impose criminal sanctions for doing so. We agree with Defendants that the circumstances of Plaintiffs arrest were dangerous. But the inquiry is whether the challenger, today, not at the time of arrest, is more dangerous than a typical law-abiding citizen or poses a continuing threat.

There are two ways in which a challenger may fail to show he is not dangerous. One, the challengers conviction is for acts so violent that even after twenty-five years of nonviolent behavior he would continue to be dangerous and to pose a threat to society. This is not that case. Or [two], the facts and circumstances since the conviction show that the challenger remains dangerous. As revealed in our discussion above, we find Plaintiffs background and circumstance establish that, today, he is not dangerous and does not pose a risk to society.

Second, Defendants argue that although Plaintiffs predicate conviction was not violent, empirical studies reveal that those like Plaintiff have a high rate of violent recidivism, and thus Plaintiff continues to be dangerous and pose a societal threat. While we agree that the generalized results of an empirical study are useful to refute a facial challenge and demonstrate that a statute survives some sort of means-end scrutiny, we do not find that generalized conclusions are particularly useful in as-applied challenges to demonstrate whether Plaintiff, himself, is dangerous or poses a continuing threat. Accordingly, we find the studies of little moment and decline to rely on them to find that Plaintiff is dangerous.

For other cases that reach similar results, see Binderup v. Holder (M.D. Pa. 2014) (Second Amendment), Britt v. State, 681 S.E.2d 320 (N.C. 2009) (state constitutional right to bear arms), and Baysden v. State, 718 S.E.2d 699 (N.C. Ct. App. 2011) (state constitutional right to bear arms). For federal opinions that say that people can regain their Second Amendment rights in such situations (though without holding that the particular claimant regained those rights), see United States v. Moore, 666 F.3d 313, 320 (4th Cir. 2012); United States v. Barton, 633 F.3d 168, 174 (3d Cir. 2011); United States v. Williams, 616 F.3d 685, 693 (7th Cir. 2010); United States v. Duckett, 406 Fed. Appx. 185, 187 (9th Cir. 2010) (Ikuta, J., concurring); United States v. McCane, 573 F.3d 1037, 1049-50 (10th Cir. 2009) (Tymkovich, J., concurring). Congratulations to Alan Gura, who won this case and Binderup (as well as, of course, Heller and McDonald in the Supreme Court, and other lower court Second Amendment cases as well).

(Note that Suarezs 1990 conviction was labeled a misdemeanor under Maryland law, but the district court held correctly, I think that the conviction was treated as a felony under federal law, because the maximum punishment was three years in prison, above the two-year cutoff that the federal statute uses as the misdemeanor/felony line in such cases.)

The government has appealed the Binderup case, and is thus likely to appeal this one. But I expect both Binderup and this case will stand up on appeal, given the Third Circuits Barton precedent; and I doubt that the U.S. Supreme Court would agree to hear the case.

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Have an opinion? Stuff it!

 Freedom  Comments Off on Have an opinion? Stuff it!
Feb 242015

How come freedom of speech is limited to a select few who can say what they please while the majority spend a night in the lock-up for doing the same?


When I was growing up, reading the daily newspaper and watching the 8pm news was a must in my home. And every day during family time, my dad would open the floor for discussion. We used to discuss (and sometimes debate) various issues politics, social, religion, entertainment, the works. Sometimes we got too excited over certain issues that we continued the same discussion for a few days.

Thanks to my dad, my brothers and I grew up having the ability to form our own opinions on matters that concerned us. And having strong opinions meant standing up to it as well.

But lately, Ive begun to wonder if my dad made a big mistake having raised us the way he did. Because of my dad, I now have a tough time keeping my thoughts to myself and my mouth shut.

Like the other day, when I wrote about why I wasnt offended by the Charlie Hebdo cartoons I received piles of hate messages.

And then there was one time when I politely advised the security guards in my apartment that it was against the law for them to hold a visitors important documents and the head of security raised his baton over my head.

Since when did freedom of speech and expressing oneself become an offence?

This reminds me of an acquaintance of mine who was arrested recently on a sedition charge for criticising the Federal Court judgement over the Anwar Ibrahims sodomy case.

All he did was to post his opinion of the case on Facebook. He had to spend one night in a lock-up filled with creepy crawlies simply because he had trouble zipping his mouth. I bet he too was raised to stand up for what he believed in.

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Have an opinion? Stuff it!

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Kicked By Illuminati – Battlefield 4 – Video

 Illuminati  Comments Off on Kicked By Illuminati – Battlefield 4 – Video
Feb 192015

Kicked By Illuminati – Battlefield 4
Just a new commentary Concept I wanted to try out! Hope you guys enjoy! For My Quantum Break Opinion: For My Battlefield Hardline Opinion: …

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Kicked By Illuminati – Battlefield 4 – Video

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Volokh Conspiracy: Second Amendment protects people with old, nonviolent felony convictions

 Second Amendment  Comments Off on Volokh Conspiracy: Second Amendment protects people with old, nonviolent felony convictions
Feb 192015

In D.C. v. Heller, the Supreme Court stated that (emphasis added, citations omitted, as usual),

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

[Footnote: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]

The question, then, is whether this presumpti[on] of validity can ever be rebutted for instance, if a persons felony conviction is many decades in the past, is for a not very serious felony, or both. Todays Suarez v. Holder (M.D. Pa. Feb. 18, 2015) concludes that the presumption was indeed rebutted in this case, where the past felony conviction was in 1990, the claimants last misdemeanor conviction was in 1998, and the claimant has otherwise shown that he is now a law-abiding citizen (here by, among other things, having gotten a security clearance for his work with Department of Defense clients). And this is so even though the 1990 felony conviction was for illegal carrying of a gun (and the facts showed that he was drunk at the time), and the 1998 misdemeanor conviction was for drunk driving:

Defendants assert that Plaintiff has not shown that he is no more dangerous than a typical law-abiding citizen and poses no continuing threat to society. First, they emphasize that at the time of Plaintiffs arrest, he was carrying a .357 Magnum handgun and two loaded speed-loaders while intoxicated to the point that he was placed under arrest for driving under the influence. They argue that possessing a firearm while intoxicated poses such a danger that many jurisdictions impose criminal sanctions for doing so. We agree with Defendants that the circumstances of Plaintiffs arrest were dangerous. But the inquiry is whether the challenger, today, not at the time of arrest, is more dangerous than a typical law-abiding citizen or poses a continuing threat.

There are two ways in which a challenger may fail to show he is not dangerous. One, the challengers conviction is for acts so violent that even after twenty-five years of nonviolent behavior he would continue to be dangerous and to pose a threat to society. This is not that case. Or [two], the facts and circumstances since the conviction show that the challenger remains dangerous. As revealed in our discussion above, we find Plaintiffs background and circumstance establish that, today, he is not dangerous and does not pose a risk to society.

Second, Defendants argue that although Plaintiffs predicate conviction was not violent, empirical studies reveal that those like Plaintiff have a high rate of violent recidivism, and thus Plaintiff continues to be dangerous and pose a societal threat. While we agree that the generalized results of an empirical study are useful to refute a facial challenge and demonstrate that a statute survives some sort of means-end scrutiny, we do not find that generalized conclusions are particularly useful in as-applied challenges to demonstrate whether Plaintiff, himself, is dangerous or poses a continuing threat. Accordingly, we find the studies of little moment and decline to rely on them to find that Plaintiff is dangerous.

For other cases that reach similar results, see Binderup v. Holder (M.D. Pa. 2014) (Second Amendment), Britt v. State, 681 S.E.2d 320 (N.C. 2009) (state constitutional right to bear arms), and Baysden v. State, 718 S.E.2d 699 (N.C. Ct. App. 2011) (state constitutional right to bear arms). For federal opinions that say that people can regain their Second Amendment rights in such situations (though without holding that the particular claimant regained those rights), see United States v. Moore, 666 F.3d 313, 320 (4th Cir. 2012); United States v. Barton, 633 F.3d 168, 174 (3d Cir. 2011); United States v. Williams, 616 F.3d 685, 693 (7th Cir. 2010); United States v. Duckett, 406 Fed. Appx. 185, 187 (9th Cir. 2010) (Ikuta, J., concurring); United States v. McCane, 573 F.3d 1037, 1049-50 (10th Cir. 2009) (Tymkovich, J., concurring). Congratulations to Alan Gura, who won this case and Binderup (as well as, of course, Heller and McDonald in the Supreme Court, and other lower court Second Amendment cases as well).

(Note that Suarezs 1990 conviction was labeled a misdemeanor under Maryland law, but the district court held correctly, I think that the conviction was treated as a felony under federal law, because the maximum punishment was three years in prison, above the two-year cutoff that the federal statute uses as the misdemeanor/felony line in such cases.)

The government has appealed the Binderup case, and is thus likely to appeal this one. But I expect both Binderup and this case will stand up on appeal, given the Third Circuits Barton precedent; and I doubt that the U.S. Supreme Court would agree to hear the case.

See the original post:
Volokh Conspiracy: Second Amendment protects people with old, nonviolent felony convictions

 Posted by at 11:42 am  Tagged with:

First Amendment Rights [] – US History

 First Amendment  Comments Off on First Amendment Rights [] – US History
Feb 162015

American Government 1. The Nature of Government a. The Purposes of Government b. Types of Government c. What Is a Democracy? d. Democratic Values Liberty, Equality, Justice 2. Foundations of American Government a. The Colonial Experience b. Independence and the Articles of Confederation c. Creating the Constitution d. The Bill of Rights 3. Federalism a. The Founders and Federalism b. Tipping the Scales Toward National Power c. Federal-State Relations Today: Back to States’ Rights? 4. American Political Attitudes and Participation a. American Political Culture b. What Factors Shape Political Attitudes? c. Measuring Public Opinion d. Participating in Government e. Voting: A Forgotten Privilege? 5. How Do Citizens Connect With Their Government? a. Political Parties b. Campaigns and Elections c. Interest Groups d. The Media e. The Internet in Politics 6. Congress: The People’s Branch? a. The Powers of Congress b. Leadership in Congress: It’s a Party Matter c. The Importance of Committees d. Who Is in Congress? e. How a Bill Becomes a Law 7. The Presidency: The Leadership Branch? a. The Evolution of the Presidency b. All the President’s Men and Women c. Selection and Succession of the President d. The President’s Job e. Presidential Character 8. The Bureaucracy: The Real Government a. The Development of the Bureaucracy b. The Organization of the Bureaucracy c. Who Are the Bureaucrats? d. Reforming the Bureaucracy 9. The Judicial Branch a. The Creation of the Federal Courts b. The Structure of the Federal Courts c. The Supreme Court: What Does It Do? d. How Judges and Justices Are Chosen e. The Power of the Federal Courts 10. Civil Liberties and Civil Rights a. Rights and Responsibilities of Citizens b. First Amendment Rights c. Crime and Due Process d. Citizenship Rights 11. Policy Making: Political Interactions a. Foreign Policy: What Now? b. Defense Policy c. Economic Policy d. Social and Regulatory Policy 12. State and Local Governments a. State and Local Governments: Democracy at Work? b. Financing State and Local Government c. Who Pays for Education? 13. Comparative Political and Economic Systems a. Comparing Governments b. Comparing Economic Systems c. A Small, Small, World?

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” -First Amendment to the Constitution

A careful reading of the First Amendment reveals that it protects several basic liberties freedom of religion, speech, press, petition, and assembly. Interpretation of the amendment is far from easy, as court case after court case has tried to define the limits of these freedoms. The definitions have evolved throughout American history, and the process continues today.

The First Amendment guarantees freedom of religion in two clauses the “establishment” clause, which prohibits the government from establishing an official church, and the “free exercise” clause that allows people to worship as they please. Notice that the phrase “separation of church and state” does not appear in the First Amendment, nor is it found anywhere else in the Constitution. Most people do not realize that the phrase was actually coined later by Thomas Jefferson. In 1802, when he was President, he wrote the opinion that the First Amendment’s freedom of religion clause was designed to build “a wall of separation between Church and State.”

Court cases that address freedom of religion have dealt with the rejection of prayer in public schools, the denial of aid to parochial schools, the banning of polygamy (the practice of having more than one wife), the restriction of poisonous snakes and drugs in religious rites, and limiting the right to decline medical care for religious purposes.

Free speech is one of the most cherished liberties, but free speech often conflicts with other rights and liberties. The courts have had to consider the question, “What are the limits of free speech?”

The “clear and present danger” test is a basic principle for deciding the limits of free speech. It was set by the famous Schenck v. the United States case from World War I. Antiwar activist Charles Schenck was arrested for sending leaflets to prospective army draftees encouraging them to ignore their draft notices. The United States claimed that Schenck threatened national security, and the justices agreed. The principle was established that free speech would not be protected if an individual were a “clear and present danger” to United States security.

What is free speech? The definition is not easy, and the courts have identified three types of free speech, each protected at a different level:

Many of the same principles that apply to freedom of speech apply to the press, but one with special meaning for the press is prior restraint. The courts have ruled that the government may not censor information before it is written and published, except in the most extreme cases of national security.

Freedom of assembly and petition are closely related to freedom of speech, and have been protected in similar ways. Former Chief Justice Charles Evans Hughes wrote, “Peaceable assembly for lawful discussion cannot be made a crime.” Generally, that point of view has prevailed. Freedom of assembly has to be balanced with other people’s rights if it disrupts public order, traffic flow, freedom to go about normal business or peace and quiet. Usually, a group must apply for a permit, but a government must grant a permit provided that officials have the means to prevent major disruptions.

Read the rest here:
First Amendment Rights [] – US History

 Posted by at 3:49 pm  Tagged with:

Argument analysis: What exactly is a routine traffic stop, and should a suspicionless dog sniff be part of it?

 Fourth Amendment  Comments Off on Argument analysis: What exactly is a routine traffic stop, and should a suspicionless dog sniff be part of it?
Jan 232015

License, registration, and dog sniff, please? After a somewhat frustrating argument Wednesday morning, Justice Elena Kagan finally expressed concern about the possibility that the federal governments position in Rodriguez v. United States would lead to . . . 40 minutes of free time for police officers to investigate any crimes that they want. Assistant to the Solicitor General Ginger Anders responded that I dont think thats how we envision things, but she then suggested that only the duration of a routine traffic stop under the circumstances defines the Fourth Amendments reasonable limit. This did not answer the question that Justice Anthony Kennedy asked early on: how do you define the traffic stop? But even if the government loses, the Justices expressed a fair amount of indecision over exactly what the rule should be, and they appeared less than satisfied with the arguments offered by Rodriguezs attorney, Shannon OConnor the First Assistant Federal Public Defender for the District of Nebraska.

The facts, the question, and a few points of clarity

As previewed yesterday, the issue before the Court involves a valid traffic stop for swerving over the highway shoulder line, in which the officer prolonged the stop for seven to eight minutes after he had completed writing a warning, in order to conduct a dog sniff of Rodriguezs car after a back-up officer arrived. The entire traffic stop lasted about thirty minutes, at which point the dog alerted and provided probable cause for further search (which revealed methamphetamine). The Eighth Circuit did not question the lower courts finding that there was no reasonable suspicion for the dog-sniff detention, but it ruled that a de minimis delay to conduct a dog sniff is okay. Since the Courts 2005 ruling in Caballes that a dog sniff conducted simultaneously with a traffic stop did not violate the Fourth Amendment, lower state and federal courts have divided on the appropriate constitutional standards as well as their application when a sniff (or other investigation) extends the time of a stop.

A few things seemed clear from Wednesdays argument. First, a dog sniff of a car stopped for a traffic violation is extraneous to the purpose of that is, not an ordinary incident of a traffic violation stop. Justice Samuel Alito questioned this and accurately noted that the Court has previously held that questions which seem unrelated to the mission of the traffic stop have been routinely upheld, starting with the standard opening license and registration, please and extending, as in Rodriguezs case, to questions about where the driver and the passenger were going and why. Thus, he repeatedly asked, why are those questions part of the mission and the dog sniff is not? But Anders wisely conceded that she was not arguing that a dog sniff should be considered an ordinary incident of most traffic stops. Although no one mentioned Indianapolis v. Edmond, the Courts 2000 decision ruling that routine drug checkpoints employing dog sniffs without suspicion violates the Fourth Amendment, the Justices did not seem ready to accept the routine addition of dog sniffs to valid traffic stops.

(Incidentally, repeated points of some humor were moments in which Justices referred to having been stopped themselves by the police. Chief Justice John Roberts began this thread by commenting during OConnors argument(to laughter) that people have told me what happens when youre stopped. Justice Sonia Sotomayor later began Anders argument by saying and Chief, Ive been stopped, to which Anders quickly responded, so have I. The underlying point being that perhaps one of the most shared experiences in our national culture is being stopped by the police while driving. Or as Justice Stephen Breyer put it, our experience on stops comes from, unfortunately, being the stoppee.)

A second point that appears clear from yesterdays argument is that the Court will not use this case to reconsider Caballes and examine whether a dog sniff should count as a Fourth Amendment search. Justice Sotomayor appeared to raise this fundamental question briefly is that really what the Fourth Amendment should permit? but then quickly suggested that the Court should cabin it to Caballess simultaneous with writing the ticket holding. Thus while the Caballes holding appears to be in some tension with the constitutional theory of search that Justice Antonin Scalia, among others, has recently advanced, this case will not be used as an occasion to discuss it in the text of the opinion, although it may surface in footnotes or separate opinions.

The basic question: Is suspicionless detention for a dog sniff allowed?

Various Justices the Chief Justice and Justices Scalia Kagan in particular appeared to keep driving the case to its basic question: may the police continue to detain someone, without at least reasonable suspicion, when the Fourth Amendment justification for the stop (that is, the traffic violation) has ended? Toward the end of the argument, Justice Kagan bluntly stated that if the government is arguing that Caballes gives you extra leeway to detain people . I think thats just not right. Chief Justice Roberts appeared to agree, rhetorically asking a bit earlier (generating laughter) whether [i]ts only a violation of the Fourth Amendment for two minutes, right? And Justice Scalia later interjected, apparently along the same rhetorical line, it can prolong it a little bit.

At one point, Justice Breyer began a question for Anders with the announcement that I have a great idea. Reading this, I initially imagined everyone was groaning but then Justice Breyers idea appeared to catch on with the rest of the Court (perhaps for want of any other more specific guidance). Justice Breyer appeared to suggest that the Court simply stick to what it has said in past cases: that a stop cannot last longer than is necessary to effectuate the purpose of the stop, or that a stop cannot be unnecessarily prolonged. He explained that these were not new ideas what an original idea I had, he noted with irony and that after we cite these two cases , [we] reverse. QED, goodbye. And then, as Justice Ruth Bader Ginsburg repeatedly noted, the issue whether there actually may have been reasonable suspicion about narcotics on the facts of this case, a point not addressed by the court of appeals, would be open on remand. Although OConnor urged the Court to decide that question itself for judicial economy, no Justice seemed likely to agree.

One final point, about Terry v. Ohio

Read more here:
Argument analysis: What exactly is a routine traffic stop, and should a suspicionless dog sniff be part of it?

 Posted by at 7:48 am  Tagged with:

Volokh Conspiracy: An update to the Virginia constitution that the General Assembly should pass over

 Fourth Amendment  Comments Off on Volokh Conspiracy: An update to the Virginia constitution that the General Assembly should pass over
Jan 222015

A few weeks ago, Virginia Delegate Rich Anderson (R) and Senator Richard Stuart (R) introduced an amendment in the Virginia General Assembly, HJR 578, which would amend the Virginia constitution by replacing the state equivalent of the Fourth Amendment with an all new version designed to be an update for the 21st century. A reader asked me for my opinion of the proposal. This post provides it.

My overall assessment is that this proposal isnt ready for prime time. First, its a truly radical set of ideas. It would restrict police power to enforce the law in dramatic ways far beyond anything seen before. Second, its a grab-bag of different police restrictions, many poorly drafted and murky as to their scope. And ironically, several of the proposed changes actually arent likely to be changes at all. Theyre drafted in odd ways that probably miss their intended targets.

Heres some context to understand my reaction. The Virginia state constitution has a search and seizure provision that dates back to 1776 and was part of George Masons original Virginia Declaration of Rights. Heres the text:

That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

For most of Virginias history, this provision was the primary protection of search and seizure law that regulated Virginia law state and local law enforcement. In 1949 and 1961, however, the U.S. Supreme Court held that the federal Fourth Amendment also applies to state and local governments under the Due Process clause of the Fourteenth Amendment. As a result of those U.S. Supreme Court developments, state constitutional protections play little or no role in most states. Most state Supreme Courts interpret their state constitutions to match or mostly match the federal Fourth Amendment, and the federal Fourth Amendment already provides a floor below which state and local officials cant go.

Virginia is one of those states. The Supreme Court of Virginia has concluded that the requirements of Virginias 1776 search and seizure provision are substantially the same as those contained in the Fourth Amendment. Lowe v. Commmonwealth, 230 Va. 346 (1985) (quoting A. Howard, I Commentaries on the Constitution of Virginia 182 (1974)). States are certainly free to do more. Either by judicial construction, or by express textual amendment, states are free to enact greater protections that will regulate state and local governments more than the federal government. But its an option, not a requirement, and so far Virginias constitution hasnt gone beyond the federal Fourth Amendment.

The new proposal would change that. The proposal would replace George Masons 1776 language in its entirety with the following new language:

That the government shall not violate the right of the people to be secure against unreasonable searches and seizures of their persons, houses, businesses, lands, papers, and effects, including communications and stored personal information and data. A reasonable search or seizure is one based on probable cause that a law has been or will be broken. An unreasonable search or seizure is one that is not based on a valid law. Warrants and other demands shall be issued only based upon probable cause, signed by a neutral judge or magistrate, supported by oath or affirmation, and particularly describing the place to be searched, the persons, property, or things to be seized, or the communications, personal information, or data to be accessed or obtained. A persons disclosure of papers, effects, communications, personal information, or data to another person shall not alone constitute a waiver of this right. The people shall have remedies of exclusion and actions for damages and other remedies wherein defendants shall not enjoy greater immunity than other citizens of the Commonwealth.

What is this language supposed to do? Good question. Just reading it, its somewhat hard to tell what the drafters were thinking. In the Washington Examiner, however, Ken Cuccinelli and Mark Fitzgibbons (C&F) offer an endorsement of the proposal that gives a relatively detailed explanation of it. Its the most thorough discussion I have found, and it gives us enough context to evaluate the proposed amendment sentence-by-sentence.

Lets start at the beginning with the first sentence:

Continue reading here:
Volokh Conspiracy: An update to the Virginia constitution that the General Assembly should pass over

Liberty Global (LBTYB) Downgraded From Buy to Hold

 Liberty  Comments Off on Liberty Global (LBTYB) Downgraded From Buy to Hold
Jan 122015

Editor’s Note: Any reference to TheStreet Ratings and its underlying recommendation does not reflect the opinion of TheStreet, Inc. or any of its contributors including Jim Cramer or Stephanie Link. TheStreet Ratings quantitative algorithm evaluates over 4,300 stocks on a daily basis by 32 different data factors and assigns a unique buy, sell, or hold recommendation on each stock. Click here to learn more.

NEW YORK (TheStreet) — Liberty Global (LBTYB) has been downgraded by TheStreet Ratings from Buy to Hold with a ratings score of C+. TheStreet Ratings Team has this to say about their recommendation:

“We rate LIBERTY GLOBAL PLC (LBTYB) a HOLD. The primary factors that have impacted our rating are mixed – some indicating strength, some showing weaknesses, with little evidence to justify the expectation of either a positive or negative performance for this stock relative to most other stocks. The company’s strengths can be seen in multiple areas, such as its increase in stock price during the past year, compelling growth in net income and revenue growth. However, as a counter to these strengths, we find that the company has favored debt over equity in the management of its balance sheet.”

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Liberty Global (LBTYB) Downgraded From Buy to Hold

Protecting actual free speech

 Free Speech  Comments Off on Protecting actual free speech
Jan 122015

Free speech is one of the greatest things we have that on most occasions we take utterly for granted. The fact that I can stand on a hilltop (or the Internet) and denounce the government and all its evil wrongdoings and not be arrested for it is something that I’m immensely grateful for.

And yes, I will fight tooth and nail for your right to free speech even if what you say is disagreeable to me (I’m paraphrasing that thing that Voltaire didn’t say).

Because if there’s one thing I know about human nature and our long history of being dicks to each other it’s that people in positions of power, like toddlers, need structure. Left to their own devices they will act exactly as they see fit and that can and has involved silencing dissenters (or throwing massive tantrums).

This is why we have laws to protect the people from the mighty. The Bill of Rights Act protects our freedom of expression (among other things).

But this is not permission for anyone to say whatever they like with impunity. We also have laws that cover defamation as well as such pleasant occurrences as “inciting racial disharmony”. So we have free speech but even in a legal sense it’s not absolute. I cannot maliciously lie about someone in order to bring about their downfall like some kind of cartoon villian. Nor can I try and convince people to act unlawfully. Interestingly, our sedition law was repealed several years ago so I’m all okay to encourage insurrection against the state. So I might save that one for a rainy day.

But legality, schmegality. For most people the notion of free speech extends beyond what the state allows you to do. And this is where things get tricky.

For instance, it’s been suggested that organised boycotts against companies or businesses that cause offense either in their products or advertising are in some way an assault on freedom of speech. They’re not. That’s just called “pissing off your customer-base and having to deal with it”.

And that’s still the case, even with the media. If some radio jock or columnist spouts forth in a way that’s so repugnant to you that it actually makes you angry enough to not listen to that radio station any more, or buy that newspaper then that’s just you acting as your conscience dictates. If you go a step further and promote your intention to boycott that media outlet and encourage similar thinking people to do the same, that’s just you exercising your own freedom of expression.

There’s a difference between encouraging people to behave in a different way and forcing them to. The difference is choice or free will. Pointing a gun at someone removes their free will. Voicing your opinion, even very stridently and agressively does not.

Are there potentially implications with regards to media? My word, yes. There is nothing the media fears more than losing precious advertising revenue. If the great unwashed masses get their knickers in a knot every time they hear an opinion that contradicts their world view or strays far beyond what their moral compass says is right is there not some risk that what is published will become crowd-friendly pap?

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Protecting actual free speech

 Posted by at 10:40 pm  Tagged with:

Pierre Teilhard De Chardin | Designer Children | Prometheism | Euvolution | Transhumanism