Category Archives: Fourth Amendment

In recent testimony before theU.S.House Subcommittee on Crime, Terrorism and Homeland Security,Heritage Foundation research fellow Kara Frederickwarned lawmakers thatfacialrecognitiontechnologyisvulnerable to misuseand portends a slippery slope to mass surveillance. She offered several recommendations tokeep the risk of misuse in America low.

Facialrecognitiontechnologyhas proven its worth in the field, Frederick noted, where some uses offacialrecognitioncomprise legitimate public safety imperatives.

Success stories [forfacial recognition software] include the detection of Marylands Capital Gazette shooter in 2018 and the detention of at least three individuals using false passports at Dulles International Airport... that same year.But, she added, the potential for abuse by agents of the state is high.

Risks are manifold,Frederick noted,including false positives generated by inaccurate algorithmsanddata security vulnerabilitiestohacks and leaks,whichopensavenues for the exploitation of immutable biometric data.

Frederick focused her testimony onthreespecificrisks: the circumscription of civil liberties and individual privacy, the outsourcing of surveillance to unaccountable private companies, and the potential integration of face recognition data with other personally identifiable information through the expansion of mass surveillance.

Frederick warned thatplans toexpand theoutsourcing ofdomestic digital surveillanceto private companies unencumbered by constitutional stricturesraises Fourth Amendment concerns.She citedthe FBIs use ofopen-sourcefacial recognition toolsto detain American citizensandlaw enforcements use ofsurveillance start upClearviewAIas examples.

In Fredericks assessment, such impulses to expand and outsource domestic surveillance can lead to more pervasive methods of monitoring by law enforcement.Shedescribeda mutually reinforcing digital surveillance ecosystemthatencompassesFRTand trends toward large-scale surveillance.As an example of these expanded surveillance practices,shecitedthe municipality ofPeachtree Corners, Georgia, which isusingAI-driven smartcameras to monitor social distancing and use of masks.And once these powers expand,she warned,they almost never contract.

Authoritarianabuse offacialrecognitiontechnologyabroadshould serve as a cautionary tale for American lawmakers, she said. Beijingusesfacial recognitionsystems tomonitoritsownpopulation, determine ethnicity, andimprisonUighurminoritiesinreeducation camps. Democratic protestors in Hong Konghid their facesandusedlasersto thwart such monitoring.Russianofficials have usedfacialrecognitiontechnologyto identify and throwdissidentsin jail as recently as this year.

To constrain abuse and bound expansion by government agencies, a secure and privacy-protecting framework for the use of digital data obtained byfacialrecognitiontechnologyis requisite, Fredericktestified.

Toprotect citizens privacy,Frederickrecommended thatCongress:

Establish a federal data protection framework with appropriate standards and oversightgoverning how U.S. agenciesfederal, state, and localmaycollect, store, and sharefacialrecognitiondata.

Ensure any U.S. identity management system used by government actors is secure and reliable, based on proper standards and measurements, and in accordance withNational Institute of Standards and Technologyguidelines.

Enforce data protection inspections and oversight among all parties.

Combined with near-historic low levels of public trust in the U.S. government to do what is right, Frederick cautioned that the the unfettered deployment of these technologies by governmententities will continue to strain the health of the body politic without immediate and genuine safeguards.

Fredericks full testimony, delivered during the July 13subcommitteehearing titled Facial Recognition Technology: Examining Its Use by Law Enforcement,can befound here.

Originally posted here:
Heritage Expert Testifies to Congress on Facial Recognition Technology - Heritage.org

The headline on Fred Johnsons column in last weeks Citizen declared, Whole lot of misinformation going around. How true that headline is, and how apt it applies to the misinformation that Fred Johnson spreads around weekly.

Usually, I just roll my eyes at Johnsons poppycock and move on under the admittedly optimistic assumption that well-informed readers recognize that his tirades constitute nothing but a mish-mash of misleading right-wing talking points. This week, however, I felt moved to reply since the very opening sentences of his column (July 22) began with easily debunkable historical misinformation.

Johnson wrote: The Biden administration has invented a new word. The word is misinformation. According to the Merriam-Webster dictionary site, the first use of the word misinformation dates from 1604. Ill admit that Joe Biden is old but hes not THAT old. In 1930, 12 years before Joe Biden was born, the American Public Health Association, published a cartoon showing a man labeled Anti-Vaccinationist about to step off a cliff labeled misinformation into a sea labeled smallpox. So much for Biden inventing a new word. So much for Fred Johnsons credibility.

Johnson cites Tucker Carlson to define misinformation. Having Carlson define misinformation is like having the Kardashians define class and dignity. Johnsons two muddled paragraphs about the Cuba demonstrations seem to imply that Biden blamed the recent demonstrations on COVID. Only by using the misinformation tactic of taking words out of context, something that Carlson does routinely, can one make that claim. Biden actually said, We stand with the Cuban people and their clarion call for freedom and relief from the tragic grip of the pandemic and from the decades of repression and economic suffering to which they have been subjected by Cubas authoritarian regime.

Johnson then moves on to draw information from the American Association of Physicians & Surgeons, an extreme right-wing association that has been purveying misinformation since 1943. As of 2020 the AAPS managed fewer than five thousand members from the nations more than a million medical doctors. Well before the COVID pandemic, the AAPS called Medicare evil, opposed the establishment of Medicaid, and ignored overwhelming scientific evidence about the effectiveness of the measles vaccine. (See The Atlantic, Feb. 25, 2020). If you think that Medicare is evil and you like measles, perhaps you are Fred Johnsons intended audience.

Johnson repeats the AAPS position that there is no Constitutional authority for the federal government to be involved in medicine. Ill make a deal with Fred: I wont cite Constitutional scholars on medical matters if he wont rely on the AAPS for constitutional interpretation. The AAPS and Johnson neglect to tell you that the federal government has been involved in health and medicine throughout more than two centuries of American history and that the U.S. Supreme Court has never agreed with AAPS assertions that such involvement is unconstitutional.

For example, the predecessors of the U.S. Public Health Service, which acquired its present name in 1912 under a Republican president, date to 1798. Republican U.S. Grant appointed the first surgeon general in 1871. The Meat Inspection Acts and the Pure Food and Drug Act (which led to the FDA) date from 1906 under Republican Teddy Roosevelt. Since WWII, Medicare, Medicaid, and the Affordable Care Act have all stood Constitutional challenges in court, albeit with the exception of a few details not affecting the fundamental issue of the federal governments authority to be involved in medicine and health. The AAPS may think that all of these historic programs were unconstitutional, but scarcely anyone else other than Fred Johnson and Tucker Carlson would agree.

Johnson wrote that the Biden administration wants to send agents door-to-door to promote vaccination. His use of the scare word agents falsely implies that these door knockers would be federal employees when, in fact, they would be volunteers. Johnson parrots the AAPS accusation that encouraging people to get vaccinated would violate medical confidentiality and Fourth Amendment protections from unreasonable search and seizure. Nothing could be further from the truth. There is no violation of privacy or confidentially involved. The hope of the proposal is that people will respond positively to personal appeals from volunteers who urge them to get vaccinated for their own good and the good of others. However, residents remain perfectly free to tell volunteers that their vaccination status is none of your business or to just ignore the knock on the door in the first place. Ipso facto, no issue of privacy or confidentiality ensues.

The Biden-proposed campaign to encourage vaccination is modeled after the thousands of mothers who went door-to-door during the early days of the March of Dimes, which Franklin Roosevelt founded in 1938. Incidentally, the success of the March of Dimes in raising money for medical research helped lead to the polio vaccine. That is why FDR s image has since 1946 been on the dime. I wonder if Johnson thinks that is unconstitutional too.

To be sure, Johnson is correct that the First Amendment prohibits governmental entities from censoring speech, even if the content is factually incorrect or misleading. (That is provided, of course, that the words dont constitute triggers to action like the proverbial false cry of fire in a crowded auditorium.)

Fred Johnson, the AAPS, Tucker Carlson, and their ilk are free to continue to disseminate misinformation as they have been doing all along. However, contrary to what Johnson writes, the 1st Amendment does not prohibit governmental agencies from countering misinformation by disseminating accurate information. Nor does it prohibit the government from encouraging others to do the same.

Most importantly, the 1st Amendment guarantees private entities and private individuals the right to call out poppycock when they see it. Im exercising that right today.

Here is the original post:
The right to call out misinformation | Opinion | morgancountycitizen.com - Morgan County Citizen

Shackled to a bench at the San Ysidro Port of Entry, Jeff Valenzuela was ordered by border officers to unlock his cellphone or else it would be seized.

He complied and watched helplessly as it disappeared into a back room, where he assumes officers spent the next 45 minutes downloading its contents.

The phone was returned, and the intimate details of his life and the lives of those close to him were now in the hands of the U.S. government.

Valenzuela, a U.S. citizen and rights-group volunteer living in Tijuana, had been detained as part of a federal operation against a migrant caravan camped at the border. He was one of the nearly 41,000 international travelers whose electronic devices were searched at U.S. ports of entry in fiscal year 2019.

The cellphones of international travelers and all of their digital contents have long been fair game for U.S. border and customs officials to rifle through for inspection, for any reason, at any time, just as they would a purse or backpack.

Not anymore.

The 9th U.S. Circuit Court of Appeals, in an opinion stemming from a San Diego case, has significantly narrowed the ability of border officers to conduct warrantless searches of cellphones carried by international travelers, whether it be at land, air or sea ports of entry.

The ruling prohibits the kind of fishing expeditions for intelligence or evidence of a crime past or future, border-related or not that prompted the kinds of warrantless searches in border zones that Valenzuela experienced in December 2018.

Instead, border officers now must limit their search for one thing: digital contraband defined largely by the courts as child pornography, according to the ruling.

The court ruling was issued in 2019, but it was only recently confirmed as law.

Late last month, the U.S. Supreme Court denied the governments petition to take up the case, meaning the 9th Circuits ruling is binding but only in its jurisdiction. That includes nine states and two territories in the western U.S., including California, Arizona, Washington and Hawaii.

It really is tightening the screw to increase your protection from searches, said Ryan Stitt, an attorney with Federal Defenders of San Diego who was involved in the case.

The ruling has a potentially big implications in San Diego, home to the busiest land border crossing in the Western hemisphere a portal not only to millions of legitimate travelers like Valenzuela but also part of a well-worn route for drug and human smugglers.

Privacy advocates have hailed the case as a win for civil liberties, while the U.S. government and some federal judges say the decision makes the country less safe, letting potential evidence of drug smuggling to visa fraud to terrorist activity slip past border gatekeepers.

The ruling also adds to a confusing matrix of clashing court opinions on the issue across the country. In practice, it could mean you are subjected to one set of rules returning from an international flight in San Diego and another in Boston.

The case stems from the 2016 arrest of Miguel Cano, who was caught at the San Ysidro Port of Entry with 31 pounds of cocaine hidden in a spare tire. Cano, a lawful permanent U.S. resident living in Tijuana, told investigators that he had crossed into San Diego to try to find work as a carpet installer. He denied knowing there were drugs in his vehicle.

Two agents from Homeland Security Investigations took his cellphone. First one of the agents conducted a brief manual search, noticing the call log and lack of text messages.

The agent later explained the search was to find some brief investigative leads in the current case and to see if theres evidence of other things coming across the border, according to the court record.

Then the other agent looked in the phone, writing down some of the numbers in the call log on a piece of paper and taking a photo of two text messages that had just come in.

The agent then conducted a forensic search, hooking up the device to Cellbrite software, which allows the agent to access and download data including text messages, contacts, call logs, videos and photos.

Cano was later indicted with importation of cocaine. He was convicted following a second trial; the first trial ended with a hung jury.

A three-judge panel of the 9th Circuit deemed the searches a violation of Canos Fourth Amendment right against unreasonable search and seizure.

An international air traveler is cleared by a U.S. Customs and Border Protection Officer and is approved to enter the United States at Dulles International Airport in this file photo.

(Paul J. Richards/AFP/Getty Images)

The Fourth Amendment largely requires a warrant to search someones possessions including cellphones, according to a 2014 landmark Supreme Court ruling. But certain exceptions have historically existed at the border, where privacy concerns and public policy interests have long collided.

Courts recognized that the United States has a long-standing right to protect itself by examining and controlling who and what comes into the country, and that people give up some expectation of privacy when passing through.

The whole idea is this strong public policy interest against contraband being smuggled in. It gives border officials greater authority to do warrantless searches, said Stitt, Canos attorney at trial. The question becomes how does that apply in the 21st century to digital contraband?

According to the 9th Circuit, the answer is: narrowly.

The court held that detection of ... contraband is the strongest historic rationale for the border-search exception and that the exception does not stretch to include search for evidence of contraband that is not present at the border or for evidence of past or future border-related criminal activity.

The opinion penned by Circuit Judge Jay Bybee, a Bush nominee concluded that cellphone searches at the border, whether manual or forensic, must be limited in scope to a search for digital contraband. He was joined in his opinion by Circuit Judge Susan Graber, a Clinton nominee, and Judge Douglas Harpool, an Obama nominee to the Missouri district bench who sat on the 9th Circuit panel by designation.

Digital contraband has largely been defined in related court cases as child pornography, although in at least one legal filing U.S. Customs and Border Protection said it considers classified government material and malware to be in that category as well.

What that means in practical terms: Border and immigration officers can manually search the devices of anyone crossing, without any level of suspicion but they must only search for digital contraband, and only in places on the phone where such material would be stored.

The court imposed even stricter limits on forensic, or advanced, searches, which involve officers hooking up the phone to extraction software. To do that, officers must have reasonable suspicion a lesser standard of suspicion than probable cause, but still based on some fact or circumstance that digital contraband exists on the phone. The search must still be only for that contraband.

If border officials want to investigate a crime, they need to get a search warrant.

What Cano is really doing is making it so that they can only search for contraband on a phone, and really only child pornography, Stitt said. Before, in CBPs view, they could search for anything, for any reason crossing the border, to any extent. This narrows that.

What happens if a border officer comes across evidence of a crime while searching for contraband? That is still somewhat of an open legal question, said Nathan Wessler an attorney with the American Civil Liberties Union. But the general rule should be to stop the search immediately and obtain a warrant to continue, he said.

CBP revised its directive on electronic device searches in 2018 to more closely adhere to some of the legal rulings being handed down, including requiring reasonable suspicion in order to conduct an advanced search.

A CBP spokesperson said in a statement that the agency is continuing to review its directive and to conduct searches in accordance with statutory and regulatory authorities and applicable judicial precedent, including the Cano decision.

Department of Justice attorneys argue the 9th Circuits ruling is an outlier when compared to past and current legal decisions on border searches.

The courts decision confuses and disrupts the day-to-day work of border officials who, nationwide, inspect hundreds of millions of arriving travelers and examine tens of thousands of electronic devices each year, attorneys argued in their petition to the Supreme Court.

Of the more than 410 million travelers processed through air, land and sea ports of entry nationwide in fiscal 2019, 35 percent came through the 9th Circuits jurisdiction, according to court filings.

More than 51.6 million of those travelers came through the San Ysidro and Otay Mesa ports of entry, according to U.S. Department of Transportation border crossing data.

CBP officials stressed that the number of device searches make up a small fraction less than a hundredth of a percent of the total number of crossings.

On rare occasions, CBP officers may search a travelers mobile phone, computer, camera and other electronic devices during the inspection process, a CBP spokesperson said. These searches have helped detect terrorist activity and other national security matters, child pornography, drug smuggling, human smuggling, bulk cash smuggling, human trafficking, export control violations, intellectual property rights violations and visa fraud.

But these searches have touched a broad spectrum of travelers not just those caught with illicit loads.

The final group of migrants traveling in large numbers for safety arrives in Tijuana from Central America, with some celebrating their arrival by climbing atop the U.S.-Mexico border fence at Playas de Tijuana in November 2018. Several border activists, journalists and lawyers were targeted by border authorities who questioned them about their involvement with the migrants.

(Alejandro Tamayo/The San Diego Union-Tribune)

Journalists, political activists, lawyers and people in certain religious and ethnic groups have reported being told to hand over their devices at various ports of entry across the country, for no specific reason.

In 2018, a secret joint U.S.-Mexico operation targeted human rights activists, immigration attorneys and journalists who were crossing the border frequently to interact with the large Central American migrant caravans that had arrived in Tijuana. Federal authorities have said the individuals were suspected of colluding with the migrants or had intelligence on criminal events accusations many of the targets have strongly denied.

Thats why Valenzuela, a volunteer with migrant-rights group Pueblo Sin Fronteras and a photographer, was subjected to two cellphone searches upon crossing into San Diego.

The first time, he was asked to show plainclothes officers his photo reel, to check if he had child porn on his phone, they told him. They made him pause at certain photos which depicted migrants and had nothing to do with children or pornography and they asked him to explain the images, he said.

A few days later, he was detained, this time in handcuffs, and questioned again. When they ordered him to unlock the phone, he felt cornered and didnt want to lose his phone, so he agreed. Then it was taken out of his sight.

Jeff Valenzuela was among several activists and journalists who were targeted by a federal operation investigating the arrival of large numbers of Central American migrants in 2018. He had his phone searched twice at the San Ysidro Port of Entry.

(Nelvin C. Cepeda/The San Diego Union-Tribune)

It was incredibly violating. I knew I obviously hadnt done anything, I wasnt in there because Id committed some crime, Valenzuela said. I was more concerned about other peoples information that might have been compromised.

The Department of Justice wanted the Supreme Court to review the case for another reason: to settle the law on an issue that has been decided differently around the country.

One lawsuit, argued in Boston by the ACLU, involved 10 U.S. citizens and one green card holder who had their phones or other electronic devices searched while returning from travel abroad. Some of them had their devices confiscated for weeks or months.

The plaintiffs included journalists, an artist, a former Air Force captain, a NASA engineer and a Muslim woman who said it was against her religious belief to have a male officer view photos on the phone of her without her headscarf.

We know the government uses various profiles to try to identify people to subject to searches, said Wessler, who was involved in the case. Racial and religious profiling happens.

In February, the 1st U.S. Circuit Court of Appeals which includes the northeastern states of Massachusetts and Maine, as well as Puerto Rico sided with the government in a sharply contrasting decision, saying it cannot agree with the narrow view of the border search exception in Cano.

The ruling concludes that border searches of electronic devices may be used to search for contraband, evidence of contraband, or for evidence of any of the violations investigated by CBP or U.S. Immigrations and Customs Enforcement.

That potentially makes for very different rules for someone traveling internationally with a cellphone in California as opposed to Maine.

In Cano, the DOJ asked the case to be reheard en banc or by a larger, 11-member panel of the court but the request was denied after it failed receive a majority vote of non-recused, active judges.

Six judges, all Bush or Trump nominees, dissented, saying the case should be reheard to correct the panels errors and that the decision makes our borders far more porous and far less safe.

The government filed a writ of certiorari to the Supreme Court, but the court declined the petition on June 28.

See the original post here:
Returning from travel abroad? A court put limits on border officers rummaging through your phone - The San Diego Union-Tribune

A Cuckoo bird from the treasury benches whispered into my ear that the NDA/BJP government is planning to increase the size of the Lok Sabha from the current 543 to over a thousand. The sagacious birdie also murmured that even the Council of States may be expanded.

It alluded to the New Parliament building under construction to substantiate the fact that bigger chambers are being fashioned for both the House of People and the Council of States. The new chambers of both the houses will have the capacity to seat as many as 888 Members of Parliament (MPs) in the Lok Sabha and 384 in the Rajya Sabha respectively. However, the Lok Sabha Hall is being designed to hold 1224 members, ostensibly to cater for the possibility of a joint session.

The thinking to expand the size of Parliament isnt exactly new. In April 2017, Pranab Mukherjee made a strong public pitch for expanding the numerical strength of Parliament.

The then President opined, The Constitution (Forty Second Amendment) Act 1976 imposed a freeze on the population figure for readjustment at the 1971 census. It has been extended by the Constitution (Eighty-fourth Amendment) Act 2001 till 2026. As a result the House of the People today represents the population figure of 1971 census whereas our population has increased manifold in the recent decades. This gives rise to an anomalous situation wherein today, India has over 800 million voters and 543 Lok Sabha constituencies represent 1.28 billion people. Nearly 16-18 lakh people are represented by one Lok Sabha member, how can he or she be expected to be in touch with the electors?

The population since then has more than doubled, and there is a strong case to remove the freeze on the delimitation exercise. It should be ideally increased to 1,000. We need to think innovatively and not just resort to excuses without any basis. If the British Parliament can have 650 members, the Canadian Parliament can have 443 members and the US Congress can accommodate 535 members, why cant the Indian Parliament do so, he argued passionately.

However, is numbers the only challenge that confronts the Indian Parliament and the legislatures? The answer is no. A serious crisis of credibility confronts Parliament. It has been functioning more as an exception rather than the rule for decades now.

The NDA/BJP set the bar rather low when in a signed article on August 28, 2012 the then Leader of the Opposition in the Rajya Sabha Arun Jaitley argued, If parliamentary accountability is subverted and a debate is intended to be used merely to put a lid on parliamentary accountability, it is then a legitimate tactic for the Opposition to expose the government through parliamentary instruments available at its command. We are not interested in a debate. What is there to debate? he told Times Now on August 22, 2012. The thrust of his argument being that disruption is a legitimate parliamentary tactic.

These words set the stage for what has followed over the past nine years. Both the government and the Opposition should find a modus vivendi whereby after government business concludes at 6 pm the next three hours everyday must be devoted to discussion on a subject under the relevant rules chosen by the joint opposition. This would ensure that Parliament functions. It would go a long way in restoring its credibility.

The 10th Schedule of the Constitution, also called the Anti Defection Law, must be amended. As I have argued in my Private Members Bill, its rigours must be restricted only to those instruments that impact the stability of government namely No-confidence Motion, Adjournment Motion, Money Bill or financial matters. The rest of the legislative space must be freed up. For when the framers of the Indian Constitution selected the universal adult suffrage paradigm, they did not certainly contemplate a system whereby electoral choice would be with an individual elector but legislative power would reside in a political party. MPs and MLAs must be given the freedom to vote according to their conscience, constituency and common sense. Whip-driven tyranny must end.

The institution of the Presiding officers also needs to be revisited. With no disrespect intended to the current Speaker or the Chairperson of the Council of States or their respected predecessors, the time has come to seriously debate whether the presiding officers of both houses should not be serving judges of the Supreme Court on lien from that institution and appointed for five years in case of Lok Sabha and six years for the Rajya Sabha. This would ensure that truly neutral umpires arbitrate the functioning of both houses of Parliament. This should be the norm in the state legislatures too.

Coming to the numerical expansion of the Lok Sabha and the Rajya Sabha, no purpose would be served in converting it into the National Peoples Congress of China. Expanding the size of the Lok Sabha is only a ploy to strengthen the executive and make the legislature redundant. There is a hierarchy institutionalized by the 73rd and 74th Constitutional Amendment topped by the state legislatures to cater to developmental imperatives of the country.

The job of Parliament is to make laws for the nation. Expanding the size of the Lok Sabha would make it even more unwieldy and dysfunctional than what it is now. From a whip-driven paradigm it would turn into a country club with a bloated membership of folks living off taxpayers money.

Moreover if the expansion will be based purely on the division of the current 910,515,845 electors into parliamentary constituencies of 7.6 lakh electors per head, the number of Parliamentary constituencies would increase to 1200. The biggest losers in this exercise would be Tamil Nadu whose proportional share in Parliament would reduce from the current 7.2 to 6.4 %, Kerala from 3.7 to 2.9 %, Andhra Pradesh from 4.6 to 4.3% and Odisha from 3.9 to 3.6 %. The share of UP would go up from the current 14.7% to 16%, Bihar 7.4 to 7.8 %, Madhya Pradesh from 5.3 to 5.7% and Maharashtra from 8.8 to 9.7%. This would further exacerbate the North-South divide.

There is however a case for the reform of the Council of Statesthe Rajya Sabha. For it has for long not fulfilled its primary function of articulating the interests of the States qua the Union. It is just another Federal Second Chamber. To truly become a Council of States it should mirror the US senate with equal number of members directly elected by people representing each state irrespective of the states size. That would make India a true Union of States.

The author is a Lawyer, MP and Former Information and Broadcasting Minister. The views expressed in this article are those of the author and do not represent the stand of this publication.

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Manish Tewari Writes: More than Parliament Size, Focus on Its Credibility Crisis - News18

Hundreds of thousands of law enforcement agents in theUS have the authority to use blackbox AI to conduct unethical surveillance, generate evidence, and circumvent our Fourth Amendment protections. And theres little reason to believe anyones going to do anything about it.

The problem is that blackbox AI systems are a goldmine for startups, big tech, and politicians. And, since the general public is ignorant about what they do or how theyre being used, law enforcement agencies have carte blanche to do whatever they want.

Lets start with the individual officers.

Any cop, regardless of affiliation or status, has access to dozens (if not hundreds) of third-party AI systems.

When I mention an AI system, you may be imagining a server with a bunch of blinking lights or a well-dressed civilian leaning over a console with half a dozen monitors.

But Im talking about an Android or iPhone app that officers and agents can use without their supervisors even knowing.

A cop installs software from a company such as Clearview AI on their personal smartphone. This allows them to take a picture of anyone and surface their identity. The cop then runs the identity through an app from a company such as Palantir, which surfaces a cornucopia of information on the individual.

So, without a warrant, officer Friendly now has access to your phone carrier, ISP, and email records. They have access to your medical and mental health records, military service history, court records, legal records, travel history, and your property records. And its as easy to use as Netflix or Spotify.

Best of all, at least for the corrupt cops using these systems unethically, theres absolutely no oversight whatsoever. Cops are often offered these systems directly from the vendors as trials so they can try them before they decide whether to ask their departments to adopt them at scale.

The reason officers use these systems is because they make their jobs much easier. They allow a police officer to skip the warrant process and act as judges themselves.

Law enforcement agencies around the country spend billions on AI services every year, many of which are scams or surveillance tools. These includefacial recognition systems that dont work for Black faces, predictive-policing systems that allow cops to blame the over-policing of poor minority communities on the algorithm, and niche services whose only purpose is generating evidence.

Predictive-policing is among the most common unethical AI systems used by law enforcement. These systems are basically snake oil scams that claim to use data to determine where crimes are going to happen. But, as we all know, you cant predict when or where a crime is going to happen. All you can do is determine, historically, where police tend to arrest the most people.

What predictive policing systems actually do is give the police a scapegoat for over-policing minority and poor communities. The bottom line is that you cannot, mathematically speaking,draw inferences from data that doesnt exist. And there is no data on future crime.

Anyone who says these systems can predict crime is obviously operating on faith alone, becausenobody can explain why a blackbox system generates the output it does not even the developers who created it.

Simply put: any time an AI system used by law enforcement can, in any way, affect an outcome for a human, its probably harmful.

Vice published an article today detailing the Chicago police departments use of ShotSpotter, an AI system purported to detect gunshots.

According to the company, it can detect gunshots in large areas with up to 95% accuracy. But in court they claim thats just a marketing guarantee and that background noise can affect the accuracy of any reading.

Which means its a blackbox system that nobody can explain, and no legal department will defend.

Vice reports that police instructed ShotSpotter employees to alter evidence to make it appear as though the system detected gunshots it didnt in several cases. In one,the police had an employee change the location of a detection to reflect the location of a crime. And in another they had an employee change the designation fireworks to gunshot in order to facilitate an arrest.

When challenged in court, prosecutors merely withdrew the evidence. Thats it. To the best of our knowledge nobody was arrested or indicted.

The problem here isnt that ShotSpotter doesnt work (although, if you have to use the Tucker Carlsondefense in court it probably doesnt). Its that, even if it did work, it serves absolutely no purpose.

Have you ever heard a firearm discharge? Theyre loud. They dont go undetected if there are people around, and a gun fired in any given area of Chicago would be heard by tens of thousands of people.

And people, unlike blackbox algorithms, can testify in court. They can describe what they heard, when they heard it, and explain to a jury why they thought what they heard was or was not a gunshot.

If we find out that prosecutors told them to say they heard a gunshot and then they admit in court that they lied, thats called perjury and its a crime. We can hold people accountable.

The reason theres so much unethical cop AI is because its incredibly profitable. The startups and big tech outfits selling the AI are getting paid billions by taxpayers who either dont care or dont understand whats going on.

The politicians authorizing the payouts are raking in money from lobbyists. And the cops using it can ignore our Constitutional rights at their leisure with absolutely no fear of reprisal. Its a perfect storm of ignorance, corruption, and capitalism.

And its only going to get worse.

The US founding fathers, much like AI, could not predict the future. When they drafted the Second Amendment, for example, they had no way of knowing that hundreds of thousands of heavily-armed government agents would one day patrol our communities around the clock thus making our right to keep and bear arms a moot form of protection against tyranny.

And now the same has happened to our Fourth Amendment rights. When our private information was locked away in filing cabinets and the only way to access it was with a judges signature on a search warrant, our right to privacy was at least somewhat safeguarded against corruption.

Now those protections are gone. You dont need a predictive algorithm to understand, historically speaking, what happens next.

Read more from the original source:
Lying, corrupt, anti-American cops are running amok with AI - The Next Web

Welcome to todays segment from our harness racing analyst.

Providing you with free expert tips and selections for harness meetings run in New Zealand.

Harnessracing hits Addington tonightwith nine races on the card. The racing starts at 5:09pm and we highlight some specials and value runners we think can give you a run for your money on a good night of racing.

Addington selections 29th July 2021

Best Bet: R7 Sugar Me

Best Value: R4King Cassidy

Race 1

Smiffys Terror (2)Blazing Impact (3)Dhaulagiri (1)Riveered (8)

Race 2

Make My Sundon (8)Majesticmite (3)Zsahara (1)Tyene (4)

Race 3

Kikorangi Blue (2)Sweet Affinity (6)Fourth Amendment (1)Bender (8)

Race 4

King Cassidy (14)Phoebe Onyx (9)Luminosity (4)Boyz Invasion (6)

Race 5

Cyrus (4)Invisible Girl (2)Tiger Taylor (7)Le Tissier (10)

Race 6

Woodstone (10)Splash Cola (7)The Dominator (8)Time In A Bottle (6)

Race 7

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Harness Analyst Addington 29th July Harnesslink - Harnesslink

ANALYSIS/OPINION:

In March 2017, I received a tip from a friend in the intelligence community that the British Government Communications Headquarters, or GCHQ the United Kingdoms domestic and foreign spies had been asked by the CIA to spy on candidate Donald Trump during the 2016 U.S presidential election campaign. He elaborated that Trumps claim that someone tapped my wires was essentially true. The tip was potentially explosive, so I ran it past two other friends in the intelligence community, and they confirmed it.

When I went public with this, all hell broke loose in my professional life. The British spies denied spying on Trump, who by then was the president of the United States. Former Obama administration folks denied asking the Brits to do this and denied that it was done.

I was accused of fabricating this so as to make Mr. Trump look good. The prime minister of the U.K. had one of her deputies call my bosses at Fox News and demand that I recant what I had said or be fired. Fox asked me to lay low for 10 days, which I did, but Fox backed me when I explained the verifications conducted by my sources.

My source spoke to British agents who confirmed that their colleagues had spied on Mr. Trump.

When I went back on the air, my colleague Bill Hemmer asked if I stood by my revelations. I told Bill that getting beaten up in the press is the price one occasionally pays for challenging those in power. Two months later, four GCHQ agents told The Guardian newspaper of London that my revelations were true, and my professional life returned to normal.

During one of my meetings with my sources, they told me that the National Security Administration, Americas 60,000-person strong domestic spy apparatus, was listening to our conversations and monitoring our texts and emails.

It is utterly terrifying to realize that your daily communications are being scrutinized by the government without probable cause and without a search warrant, both of which are required by the Fourth Amendment. It gives you pause before communicating; pause that churns the stomach; pause that is profoundly un-American.

Last week, my Fox colleague Tucker Carlson had a similar experience when an NSA whistleblower revealed to him that the NSA was monitoring his communications. He reported this on his Fox television show, and it is safe to say that the NSA became furious.

Tucker, like me, believes that the Constitution means what it says. The rights it protects are both man-made, like the right to vote; and natural, like religion, speech, the press, self-defense, travel and privacy. The late Supreme Court Justice Louis Brandeis called privacy the right most valued by civilized persons.

The point here is that the CIA folks who triggered the spying on Mr. Trump and the NSA folks who spied on Mr. Carlson and me have all taken an oath to uphold the Constitution. Thus, when they spy without warrants or have foreign colleagues do it for them, they are not only subverting natural and constitutionally protected rights, they are also committing the crimes of computer hacking and misconduct in office.

The whole purpose of the Fourth Amendment is to be an obstacle to the governments appetite for information about us. The amendment was written while memories of the British use of general warrants which permitted agents to search wherever they pleased and seize whatever they found were still fresh in the minds of those who fought the Revolution and wrote the Constitution and the Bill of Rights.

On Dec. 4, 1981, 20 years before 9/11, President Ronald Reagan signed Executive Order 12333. This directed the military the NSA is in the military to begin spying on Americans whose communications presented a danger to national security, and to do so without search warrants. The NSA relies on this unconstitutional executive order for authority to engage in mass warrantless surveillance or targeted, individual warrantless surveillance.

Subsequent presidential executive orders have been written with the mindset that the president as commander in chief can operate outside the Constitution.

This perverse rationale has brought us where we are today a place that Reagan himself could never have recognized and of which he would never have approved. Today, the NSA captures all data communicated into, going out of and within the U.S. That includes the content of all text messages, emails and phone calls, as well as financial, legal and medical records the list is endless. This data consumes 27 times the contents of the Library of Congress every year.

All this is far too much for the NSA to read and digest, which is how the hijackers and killers who perpetrated 9/11, and how domestic mass murderers and their confederates, have slipped past them.

But when the NSA targets a specific person, as it did to me in 2017 and does to Tucker Carlson today, it is sure to examine in near real time whatever it has gathered.

This should provoke outrage across the political spectrum. The NSA was after Mr. Carlson and me because, as libertarians defending privacy and believing that the Fourth Amendment means what it says, we have been harshly critical of it. But the NSA is part of the government. Can the government use its powers to chill the free speech rights of its critics? Of course not.

The Supreme Court has ruled many times that chilling government behavior that gives one pause or fear before speaking freely about the government is a direct violation of the natural and constitutionally protected right to the freedom of speech.

Tucker Carlson and you and I can say whatever we want about the government and it cannot legally or constitutionally chill or prevent that. If it could, then our rights are just empty claims.

Why have we reposed the Constitution for safekeeping into the hands of those who subvert it?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is an analyst for the Fox News Channel. He has written seven books on the U.S. Constitution.

Originally posted here:
NSA's spying on Tucker Carlson is an attack all Americans - Washington Times

Background

The COVID-19 pandemic has been sweeping the world since the end of 2019, exerting a far-reaching impact on global economic and technological development. With the concerted efforts of countries around the world and the promotion of vaccines, the COVID-19 pandemic has been effectively controlled in most countries. China undoubtedly is outstanding in the fight against the pandemic. Despite having the world's largest population, China not only efficiently controlled the epidemic in a short time but also actively promoted technical and economic cooperation at home and abroad. The fourth amendment to the PRC Patent Law ("New Patent Law") in effect from 1 June 2021 demonstrates the determination of the Chinese government to improve the protection and enforcement of patent rights as well as promote the implementation and application of patented technologies, which is certainly a very good opportunity for domestic and foreign entities and individuals doing business in China.

1. Appropriate burden of proof required for claiming high damages for patent infringement

In patent infringement disputes, it would be very advantageous for patentees as a whole to fulfil the burden of proof. First, pursuant to the New Patent Law, the damages can be calculated based on the patentee's actual loss OR the infringer's profit from infringement, not IN SEQUENCE. Although the profit from infringement is mostly applied in practice, this change reflects the relaxation of legal requirements on the burden of proof on patentees. Moreover, the New Patent Law provides a substantial increase in the amount of statutory damages and the punitive damages up to five times the amount calculated according to the aforesaid method. However, in our opinion, the problem about calculating the profit from infringement, among others, are still there due to the practical difficulty in proof by patentees, especially in preservation of evidence related to the infringing B2B goods. Therefore, the actual effect of the amended provisions on infringement damages will depend on the subsequent implementation rules of the Patent Law as well as the specific provisions of other relevant judicial interpretations. The entities and individuals doing business in China now still need to bear a greater burden of proof in patent infringement disputes in order to prove the existence of infringement and the amount of profit from infringement.

2. More comprehensive and lasting patent protection conducive to maintaining a dominant position in the Chinese market

Design protection has always been favoured by leading companies, especially electronic instrument manufacturers, automobile manufacturers, and in the artificial intelligence field. The New Patent Law is a really good news for the manufacturers whose products rely on shape design. Take auto manufacturers as example. Automotive enthusiasts or consumers can tell an auto brand by observing only a partial structure of a car, such as the design of the front or rear bumper of a car or the car body, with no need to look at other parts. For automobile and the like, the shape design of some components itself constitutes the independent design that significantly contributes to the appearance of the whole product. Under the earlier patent law, the GUI patent applicant is required to combine the GUI design with a specific physical product for application as a whole. However, it is the GUI idea design, not the physical product, that really reflects the intellectual achievements of the applicant and is what the applicant originally intends to protect, especially in the field of artificial intelligence and communication devices. After the New Patent Law becomes effective, in China the companies involved can file the GUI patents applications for product appearance in which the local GUI design to be protected can be indicated with solid line and the physical product is indicated with dotted line. At the same time, a description is given in the abstract of design application that only the GUI design is under protection, so as to weaken the impact and limitation of the physical product on the GUI design and ultimately provide the real protection to the GUI design.

Invention patents and design patents granted in China will likely receive a longer term of protection. As for design patents, the New Patent Law extends the term of protection to 15 years, same as the Hague Agreement Concerning the International Deposit of Industrial Designs. As for invention patents, the New Patent Law provides the supplemental protection period for compensating the patent right duration due to unreasonable delay in the patent examination procedure, and also to the patents related to innovator drugs that have the marketing approval in China. Entities and individuals doing business in China can have the exclusive protective rights and interests, which are more comprehensive and lasting, by applying for invention patents and design patents. Even so, the "unreasonable delay" applicable to invention patents will be further specified in the subsequent implementation rules of the Patent Law and examination guidelines.

3. Pharmaceutical patent linkage system to promote innovation and development

The latest amendments to the Patent Law have a significant influence on pharmaceutical manufacturers. The establishment of pharmaceutical patent linkage, a.k.a., early settlement mechanism for drug patent disputes, greatly facilitated innovation and development of innovator drug manufacturers. Under the New Patent Law, an innovator drug manufacturer can have a patent infringement dispute resolved with court judgements, or administrative rulings from the National Intellectual Property Administration (CNIPA), before a generic drug is marketed, so that the marketing approval for such generic drug is negatively affected. The Patent Law is a superior legislation in absence of specific provisions. More details are yet to be separately set out by the National Medical Products Administration and the CNIPA together. As we all know, the research and development of a new medicine require a huge investment in money and time. In China where generic drugs are dominant, with the supplemental protection period mechanism and the pharmaceutical patent linkage system under the New Patent Law, innovator drug manufacturers may be more motivated to devote themselves to development and innovation, strengthen their patent portfolio, and promptly take relevant measures to defend their legitimate rights and interests to the greatest extent by means of drug patent registration and regular monitoring of the declaration information from generic drug manufacturers.

4. Further promotion to the exploitation of patented technologies

To promote the exploitation of patents, the New Patent Law introduces the open licensing system, grants employers the right to dispose of at their discretion the employee invention related patent rights and the right of patent applications, and encourages the employer to share profits with inventors in the form of stocks, options and dividends. In this way, patentees are encouraged to license their patents, so that the asymmetry of information related to patent licensing can be reduced or eliminated. The state-owned enterprises, colleges and universities, and scientific research institution are allowed to dispose of their own patents with more freedom. The various rewards and remunerations for employee inventions can also relieve monetary stress of enterprises and raise the enthusiasm of inventors. Foreign companies need to be careful about the compliance issues with respect to payment of the rewards and remunerations for employee inventions, such as, whether the remuneration should be paid to inventors and who should make payment to inventors when intellectual property rights are managed in a centralized manner within a group company.

With regard to the cross-border technology transfer concerned about by many foreign companies, the New Patent Law has no specific provision. The Chinese policies on mandatory technology transfer as deemed by some foreign companies were adjusted in the Regulations of the People's Republic of China on the Administration of Import and Export of Technologies amended in 2019. For example, the regulations deleted the infringement liability provisions and the mandatory provisions relating to the ownership of technological improvements. These changes increase the autonomy of contract parties and also adapt to the development of international technology transfer. The problem concerned about by transferors of technology that technical secrets may be disclosed during the process of transnational technology transfer is up to the parties to reach agreement in accordance with the Civil Code and relevant judicial interpretations, based on the natures of the fields involved. When doing business with Chinese companies, for example, in the form of technical cooperation or joint venture, foreign companies still need to design the strict contractual clauses in order to protect their legitimate rights and interests.

Outlook

At the time when the COVID-19 pandemic begins to improve and the global economy recovers as a whole, the New Patent Law comes into effect, like a powerful driving force for the current rapid technological and economic development of China. Generally speaking, the New Patent Law is favourable to patentees. In the situation of a full economic recovery, the introduction of punitive damages, patent term extension, and pharmaceutical patent linkage system may prompt more patentees to protect their legitimate rights and interests by means of litigation, and improve China's judicial environment for intellectual property protection.

The negative side is that an increase in the number of lawsuits may prolong the time period of adjudication of patent disputes, especially the foreign-related litigations for which the civil procedure law has no provision on the time limit of adjudication. In addition, the lengthy judicial appraisal procedures are usually required to resolve patent disputes. Therefore, foreign patentees doing business in China should be prepared for the long-term litigation proceedings for patent infringement and at the same time avoid submitting the disputes to the courts that have accepted many cases. This certainly needs comprehensive consideration and specific analysis case by case.

In addition, the implementation rules of the Patent Law as well as other relevant judicial interpretations and measures have not yet been promulgated. Some provisions of the New Patent Law need to be specified with reference to the subsequent regulations. Nonetheless, it is obviously worthwhile to safeguard your business by making the most of intellectual property.

Excerpt from:
Patent Issues Required Attention for Doing Business in China with the Improvement of the COVID-19 Pandemic Situation - Review on the fourth amendment...

Last week, a major federal court ruling on privacy rights highlighted the flawed, police-centric way that we typically talk about public safety. In a divided decision, the Fourth Circuit Court of Appeals barred Baltimore police from using a new aerial surveillance program to indiscriminately target and track peoples movements. Analyzing data collected through the so-called spy plane program, the court said, counts as a search under the Fourth Amendment, and therefore requires police to obtain a warrant, just as when searching a home. Its a cutting-edge decision that comes as courts increasingly grapple with how the Fourth Amendments protections against police intrusions apply to new surveillance technology.

But the case is also important for the debate it sparked among the courts judges. In dissent, Judge J. Harvey Wilkinson III, a Reagan appointee, said that restricting police surveillance will tie the citys hands against a serious public safety crisis. He accused the majority of ignoring Baltimores high murder rate and said the ruling leaves only hopelessness for the good people of Baltimore, especially our dispossessed communities where rates of gun violence are highest.

Judge Roger Gregory, the first Black judge to ever serve on the Fourth Circuit, was having none of it. In response, he explained how this critique depends upon a certain premise: Policing ameliorates violence, and restraining police authority exacerbates it. As surely as water is wet, as where there is smoke there is fire, the dissent takes for granted that policing is the antidote to killing. Thus, the dissent repeatedly evokes the grief and trauma of gun deaths only in the name of a familiar cause: police and prisons.

The dissents rhetoric matches that of police chiefs clamoring for bigger budgets, particularly amid a one-year national jump in shootings. But the same assumptions are standard fare in reporting on crime and politics. Last week, for example, the New York Times equated calls for funding the police with treating public safety as a central political concern and adopting themes of public safety. The framing both reduces the concept of safety to narrow criminogenic terms (safety depends entirely on crime rates) and elevates punitive responses to crime and violence (more police, more arrests, and more incarceration) over policies that would invest in communities and promote overall health.

In his concurrence, Judge Gregory emphasized that such a blinkered view misunderstands the structural causes of violence and the futility of policing in addressing them. I am skeptical that [the dissents] logic genuinely respects and represents the humanity, dignity, and lived experience of those the dissent ventures to speak for, he wrote. Segregation effectively plundered Baltimores Black neighborhoodstransferring wealth, public resources, and investment to their white counterpartsand the consequences persist today. . . . So it is no coincidence that gun violence mostly occurs in the portions of the city that never recovered from state-sanctioned expropriation. Absent reinvestment, cycles of poverty and crime have proliferated.

Rather than reinvesting in dispossessed communities, Gregory wrote, the city over-polices them: Baltimore spends more on policing, per capita, than virtually any other comparable city in America, and in 2017, for example, a greater proportion of its general operating fund spending was allocated to policing than to education, transportation, and housing combined.

Gregorys opinion aligns with public health experts who have been calling for a more accurate and equitable conception of public safety, one that includes overall health and well-being and considers the damage that our systems of punishment inflict. Last month, anthropologist and physician Eric Reinhart argued in Health Affairs that redefining public safety to account for the harms of policing and incarceration rather than continuing to cede this influential discourse to reductive criminological terms is key for ensuring health, security, equality, and positive freedom for all U.S. residents.

As law professor John Pfaff wrote in The New Republic last week, our criminal legal system produces tremendous harm and immiseration, even death, not just for [incarcerated people] but for their families and communities. In a damning indictment of our fundamental indifference to the lives of the millions who come in contact with this system, we have no idea what the criminal legal systems actual humanitarian costs are, but they are surely staggering.

Even with incomplete information, we know that police killings are a leading cause of death for young Black men, and that police violence sends tens of thousands of people to the emergency room every year. We also know, as Reinhart writes, that jails and prisons inflict increased rates of chronic diseases that impose long-term medical needs and cost and reduce life expectancy. Even pretrial detention without a conviction, enforces persistent economic hardships and drives high rates of unemployment, homelessness, and food insecurity.

Beyond that, a growing body of researchwhat Reinhart calls carceral-community epidemiologyshows that incarceration spreads disease and increases mortality rates in surrounding communities, that our world-leading proclivity for incarceration, while disproportionately harmful to nonwhite people and dispossessed communities, is killing us all. Given their often poor conditions and porous nature, with high turnover and the constant churn of staff and visitors, jails and prisons are not like Vegas: What happens there does not stay there. Carceral institutions worldwide have long functioned as disease multipliers and epidemiological pumps for surrounding communities in relation to HIV, tuberculosis, hepatitis C, influenza, and other infectious diseases, Reinhart wrote.

This reality has been of acute importance throughout the pandemic. In May, Reinhart co-authored a study concluding that cycling individuals through Cook County Jail in March 2020 alone accounted for 13 percent of all COVID-19 cases and 21 percent of racial COVID-19 disparities in Chicago as of early August. Their analysis also showed that jail cycling is the strongest predictor of COVID-19 rates, considerably exceeding poverty, race, and population density.

Other research shows that sending more people to county jails leads to higher rates of premature community death. In February, a retrospective, longitudinal study in The Lancet examined cause-specific mortality at the county level in the U.S. over a 30-year period. It found a short-term association between county jail incarceration and mortality, with mortality due to infectious disease, chronic lower respiratory disease, substance use, and suicide as the strongest drivers. The study put the problem explicitly in public health terms, noting the risks of community-level exposure to high incarceration rates, as though the county jail was polluted water or a toxic waste site.

One of the studys authors, Sandhya Kajeepeta, a doctoral student in the Department of Epidemiology at Columbia University, told me that research framing public safety more broadly to include public health and long-term well-being really challenges our reliance on jails and prisons to keep people safe.

For Reinhart, the effort to reclaim and redefine the influential rhetoric of public safety must make clear that collective safety is best improved not by policing and prisons but rather by building robust public systems of carethat is, of economic security, environmental protections, labor rights, and housing.

Thats also the view of Leaders of a Beautiful Struggle, the grassroots advocacy organization that challenged the Baltimore surveillance program. Lawrence Grandpre, the groups director of research, wrote that their opposition to more surveillance was neither anti-police, nor born of indifference to gun violence. Instead, he wrote, we believe that safety is not simply the absence of violence, but the creation of conditions for human flourishing. Thus, we refuse the false . . . choice between community instability created by violent crime, with the community instability caused by mass incarceration, unaccountable policing, and the slow starving of our community institutions to feed a [half] billion-dollar police budget deemed to be the only investment our community needs.

Policing Is Not Public Safety

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Policing Is Not 'Public Safety' - The Appeal

In today's Orders List, the Supreme Court granted nine petitions for certiorari in cases that will be heard next term, added an original jurisdiction case to the docket, summarily reversed the grant of a habeas petition by the Eleventh Circuit, and resolved a few outstanding matters involving cases that had been put on hold due to the change in Presidential administration. The Court also rejected certiorari in a number of cases, several of which produced dissenting opinions on statements respecting the certiorari denial.

One such opinion I wanted to highlight was Justice Thomas' statement respecting the denial of certiorari inHoggard v. Rhodes, a qualified immunity case, albeit one that involves university administrators rather than cops.

Here's the Thomas opinion:

As I have noted before, our qualified immunity jurisprudence stands on shaky ground. Ziglar v. Abbasi, 582 U. S. ___, ___ (2017) (opinion concurring in part and concurring in judgment); Baxter v. Bracey, 590 U. S. ___ (2020) (opinion dissenting from denial of certiorari). Under this Court's precedent, executive officers who violate federal law are immune from money damages suits brought under Rev. Stat. 1979, 42 U. S. C. 1983, unless their conduct violates a "clearly established statutory or constitutional righ[t] of which a reasonable person would have known." Mullenix v. Luna, 577 U. S. 7, 11 (2015) (per curiam) (internal quotation marks omitted). But this test cannot be located in 1983's text and may have little basis in history. Baxter, 590 U. S., at ___, ___ (slip op., at 2, 4) (opinion of THOMAS, J.).

Aside from these problems, the one-size-fits-all doctrine is also an odd fit for many cases because the same test applies to officers who exercise a wide range of responsibilities and functions. Ziglar, 582 U. S., at ______ (opinion of THOMAS, J.) (slip op., at 45).* This petition illustrates that oddity: Petitioner alleges that university officials violated her First Amendment rights by prohibiting her from placing a small table on campus near the student union building to promote a student organization. According to the university, petitioner could engage with students only in a designated "Free Expression Area"the use of which required prior permission from the school. The Eighth Circuit concluded that this policy of restricting speech around the student union was unconstitutional as applied to petitioner. Turning Point USA at Ark. State Univ. v. Rhodes, 973 F. 3d 868, 879 (2020). Yet it granted immunity to the officials after determining that their actions, though unlawful, had not transgressed "'clearly established'" precedent. Id., at 881.

But why should university officers, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting? We have never offered a satisfactory explanation to this question. See Ziglar, 582 U. S., at _____ (opinion of THOMAS, J.) (slip op., at 45).

This approach is even more concerning because "our analysis is [not] grounded in the common-law backdrop against which Congress enacted [1983]." Id., at ___ (slip op., at 5). It may be that the police officer would receive more protection than a university official at common law. See Oldham, Official Immunity at the Founding (manuscript, at 2223, available at https://ssrn.com/abstract=3824983) (suggesting that the "concept of unreasonableness [in the Fourth Amendment] could bring with it [common-law] official immunities"). Or maybe the opposite is true. Lee, The Curious Life of In Loco Parentis at American Universities, 8 Higher Ed. in Rev. 65, 67 (2011) (discussing how "[f]rom the mid-1800s to the 1960s" "constitutional rights stopped at the college gatesat both private and public institutions"). Whatever the history establishes, we at least ought to consider it. Instead, we have "substitute[d] our own policy preferences for the mandates of Congress" by conjuring up blanket immunity and then failed to justify our enacted policy. Ziglar, 582 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 6).

The parties did not raise or brief these specific issues below. But in an appropriate case, we should reconsider either our one-size-fits-all test or the judicial doctrine of qualified immunity more generally.

I think it is only a matter of time before the Court revisits qualified immunity. The Court's liberals are clearly concerned the doctrine encourages impunity within law enforcement, and the Court's originalists and textualists are increasingly aware that the doctrine, at least as currently formulated, lacks a firm constitutional or statutory grounding.

Yet as this opinion indicates, the first crack in the QI edifice might not come in the law enforcement context. Rather, it is quite possible that the first cracks will appear in the public university setting. As Thomas notes, university administrators not faced with the need to make snap judgments under exigent circumstances. They often have university counsel at their side. Moreover, even where there are not Supreme Court cases directly on point, the requirements imposed by the First Amendment and Equal Protection Clause are sufficiently clear that university administrators could be considered to have sufficient notice of what sorts of conduct is or is not acceptable. Thusit would seem that prudential arguments for maintaining QI are less strong in the university setting than they might be in other contexts (even before one considers the question of what sorts of immunity did or did not apply to law enforcement historically).

Originally posted here:
Justice Thomas Takes Another Shot at Qualified Immunity - Reason