Daily Archives: January 14, 2022

Weve all watched the cringeworthy hearings where senators take turns grilling Big Tech CEOs over why their constituent emails have such low open rates. While the fight over regulating Big Tech rages, Americans 4th Amendment rights continue to be abused in other areas that do in fact require a measured response. As it turns out, such a remedy already exists.

Last April, a group of bipartisan senators introduced The

Fourth Amendment Is Not For Sale Act (FANFSA).

In the Senate, the bill enjoys 20 co-sponsors ranging from Sens. Rand PaulRandal (Rand) Howard PaulDems block Cruz's Nord Stream 2 sanctions bill Scientists, medical professionals defend Fauci after heated exchanges with Republicans The Hill's Morning Report - For Biden, it goes from bad to worse MORE (R-Ky.) to Bernie SandersBernie SandersOvernight Health Care Biden's Supreme Court setback Republican rep who voted to impeach Trump running for reelection Biden's FDA nominee advances through key Senate committee MORE (I-VT). While the House companion bill is sponsored by Judiciary Chairman Jerrold NadlerJerrold (Jerry) Lewis NadlerAndrew Cuomo attorney says AG investigation was 'shoddy,' outcome was 'predetermined' Democrats quietly explore barring Trump from office over Jan. 6 The Memo: Nation's racial reckoning plays out in 2021's big trials MORE (D-N.Y.), the bill has yet to see the light of day. That must change.

The Fourth Amendment protects the right to be free from unreasonable searches and seizures, unless the government acts with a judicially granted warrant supported by probable cause or there is an applicable exception to the warrant. The Supreme Court has recognized

that the Fourth Amendment provides protection from government searches when a person has a subjective expectation of privacy that society recognizes as objectively reasonable. See Katz v United States (1967) (Harlan, J., concurring). However, the Court has also held that a person does not have a legitimate expectation of privacy in information knowingly shared with third parties. See Smith v Maryland (1979).

The Court chipped away at this so-called third party doctrine in Carpenter v United States (2018). The issue in Carpenter was whether there was a legitimate expectation of privacy in cell-site location information (CSLI). A CSLI is created every time a phone connects to a cell site, often found on a tower. Wireless providers store this information. The FBI sought CSLIs from wireless providers to find out how close Carpenter was to a string of robberies. Even though CSLIs are held by third parties, the Court held there was legitimate expectation of privacy. However, the Court noted that its holding was narrow.

Congress has passed several statutes to combat the third-party doctrine that provide protection when the government seeks your information from internet, wireless, social media, or email providers. Under the Stored Communications Act (SCA) passed in 1986, these providers

are among a class of providers considered electronic communication services (ECS) or remote computing services (RCS). Most importantly, this means the government needs some form of court approval to access your content from a provider. For example, when a subpoena required Facebook to disclose private messages, a federal court quashed the subpoena because it did not comply with the stringent standards of the SCA. See Crispin v. Christian Audigier, Inc. (C.D. Cal. 2010).

At 36 years old, the SCA needs an update. The SCA does not protect consumers from data brokers that collect consumer information from common apps or websites. Because these data brokers do not provide the ability to send or receive the content at issue, they do not fall within the reach of the SCA. Therefore, if the government wants your information, they need no court approval. As a result, data brokers like Venntel can collect location data from smartphones and sell it to government agencies. Or even worse, data broker Clearview AI can create a massive database of photos from Facebook, LinkedIn, and Twitter and sell it to government agencies.

FANSFA would amend the SCA to treat data brokers just like it treats an ECS or RCS. In other words, the same court approval standards that apply when the government wants your personal messages from Facebook or Twitter will now apply when the government wants your information from Venntel, Clearview AI, or any other data broker. The statute explicitly prohibits the government from getting access to your information held by data brokers unless SCA processes are followed. Moreover, the bill prohibits the government from purchasing your information from data brokers.

There are other important structural reforms, too. In the event the government does illegally obtain your data, it cannot be used as evidence elsewhere like a court or legislative body. FANFSA also prohibits the attorney general from offering civil immunity to providers

that assist the government in illegal surveillance. Importantly, providers retain immunity if surveillance assistance is ordered by a court.

Because of the everyday advancements in our technological world, Congress often fails to keep up. FANSFA is a rare exception. This legislation requires the government to go through the same court approval process as if it sought your personal messages from Facebook or Twitter. Your information is important. The government should not be able to buy it from data brokers because you decided to browse the internet. Congress must reignite the fight to protect the privacy of all Americans and pass FANSFA to correct this loophole.

Alex Deise is the Policy Manager at FreedomWorks.

Go here to read the rest:
Congress should pass the 'Fourth Amendment Is Not For Sale Act' | TheHill - The Hill

The city of Baton Rouge tried to throw a law professor in prison after he shared publicly available body camera footage showing police officers strip-searching a minor in public. On Friday, a federal judge ruled that this violated the First Amendment.

That footage, originally shared withReason,was captured at a 2020 traffic stop. Baton Rouge Police Department (BRPD) officers cuffed 23-year-old Clarence Green and his 16-year-old brother, pulling down their pants on the sidewalk to look for drugs. Officer Troy Lawrence Jr. and thenSgt. Ken Camallo subsequently went to the family's home and searched it, weapons drawn, without a warrant.

When the story sparked considerable outrage, the government zeroed in on Thomas Frampton, the attorney who represented the Greens and disseminated the clips, which were already a part of the public record. During a May press conference convened to address the video, East Baton Rouge Parish Attorney Anderson "Andy" Dotson III notified Frampton that the government would seek to hold him in contempt of court, which carried up to six months in the East Baton Rouge Parish Prison.

"In measuring 'the significance of [Frampton's] alleged criminal activity', the Court finds under the circumstances of this case, there was no criminal activity," writes Judge John W. deGravelles in a 92-page opinion published Friday. "Frampton released a Video that was in the public domain, belonged to his clients, and he released it on the instructions and with the knowledge of his clients."

The footage of Camallo's warrantless home entry might be an even bigger headache for the BRPD that thepublic strip-search. This was his third such search in under three years. He has since been demoted, but he's still with the department.

"BRPD officers' contempt for the constitutional rights of everyday Baton Rouge citizens, like the Green Family, is jaw-dropping," Frampton declared in a public statement. "But then you see how the lawyers who defend and enable these officers act, and it makes a lot more sense. Sadly, it's the taxpayers who will end up paying for their misdeeds."

Indeed, the Green family reached a $35,000 settlement with the city after Clarence spent five months in jail. The government moved to dismiss its case against him, and a federal judge agreedbut not without first benchslapping the state for actions that could be criminal.

"Such an intrusion, in abject violation of the protections afforded by the Fourth Amendment of the United States Constitution, which protects citizens against unwarranted governmental intrusions in their homes, may justifiably be considered to be a trespass subject to prosecution under" Louisiana law, wrote Judge Brian A. Jackson of the U.S. District Court for the Middle District of Louisiana.

The city of Baton Rouge insisted that it was Frampton who violated the law, by disseminating the video. But it was the city that put that footage into the public record in the first place.

DeGravelles thinks this was never really about prosecuting someone for breaching the law. Instead, he says, it was about revenge and skirting accountability. "The record is replete with evidence," he writed, "that the City/Parish would not have pursued this matter in the absence of its bad faith motive to retaliate."

Read more:
Judge: Baton Rouge Violated the First Amendment by Trying To Imprison a Professor for Sharing Body Camera Footage - Reason

Dear Reader(unless youre waiting for a subpoena, like Kevin McCarthy),

So I had a long rant in the Wednesday G-File about Bidens voting rights speech (actually, in fairness to me, only the end of it was ranty). While I could go on for another couple thousand words, the thing is already a dead letter. Kyrsten Sinema announced she wont nuke the filibuster to pass the Democrats election reforms, and Joe Manchin backed her up, so the whole speech was a pointless exercise.

Some think the idea was to pressure Sinema and Manchin into caving on a filibuster carve out. If so, that sounds great as a plot device for The West Wing.

I was going to make thenow clichdpoint that the Biden White House lives in the Veep timeline. But then I stopped myself because the truth is that it actually exists in the real world, the meatspace where things dont unfold according to preconceived storylines.

Remember that old joke about the academic who says, Sure it works in practice, but does it work in theory? The problem for the Biden administration is that they come up with theories about what to do that dont actually work unless youre drunk on the Kool-Aid and they work even less in reality. From Afghanistan to Build Back Better to COVID to inflation to this voting rights debacle, its like the White House just says Lets just do it and be legends.

Theres a lot of talk in Washington about how Biden isnt really running the show. That may be true on one issue or another, but on the broad direction of his presidency, I think this is wrong. Biden has a very long history of being unjustifiably confident about how the world works and being proven wrong. If thats the theme of his life in politicsand I think it isit would be kind of weird to exonerate him from the charge when hes actually the president of the United States and his presidency has displayed exactly that: invincible confidence in the rightness of what hes doing even as he walks from one smack in the face to another like Sideshow Bob stepping on rakes.

Dont worry, Im not going to run through all of that here because, frankly, Im exhausted with punditry right now. Instead, Id like to focus on something he was wrong about in his speech that an enormous number of other people are also wrong about.

Democracy versus liberty.

Biden said that the fundamental right to vote is the right from which all other rights flow. This is a common view, and one that Biden has subscribed to for a while. As vice president in 2015, he issued a statement on the 50th anniversary of the Voting Rights Act: Voting is the engine that drives all civil rights, all human rights, and all economic rights in this country. Its the right from which all other rights flow. Robert Kennedy said the same thing a half-century ago.

Now, I think voting is very, very important. What has two thumbs and likes democracy? This guy.

But neither the right to vote, nor democracy itself, are the source of all of our other rights.

This isnt a pedantic point.

Lets start with the subject of Jim Crow. Extending voting rights to blacks in the South was important, morally necessary, and just. But Jim Crow didnt end in the South because blacks got the vote. A full 10 years before the Voting Rights Act 1964 was passed, the Supreme Courtnot exactly a very democratic institutionruled that racial segregation in schools was unconstitutional in Brown v. Board of Education. More to the point, in at least some Southern states, if segregation had been put up for a vote it would have been sustained by a majority of the voterseven if blacks could vote. The process of desegregation began at gunpoint by federal troops enforcing the Supreme Courts rulings.

There is nothing inherent to democratic theory that says the people can be counted upon to vote in favor of sustaining their rights, never mind the rights of other people. Thats why the Constitution protects our rights from democracy. The Bill of Rights explicitly makes it hard for government to infringe on our rights because our rights are considered prior to or above the whims of the voters. In a pure democracy, 50.1 percent of the people can pee in the cornflakes of 49.9 percent of the people.

If voting always breaks in favor of protecting our rights, why are Democrats so upset that elected officials in various states are restricting the right to vote? That should be impossible. Voting is a fundamental right, the fundamental right, they insist. Well, people voted for Republican-controlled legislatures and those legislatures are, Democrats tell us, restricting a fundamental right. Paradoxical! By the way, the fact that this is being done on a party line basis shouldnt be an issue either, given that Democrats at the national level think they should do everything and anything they want on a party line basis. If voting in partisan lockstep to tighten voting procedures is illegitimate, voting for expanding or federalizing them should be too. Ditto Build Back Better and the rest.

One of the central insights of both liberalism and conservatism, rightly understood, is that sometimes the people can be wrong. Thats why the Founders made it hard to change the Constitution. Thats why they envisioned the Senate as a cooling saucer that tempers the passions of the House. And thats why this country has elections all the time. Because the Founders understood that sometimes the people can get riled up, angry, confused, misinformed, petulant, or vengeful. Having lots of elections allows the voters to recognize that maybe they went too far in the previous election. Its part of the process of democratic self-correction and renewal. There have been plenty of times in American history when the people were in a bad enough mood to vote away various rights if they had the power to do it. Making it hard for those temper tantrums to do lasting damage is one of the great things about our system. (I suspect that if you put free speech rights up for a vote today, we would have fewer free speech rights tomorrow.)

Where do our rights come from?

What is the singular right that makes all other rights possible? I think this is a problematic question, but lets take a stab at it. There are a lot of answers to this question. They largely fall into two broad categories Ill call philosophical and anthropological, though theres a lot of overlap between the two.

Ill start with the anthropological. Theres a strong case that securitybasic personal safetyis the fons et origo of all other rights. Thomas Hobbes and John Locke would agree (I told you there was overlap!). In a state of nature, force settles all disputes. Talk all you like about your property rights, but if I hit you over the head with a rock, I can take your stuff. Cry about how your rights were violated, it will do you no good unless youand maybe some friendsget some rocks and take your stuff back. My apologies to all of the anarchists out there, but Hobbes, Locke, Weber, et al., were right that without the state and its monopoly on violence, no other rights are secure. This is why some argue that the right to life is the source of all other rights.

The reason I call this the anthropological argument is that this is almost surely where government comes from. As I discuss at length in Suicide of the West, the first states emerged from what Mancur Olsen called the stationary bandit. In a state of nature, roving banditsthink Viking pillagerscome riding into town a whoopin and a stompin and take whatever they can carry. At some point, one of these wandering warlords realizes that if he stays put and agrees to protect the villagers from other roving bandits he can extract more wealth or rents from the villagers. Importantly, over time he realizes that its in his interest to invest in this community so his slice of the pie can grow. Protecting their property rights from all theftsave taxationyields greater prosperity. Eventually, the stationary bandit becomes a chieftain or king and a whole political theology becomes invested into perpetuating his rule and the rule of his progeny. This is where the anarchists have a point about how the state was created as a glorified criminal enterprise.

Then theres the philosophical argument. This is a bit of a misnomer because it can rightly be called a theological argument as well. Its pretty straightforward. We are created by God. Our rights derive from this fact, and it is the job of the state to protect those rights. I can spend the next 10,000 words expanding and elucidating this idea, but I dont see the point.

Some atheists and humanists dont like this formulation for some obvious reasons (and some exhaustingly obscure ones). But the simple fact is that without the essentially Judeo-Christian view of humans as being equal in the eyes of God, we wouldnt have the idea of inalienable rights today. This isnt to say you cant make an atheistic case for human rightspeople do it all the frickn time. Its simply to note that the atheists are standing on the shoulders of the people who made the case for rights as God-given. And if you think Im being too much of a Western chauvinist, thats fine. All I ask is that you point out to me where in the history of the non-Western world the idea of universal human rights not only emerged (it must have somewhere) but actually took hold.

While you get that blistering email together for me, lets talk about the overlap. Most of the rights we think of as our rightsincluding the right to votetook hold during the Enlightenment. Of course, as a matter of intellectual history, most of them are conceptually much older. Democracy, free speech, property rights, etc. have antecedents in the ancient world, and not just in the West. And some started as pre-Enlightenment cultural norms in England or elsewhere (the Fourth Amendment starts with the quirky custom of a mans home being his castle). Freedom of conscience begins not as some grand theological or philosophical principle, but as a kind of Westphalian truce in the wake of the wars of religion. As Herbert Butterfield put it, religious tolerance was the last policy that remained when it had proved impossible to go on fighting any longer.

But it was the rise of the middle class in England and France that forced recognition of rights as indispensable to political legitimacy. No taxation without representation is where democracy in the modern world begins. From it flows the idea that we are citizens, not subjects: We dont work for the government, the government works for us.

And that brings me back to where I began. The government works for us, but part of its job is to protect our rights for posterity, even when a temporary majority wants to abandon them. This is where the anthropological and the philosophical visions merge into a cultural synthesis. Contrary to a lot of prattle from post-liberals, progressive technocrats, and populist grifters of the right and left, we live in a liberal culture. Thats why I think the question of What right makes other rights possible? is so problematic. It works on the assumption that Americans love and enjoy their rights based on some commitment to abstract liberal theory alone. Liberal theory is important. But far more important is liberal culture. Americans like our freedoms because were Americans, damn it. So sure, sometimes voting is the great protector of our rights, and sometimes its not. In other words, its complicated because culture is complicated.

I am open to the idea that our rights dont come from God, but I thank God every day I live in a culture that operationally believes they do. Because that is the best bulwark against the machinations of populists and politicians who set out to inflame passions for short-term gain at the long-term expense of our rights.

And such leaders are all around us. For example, Joe Biden said this week that all of our rights come from voting and that people who disagree are on the side of racists and segregationists. He did this, I believe, solely so he could push through a political agenda and placate the passions of his partisan base. If you think thats not the case, fine. But maybe you can explain how, just eight months ago, Biden had a completely different philosophical explanation for where our rights come from?

On May 28, he told American service members: None of you get your rights from your government; you get your rights merely because youre a child of God. The government is there to protect those God-given rights. No other government has been based on that notion. No one can defeat us except us.

He was right then. And his abandonment of that view for political expediency this week was worse than a defeat, it was a surrender to the sorts of petty political corruptions our system was created to protect us against.

Various & Sundry

Canine update: This always happens when the Fair Jessica leaves town: The girls are getting super needy. They lie to me every day about how starving they are and how I forgot to feed them. They pretend that I never took them for a walk and they follow me around the house like Im planning some escape. In the morning Zo aroos at me if I take too long getting dressed for the morning walk and she aroos at me at the end of the day when I come back from abandoning them for several lifetimes (Zos words). Pippa especially has become obsessed with jumping up next to me and throwing her head back onto my lap to say, Love me. If my lap is unavailable, shell use Zo.

ICYMI

Last Fridays G-File

The new years first Ruminant

Economics in one virus

Dont cave to Russia

Wednesdays newsletter on Bidens Georgia speech, released to the masses

The Dispatch Podcast on Bidens voting rights pivot

The weeks second Remnant with Ross Douthat

And now, the weird stuff

All work and no play

Nordic socialism

Sharp dressed men

Devils advocate

Doctor who

See original here:
Rites About Rights - The Dispatch