Want Privacy? Increase Government Surveillance!
This morning, the Senate Judiciary Committee’s Subcommittee on Privacy, Technology, and the Law had a hearing entitled: “Protecting Mobile Privacy: Your Smartphones, Tablets, Cell Phones and Your Privacy.”
Among the witnesses was Deputy Assistant Attorney General Jason Weinstein from the Department of Justice’s Criminal Division. Weinstein made a gallingly Orwellian pitch: If you want privacy protection, increase government surveillance.
From his written statement:
ISPs may choose not to store IP records, may adopt a network architecture that frustrates their ability to track IP assignments and network transactions back to a specific account or device, or may store records for only a very short period of time. In many cases, these records are the only evidence that allows us to investigate and assign culpability for crimes committed on the Internet. In 2006, forty-nine Attorneys General wrote to Congress to express “grave concern” about “the problem of insufficient data retention policies by Internet Service Providers.”
Without more customer data retention by ISPs, and without greater government access to this data, the government won’t be able to prosecute crimes, some of which threaten privacy, Weinstein said in his spoken comments.
So there you have it. Turn more data over to the government so we can protect your privacy. War is peace. Freedom is slavery.
Google under Siege in the Corporate State
“Google is under siege in Washington like never before,” Politico reports.
In an interview with POLITICO, a Google spokesman argued that a cabal of antitrust lawyers, lobbyists and public relations firms is conspiring against the Internet search giant. The mastermind? Google says it’s Microsoft.
Maybe it’s irony, or maybe it’s payback.
In the 1990s, Microsoft was the tech industry wunderkind that got too big for its britches — and Google CEO Eric Schmidt, then an executive at Sun Microsystems and later Novell, helped knock the software titan down a peg by providing evidence in the government’s antitrust case against it. . . .
But there are also increasing calls from some Silicon Valley competitors and Washington-based public interest groups for the Justice Department to launch a sweeping antitrust probe of Google. The European Union and the state of Texas have reviews under way.
Google says its rivals are fueling the attacks.
You could have read it here first. In the November-December 2010 issue (pdf) of Cato Policy Report, Adam Thierer wrote, “The high-tech policy scene within the Beltway has become a cesspool of backstabbing politics, hypocritical policy positions, shameful PR tactics, and bloated lobbying budgets.” The telcos, the broadcasters, the wireless industry, the entertainment industry — they all want the federal government to crush their competitors. And, he said, “Everybody — and I do mean everybody — wants Google dead, right now. Google currently serves as the Great Satan in this drama — taking over the role Microsoft filled a decade ago — as just about everyone views it with a combination of envy and enmity.” But then:
Of course, in a sense, Google had it coming. The company has been the biggest cheerleader in the push to impose “Net neutrality” regulation on the Internet’s physical infrastructure providers, which would let the FCC toss property rights out the window and regulate broadband networks to their heart’s content.
Meanwhile, along with Skype and others, Google wants the FCC to impose “openness” mandates on wireless networks that would allow the agency to dictate terms of service. It’s no surprise, then, that the cable, telco, and wireless crowd are firing back and now hinting we need “search neutrality” to constrain the search giant’s growing market power. File it under “mutually assured destruction” for the Information Age.
Google had it coming in another sense, having joined the decade-long effort by myriad Silicon Valley actors to hobble Microsoft through incessant antitrust harassment.Google has hammered Microsoft in countless legal and political proceedings here and abroad.
Thierer also noted that you could have predicted all this by reading Cato publications a decade earlier, such as Cypress semiconductor CEO T. J. Rodgers’s 2000 manifesto, “Why Silicon Valley Should Not Normalize Relations with Washington, D.C.” (pdf). Or indeed Milton Friedman’s 1999 speech on “The Business Community’s Suicidal Impulse“: “You will rue the day when you called in the government. From now on the computer industry, which has been very fortunate in that it has been relatively free of government intrusion, will experience a continuous increase in government regulation.”
You (could have) read it here first.
Department of Bias
The Department of Justice just invalidated a move by the residents of Kinston, North Carolina, to have non-partisan local elections. Rationale?
The Justice Department’s ruling, which affects races for City Council and mayor, went so far as to say partisan elections are needed so that black voters can elect their “candidates of choice” – identified by the department as those who are Democrats and almost exclusively black.
The department ruled that white voters in Kinston will vote for blacks only if they are Democrats and that therefore the city cannot get rid of party affiliations for local elections because that would violate black voters’ right to elect the candidates they want.
This, coming from the same Department of Justice officials that wouldn’t know a civil rights violation if it picked up a club and barred them access to a polling place.
Drug War Insanity Goes Up in Smoke
As my colleague David Rittgers notes below, the announcement by the Department of Justice that it will no longer seek to arrest medical marijuana users is a breakthrough for common sense in federal drug policy.
It is bizarre that it takes a major policy announcement to spell out what a waste of police and court time it is to investigate the ill people who use medical marijuana. Historians will surely look back on this period and ponder how our government could have seriously embraced the opposite policy, in the same way we look back at the strange days of alcohol prohibition.
The Obama administration should be taking much bolder steps to stop the criminalization of drug use more generally. More and more people have come to recognize that the drug war has been given a fair chance to work, but it has proved to be a grand failure.
Good News on Medical Marijuana
The Department of Justice is changing its long-standing policy of ignoring state laws that allow marijuana use for medicinal purposes. This federalism question played out several years ago in the Supreme Court in the Raich case; Cato’s amicus brief is available here.
Cato hosted Rob Kampia of the Marijuana Policy Project in March, and you can view the event here. Glenn Greenwald wrote an influential study for Cato on the successful decriminalization of drugs in Portugal. Greenwald notes that he gets more invitations to speak on the subject now than he did when it was published.
A good first step. Fourteen states permit medical marijuana dispensaries; I suspect more are on the way now that this hurdle has been cleared.
The Supreme Court Decision on NAMUDNO v. Holder
In the case of Northwest Austin Municipal District Number One (“NAMUDNO”) v. Holder, the Supreme Court issued a narrow decision today that avoided ruling on the constitutionality of Section 5 of the Voting Rights Act.
Section 5 requires any change in election administration in certain states and counties—mostly but not exclusively in the South—to be “precleared” by the Department of Justice in Washington. As I wrote earlier, this is a remnant of the Jim Crow era, and southern states’ massive resistance to attempts to enforce the 15th Amendment.
The ruling correctly allows a small utility district (and other political subdivisions) to seek relief—known as a “bailout”—from the 1965 Voting Rights Act’s onerous pre-clearance requirements. There is simply no reason for jurisdictions that have, at worst, gone decades without any voter intimidation or disenfranchisement—where the Act succeeded in stamping out or preventing racial discrimination—to continue to go before the Department of Justice for the most innocuous changes in state and municipal election procedures.
Here, for example, an electoral district that wasn’t even created until 1987 wants to move its polling locations from private garages to public schools, for ease of voting. Since Congress amended the Act in 1982, only 17 of 12,000 covered jurisdictions have been able to come out from under the thumb of federal oversight. Congress clearly never intended it to be so difficult to escape having to seek federal approval for such minor changes in election procedure.
This is one “bailout” that actually saves taxpayer money and makes common sense.
Unfortunately, the constitutionality of the Act’s Section 5—in the absence of the “exceptional conditions” the Court cited in 1966 as justifying “extraordinary legislation otherwise unfamiliar to our federal system”—remains in doubt. While it is a close call whether the Court need resolve that issue to dispose of the NAMUDNO case, Section 5’s validity as a matter of constitutional law and public policy is assuredly not a close call.
As Chief Justice Roberts notes in his majority opinion: “The evil that § 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance.”
Indeed, blatantly discriminatory evasions of federal decrees are exceedingly rare. Minority candidates run for and hold office at unprecedented rates—particularly in the South. The racial gap in voter registration—the primary concern of the VRA—is higher nationwide than it is in the covered states; in some covered states, blacks register and vote at higher rates than whites.
As Justice Thomas says in his partial dissent: “Admitting that a prophylactic law as broad as § 5 is no longer constitutionally justified based on current evidence of discrimination is not a sign of defeat. It is an acknowledgement of victory.”
More Politicization of the Department of Justice
At the last election, Democrats complained mightily of George Bush’s having politicized the Department of Justice: firing prosecutors, suborning legal memos justifying an expansion of executive power, etc., etc. Well, it now seems at best that the pot was calling the kettle an abuser of power.
Early in the administration, when the DC Voting Rights Act last made the news cycle, it came out that newly confirmed AG Eric Holder sought a second opinion from the acting solicitor general when the Office of Legal Counsel affirmed its 45-year position that giving DC residents representation in Congress could not be done without amending the Constitution. The bill is now stuck because of an amendment that was added to it relaxing the District’s strict — even after Heller — gun regulations, but this issue will resurface.
Now, in the most recent development in the “Is Hillary Clinton Constitutional?” saga the OLC reversed its own position from 1987 just in time for federal prosecutors to file a motion to dismiss a lawsuit challenging Clinton’s appointment that cites the new memo (see footnote 21). Indeed, the motion was filed the same day Acting Assistant Attorney General David Barron — who had previously rebuffed Holder on the DC Voting Rights Act (though we still have to see what the next confirmed OLC head says, be that Dawn Johnsen or someone else) – signed the new OLC memo.
The issue is that Clinton’s appointment to the cabinet — as well as that of Interior Secretary Ken Salazar – violates the Emoluments (sometimes called Ineligibility) Clause of Article I, section 6 because both she and Salazar were sitting Senators when cabinet salaries were increased. Congress later passed short laws reversing these raises for the duration of both officials’ tenures but, as I’ve argued previously – and as OLC head Chuck Cooper spelled out in the 1987 memo – there is no “net accounting” proviso which somehow erases the constitutional defect. While the new memo relies heavily on historical practice – several presidents going back to William Howard Taft (most recently Bill Clinton in appointing Lloyd Bentsen to be Treasury Secretary) have proceeded in this manner — the fact that political branches have acted in a certain way doesn’t speak to the constitutionality of that action.
In short, again the Obama Justice Department has found a politically expedient way of dealing with pesky constitutional issues. In this case, that way involved issuing a memo to buttress a motion being filed that very same day in federal court.
H/T: Tom Fitton of Judicial Watch, which is involved in the suit challenging Clinton’s appointment.
DoJ Fails to Report Electronic Surveillance Activities
Unlike with wiretaps, law enforcement agents are not required by federal statutes to obtain search warrants before employing pen registers or trap and trace devices. These devices record non-content information regarding telephone calls and Internet communications. (Of course, “non-content information” has quite a bit of content – who is talking to whom, how often, and for how long.)
The Electronic Privacy Information Center points out in a letter to Senate Judiciary Committee Chairman Patrick Leahy (D-VT) that the Department of Justice has consistently failed to report on the use of pen registers and trap and trace devices as required by law:
The Electronic Communications Privacy Act requires the Attorney General to “annually report to Congress on the number of pen register orders and orders for trap and trace devices applied for by law enforcement agencies of the Department of Justice.” However, between 1999 and 2003, the Department of Justice failed to comply with this requirement. Instead, 1999-2003 data was provided to Congress in a single “document dump,” which submitted five years of reports in November 2004. In addition, when the 1999-2003 reports were finally provided to Congress, the documents failed to include all of the information that the Pen Register Act requires to be shared with lawmakers. The documents do not detail the offenses for which the pen register and trap and trace orders were obtained, as required by 18 U.S.C. § 3126(2). Furthermore, the documents do not identify the district or branch office of the agencies that submitted the pen register requests, information required by 18 U.S.C. § 3126(8).
EPIC has found no evidence that the Department of Justice provided annual pen register reports to Congress for 2004, 2005, 2006, 2007, or 2008. “This failure would demonstrate ongoing, repeated breaches of the DOJ’s statutory obligations to inform the public and the Congress about the use of electronic surveillance authority,” they say.
It’s a good bet, when government powers are used without oversight, that they will be abused. Kudos to EPIC for pressing this issue. Senator Leahy’s Judiciary Committee should ensure that DoJ completes reporting on past years and that it reports regularly, in full, from here forward.
Blogging from the Supreme Court – NAMUDNO v. Holder
I write this from the Bar Members’ line waiting to be let into the Supreme Court courtroom for the final argument of the term.
Today the Court hears Northwest Austin Municipal Utility District No.1 (“NAMUDNO”) v. Holder. This is a challenge to the controversial Section 5 of the Voting Rights Act, which requires, among other things, any change in election administration in certain states and counties to be “precleared” by the Department of Justice in Washington. This is, of course, a remnant of the Jim Crow era, and southern states’ massive resistance to attempts to enforce the 15th Amendment.
In 1965, Congress included Section 5 — which would otherwise be an unconstitutional infringement on peoples’ right to run their own elections locally — as a temporary remedy to an emergency situation. The section has been amended and extended several times (e.g., to add linguistic minorities, Pacific Islanders, etc.), most recently in 2006. But in this last renewal, Congress, despite introducing more than 15,000 pages into the record, failed to even allege the existence of the type of systemic voting discrimination as existed in the 1960s — because, of course, it doesn’t exist any more, and other parts of the VRA exist to cover specific discriminatory incidents.
Accordingly, a small utility district in Austin, Texas, contests Section 5′s continuing validity (if it cannot escape the section’s clutches via a confusing and little-used “bailout” provision). Specifically, NAMUDNO wants to change the location of its polling station to a public garage (from a less convenient location) — a move that obviously lacks discriminatory intent, and showcases the minutiae that the DOJ now has to micromanage.
Cato legal scholars support NAMUDNO’s challenge because, barring the widespread systemic unconstitutional actions of the Civil Rights Era, Section 5 violates our most basic principles of self-government and federalism, and is emblematic of governmental overreach.
Bob McDonnell Wants to Scare You and Take Your Money
Though I’m not a Virginia resident or voter, nor a donor to politicians, Virginia gubernatorial candidate Bob McDonnell (whose party affiliation I’m not aware of) has added me to his email list. His name is similar to a past roommate, and that affinity has caused me to open more of his emails than I ordinarily would.
Today’s is worth writing about: It’s a political candidate transparently trying to scare voters and use their fear for fundraising.
Dear Jim,
Terror suspects could be headed to Virginia…
With the closing of the detention center at Guantanamo Bay the federal government must find new locations in which to house and try the roughly 240 terrorist suspects currently held 90 miles from our shores. Recent news reports indicate that the Department of Justice is considering transferring a number of the detainees to the Commonwealth of Virginia. One specific location: Alexandria. And other Virginia locations could be possibilities as well.
There are security details to be worked out when prisoners are transferred out of Guantanamo Bay, but the prisoners themselves are not dangerous as such. They’re prisoners, and they will always be under heavy guard. Terrorists are not radioactive, and they do not have lasers built into their eyes.
The problems with housing prisoners in the past have been over-the-top security precautions that make a great show but don’t necessarily meet actual security problems associated with housing terror suspects.
Bills have been introduced to bar detainees from being transferred to various states.
A precious few Americans have exhibited cool in this fear-of-detainees brouhaha. Alexandria Sheriff Dana A. Lawhorne is quoted in this Washington Post article, at least saying “he would do what he can: ‘You can’t run the other way when your country calls.’”
But McDonnell, the politician seeking a prominent leadership position in the state, would “lead” by pretending that captured terrorists are too big a security risk for Virginia. It’s shameful fear-mongering meant to capitalize on the ignorance and weakness of Virginians who don’t understand terrorism. The only links in the text of the email are to the fundraising page on McDonnell’s Web site.
McDonnell exhibits leadership malpractice with this kind of campaigning.
TLJ: Holder Advocates Some Constitutional Principles
I’m a long-time reader and fan of TechLawJournal. Dogged reporter David Carney produces an amazing amount of content about technology-related goings-on in Washington, D.C. and the courts. Subscription information is here.
I also appreciate his editorial style, which often betrays a dose of concern for civil liberties and healthy skepticism about power. A wonderful example follows, reprinted with permission:
Holder Advocates Some Constitutional Principles
Attorney General Eric Holder gave a lengthy speech at the United States Military Academy in West Point, New York in which he discussed the role of law in “our current struggle against international terrorism”.It was a plea for adherence to Constitutional principles. However, it was as significant for what he said — about detention of people in places like Guantanamo Bay — as for what he did not say — about interception of communications and seizure of data.
He spoke with specificity about Guantanamo Bay, detainees, and the history of American treatment of detained soldiers and citizens.
But, he said nothing that suggested an intent to reverse, or halt, the deterioration of Constitutional protection of privacy and liberty interests in the context of new communications and information technologies.
Holder (at right) said, “And so it is today, at the beginning of a new presidency, as we face a world filled with danger, that we must once again chart a course rooted in the rule of law and grounded in both the powers and the limitations it prescribes.”
He said that “we will not sacrifice our values or trample on our Constitution under the false premise that it is the only way to protect our national security. Discarding the very values that have made us the greatest nation on earth will not make us stronger — it will make us weaker and tear at the very fibers of who we are. There simply is no tension between an effective fight against those who have sworn to do us harm, and a respect for the most honored civil liberties that have made us who we are.”
This statement could equally apply to government surveillance activities. But, he did not say so. Perhaps Holder intends to speak in a similar speech about surveillance at a later date. Or perhaps, he does not, and his concern for Constitution rights is selective and does not extend to surveillance.
He did make one statement that may pertain to electronic surveillance and data. He said that “many national security decisions must by necessity be made in a manner that protects our ability to gather intelligence, investigate threats and execute wars”.
He did not reference the state secrets privilege, or the government’s assertion of it in legal proceedings involving warrantless wiretaps.
On April 3, 2009, the Department of Justice (DOJ) filed a motion to dismiss and memorandum in support [36 pages in PDF] in Jewell v. NSA, a case against the NSA, DOJ, Holder and officials, arising out of the NSA’s warrantless wiretap program.
The DOJ asserts the state secrets privilege, sovereign immunity, and other arguments, to evade litigation of this case on the merits.
The Electronic Freedom Foundation (EFF) stated in a release that “These are essentially the same arguments made by the Bush administration”.
This case is Carolyn Jewell, Tash Hepting, et al. v. National Security Agency, et al., U.S. District Court for the Northern District of California, San Francisco Division, D.C. No. C:08-cv-4373-VRW.
Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release issued in response to Holder’s speech that “It’s disturbing that instead of helping investigate the extent of spying by the Bush administration, the new administration is not just defending those policies, but taking them a step further. In its April court brief (Jewel v. NSA), the Obama DOJ argued that the government is completely immune from litigation for illegal spying and even that it can never be sued for violating federal privacy laws with surveillance techniques. Those arguments sound more like ’1984′ than 2009.”
Black continued that “President Obama appreciates more than most people how the Internet can be used as a tool to allow greater participation in a democracy. That same tool could also be the greatest innovation for surveillance and repression in the wrong regime. Defending practices like this sets a dangerous precedent down the road and makes it easier for a government to expand the programs from surveilling terrorists to surveilling political opponents.”
“The Obama administration had the courage to change policy on the treatment of terrorism suspects and how they were treated and sometimes tortured”, said Black. “But the abuse of the privacy rights of millions of U.S. citizens is a greater long term threat to the rule of law and the Constitutional rights of all Americans. The failure to allow the full investigation of the surveillance abuse by both the government and major collaborating industry giants would be a tragic betrayal by an administration so many were looking to for greater honesty, openness, and respect for all citizens’ constitutional rights.”
A (Baby) Step in the Right Direction on Gambling
Semi-good news for lovers of civil liberties and the rule of law. PartyGaming, a UK -based internet gambling company, has reached a deal with the Department of Justice. In exchange for a $105m “fee”, prosecution proceedings against PartyGaming will be dropped.
Why am I only partially excited by this development? Although I think that dropping the case is a positive move, PartyGaming withdrew from the U.S. market when the Unlawful Internet Gambling Enforcement Act was passed, so the case against the company (and therefore its punishment) is, in this non-lawyers opinion at least, dubious. The Wall Street Journal alludes to the retroactive nature of the DoJs case here:
After almost two years of discussions, the U.S. Attorney’s Officer for the Southern District of New York has agreed not to prosecute PartyGaming or any of its subsidiaries for providing internet gambling services to customers in the U.S. prior to the U.S. government banning the online gambling industry in October, 2006.” [italics mine]
Aside from their assault on civil liberties, U.S. laws on internet gambling go against the spirit and the letter of WTO law, and undermine the international trading system that has on balance served the United States well (see more here and an FT piece on the announcement here).
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