Category Archives: Fourth Amendment

OPINION:

Americans need to be aware of the unbridled propensity of federal intelligence agencies to spy on all of us without search warrants as required by the Fourth Amendment to the Constitution.

These agencies believe that the Fourth Amendment which protects the individual right to privacy regulates only law enforcement and does not apply to domestic spying.

There is no basis in the constitutional text, history or judicial interpretations for such a limiting and toothless view of this constitutional guarantee. The courts have held that the Fourth Amendment restrains government all government. Last week, the CIA asked Congress to expand its current spying in the United States.

Here is the backstory.

When the CIA was created in 1947, members of Congress who feared the establishment here of the type of domestic surveillance apparatus that the Allies had just defeated in Germany insisted that the new CIA have no role in American law enforcement and no legal ability to spy win the U.S. The legislation creating the CIA contains those unambiguous limitations.

Nevertheless, we know that CIA agents are present in all 50 of our state legislatures. They didnt arrive there until after Dec. 4, 1981. Thats the date that President Ronald Reagan signed Executive Order 12333, which purports to give the CIA authority to spy in the United States supposedly looking for narcotics from foreign countries but keeps from law enforcement whatever it finds.

Stated differently, while Reagan purported to authorize the CIA to defy the limitations imposed upon it by the Constitution and by federal law, he insisted on a wall of separation between domestic spying and law enforcement.

So, if the CIA using unconstitutional spying discovered that a janitor in the Russian Embassy in Washington was really a KGB colonel who abused his wife in their suburban Maryland home, under E.O. 12333, it could continue to spy upon him in defiance of the Fourth Amendment and the CIA charter, but it could not reveal to Maryland prosecutors who can use only evidence that was lawfully obtained any evidence of his domestic violence.

All this changed 20 years later when President George W. Bush demolished Reagans wall between law enforcement and domestic spying and directed the CIA and other domestic spying agencies to share the fruits of their spying with the FBI.

Thus, thanks to Reagan, Mr. Bush, and their successors looking the other way, CIA agents have been engaging in fishing expeditions on a grand scale in the U.S. for the past 20 years. Congress knows about this because all intelligence agencies are required by statute to report the extent of their spying secretly to the House and Senate intelligence committees.

This, of course, does not absolve the CIA of its presidentially authorized computer hacking crimes; rather, it gives Congress a false sense of security that it has a handle on whats going on.

Whats going on is not government lawyers appearing before judges asking for surveillance warrants based upon probable cause of crime, as the Constitution requires. Whats going on is CIA agents going to Big Tech and paying for access to communications used by ordinary Americans. Some Big Tech companies told the CIA to take a hike. Others took the CIAs cash and opened the spigots of their fiber-optic data to the voracious federal appetite.

If government lawyers went to a judge and demonstrated probable cause of crime for example, that a janitor in the Russian Embassy was passing defense secrets to Moscow surely the judge would have signed a surveillance warrant. But to the government, following the Constitution is too limiting.

Thus, by acquiring bulk data fiber-optic data on hundreds of millions of Americans acquired without search warrants the government avoids the time and trouble of demonstrating probable cause to a judge. But that time and trouble were intentionally baked into the Fourth Amendment so as to keep the government off our backs.

Not to be outdone by its principal rival, the FBI soon began doing the same thing: gathering bulk data without search warrants.

When Congress learned of this, it enacted legislation that banned the warrantless acquisition of bulk data. Apparently, Congress is naive enough to believe that the CIA, the FBI and the National Security Agency, their cousin with 60,000 domestic spies, will actually comply with federal law.

Last week, that naivete was manifested front and center when the CIA sent a letter to both congressional intelligence committees addressing its spying on foreign persons and the Americans with whom they communicate, and asking to expand that reach in the U.S.

The timing of the CIAs letter coincides with a decision Congress must make in the next 10 days whether to reenact Section 702 of the Foreign Intelligence Surveillance Act, allow it to expire on April 19 or expand it as the CIA has requested. Section 702 permits warrantless spying on foreigners and the Americans whom intelligence agencies suspect communicate with them. Section 702 is an unconstitutional free pass for domestic spying.

So, notwithstanding the persistent efforts of members of Congress from both parties to limit and in some cases to prohibit the warrantless acquisition of bulk data by the CIA from Americans, the practice continues, the CIA defends it and presidents look the other way.

Congress created the CIA monster, which today is so big and so powerful and so indifferent to the Constitution and the federal laws its agents have sworn to uphold that it can boast about its lawlessness, have no fear of defying Congress and always escape the consequences of all this largely unscathed. Even President Harry Truman, who signed the 1947 legislation into law, later acknowledged as much and condemned what the CIA had become.

I suspect the CIA and its cousins will get away with this because they spy on Congress and possess damning personal data on members who regularly vote to increase their secret budgets.

When will we have a government whose officials are courageous enough to uphold the Constitution?

To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.

See the article here:
CIA wants more power to spy on Americans - Washington Times

This article first appeared at The Dispatch.

Editors note:This article is part of aDispatchdebate series. Kevin Carrollmade the casefor reauthorizing the Foreign Intelligence Surveillance Acts Section 702.

This week, the House of Representatives is set to vote on whether to reauthorize Section 702 of the Foreign Intelligence Surveillance Act, which will expire on April 19 unless renewed by Congress. This controversial law is unique, but the ways intelligence agencies have abused it to violate Americans civil liberties are not. The solution to this problem is familiar, too: Congress must not renew Section 702 without protecting Americans Fourth Amendment rights by requiring the government to get a warrant before reviewing Americans private communications.

How section 702 is abused to spy on Americans.

Enacted shortly after 9/11, Section 702 allows intelligence agencies to collect the phone calls, emails, text messages, and other communications of almost any non-American located outside of the United States without a warrant. Agencies such as the CIA and NSA must ensure that a significant purpose of the collection is to acquire foreign intelligence, a term FISAdefinesexpansively to include any information that merely relates to the conduct of foreign affairs. Otherwise, they face no substantive restrictions. The Foreign Intelligence Surveillance Court (FISC)approves the general rulesgoverning surveillance, but it has no role in approving individual targets.

Section 702 authorizes warrantless surveillance to be targeted only at non-Americans abroad, but Americans communications are inevitably captured too. The reason is simple: We talk to family, friends, and colleagues who are located abroad, generally for entirely innocent reasons. Recognizing this reality, Congressdirectedintelligence agencies to minimize the retention and use of Americans information collected under Section 702. Yet, despite this clear mandate, officials from the FBI, CIA, NSA, and National Counterterrorism Center perform more than 200,000 warrantless backdoor searcheseveryyearto find and review Americans private phone calls, text messages, and emails.

Lax rulesadopted by agencies allow intelligence officials to perform backdoor searches whenever they have reason to believe the query will return foreign intelligence (or, for the FBI, evidence of a crime). Given FISAs capacious definition of foreign intelligence, this low bar should be easy to clear, but officials have repeatedly stumbled over it. Government reports indicate that in 2022, the FBI performed close to4,000backdoor searches that violated even its own permissive rules. In another recent one-year period, the FBIviolatedthe rules governing searches of FISA databases 278,000 times.

These violations include alarming abuses. Amongmanyother examples, the government has performed baseless searches for the communications ofmembers of Congress,journalists, and19,000 donors to a congressional campaign. The FBI has performed tens of thousands ofunlawful searchesrelated to civil unrest, including searches targeting141 peopleprotesting the murder of George Floyd and more than20,000 peopleaffiliated with a group suspected of involvement in the January 6 attack on the U.S. Capitol. Most recentlyand despite procedural changes implemented by the FBI to stem abusesFBI agents performedimproper searchesfor the private communications of a U.S. senator, a state senator, and a state court judge who reported alleged civil rights violations by a police chief to the FBI.

Outraged by these abuses, many lawmakers on both sides of the aisle havevowednot to reauthorize the law without significant reforms. The key reform under consideration is to require the government to obtain a warrant before examining Americans private communications captured through Section 702 surveillance. After all, under the Fourth Amendment, these communications can be obtained without a warrant only because the government is targeting foreigners abroad for surveillance. Backdoor searches, though, are intended specifically to findAmericanscommunications. Recentpollingfrom YouGov shows that more than 75 percent of Americans favor this measure.

The government argues that warrantless searches are necessary for national security. But according to anexhaustive reviewof Section 702 recently undertaken by the independent Privacy and Civil Liberties Oversight Board, the government has provided little justification on the relative value of the close to 5 million [backdoor] searches conducted by the FBI from 2019 to 2022. In the few instances in which backdoor searches proved useful, Board Chair Sharon Bradford Franklinobservedthat the government either would have been able to get a warrant or could have invoked one of the standard exceptions to the warrant requirement. A warrant requirement would thus protect Americans Fourth Amendment rights whileensuringthat intelligence agencies retain the tools they need to obtain critical foreign intelligence.

History repeats itself.

There is nothing novel or radical about this proposed reform. To the contrary, warrantless searches for Americans communications are flagrantly inconsistent with longstanding constitutional values. Moreover, the abuses that backdoor searches have enabled mirror those that have historically occurred when those values are not honored.

The Fourth Amendment recognizes the sanctity of Americans private communications. Beginning in the 1960s, the Supreme Court held that the government needed a warrant, not just to seize a persons papers, but to surveil phone calls incriminalanddomestic national securityinvestigations. But the court did not settle whether a warrant is needed to conduct foreign intelligence surveillance, meaning surveillance of Americans intended to uncover the activities of foreign powers or their agents.

A decade later, Congress answered that question. Congressional investigations by the Church and Pike Committees revealed in 1976 that the FBI, CIA, and NSA had illegally spied on civil rights and anti-war advocates for decades based on tenuous claims of Soviet influence. Most notoriously, the FBI spied on and attempted to blackmail theRev. Martin Luther King Jr.But King was just one of thousands of people targeted by federal agents, who employed a wide variety ofillegal tactics, including: attacks on speaking, teaching, writing and meetings; interference with personal and economic rights; abuse of government processes; factionalization; [and] propaganda. In response to these egregious abuses, Congress implemented a series of reforms, one of which was the Foreign Intelligence Surveillance Act of 1978.

FISA authorized and strictly regulated foreign intelligence surveillance inside the United States. It was carefully structured to ensure that intelligence agencies had the tools they needed to counter foreign threats without violating Americans Fourth Amendment rights. Under the law, if the government wanted to engage in domestic collection of Americans communicationsincluding their communications with foreign targetsit would have to get a court order, similar to a criminal warrant, from the newly created Foreign Intelligence Surveillance Court.

This system worked for a time. But after the September 11, 2001, terrorist attacks, President George W. Bushs administration wanted to collect communications of suspected foreign terrorists, including their communications with Americans, and it did not want to wait for FISC approval before doing so. So, it didnt. In violation of FISA, the NSA began a massive, warrantless electronic surveillance program that collected large numbers of Americans international communications. It was not until this program wasrevealedby theNew York Timesthat the Bush administration went to Congress seeking legislative approval for the spying.

Ultimately, Congress acceded. The result was the FISA Amendments Act of 2008, of which Section 702 was a key component. As noted, Section 702 allows the government to collect foreign targets communications without a warrant, even if they may be communicating with Americans. But Congress never intended or envisioned that this would lead to literally millions of warrantless backdoor searches for Americans communications collected for foreign intelligence purposes. This undermines both the Fourth Amendment and the principle underlying FISA itself. And it is no surprise that we are again seeing the types of abuses that predatedand promptedFISAs enactment.

The need for safeguardsmoving forward.

With Section 702 set to expire on April 19, Speaker of the House Mike Johnson has scheduled a vote this week in the House on the Reforming Intelligence and Securing America Act. Despite its name, thebillis not a serious reform proposal. Amongmany other defects, the bill does not contain a warrant requirement for backdoor searches. And the modifications it does make, such as codifying the FBIs recent internal rule changes, would do nothing to prevent the intelligence agencies pervasive abuses of Americans Fourth Amendment rights under Section 702. So it is critical that members amend this bill to include the necessary safeguards for Americans rights.

A warrant requirement for backdoor searches is not the onlysurveillance reformthat would improve the bill. Congress should close other legal loopholes that intelligence agencies exploit to gain warrantless access to Americans Fourth Amendment-protected information, such as bypurchasing itfrom commercial data brokers. But a warrant requirement is a necessary part of ending the flagrant abuses of Americans Fourth Amendment rights that are regularly perpetrated in the name of foreign intelligence.

When Congress learned in the 1970s that intelligence agencies had repeatedly abused their authority by spying on Americans without a warrant, it enacted FISA to close the gaps in the law those agencies had exploited. Today, Congress knows that intelligence agencies have repeatedly abused their authority by spying on Americans without a warrant, exploiting legal loopholes that allow them to do so. The solution now is the same as it was then: If intelligence agencies want access to Americans private communications, they must first get a warrant.

Read the original here:
Why Congress Must Reform FISA Section 702and How It Can - brennancenter.org

Does a search warrant ordering Google to give law enforcement information regarding internet searches containing specific keywords made during a particular window of time violate the Fourth Amendment? This question was before the Colorado Supreme Court in 2023 and is now before the Pennsylvania Supreme Court.

The Fourth Amendment protects against unreasonable searches and seizures by the government. The government generally needs a warrant to perform a search that infringes a reasonable expectation of privacy.

As the Supreme Court explained in a 1981 decision, the Fourth Amendment was intended partly to protect against the abuses of the general warrants that had occurred under English rule prior to 1776. A general warrant specified only an offensetypically seditious libeland left to the discretion of the executing officials the decision as to which persons should be arrested and which places should be searched.

To guard against this sort of misuse of government investigative power, the Fourth Amendment provides that search warrants can only be issued upon probable cause and that they must describe with particularity the place to be searched, and the persons or things to be seized. Probable cause and particularity in light of 21st century investigative technologies, such as keyword searches, raise novel and important questions that courts have only recently begun to consider.

The Colorado case, Colorado v. Seymour, arose from an investigation of a 2020 arson in which five people were killed. Police in Denver obtained a warrant requiring Google to provide the internet protocol (IP) addresses for devices, as well as a Google-assigned device identifier, for any Google accounts used to conduct searches for the homes address in the 15 days preceding the fire.

Given an IP address, it is often (though not always) straightforward to identify the specific electronic device involved and subsequently the person who was using that device. Using the information obtained pursuant to the warrant, police identified and charged a suspect with crimes including murder, arson, and burglary.

In an October 2023 ruling, the Colorado Supreme Court cast doubt on whether the Colorado suspect had a reasonable expectation of privacy under the Fourth Amendment for internet searches. However, the court found that the suspect had a reasonable expectation of privacy in his Google search history under article II, section 7 of the Colorado Constitution. While that portion of the Colorado Constitution has text very similar to the Fourth Amendment, the court cited Colorado case law stating that we are not bound by the United States Supreme Courts interpretation of the Fourth Amendment when determining the scope of state constitutional protections.

Given that the search implicated a reasonable expectation of privacy, the next question is whether the warrant met the particularity and probable cause requirements of the Fourth Amendment. With respect to particularity, the court conclude[d] that the warrant at issue adequately particularized the place to be searched and the things to be seized.

The court sidestepped the question of probable cause, writing that because resolution of this issue doesnt affect the outcome, we simply assume without deciding that the warrant lacked probable cause and was thus constitutionally defective.

Often, the exclusionary rule blocks federal and state prosecutors from using evidence collected in a manner that violates the Fourth Amendment. But there is an exception: If a court finds that law enforcement acted in good faith, the evidence can be presented at trial despite the constitutional violation. Invoking this good faith exception, the Colorado Supreme Court declined to suppress the evidence obtained using the keyword search warrant, concluding that law enforcement obtained and executed the warrant in good faith.

In the Pennsylvania case, Commonwealth v. Kurtz, investigators pursuing a rape investigation used a keyword search warrant to requiring Google to identify Google searches of the address of the crime scene in the hours preceding the crime. In response, Google provided an IP address from which a Google search of the address had been conducted in the relevant time frame. This information was among the evidence used to identify and then to convict the suspect in an October 2020 trial. The suspect then appealed to the Superior Court of Pennsylvania.

In April 2023 the appeals court considered and rejected the suspects assertion that he had a reasonable expectation of privacy in his internet search history:

We conclude that Appellant lacked a reasonable expectation of privacy concerning his Google searches of [the crime scene] address and his IP address. By typing in his search query into the search engine and pressing enter, Appellant affirmatively turned over the contents of his search to Google, a third party, and voluntarily relinquished his privacy interest in the search.

The appeals court then turned to probable cause, writing that even if Appellant did have a constitutionally cognizable privacy interest in his searches of [the] address, we would also find that the Google warrant was supported by probable cause. The appeals court did not address the question of particularity.

The suspect then appealed to the Pennsylvania Supreme Court, which in October 2023 agreed to consider 1) whether there is a reasonable expectation of privacy in internet search queries and the IP address from which those queries are sent, and 2) whether the search warrant met the probable cause requirement. Notably, the good faith exception applied in the Colorado case is not recognized in Pennsylvania state courts in relation to protections in the state constitution from government searches. Thus, if the Pennsylvania Supreme Court determines that the warrant was unconstitutional due to lack of probable cause, the associated evidence will be suppressed.

While Colorado and Pennsylvania appear to be the first states where the states highest court is considering the constitutionality of keyword search warrants, the power of this investigative technique guarantees that this issue will reach other state supreme courts as well. In addition, it will increasingly arise in in federal courts.

At root is the question of whether keyword search warrants are general warrants, and thus by definition unconstitutional. In an amicus brief filed in January with the Pennsylvania Supreme Court, the Electronic Frontier Foundation argues that the answer is yes:

A warrant purporting to authorize a reverse keyword search is a digital analog to a warrant that authorizes officers to search every house in an area of a townsimply on the chance that they might find written material connected to a crime. Like the general warrants and writs of assistance used in England and colonial America, this warrants lack of particularity and overbreadth invites the police to treat it as an excuse to conduct an unconstitutional general search.

Government investigators using keyword search warrants will of course take a different view. They will argue, for instance, that the specific nature of the keywords in the warrant, plus the fact that it is limited to searches conducted in a limited window of time, means that it satisfies the particularity requirement. Of course, identifying the IP addresses that did conduct a Google search using specific keywords also requires determining that a vastly larger number of people did not conduct such a search. Investigators will have to explain why the process of making those negative determinations doesnt render the warrant unconstitutional. Investigators will also argue that the likelihood that perpetrators performed an internet search of the crime scene is high enough to satisfy probable cause.

Eventually, the U.S. Supreme Court may hear a keyword search warrant case, and if so, the resulting ruling could provide important consistency and clarity. Until then, there will likely be a range of outcomes from the different courts that engage with this important set of constitutionality questions.

Read more:
Keyboard search warrants and the Fourth Amendment | Brookings - Brookings Institution

In the last year or two, the U.S. Department of Justice has been arguing in federal courts of appeals that Terms of Service can narrow or eliminate Fourth Amendment rights in online accounts. If the government can win on this issue, it will largely defeat any claims to Fourth Amendment protection online. But as I argue in my just-published article, Terms of Service and Fourth Amendment Rights, 172 U. Pa. L. Rev. 287 (2024), these arguments are mistaken. Here's the abstract:

Almost everything you do on the Internet is governed by Terms of Service. The language in Terms of Service typically gives Internet providers broad rights to address potential account misuse. But do these Terms alter Fourth Amendment rights, either diminishing or even eliminating constitutional rights in Internet accounts? In the last five years, many courts have ruled that they do. These courts treat Terms of Service like a rights contract: by agreeing to use an Internet account subject to broad Terms of Service, you give up your Fourth Amendment rights.

This Article argues that the courts are wrong. Terms of Service have little or no effect on Fourth Amendment rights. Fourth Amendment rights are rights against the government, not private parties. Terms of Service can define relationships between private parties, but private contracts cannot define Fourth Amendment rights. This is true across the range of Fourth Amendment doctrines, including the "reasonable expectation of privacy" test, consent, abandonment, third-party consent, and the private search doctrine. Courts that have linked Terms of Service and Fourth Amendment rights are mistaken, and their reasoning should be rejected.

Go here to see the original:
Just Published: "Terms of Service and Fourth Amendment Rights" - Reason

Californians who have moved to Texas might wonder why they have not seen DUI or DWI checkpoints on the streets of their new home. The checkpoints are regular occurrences along roads in the Golden State.

Texas, along with 11 other U.S. states, sees the checkpoints as a violation of the individuals right against unreasonable searches and seizures as outlined in the Fourth Amendment to the U.S. Constitution.

However, what is reasonable is a question the Supreme Court has grappled with for more than two hundred years, the website findlaw.com states.

This lingering query has left states to use localized determinations of what the constitutional provision means. To curtail confusion, three states Oregon, Rhode Island and Washington have written their official antipathy to the checkpoints in their constitutions.

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Texas, in its interpretation of the U.S. Constitution, has deemed the idea of checkpoints violates the Fourth Amendment.

Here is the text of the Fourth Amendment of the U.S. Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

At these checkpoints, officers may stop every vehicle or use a predetermined pattern to stop vehicles, such as every third vehicle. They will then look for signs of impairment, such as slurred speech, the smell of alcohol, or erratic driving behavior. If they suspect a driver is under the influence, they may ask them to perform field sobriety tests or take a breathalyzer test.

Story continues

While some people argue that sobriety checkpoints are an infringement on their rights, the Supreme Court has ruled that they are constitutional as long as they are conducted properly. The goal of these checkpoints is to deter drunk driving and keep roads safe for all motorists.

In Michigan v. Sitz, Chief Justice William Rehnquist wrote: This case poses the question whether a States use of highway sobriety checkpoints violates the Fourth and Fourteenth Amendments to the United States Constitution. We hold that it does not, and therefore reverse the contrary holding of the Court of Appeals of Michigan.

If a driver is found to be under the influence at a sobriety checkpoint, they may face criminal charges, license suspension, and other legal consequences. It is always best to plan ahead and designate a sober driver or use a ride-sharing service if you plan on drinking alcohol.

In Texas, law enforcement officers are not allowed to set up random sobriety checkpoints to check drivers for signs of intoxication. Instead, officers must have reasonable suspicion that a driver is impaired before pulling them over and conducting field sobriety tests.

Some argue that sobriety checkpoints are an effective way to deter drunk driving and save lives. The Center for Disease Control and Prevention agrees with the premise that checkpoints are a good way to cut down on impaired driving.

The goal of sobriety checkpoints is to increase the perceived likelihood that impaired driving will be identified and penalized, leading to a reduction in impaired driving, the CDC writes on its website.

But opponents believe that they are an invasion of privacy and violate individual rights. Critics also argue that sobriety checkpoints are not as effective as other methods of combating drunk driving, such as increased patrols and public awareness campaigns.

Ultimately, the decision to use sobriety checkpoints is left up to each state, and Texas has chosen not to implement them. Instead, law enforcement officers in Texas rely on other methods to identify and apprehend drunk drivers, such as increased patrols, saturation patrols, and tips from the public.

These 10 U.S. states do not allow the checkpoints, with three states having written provisions in their constitutions.

Alaska

Idaho

Michigan

Minnesota

Montana, but by statute, safety check roadblocks are possible.

Oregon, it is illegal under state constitution.

Rhode Island, it is illegal under state constitution.

Texas, it is deemed Illegal under Texas interpretation of U.S. Constitution.

Washington, it is illegal under state constitution.

Wyoming

An additional two states allow it with certain conditions:

See the rest here:
Can Texas police set up DWI checkpoints in Dallas-Fort Worth? Here's what to know - Yahoo News Canada

Monroe A. Miller Jr. petitioned the court on Nov. 22 to obtain the footage. On Dec. 14 following the hearing and his review of the recordings, visiting Superior Court Judge Steve Warren, of Asheville, published his order granting permission, albeit with some noteworthy restrictions.

On Nov. 9 at about 1:25 p.m., two Haywood County Sheriffs deputies visited Millers property along with the plaintiff in an ongoing civil dispute his sister, Linda Overcash as well as her attorney, Mark Melrose. Their civil dispute is over how to split up their late fathers estate. Monroe Albert Miller, who passed away on Jan. 20, 2017, is assumed to have left behind a good deal of money, along with a Haywood County home appraised at over $1 million dollars.

he was co-founder of one of the earliest Computer Companies, Electronic Associates, Inc., a NYSE listed company located in New Jersey, where he designed and manufactured many of the first electronic computers used in industry and the early space program, his obituary reads. In 1955, he founded Milgo Electronic Corporation, a company heavily involved in tracking and communication in the Mercury, Gemini, and Apollo space programs. He and the company were also instrumental in the development of the first, and subsequently, the high speed modem. He served as President and Chairman of the Board until all its NYSE listed stock was acquired in 1977. Milgo's Miami, Florida facility employed more than 2500 and also carried out world- wide manufacturing and marketing operations in many foreign countries.

The group was there to survey the property. Also present on Nov. 9 was Terry Ramey, a Haywood County commissioner and staunch ally of Miller, as well as Millers attorney, Ed Bleynat.

The petition notes that after the visit, on that same day, Miller requested the recordings from Wilke. That communication was entered into evidence as part of the petition.

Deputies appeared indoctrinated by Mark Melrose on the aspects of the order issued, the initial request reads.

Deputies kicked Terry Ramey, Haywood County Commissioner, out of the dwelling also, even though he was acting as my agent, which was allowed in the Order, it later reads.

A Nov. 15 response from Haywood County Sheriffs Office Public Information Officer Gina Zachary notes that because there was no court order mandating the office provide the footage and audio, it could not be turned over at that time. A week later, Miller submitted the petition to the court.

Also included as evidence in the petition is a series of messages between Miller and Wilke from the evening of Nov. 9. In those messages, Miller alleges the deputies violated his rights.

You have made serious, unfounded allegations about my deputies and any further contact will need to be from your legal counsel to ours, Wilke replied. Your multiple public information requests will be handled in as reasonably prompt manner as possible.

Millers chief complaint is that he and Ramey were forced to remain outside while the others had full run of his home. The petition also notes that the order for a law enforcement escort during the survey said that one deputy would be present, but two showed up.

In order to keep the peace and allow a thorough inspection of the property the presence of a uniformed law enforcement officer would be helpful, that order reads.

The order also says that Overcash and Melrose should be allowed adequate space to engage in private conversations during the inspection and that Miller, Ramey and Bleynat shall remain 50 feet or more from the Petitioners and their attorneys while the Petitioners and their attorneys are outside the dwelling during this inspection.

The two deputies violated my Fourth Amendment rights, the petition claims. There was no reason, nor was Mark Melrose authorized, to bring two deputies for this visit. He took a Haywood County Sheriffs Deputy off-line for no good reason, therefore interfereing (sic) with the operation of a law enforcement agency by hindering and obstructing the second law enforcement officer in the performance of his duty.

According to court documents, Miller submitted a complaint against Melrose to the North Carolina Bar Association, something he has done in the past against multiple local attorneys. For his part, in an email to Bleynat, Melrose alleged that Miller behaved inappropriately and without an understanding of proper procedure when he showed up at Melrose's office seeking a signature for the receipt of a $5,000 check he was ordered by a judge to provide to cover administrative costs related to the dispute over the estate.

Your client just came to my office trying to get my staff to sign a document indicating receipt of a check, the email reads. I did not speak with him. He was instructed by my staff to call your office. Please advise Mr. Miller to never come to my office again, and advise him that I am not legally permitted to talk to him nor is my staff.

In court on Dec. 14, Wilke was accompanied by members of his command staff, as well as Zachary. While Ramey didnt accompany Miller, he did show up a few minutes after the hearing began. Neither side was represented by an attorney that morning. The hearing was the first of the day in Haywood County Superior Court, and when Warren took the bench, he brought Miller and Wilke up to argue their positions, noting that while he was called in the day before to review a case he wasnt familiar with, hed made time to review the petition. He went through state law outlining the procedure for a person to obtain law enforcement agency recordings.

That statute dictates that the court must consider a few things.

First, the person requesting the recording must be authorized to receive it. In this case, because Miller is depicted in the recording as stipulated by Wilke in court he is authorized. Next, the judge asked whether the recording may contain confidential information. It was acknowledged by both parties that it likely included conversations covered by attorney-client privilege. Miller agreed that audio in such segments could be redacted, which Warren said rendered that issue moot. Other concerns were whether the recording could reveal information that is highly sensitive or personal; if the disclosure could create a serious threat to the fair, impartial, and orderly administration of justice; or if its disclosure could jeopardize an active or inactive internal or criminal investigation. It was agreed that none of those would be an issue.

Wilke voiced concern that it could be technically cumbersome to redact the audio from the recordings while maintaining their integrity. In addition, according to statute, the disclosure of the recordings cant jeopardize the safety of a person, nor can it harm anyones reputation. Wilke said that Miller frequently uses a blog he has maintained for several years to launch personal attacks against numerous individuals.

While the sheriff said hed love the recordings to be made public because theyd refute the claim that we violated Mr. Millers Fourth Amendment Rights, he was concerned that Miller would use parts of the recording out of context to attack his deputies character and reputation. Warren addressed this in the order. First, he listed specific segments of the video that contain conversations covered by attorney-client privilege for which the audio must be redacted. He also gave Miller strict orders for how he can use the recording, once released to him.

No portion of the released videos may be published other than in a pending court proceeding, it reads, or to any party to any current or future lawsuit or witness is (sic) said lawsuit who are all hereby ordered not to publicly disclose the contents of said video. Said Order is punishable by contempt.

See more here:
HCSO to release body cam footage to plaintiff alleging Fourth Amendment violation - Smoky Mountain News

This week,House Speaker Mike Johnson made a decision that imperils the constitutional rights of Americans:heallowed an extension of Section 702 of the Foreign Intelligence Surveillance Act to be attached to the National Defense Authorization Act, or NDAA. By including a Section 702 extension in legislation like the NDAA that passes Congress each year, Speaker Johnson risks short-circuiting the legislative debate around this spying power and the possibility of real, bipartisan surveillance reforms.

Fortunately, its not too late for Congress to fix his mistake. Both chambers are voting on the NDAA this week, and there is still time to strip Section 702 out of the bill. Congress shouldnt extend this sweeping surveillance power absent fundamental reform.

Section 702 is an incredibly controversial surveillance tool, long criticized by Democrats and Republicans alike. Although the law requires the government to direct this surveillance at people outside the United States, in practice, it routinely ensnares Americans. Section 702 allows the government to target any foreigner abroad for warrantless surveillance to obtain foreign intelligence information. The governments targets need not have any connection to criminal activity or terrorism; they can be journalists, human rights workers, or businesspeople communicating about the foreign affairs of the United States. In the course of this surveillance, the government vacuums upwithout a warrantthe communications of countless Americans who have texted, called, messaged, or emailed any one of hundreds of thousands of foreign targets.

After collecting these communications, the FBI, CIA, and NSA deliberately search through their Section 702 databasesagain, without a warrantto find the communications of Americans theyre interested in. These warrantless queries, also known as backdoor searches, are anathema to a free society and violate our bedrock Fourth Amendment rights.

In recent years, FBI agents have conducted millions of backdoor searches for Americans communications, transforming Section 702 into a domestic surveillance tool. The agency has warrantlessly searched its databases to find communications of American protestors, racial justice activists, individuals suspected of involvement in the January 6 Capitol breach, 19,000 donors to a congressional campaign, and even members of Congress.

The rules governing this spying are far too weak, and yet we know from government disclosures that the FBI and other agencies have violated these rules tens of thousands of times.

Unsurprisingly, given the shocking breadth and long-running abuses of Section 702 surveillance, legislators from both sides of the aisle support major reforms. The House Judiciary Committee has already marked up an excellent reform bill that protects Americans privacy while allowing the surveillance of foreigners abroad to continue. Among other things, this reform bill closes the backdoor search loophole. It also prohibits law enforcement from circumventing core constitutional protections by purchasing Americans data that they would otherwise need a warrant to obtain.

Section 702 is scheduled to expire on December 31, which is why some lawmakers have made a last-minute push to slip an extension of the law into the NDAA. But that extension is entirely unnecessary because Congress already planned for this scenario. An obscure provision of FISA states that Section 702 surveillance can continue while an existing FISA Court authorization remains in effectand the FISA Court has authorized Section 702 surveillance until April 11, 2024. Thus, the government will continue to conduct this surveillance for another four months, regardless of whether Section 702 expires. That gives Congress plenty of timefrom now until April 11to consider and enact major reforms, and decide on whether to authorize a longer extension, before the governments authority lapses.

The biggest problem with the NDAA rider is not that it is unnecessary, but instead that it is a stealth longer-term extension that is dangerous for reform efforts. Although Section 702 supporters claim that the NDAA rider is only a four-month extension of the surveillance law, in practice, it will function as a 16-month extensionpushing this debate off until 2025. Thats because the government is very likely to seek a new annual authorization from the FISA Court in April, giving it another year to conduct surveillance under the same obscure provision in FISA. Thats an unacceptable outcome, particularly when Congress is poised to enact meaningful Section 702 reform after months of public and legislative debate.

If Congress doesnt strip the NDAA rider, it shouldat a minimumamend the rider to ensure that no FISA Court authorization for Section 702 surveillance extends past April 11, 2024. This simple fix is essential to prevent the NDAA rider from functioning as a 16-month extension. If Congress fails to strip the current Section 702 extension from the NDAA, or fails to prohibit FISA Court authorizations beyond April 2024, the ACLU and several other civil society organizations will oppose the NDAA.

Its not too late for Congress to do the right thing. The American public deserves better, and Section 702 reform deserves a standalone vote.

Kia Hamadanchy is a Senior Policy Counsel with the American Civil Liberties Union; Ashley Gorski is a Senior Staff Attorney with the American Civil Liberties Union.

Continued here:
Section 702 surveillance doesn't belong in the NDAA - Defense One

A prominent player in the digital asset management industry, Valkyrie Investments, recently filed its fourth amendment with the Securities and Exchange Commission (SEC) to introduce a spot Bitcoin Exchange-Traded Fund (ETF) in the US.

This move demonstrates Valkyries continued commitment to getting past regulatory obstacles, despite past setbacks.

The companys unwavering strategy in this area demonstrates its commitment to creating a Bitcoin spot ETF, a financial instrument that has seen tremendous demand but intense regulatory scrutiny.

This comes after news that CoinShares, a well-known European cryptocurrency exchange-traded fund issuer, has acquired the sole right to buy Valkyrie Funds, with an expiration date of March 31, 2024.

This calculated move emphasizes the goal of strengthening a dominant position in the US digital asset investment market to create a comprehensive worldwide platform for digital asset investments.

This partnership could change the environment for bitcoin investments by bringing together a wealth of knowledge and resources from the digital asset management sector.

The fact that Blackrock and Fidelity have recently held talks with the SEC has added to the industrys growing expectations.

With a crucial deadline approaching on January 10, 2024, this development is seen as a promising sign of the SECs upcoming decision-making regarding the approval of spot Bitcoin ETFs.

More here:
Valkyrie's Fourth Amendment for the Launch of a Bitcoin ETF - Crypto Times

The Supreme Court under Chief Justice John G. Roberts Jr. has become the court of the digital age, routinely applying the Constitution to cases involving First and Fourth amendment rights in internet disputes.

The high court has heard cases dealing with free speech on social media platforms and protections for Big Tech under Section 230 of the Communications Decency Act, which shields companies from lawsuits over content posted on their platforms by third parties.

The court also has tackled GPS concerns in a case involving law enforcements use of third-party tracking data without a warrant, ruling that it runs afoul of a reasonable expectation of privacy under the Fourth Amendment.

The Roberts court, I think, has shown a comfort with adopting the constitutional protections as understood for decades if not centuries for the digital era, said Chris Marchese, litigation center director at NetChoice. His organization, NetChoice, has two cases pending this year before the high court involving social media laws.

NetChoice has cited First Amendment guarantees in challenging laws in Texas and Florida that have limited the ability of large social media companies like X, Tik Tok and Facebook to moderate speech on their platforms.

Texas enacted a law in 2021 prohibiting social media companies from removing and moderating content that some might find offensive or hateful. It also required the companies to disclose certain business practices, such as the use of algorithms.

A federal court in Texas blocked parts of the law from taking effect. The 5th U.S. Circuit Court of Appeals reversed that ruling, but the injunction has remained in place pending appeal.

Florida in 2021 enacted a law that imposed a fine of $25,000 to $250,000 per day on large social media companies that deplatform political candidates.

The high court has established a firm stance on First Amendment protections online in recent years.

In 2017, the justices unanimously struck down a North Carolina law that banned registered sex offenders from accessing certain websites where minors would have accounts, regardless of whether the offender contacted a minor. The justices reasoned the restriction ran afoul of the sex offenders First Amendment rights, saying the restriction was too broad and impeded on their use of the internet.

In 2021, the high court sided with a high school junior varsity cheerleader in a free speech dispute after she posted curse words on her social media account about not making the varsity team. Her school had suspended her from cheerleading for a year, but the justices said that was unreasonable since her off-campus speech didnt create a disruption in the classroom.

Earlier this year, the court ruled in a case involving a Colorado man who had been convicted of harassing and stalking a musician via social media messages. He argued that the charges ran afoul of his First Amendment rights, and the high court considered if his messages could be deemed true threats. A true threat leads an individual to believe they will actually be harmed and is not given First Amendment protections.

The majority sided with the man and remanded his case to lower courts for further evaluation of the level of intent needed to determine whether a message is a true threat and, thus, not subject to free speech protections.

Its not just individuals who have had digital era wins before the justices: Companies such as YouTube and Google have also secured court victories.

Big Tech has been given significant protections from legal liability under Section 230 of the Communications Decency Act, which prevents the social media companies from facing lawsuits over content that is posted on their platforms by third parties.

This legal shield was tested last term in a pair of cases in which families of victims of terrorist attacks sued several tech giants arguing they aided and abetted terrorist organizations by allowing them to post graphic content and recruit on their sites.

The justices ruled against the families, saying that any entity or individual must have culpability in participating in a specific attack in order to violate federal anti-terrorism laws

The high court also batted down law enforcements attempts to skirt warrant requirements in using third-party tracking data in a 2018 Fourth Amendment dispute involving a man who was convicted of robbing a series of banks after law enforcement tracked his locations via data from his cellphone company.

The justices reasoned there is a reasonable expectation of privacy under the Fourth Amendment even when it comes to cellphone sites and law enforcement must obtain a warrant to obtain tracking location information.

David Greene, civil liberties director and attorney with the Electronic Frontier Foundation, said the Roberts court could potentially rewrite or change social media law regardless of the justices motivation.

This is where a lot of litigation is happening now at the intersection of technology and law, Mr. Greene said. Its really hard to have First Amendment issues that arent dealing with some sort of tech facilitated communications, so I credit them for doing it. I dont know whether it is something they are doing intentionally or whether it is just a reflection of what is just happening in the courts more broadly.

Josh Blackman, a professor at South Texas College of Law, said major tech companies keep being brought into litigation because they have significant market power.

In recent years, the court has had a heavy share of social media cases and I think a lot of it turns on this idea of what exactly is this idea of social media are these sort of startup tech companies that should be given latitude, are these important market players who exercise significant power over our discourse or are these even perhaps even almost like utilities, Mr. Blackman said.

At least one member of the high court has recognized they arent necessarily the most tech-savvy crew, despite taking up conflicts centered on the internet. The youngest justice, Amy Coney Barrett, is 51.

Were a court, Justice Elena Kagan said during one of the terrorist victims versus Big Tech cases last term. We really dont know about these things. You know, these are not like the nine greatest experts on the internet.

Mr. Marchese, though, said the justices ages dont matter as they can rely on amicus briefs from tech experts when applying legal reasoning to internet battles, and its important for rulings to be shaped by the law instead of technology.

All of the justices have had extensive careers in the law before they joined the bench, he said.

Correction: A previous version of this story misidentified David Greenes position at the Electronic Frontier Foundation.

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Digital justice: Supreme Court increasingly confronts law and the internet - Washington Times

Academicians, lawyers, elections officials, pundits and politicians are presently ensconced in the problem of Donald Trumps continuing constitutional qualification for presidential office. Although he plainly meets Article II of the United States Constitutions three qualifications at least 35 years old, natural born citizen, sufficient residence in the United States Trump arguably runs afoul of a more recent disqualification added in 1868 by way of Section 3 of the Fourteenth Amendment.

That provision was added following the Civil War to keep former state and federal officeholders who had joined the Confederacy from once again rising to state and federal office. Its terms are broad and all-encompassing, with no apparent temporal limit, such that even today [n]o person shall hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath as an officer of the United States to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. Its being cast in general terms arguably makes it applicable to the events of January 6, 2021, as at least one court has already concluded. If the assault on the Capitol was an insurrection or rebellion against the Constitution, then any of its participants who had previously taken an oath to uphold the Constitution could be thereafter disqualified from holding state or federal office.

There is little precedent on how Section 3s disqualifying provision works and to whom it applies. Confederates were plainly subject to its terms, though Congress for the most part granted them amnesty in the years following the Civil War. Whether Section 3 was applied by elections officials to disqualify non-Confederate candidates in later elections is not clear. I have yet to find any examples that pre-date the events of January 6, 2021. But then again there has been nothing like the events of January 6, 2021 since the end of the Civil War.

As one might suspect, legal questions have emerged over the precise meaning of Section 3s terms. Even assuming that then-President Trump was culpably involved in the January 6 assault on the Capitol, for example, would his actions fall within the reach of Section 3s terms? More precisely, does Section 3s disqualification from holding any office cover the Presidency? Does its inclusion of officer[s] of the United States on the list of those who are disqualified because of having previously sworn to uphold the Constitution include those who took Article IIs presidential oath as opposed to that required of everyone else in Article VI? And what exactly is an insurrection. Meaty questions like these have no definitive answers (yet).

Seizing on definitional questions like these, some, like Professor Lawrence Lessig, have argued that section 3 should not be applicable to President Trumps involvement in the events that transpired on January 6. Worrying about the proverbial slippery-slope, Professor Lessig asks, What is the line that would divide insurrectionists from protesters?

Professor Steven Calebrisi now insists (after a change of heart) that Section 3 simply does not apply to the office of the President. Professors Josh Blackman and Seth Barrett Tillman add that not only does Section 3 not apply to the Presidency, it is not enforceable at all without congressional action.

Rejecting all of Lessigs, Calebrisis and Blackman/Barretts positions, Professors William Baude and Michael Stokes Paulsen argue in their upcoming Pennsylvania Law Review article that Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as aid or comfort. And in particular, it disqualifies former President Donald Trump because of his] participation in the attempted overthrow of the 2020 presidential election. President Trump is covered because he swore, as President, to uphold the Constitution. Section 3 applies to the Presidency as an office of the United States. Further, Section 3 is fully enforceable with or without congressional action.

Because I am not an expert on Section 3s application to insurrections and rebellions (is anyone?) and I profess no special knowledge about whether the office of the President qualifies as an office of the United States under Section 3 (though I think it does), I address my focus here on something that is within my wheelhouse: the enforceability of constitutional norms, particularly those found in Section 1 of the Fourteenth Amendment. Specifically, I explore whether congressional legislation was considered necessary in 1868 (when Section 3 was ratified) to enforce the Fourteenth Amendments restrictions. If true of Section 1, then a much stronger argument can be made that the disqualification provision in Section 3 was also meant to require enabling legislation. If not, then the argument that Section 3 was not considered directly enforceable (as Justice Salmon Chase argued in In re Griffin) loses some weight.

In sum, I am confident that Section 1 of the Fourteenth Amendment was understood by the framers of the Fourteenth Amendment and the legal community to be fully enforceable without congressional enabling legislation. As I explain below, direct, positive enforcement of constitutional provisions was the norm.

Toward this end, I would first like to add a word about legalese. Unlike discussions about state constitutional laws, which frequently include digressions into whether provisions are self-executing, federal constitutional discussions rarely (if ever) use that term. Instead, federal constitutional analyses inquire whether powers have been exercised, whether limitations apply, and generally whether the Constitution is enforceable. Addressing the Fourteenth Amendment as self-executing is therefore a non-starter, whether in todays terms or across history. It may be unenforceable without a statutory vehicle, or it could present a non-justiciable political question, but neither of these equates with its being non-self-executing. The question is whether it is enforceable without congressional support. And to that problem I now turn.

In support of their claim that Section 3 requires congressional support, Professors Josh Blackman and Seth Barrett Tillman argue for a distinction between defensive and offensive enforcement. Although a defensive use of the constitutional constraints found in the Fourteenth Amendment is always permissible, they claim, the offensive use of the Fourteenth Amendments limitation (including those in Section 3) is not. As a general matter, to sue the federal government or its officers, a private individual litigant must invoke a federal statutory cause of action. It is not enough to merely allege some unconstitutional state action in the abstract. The same is true for suits against states and their officers, they claim. Section 1983, including its statutory antecedents, i.e., Second Enforcement Act a/k/a Ku Klux Klan Act of 1871, is the primary modern statute that private individuals use to vindicate constitutional rights when suing state government officers. Tying this into a historical thread, they then assert that [c]onstitutional provisions [including Section 3] are not automatically self-executing when used offensively by an applicant seeking affirmative relief, with the implication being that it has always been that way. It is in this latter regard that they are mistaken.

Section 1983 was passed in 1871 to correct state and local abuses of freed slaves throughout the Reconstructed South. It awarded, and still awards, the victims of unconstitutional conduct a private action against the offending government official. It has in modern times (defined as since 1961) become the premier mechanism for vindicating federal wrongs perpetrated by state and local officials.

But before modern developments beginning in 1961, constitutional provisions (including those in the Fourteenth Amendment) were always understood to be enforceable without federal enforcement statutes like section 1983. As explained by Professor Anne Woolhandler, positive, direct, offensive constitutional litigation in state and federal courts long preceded the adoption of the Fourteenth Amendment in 1868, section 1983 in 1871, and general federal question jurisdiction in 1875. Throughout the nineteenth century, both before and after Reconstruction, she explains, the Court saw diversity jurisdiction as an appropriate vehicle to raise federal questions, sometimes providing an expansive scope to diversity explicitly to accommodate this use of it. Consequently, much of the Supreme Courts development of individual rights and remedies took place without reliance on either federal question jurisdiction or statutes such as 1983, but rather under the rubric of diversity jurisdiction. Congressional enforcement mechanisms and federal question jurisdiction did not exist, were not used and were unnecessary. Constitutional provisions were fully enforceable without congressional assistance.

This remained true in 1868 when the Fourteenth Amendment was ratified. The Supreme Court in 1978 explained in Monell v. New York Department of Social Services that at the time the Fourteenth Amendment and section 1983 were put in place it had already granted unquestionably positive relief in Contract Clause cases, the question being simply whether there had been a violation of the Constitution. It added that federal courts found no obstacle to awards of damages against municipalities for common-law takings at this time, either, citing an 1873 case as an example.

So-called confiscatory challenges under the Fourteenth Amendments due process clause were heard in federal court in the late nineteenth century through the early twentieth century, too, with one of the better-known examples being the 1908 case of Ex parte Young, which remains a cornerstone of modern constitutional litigation. There the Supreme Court concluded that the presence of constitutional claims under section 1 of the Fourteenth Amendment, when coupled with federal question jurisdiction, was enough all by itself to support a federal courts entertaining a positive constitutional challenge to Minnesotas confiscatory rates. No statutory vehicle, like section 1983, was discussed. None was needed.

In 1946 the Supreme Court in Bell v. Hood, without mention of any statutory enforcement mechanism, observed that it is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution and to restrain individual state officers from doing what the 14th Amendment forbids the state to do. In support of this established practice the Bell Court cited to late nineteenth century and early twentieth century precedents under constitutional provisions including the Fourteenth Amendment.

None of this was changed by the additions of section 1983 in 1871 and the advent of federal question jurisdiction in 1875.Although having maintained a constant presence in the United States Code, albeit in various different subsections (such as 8 U.S.C. 43 when Bell v. Hood and Brown v. Board of Education (1954) were decided), section 1983 remained little-used until the 1960s. Justice Scalia observed in his dissent in Crawford-El v. Britton that section 1983 produced only 21 cases in the first 50 years of its existence. In the collection of the cases that make up Brown v. Board of Education, for example, most of the plaintiffs did not mention section 1983s ancestor, 8 U.S.C. 43, at all in their pleadings, and not one mentioned it before the Supreme Court as a basis for the suit. Judge Marsha Berzon was thus certainly correct to state in her 2008 Madison Lecture at NYU Law School that in Brown the plaintiffs grounded their claim for relief directly in the Fourteenth Amendment. Constitutional scholars, I think, tend to agree.

Professors Blackman and Tillman are thus wrong to suggest that the Fourteenth Amendment somehow distinguished or was meant to distinguish between positive (using the Amendment as a sword) and negative (using it as a shield) uses. Calling this an American constitutional tradition and claiming that the Fourteenth Amendment was meant to be wielded as a shield without legislation but not self-executing in court [for] affirmative relief unless Congress provides for its enforcement is far-fetched to say the least. It is not a tradition and has no basis in the many cases that were directly raised under the Fourteenth Amendment throughout the late nineteenth and early twentieth centuries. The Fourteenth Amendment was directly used as a sword and a shield for more than eighty years without need of a congressional enforcement mechanism. The generation that framed the Fourteenth Amendment must have known all this. It would not have expected the Fourteenth Amendments terms to lie moribund until Congress took action.

So what happened to change all this? Why are Professors Blackman and Tillman correct about the lay of the constitutional land today? Why are statutory remedial vehicles like section 1983 now needed? The question is a difficult one with no ready answer. The short (and admittedly incomplete) answer is that in 1961 the Supreme Court in Monroe v. Pape breathed new life into section 1983 by allowing it to be used against unauthorized governmental actions. Before that happened section 1983s under color of law requirement had been interpreted to required authorized governmental wrongs. When attorneys fees were added to section 1983 in 1976 that pretty much sealed the switch from direct constitutional litigation to section 1983, with the latter now being both available and preferred by the plaintiffs bar.

Not that this killed off all direct constitutional litigation. Far from it. The Supreme Court in 1971 in Bivens v. Six Unknown Named Agents of Bureau of Narcotic recognized a direct constitutional cause of action for damages under the Fourth Amendment against federal agents, and extended this rationale in 1979 and 1980 to cover violations of the Fifth and Eighth Amendments. While it seems plain that no more direct constitutional actions will be recognized today, and in 2010 the Supreme Court put the final kibosh on attempts to circumvent section 1983 with direct constitutional logic, this most recent history demonstrates how powerful and lasting was the traditional use of direct constitutional causes of action.

In the end, how direct, positive, offensive constitutional actions came to be replaced by actions based on congressional legislation should prove unimportant to the debate over Section 3s enforceability. The point is that Section 3 could not have been considered offensively unenforceable as part of some traditional view. No such tradition had ever existed. Section 1 of the Fourteenth Amendment, like just about every other constitutional provision (such as the Contracts Clause in Article I, 10) was expected to be enforced directly in state and federal court. Further, to the extent congressional support for Section 3 is needed it is today readily found in section 1983, which has been extended to cover just about every constitutional provision worth litigating. Whether the dormant Commerce Clause, the First Amendment, the Fourth Amendment, or the Fourteenth Amendments limits in Section1, section 1983 has been recognized as an available vehicle. There is no apparent reason that it could not be used with Section 3 of the Fourteenth Amendment if that became necessary (though I think it should not).

None of this is meant to suggest that anybody and everybody is free to sue in state or federal court to force Trumps name from ballots. In federal court Article III standing presents a huge obstacle, as does the political question doctrine (though I think the latter is overstated). State courts have their own restrictions on who may sue for what violation. Section 3 of the Fourteenth Amendment does not override any of this. Suffice it to say that enough water has flowed under a sufficient number of bridges to prove that state elections officials and state courts generally have the authority to entertain challenges to and remove potential federal candidates from ballots for a number of reasons, such as not having paid the required fees, not properly collecting signatures and not being qualified under Article I of the federal Constitution. States, moreover, have disagreed to the point that some presidential candidates, like Ralph Nader, have been disqualified in some states but not others. I dont see that Section 3s disqualification provision being applied to Trump should be any different.

Mark Brownis alawprofessor and the Newton D. Baker/Baker & Hostetler Chair atCapitalUniversityLawSchool.

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Trump and Section 3 of the Fourteenth Amendment: An Exploration ... - JURIST