Category Archives: Fourth Amendment

On Tuesday, the Supreme Court decided in Hernandez v. Mesa that there is no cause of action for damages if a federal border patrol agent unconstitutionally shoots somebody across the border. The Court had recognized a cause of action under the Fourth Amendment against federal law enforcement agents in a 1971 case called Bivens, and extended it in two subsequent cases, but it has rejected further Bivens claims in every Supreme Court Bivens case in my lifetime and that doesn't seem likely to change. Two Justices, Thomas and Gorsuch, have called for Bivens to be overruled on the grounds that it lacks a formal or historical basis.

Justices Thomas and Gorsuch are right about that the lack of a formal and historical basis, but I worry about the broader picture. As Justice Thomas's concurrence notes, it's not like there was no remedy for unconstitutional conduct before Bivens. Rather, as Thomas writes:

From the ratification of the Bill of Rights until 1971, the Court did not create implied private actions for damages against federal officers alleged to have violated a citizen's constitutional rights. Suits to recover such damages were generally brought under state law.

What Justice Thomas does not note is that it has become very hard to bring those suits under state law either. There is some debate about whether that difficulty is attributable to Congress's 1984 enactment of the Westfall Act, various judicial decisions arguably misconstruing that act, or what (see this article by Vladeck and Vasquez), but I think at this point we're entitled to wonder, if the Court is going to abolish the 20th century remedies for unconstitutional conduct, can we at least have the 19th century remedies back?

Normally the Court lacks the ability to take a big-picture view in these cases, since it has only the issue before it. But in Hernandez, the petitioner foresaw this problem and petitioned the Supreme Court to consider a second question if there is no Bivens liability, then, he asked:

whether the Westfall Act violates the Due Process Clause of the Fifth Amendment insofar as it preempts state-law tort suits for damages against rogue federal law enforcement officers acting within the scope of their employment for which there is no alternative legal remedy.

So Hernandez is the rare case in which the Court could have considered both questions at the same time and thus provided an account for what violations of constitutional violations remain. It does seem perverse to think that Congress can eliminate state law damages for constitutional violations without either Congress or the courts providing an alternative . It's possible that this seemingly perverse result is constitutional, especially if one takes a broad view of federal power, but it seems troubling for the Court to repeatedly narrow Bivens without at least considering that question.

[Cross-posted from Summary, Judgment.]

Originally posted here:
Bivens Liability and Its Alternatives - Reason

Democratic presidential candidates (L-R) former New York City Mayor Mike Bloomberg, Sen. Elizabeth Warren (D-MA), Sen. Bernie Sanders (I-VT), former Vice President Joe Biden, former South Bend, Indiana Mayor Pete Buttigieg, and Sen. Amy Klobuchar (D-MN) arrive on stage for the Democratic presidential primary debate at Paris Las Vegas on February 19, 2020 in Las Vegas, Nevada.

Ethan Miller | Getty Image

Voters from the 14 states and one U.S. territory hosting primaries and caucuses on Super Tuesday have plenty of issues to consider in choosing a presidential nominee. Besides top issues like healthcare and gun policy, some voters may be weighing the Democratic candidates' stances on technology.

Americans have grown increasingly concerned about the power Big Tech companies like Facebook, Google, Amazon, Apple and Microsoft wield over their personal information and future job prospects. A Pew Research Center survey found that attitudes toward tech companies soured in the last half of the decade. Between 2015 and 2019, the percentage of adult U.S. respondents who said tech companies have a positive effect on the way things are going in the country declined from 71% to 50%,.

Among the Democratic candidates, Massachusetts Sen. Elizabeth Warren has made the biggest and earliest splash with her views on the tech industry, releasing her plan to "break up Big Tech" in March. But Warren is not the only candidate to have weighed in on tech issues, which extend well beyond antitrust.

Here's what voters should know about the stances of the top-polling Democratic presidential candidates on the key tech issues:

Vermont Sen. Bernie Sanders said at a Washington Post event last year that he would "absolutely" try to break up Facebook, Google and Amazon. Sanders is perhaps only second to Warren in his readiness to declare support for a breakup.

Former South Bend, Indiana Mayor Pete Buttigieg said that as a candidate for office, he doesn't feel it's appropriate to dictate what companies should be broken up, according to his interview with the New York Times Editorial Board. But he would empower the Federal Trade Commission to better assess and handle anticompetitive behavior by tech firms, he said at a CNN town hall in April.

Former Vice President Joe Biden said we should "be worrying about the concentration of power" in an interview with The New York Times Editorial Board. The tech industry experienced relatively positive treatment under the Obama administration, but Biden told the editorial board, "There are places where [Former President Barack Obama] and I have disagreed."

Massachusetts Sen. Elizabeth Warren was the first out of the gate with her proposal to break up Big Tech. Since then, she's maintained a persistent drumbeat on the topic. Warren has pledged to turn down large donations from Big Tech executives to shirk any questions of influence, though it's not entirely clear what her campaign counts as its threshold.

Minnesota Sen. Amy Klobuchar, the top Democrat on the Senate Antitrust Subcommittee, said "this consolidation issue is the most underrated discussed issue of our time," in her interview with the Times Editorial Board. Klobuchar said strong antitrust enforcement involves looking back at past mergers like that of Facebook and Instagram. Last year, Klobuchar introduced legislation to update antitrust enforcement, including by shifting the burden onto companies to prove that very large mergers won't hurt competition.

Former New York City Mayor Mike Bloomberg, a billionaire tech and media mogul himself, told the The Mercury News in January that Warren and Sanders don't "know what they're talking about" when it comes to breaking up the big tech companies. He said he is open to more narrow forms of enforcement.

Sanders told Vox, "Americans have the right to their own data and that there should be strict penalties for companies who are negligent in protecting that data." He added that there should be oversight of the collection and sale of consumer data, particularly by Big Tech companies like Facebook.

Buttigieg said in a podcast interview that he believes Americans should have a "right to be forgotten," similar to that granted to citizens of the European Union. Buttigeg told journalist Kara Swisher on the Recode Decode podcast, "we need to have some level of relationship to the value that is created in our name." A U.S. version of the "right to be forgotten" would likely raise serious First Amendment issues, but Buttigieg argued tech companies are already making decisions around speech "because the policy world didn't figure it out."

Biden told the Times Editorial Board, "we should be setting standards not unlike the Europeans are doing relative to privacy," while speaking about a variety of tech issues. The EU's flagship privacy policy, the General Data Protection Regulation (GDPR) gave citizens more control over their data, including the right to find out why a company is storing their data and choose to transfer it to another provider.

Warren has proposed legislation that would allow executives of companies with more than $1 billion in annual revenue to be held criminally liable in cases where they are found to have acted negligently and violated civil law impacting the personal data of 1% of a state or American population.

Klobuchar has signed on a key Democratic privacy bill in the Senate that would allow for states to continue to issue and enforce their own privacy laws and give individuals the right to bring their own lawsuits against companies they feel violated their rights.

Bloomberg has indicated a preference for consistency in federal digital privacy legislation, seeming to align with conservatives who want a federal law that preempts state law, according to an interview with The Mercury News.

Sanders told Vox he opposes "the Trump administration's efforts to compel firms to create so-called 'backdoors' to encrypted technologies an attack on the First and Fourth Amendments that would ultimately leave everyone less secure." He also said, "Technology cannot shield people from the justice system, especially when it comes to white-collar and other financial crimes."

Buttigieg told Vox, "End-to-end encryption should be the norm," but that "we also need to ensure that law enforcement has access to the tools it needs to keep us all safe." He advocated for "heightened legal standards" for government officials trying to gain access to data with new tools, such as a court order and proof all other options have been exhausted.

Biden hasn't commented much on encryption this election cycle, but he did introduce a counter-terrorism bill in 1991 that would have allowed government officials to obtain data and communications from electronic service providers "when appropriately authorized by law." While the bill did not become law and technology has rapidly evolved in the intervening years, the legislation is reminiscent of Attorney General William Barr's calls for tech companies to build in a way for law enforcement to access encrypted devices and messages with a warrant.

Warren has said, "The government can enforce the law and protect our security without trampling on Americans' privacy. Individuals have a Fourth Amendment right against warrantless searches and seizures, and that should not change in the digital era," according to her response to Vox's question.

Klobuchar, a former prosecutor, expressed an understanding of law enforcement's challenges during the 2016 standoff between Apple and the Federal Bureau of Investigation, which requested help unlocking an iPhone used by a shooter in an attack in San Bernadino, Calif. Klobuchar said in a statement to the MinnPost at the time that "very real risks have been presented as criminals and terrorists are constantly trying to utilize the latest technologies to evade capture and conviction," adding that "any proposal that would limit data security available to the public could impede efforts to protect American businesses and consumers from cyber-attacks by criminals and foreign governments."

Bloomberg dug into the tech industry for resisting calls to build a backdoor into encryption for government officials in a 2016 Wall Street Journal op-ed following the public fight between Apple and the FBI over unlocking the San Bernadino shooter's phone. Bloomberg acknowledged encryption's benefits for people living under repressive regimes, but said, "We can work to undermine repressive regimes in ways that do not compromise our own safety, and we should expect tech leaders to help lead the way."

Sanders told Vox that Section 230, the law that shields online platforms from legal liability for their users' posts, was drafted "well before the current era of online communities, expression and technological development." Sanders said he "will work with experts and advocates to ensure that these large, profitable corporations are held responsible when dangerous activity occurs on their watch, while protecting the fundamental right of free speech in this country and making sure right-wing groups don't abuse regulation to advance their agenda."

Buttigieg hasn't made clear his stance on Section 230 but has suggested tech companies should take more responsibility for their role in spreading hate online and should be required to root out misinformation in political ads. Buttigieg told Vox he would "identify online platforms and other companies that refuse to take steps to curb use by hate groups."

Biden has taken the most extreme view of the Democratic candidates when it comes to Section 230, telling the Times editorial board that it "should be revoked ... For [Facebook CEO Mark] Zuckerberg and other platforms." Other candidates have not taken such a strong approach on Section 230 likely because it also allows for online platforms to engage in "good faith" content moderation to remove the most insidious content from their sites without fearing legal repercussions.

Warren said in a campaign plan that she would "push for new laws that impose tough civil and criminal penalties for knowingly disseminating this kind of information, which has the explicit purpose of undermining the basic right to vote," referring to false information about voting in U.S. elections. She called on tech platforms to take responsibility for spreading disinformation, asking them to share resources and even open up information about their algorithms and allow users to opt out so they don't need to be subject to amplified material.

Klobuchar said Section 230 "is something else that we should definitely look at as we look at how we can create more accountability," in an interview at South By Southwest recorded for the Recode Decode podcast. But she said, it's not the goal to "destroy" tech companies.

Bloomberg has said social media companies should be held to similar legal standards as media outlets. In an interview with The Mercury News, Bloomberg said, "Society shouldn't give up the protections that we have from the press's responsibility just because it helps them make more money." He stopped short of saying Section 230 should be repealed and said he didn't know which part of the law should be altered.

Sanders has been long been a vocal supporter of net neutrality, the concept that broadband providers should not be allowed to block or slow access to websites or require payments to deliver faster speeds. When Federal Communications Commission Chairman Ajit Pai ordered net neutrality to be repealed in 2017, Sanders said the decision was "an egregious attack on our democracy." He advocates for reinstating net neutrality in his campaign plan.

Buttigieg said on Twitter last year he would "make net neutrality the law of the land." Buttigieg was one of 100 mayors to sign the Cities Open Internet Pledge while in office, which required internet providers doing business with those part of the pledge to follow principles of net neutrality.

Biden has not said much on net neutrality recently, but he has previously positioned himself as a skeptic. In 2006, while serving as a Delaware senator on the Judiciary Committee, Biden said it didn't seem necessary to introduce a preemptive law because if discrimination feared by net neutrality advocates did occur, there would be such a dramatic public response that "the chairman will be required to hold this meeting in this largest room in the Capitol, and there will be lines wandering all the way down to the White House." The Obama administration in which he served, however, was a champion of net neutrality.

Warren has advocated in the Senate to restore net neutrality rules, saying in 2018 that their repeal "has corporate greed and corruption written all over it." In her plan for "Investing in Rural America," Warren said she would appoint FCC commissioners who would restore net neutrality.

Klobuchar has publicly supported net neutrality in the Senate, calling the rules "important protections" and saying the FCC's vote to eliminate them "will harm consumers, particularly in rural areas. It will limit competition. And it will hurt small business entrepreneurship and innovation." In her "Plan for the Future of Work and a Changing Economy," Klobuchar promises to "work to codify strong net neutrality principles and make immediate progress in her first 100 days [as president] by using federal contracting requirements to encourage broadband providers to honor net neutrality principles and promote a free and open internet."

Bloomberg hasn't said much either way about net neutrality at this point in the campaign.

Sanders has said, "We do need new trade policies that are fair to the working people of this country, not just to the CEOs, but as usual, I think Trump gets it wrong in terms of implementation," according to Vox. Sanders said on CNN last year he would "of course" use tariffs to reach a deal with China, but only "used in a rational way within the context of a broad, sensible trade policy."

Buttigieg said on CNN last year that it's "a fool's errand to think you will be able to get China to change the fundamentals of their economic model by poking them in the eye with some tariffs." In the June Democratic debate, Buttigieg shared his concerns with China's advancement in technology, saying, "China is investing so they could soon be able to run circles around us in artificial intelligence and this president is fixated on the relationship as if all that mattered was the balance on dishwashers... The biggest thing we have to do is invest in our own domestic competitiveness."

Biden said in a speech last summer that if the U.S. fails to act to counter China, it will "keep moving and robbing U.S. firms" of technology and intellectual property. He advocated creating "a united front" of economic partners who can hold China accountable. Biden said at the time, "there's no going back to business as usual on trade with me."

Warren said in 2018 that U.S. policy toward China had been "misdirected" for years and "Now U.S. policymakers are starting to look more aggressively at pushing China to open up the markets without demanding a hostage price of access to U.S. technology," according to Reuters. In a campaign blog post, Warren said, "tariffs are an important tool, [but] they are not by themselves a long-term solution to our failed trade agenda and must be part of a broader strategy that this Administration clearly lacks."

Klobuchar has said it can make sense to use tariffs, but that there needs to be a level of consistency to both the promises and threats made in the process. She criticized Trump's tariffs as being too broad and hurting allies in the process during the September Democratic debate.

Bloomberg said at the most recent Democratic debate that "we have to deal with China, if we're ever going to solve the climate crisis." Addressing his past statements that Chinese President Xi Jinping is not a dictator, Bloomberg said "he does serve at the behest of the Politburo" but that "You can negotiate with him. That's exactly what we have to do, make it seem that it's in his interest and in his people's interest to do what we want to do, follow the rules, particularly no stealing of intellectual property; follow the rules in terms of the trade agreements that we have are reciprocal and go equally in both directions."

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A Democratic president could have a big impact on the tech industry here's where the candidates stand on important tech issues - CNBC

Clearing up misconceptions about the roles of the PWC, City of Fayetteville in sewer line installation

Since the Fayetteville Public Works Commission (PWC) began the utility retrofitting of annexed areas related to the City of Fayetteville in its 2005 Phase V annexation, public misconceptions about the multi-faceted project seem to arise from time to time. On behalf of the PWC, I would like to provide some facts and historical perspective related to the work PWC has undertaken on behalf of the city mainly in the western side of our community.

When the city engaged in the so-called Big Bang annexation, it was obligated to extend water and sewer services to annexed properties, and the city could do so by charging property owners.

The city entered into a contract with the PWC to install the utilities in the Phase V area and agreed to contribute to the expense of the project which was estimated to be $220 million by imposing an assessment on property owners in the annexed neighborhoods. The assessment would help pay for installing sewer lines to over 8,000 properties.

The assessment, set at $5,000 for the typical single-family residential lot, was capped by the City Council. Both parties have followed the terms of the Agreement, as amended, since 2008.

Prior to 2016, under the agreement, the city and the PWC split the cost to install sewer and water lines that exceeded the $5,000 single-family residential assessment. Without this agreement with PWC, the city and property owners in the annexed neighborhoods would have been responsible for the entire cost of the utility expansion project.

Residents costs

In 2016, as part of the changes in the legal relationship between the PWC and the city that occurred as a result of the new PWC Charter adopted by the General Assembly, the PWC entered into a fourth amendment to the 2008 agreement.

The amendment was approved by the PWC Commissioners on June 22, 2016 and City Council on June 27, 2016. The amendment was signed by then PWC Chair Darsweil Rogers and Mayor Pro Tem Mitch Colvin. The parties 2016 amendment ended the citys direct financial responsibility, leaving the PWC and its customers to bear the entire cost of utility-line extension in excess of the $5,000 single family assessment amount.

For perspective, in 2008, the average installation cost per residential lot was $15,000. That cost has now grown to nearly $40,000 per lot, and while the PWC believes installing these services remain in the best interest of the City of Fayetteville, the adverse impact to PWC ratepayers continues to grow.

The PWC does not issue assessments; we have no statutory authority to do so. Only the city has that authority. Because these assessments are for sewer and water services, and the responsibility for collecting the assessments has been delegated to they PWC, they are viewed as a PWC fee. In fact, the assessments are imposed by the city and used to defray the cost of this expansive project.

Understanding that residents may have difficulty paying the assessment all at once, there are provisions to pay over time, up to 10 years. In addition, the city has successfully applied for grants to assist low-income residents pay their assessments.

As the PWC has worked through the challenges of retrofitting utilities in established neighborhoods, in 2017, it took on another expense, previously paid by the city. The PWCs Commissioners agreed to pave, not patch, streets in all future installation areas to ensure residents received the benefit of good roads following the completion of utility work.

No unintended tax

Today, utility installation is more than half complete. The PWC is scheduled to bid the final areas in 2024. PWC representatives have engaged in productive discussions with our mayor and his staff regarding acceleration of the work remaining. While we are sensitive to our neighbors desires, any potential acceleration to the work would have a minimal impact on when sewer is available to residents. Moreover, all should be aware that it could significantly increase design and installation costs, which would have additional impact on costs and customers rates.

As commissioners, we are required by our charter to take action so rates are set not only in the best interest of the city, but also the customers of the Commission. We take our responsibility very seriously as we try to balance our decisions. We do not want to create, nor will we create, an unintended tax on our ratepayers for an annexation which is outside of our purview as the hometown utility.

There is a great advantage to our citizens owning a hometown utility, where decisions are made in the best interest of all ratepayers who are also our neighbors. The PWC does not seek a profit when we provide utility services; however, we do work daily on sustainability, accountability and reinvestment in your utility to keep it strong and viable.

It is a jewel that belongs to you the customers and citizens. It is not some monolithic entity that will put profits above all else. The PWC will continue to meet our obligations under the agreement with the city, and we will seek all reasonable and practical opportunities to help property owners in annexed areas. We will work diligently to fulfill this commitment and soon complete this long, challenging, yet necessary chapter of Fayettevilles history.

Evelyn Shaw is chairwoman of the Fayetteville Public Works Commission.

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Evelyn Shaw: Installing utilities is in the best interest of the city - The Fayetteville Observer

Attorney General William Barr wants the Foreign Intelligence Surveillance Act to be renewed pronto with no questions asked. If any reforms are needed, he promises to take care of them himself: Dont worry yourself, America.

Is Barr kidding?

First, a short history lesson. Due to the officials within the government, including Presidents Richard Nixon, Lyndon Johnson, and no doubt many before them, using federal resources to spy on citizens and political opponents, the Foreign Intelligence Surveillance Act was passed in 1978. The law set up rules and a court designed to protect our Fourth Amendment privacy rights.

The goal was noble: FISA and its court would give the green light on going after terrorists while, ostensibly, protecting U.S. citizens from unconstitutional intrusions. Then, in the wake of 9/11, Congress passed the USA Patriot Act, which lowered FISA standards. This, too, was supposedly for the sole purpose of targeting terrorists.

But by 2003, according to the New York Times, The Bush administration, which calls the USA Patriot Act perhaps its most essential tool in fighting terrorists, has begun using the law with increasing frequency in many criminal investigations that have little or no connection to terrorism.

The newspaper reported, The government is using its expanded authority under the far-reaching law to investigate suspected drug traffickers, white-collar criminals, blackmailers, child pornographers, money launderers, spies and even corrupt foreign leaders.

Obviously, what was originally promised concerning the scope of the Patriot Act has changed significantly. This point was driven home in the 2006 movie The Departed, in which Boston police officers and the FBI are surveilling gangsters, and the police captain exclaims, The Patriot Act! I love it! I love it! I love it!

Far from just focusing on terrorists, the Patriot Act has become an extraconstitutional law enforcement tool. It has overwhelmingly been used to catch drug dealers more than terrorists. The Washington Post reported in 2011 that after a decade, the Patriot Act ha[d] been used in 1,618 drug cases and only 15 terrorism cases.

In 2013, whistleblower Edward Snowden revealed to the world that the U.S. government was spying on everyone in every way imaginable. Former President Barack Obama attacked Snowden and insisted that government agents were "not abusing [their] authorities to listen to your private phone calls or read your emails."

In fact, the government was doing all of these things. By 2019, many wondered if the U.S. government had spied on President Trumps campaign exactly the kind of Watergate-style corruption that inspired FISA in the first place.

Obviously, FISA is badly in need of reform.

With FISAs expiration looming in mid-March, Barr held a lunch briefing on Tuesday that most Republicans came out of agreeing to pass a clean extension, with Senate Majority Leader Mitch McConnell leading the pack. Barr assured them that any changes that needed to be made to prevent Trump or citizens from being spied on illegally again are actions he would take internally.

Yeah, right. It should be noted here that Barr believes the Patriot Act doesnt go far enough.

When libertarian-leaning Republican Sens. Rand Paul and Mike Lee voiced their objections to what essentially amounts to a reformless FISA extension, Barr reportedly told them criticizing U.S. government surveillance was dangerous. Why? Because it supposedly helps terrorists. This debate is just about terrorism. Nothing else.

Sound familiar?

In a series of tweets, Lee laid out what reforms he believed needed to be made before FISA should be renewed and added in a later tweet:

Its a safe bet that most Americans would agree. Sadly, the attorney general could care less about FISA reform. After all, Barr is asking citizens to entrust him with protecting the same constitutional rights he has abused for decades.

Jack Hunter (@jackhunter74) is a contributor to the Washington Examiner's Beltway Confidential blog. He is the former political editor of Rare.us and co-authored the 2011 book The Tea Party Goes to Washington with Sen. Rand Paul.

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Bill Barr can't be trusted to reform unconstitutional FISA surveillance - Washington Examiner

from the try-not-to-ask-what-your-country-can-do-for-you-because-as-you-can-see... dept

The telephone metadata program the NSA finally put out to pasture in 2019 was apparently well past its expiration date. Since the initial Snowden leak in 2013, critics have argued the program needed to die since it was obviously the sort of general warrant rummaging (only without the warrant!) the founding fathers headed off with the Fourth Amendment.

The program wasn't remade/remodeled until the passage of the USA Freedom Act in 2015. That took the phone records away from the NSA and left them at their place of origin -- the databases maintained by telcos and other service providers. The government was also required to put forward some sort of articulable suspicion before asking for phone records from telcos.

The NSA was uniquely unprepared to handle these sorts of transactions, having been built from the ground up to collect everything and sort through it later. Now that its searches were more confined, it frequently found itself obtaining more records than it could legally justify having. The cost of compliance managed to outweigh the benefits of the program and the NSA just kind of stopped approaching the FISA court with requests for communications metadata.

Still, proponents argued the program had value -- possibly unrealized -- and that it should not be written out of existence by the periodic surveillance powers renewal process. I have no idea what they planned to use as evidence for these claims. A new report by Charlie Savage for the New York Times makes it clear even the most obligatory cost-benefit analysis should lead Congressional oversight to question why it allowed the modified Section 215 collection to limp along for another five years.

A National Security Agency system that analyzed logs of Americans domestic phone calls and text messages cost $100 million from 2015 to 2019, but yielded only a single significant investigation, according to a newly declassified study.

$100 million for a single investigation lead. How's that for ROI? It actually produced two leads, but the other lead was a dead end that terminated an investigation before it could get past its initial stages.

Not only was the program useless, it was also redundant.

It also disclosed that in the four years the Freedom Act system was operational, the National Security Agency produced 15 intelligence reports derived from it. The other 13, however, contained information the F.B.I. had already collected through other means, like ordinary subpoenas to telephone companies.

Killing the program just makes sense. And Congress can do it with during the renewal process for the USA Freedom Act, which expires in March of this year. With this information in the public domain, no one can seriously argue the program should continue to consume tax dollars and provide almost zero usable intel for another five years. Given the fact these agencies can still use subpoenas to target phone records, it would seem far more beneficial for everyone if the NSA and FBI did a bit more targeted snooping, rather than use the Foreign Intelligence Surveillance Act to sweep up Americans' phone records.

Filed Under: mass surveillance, metadata, nsa, phone metadata, section 215, surveillance, usa freedom act

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NSA Blew $100 Million On Phone Records Over Five Years, Generated Exactly One Usable Lead - Techdirt

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John D. Vanderwielen walks out of the Tippecanoe County Courthouse, Friday, Feb. 28, 2020 in Lafayette. Vanderwielen is accused of aggravated battery with risk on life, domestic battery with a deadly weapon, battery with a deadly weapon, domestic battery, battery resulting in bodily injury, criminal recklessness with a deadly weapon, resisting law enforcement and possession of paraphernalia after allegedly taking three hits of acid before attacking his parents.(Photo: Nikos Frazier | Journal & Courier)

LAFAYETTE Eighteen-year-old John Vanderwielen is one step away from formalizing his 18-month diversion agreement that allows him to avoid jail and prison for allegedly attacking his father with a knife and punching his mother.

During a hearing Friday, Tippecanoe Superior 2 Judge Steven Meyer set a hearing for 1 p.m. March 18 to decide if the court will sanction the agreement between Vanderwielen and prosecutors.

The hearing will give prosecutors time to correct a few typos in the Feb. 13 signed agreement, Vanderwielen's attorney, Steve Knecht, told the court Friday.

Vanderwielen, who was 17 at the time of the Jan. 26, 2019, attacks, will be required to maintain lawful behavior, get his high school equivalency and successfully complete the Restoration Men's Ministry through Faith Church, according to the agreement.

Until his acceptance into the Restoration Men's Ministry, he will remain on community corrections and will live with his aunt and uncle, where he's lived since posting bond last summer.

Vanderwielen's agreementwaiveshisconfidentially for the ministry's program, and he also waived his Fourth Amendment protections from unreasonable search and seizure, according to the agreement.

During the agreement, Vanderwielen cannot return to his parent's house in the 3900 block of Sunnycoft Place in rural West Lafayette, where the attacks happened, according to the agreement.

Additionally, the no-contact order prescribing how he can interact with his parents remains in effect during the deferment program.

His status will be reviewed by the court every 90 days during the deferment, according to the agreement.

If he goes astray from the agreement's conditions, prosecutors can revoke the agreement, and he might be prosecuted.

If prosecutors revoke the agreement, Vanderwielen faces felony charges of domestic battery with a deadly weapon, battery with a deadly weapon and criminal recklessness with a deadly weapon. He also faces misdemeanors of domestic battery, battery with injury, resisting law enforcement and possession of paraphernalia. Additionally, prosecutors could refile the most serious charge aggravated battery with substantial risk of death, a Level 3 felony. That chargewas dismissed earlier this month.

According to Indiana law, a diversion agreement can be offered by prosecutors to defendants charged with lower level felonies, as well as misdemeanors. The Level 3 felony was an impediment to the diversion agreement.

The teen's legal problems in adult court started early Jan. 26, 2019, when he punched his mother in the face, then went downstairs and stabbed his father in the neck and face, according to a probable cause affidavit filed after his arrest.

Vanderwielen was waived into adult court on Feb. 14, 2019.

Reach Ron Wilkins at 765-420-5231 or at rwilkins@jconline.com. Follow on Twitter: @RonWilkins2.

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Diversion agreement hearing set for teen accused of stabbing his dad - Journal & Courier

Socialist Bernie Sanders, the front runner in the race for the Democratic nomination for president, said on Tuesday night that he wants to help minorities start businesses to sell drugs.

And Ill tell you what else were going to do, were going to provide help to the African-American, Latino, Native American community to start businesses to sell legal marijuana rather than let a few corporations control the legalized marijuana market, Sanders said.

WATCH:

The Daily Wire highlighted Bernie Sanders stances on key policy issues in an in-depth profile piece last year:

On The Issues: Sanders calls himself ademocratic socialistwho, whiledisavowingwhole-hearted socialist theory with respect to government ownership of the means of production, nonetheless has consistently advocated for economic class warfare that pits the lower and middle classes against the wealthy. He has routinely supported anti-capitalistic and anti-growth economic policies, heavy-handed government regulation over the private economy, robust labor unions, and the Nordic model of a sprawling welfare state. On foreign policy, he has frequently mollycoddled communist dictatorships and has often been hostile toward Americas closest geopolitical allies. Overall, he is a far-left progressive who has long defined the leftward flank of what it means to be a progressive in America.

Constitution: Sanders supports a living Constitution interpretive methodology that effectively empowers unelected federal judges to determine large swaths of the laws that govern Americans lives. He is hostile to the First Amendments protection of free speech and has supported a constitutional amendment to overturn the political speech-affirming 2010 U.S. Supreme Court decision ofCitizens United v. F.E.C.He has generally supported a more robust role for Congress and a more diminished role for the presidency in the context of foreign policy and the conduct of overseas military operations. He takes an expansive view of the Fourth Amendment and has even praised disgruntled NSA leaker Edward Snowden.

Economy: Sanders holds far-left views on economics that place him barely, if at all, to the right of an authentic European-style socialist. He supports punitive taxation and massive redistribution to mollify the purported scourge of wealth and income inequality in America. He has consistently supported substantial tax hikes on income, capital gains, and estates alike. Sanders supports substantial regulation of the financial services sector and large-scale government spending on infrastructure programs. He has generally opposed free trade due to reasons of labor protectionism. He has been critical of the Federal Reserve for allegedly empowering the wealthy. Sanders supports increasing the federal minimum wage from $7.25 to $15. He has taken a heavy-handed view of antitrust enforcement.

Health Care: Sanders is a longtime support of single-payer socialized medicine, and in many ways is the intellectual progenitor for the current Democratic Party candidate trend of favoring Medicare for All. He has often been critical of Obamacare for not going far enough with respect to health care coverage for all uncovered Americans. Sanders has never indicated any willingness to structurally reform fiscally ruinous health care-related entitlement programs, such as Medicare and Medicaid.

Immigration: Although Sanders once was sympathetic to restrictive immigration measures due to reasons of labor protectionism, he has emerged over the past decade as a reliable vote in favor of pro-amnesty, pro-illegal immigration policies. He supports a pathway to citizenship for large swaths of illegal aliens. He has often been very critical of the Trump administrations efforts at border security and immigration law enforcement.

Foreign Policy: Sanders has consistently opposed an aggressive overseas posture for U.S. foreign policy, and has routinely opposed large-scale U.S. military deployments overseas. He has been skeptical of or outright opposed to U.S. foreign policy missions against a wide variety of hostile actors both state and non-state actors across the Middle East. Sanders has long been deeply sympathetic toward communist Cuba including the openpraising of Fidel Castro and applauded the Obama administrations efforts at dtente with Cuba. He supported President Obamas Iran nuclear deal and has usually been more sympathetic to the Iranians and the Palestinian-Arabs than he has been to the Saudis and Israelis, respectively. He supports a two-state solution to the Israeli-Palestinian conflict and has often been very hostile to Israels defensive measures against the radical Islamic terrorism that engulfs the Jewish state on all sides. While running for president in 2016, Sanderscited a blatantly false numberof Palestinian-Arab deaths that had allegedly resulted from the 2014 Gaza Strip war between the two sides.

Abortion: Sanders is fully pro-abortion, has never voted in favor of any piece of legislation that would restrict abortion, and has recently refused to identify any piece of legislation that he might support that would restrict abortion in any conceivable way. He supportsending the Hyde Amendment, which has historically banned taxpayer funding of abortion, and has vowed to never nominate anyone to the U.S. Supreme Court who is not adamantly in favor ofRoe v. Wade.

Guns: Although Sanders tenure in the House was marked by his opposition to various gun control measures, his tenure in the Senate has been marked by consistent support for gun control policies. Sanders supports a federal ban on assault weapons, supports universal background checks (i.e., background checks even for private firearms transfers), and has often criticized Republicans purported fealty to the National Rifle Association. Sanders supports a ban on the undefinable sub-class of firearms referred to as so-called assault weapons a line of thought that, if taken to its logical conclusion, couldlead to the banning of all semi-automatic firearms in America.

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Bernie: We're Going To Help Minorities Start Businesses To Sell Drugs - The Daily Wire

Many Democrats are still acquiescing to a George W. Bush-era policy that has been in place for nearly 20 years.

There is still broad bipartisan support for the CDR program, bringing significant risk that Democrats could cut a deal for reforms with significantly less teethand more loopholesthan SAPRA.

Three key provisions of the USA Patriot Act, which give the Trump administration broad surveillance powers, are set to expire on March 15 unless Congress votes to reauthorize them. Sen. Bernie Sanders (I-Vt.) is the only leading democratic presidential candidate in Congress who is publicly opposing them.

I voted against the Patriot Act in 2001, 2006, 2011 and 2015. I strongly oppose its reauthorization next month, he tweeted on February 11. I believe that in a democratic and constitutional form of government, we cannot sacrifice the civil liberties that make us a free country.

One provision is section 215, the bulk metadata collection program exposed by Edward Snowden. This provision underwent modest post-Snowden reforms in 2015, but its essence remains largely intact in the call detail records (CDR) program. The program authorizes the NSA to seize call records of people deemed a targetand the people those targets communicate with. In 2017 and 2018, this provision allowed the government to collect more than 968 million records. The government recently shut down the CDR program, admitting to its overreach, but the legal authority to reinstate it at any time remains.

This CDR program was shuttered by the government because of massive over-collection of millions of Americans records, Sandra Fulton, government relations director for Free Press, tellsIn These Times. At this point, eliminating the CDR program is low-hanging fruit for any reform that is at all acceptable. According to Fulton, even if the CDR program is currently shuttered, keeping it on the books is a problem, because the government could reactivate it at any time. If we find a program that's being an abuse, the government doesn't just get to keep it, she says.

The other two senators among the leading Demoratic candidates, Elizabeth Warren (D-Mass.) and Amy Klobuchar (D-Minn.), have not made similar statements publicly opposing the reauthorization, and neither returned In These Times request for comment.

Sen. Klobuchar voted to reauthorize the Patriot Act in 2011, while Sanders did not (Warren was not yet in the Senate). Both Klobuchar and Warren voted in favor of the USA Freedom Act in 2015, which imposed limited reforms on the Patriot Act; Sanders voted no, citing the inadequacy of the reforms. Warren did, however, vote no on2018 on a bill to extend the NSAs powers to carry out warrantless surveillance for another six years, as did Sanders. Klobuchar voted yes.

Speaking publicly against the Patriot Act could have a significant impact at a time Democrats are still acquiescing to a George W. Bush-era policy that has been in place for nearly 20 years. Last November, Democrats voted overwhelmingly for a measure granting a three-month extension of the three Patriot Act provisions, included in a House resolution to prevent a government shutdown, infuriating civil rights activists. Only 10 Democrats in the House voted against the reauthorization, among them Reps. Alexandria Ocasio-Cortez (N.Y.), Ilhan Omar (Minn.), Ayanna Pressley (Mass.) and Rashida Tlaib (Mich.), known as the squad. But Congressional Progressive Caucus (CPC) co-chairs Reps. Pramila Jayapal (D-Wash.) and Mark Pocan (D-Wisc.), and vice chairs, Reps. Ro Khanna (Calif.) and Barbara Lee (Calif.),all voted for it. (Neither Sanders, Warren nor Klobuchar were present for the Senate vote.)

As Sam Adler-Bell previously reported, the CPC said the extension was necessary to negotiate for better reforms, butthose progressives who voted yes caught considerable heat from activists. While we would oppose these authorities under any administration, history demonstrates that mass surveillance disproportionately impacts communities of color, immigrants, and other marginalized groups that Donald Trump is actively targeting, the activist organization Demand Progress said in a statement.

Likely in response to criticism, the CPC now says it doesnt plan to acquiesce to Bush-era spy powers so easily in mid-March.

For far too long, Congress has permitted blatant, unconstitutional violations of Americans Fourth Amendment rights under the PATRIOT Act, co-chairs Jayapal and Pocan told In These Times via email. Any long-term reauthorization of this legislation must contain meaningful and substantial reforms to these legal authorities, as proposed in the Safeguarding Americans Private Records Act (SAPRA), in order to secure our support.

Introduced by Sens. Ron Wyden (DOre.) and Steve Daines (RMont.) and Reps. Zoe Lofgren (DCalif.), Warren Davidson (ROhio), and Pramila Jayapal (DWash.),SAPRA, introduced in the House by on January 24 by Rep. Zoe Lofgren (D-Calif.), would rescind authority for the CDR program. It has attracted support from a coalition of civil rights and privacy organizations, among them Color Of Change, Committee of Concerned Scientists and Indivisible.

However, the organizations note that the reform has shortcomings. In a letter, the coalition said that SAPRA does not, for instance, prohibit backdoor searches under Section 702, a loophole that poses a dangerous threat to Americans privacy by allowing the government to search through communications collected under Section 702 of FISA seeking information about Americans without a warrant. Further, it reauthorizes the so-called lone wolf authority, which has never been used and should be repealed just like the Section 215 CDR program. This lone wolf authority allowsthe government to wiretap someone who is not a U.S. personand not a part of a terrorist organizationbut deemed by the United States to be helping international terrorism (it is believedthat this provision has never been used).

Nonetheless, David Segal, the executive director of Demand Progress, tells In These Timesthat SAPRA is the only genuine reform bill in play.

Whatever this bills shortcomings, its almost certain to face opposition not only from the Trump administration, but from the Democratic Party leadership. House Speaker Nancy Pelosi (D-Calif.) played a significant role in November in pushing Democrats to endorse a reauthorization of the Patriot Actwith no reformsby slipping it into the funding bill. And impeachment manager Rep. Adam Schiff (D-Calif.), who boosted his public profile by emphatically declaring that President Trump is dangerous to this country, was among the yes votes for full reauthorization of that presidents spy powers.

There is still significantbipartisan support for the CDR program, bringing significant risk that Democrats could cut a deal for reforms with less teethand more loopholesthan SAPRA.

A Sanders spokesperson noted to In These Times that the senator has been a supporter of Wyden's efforts to reform the Patriot Act and cosponsored his bipartisan USA RIGHTS Act. The spokespersonindicated that Sanders opposes the current iteration of the Patriot Act but would likely support Wyden's SAPRA legislation in the Senate, as it goes much further to protect privacy and civil liberties than a sunset of Section 215.

By coming out now against the mass surveillance powers, Sanders appears to besignaling to the CPC that it should find its backbone on this issue. And those who stay silent are implicitly encouraging the opposite.

This piece has beenupdated to include remarks from a spokesperson for Sanders that was sent following publication.

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Bernie Sanders Is the Only Leading Presidential Candidate Publicly Opposing the Patriot Act - In These Times

The U.S. Supreme Court has long recognized that the Fourth Amendment right to be free from "unreasonableseizure" includes the right to be free from unreasonable "seizure of the person," meaning detainment or arrest. What is more, as the Court held in California v. Hodari D. (1991), "the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee," qualifies as a seizure for Fourth Amendment purposes.

The U.S. Court of Appeals for the 10th Circuit, however, apparently never got the memo. In Torres v. Madrid (2019), that court held that no seizure occurred when officers with the New Mexico State Police shot Roxanne Torres twice in the back, because their bullets did not actually stop her from getting away. According to the 10th Circuit, "an officer's intentional shooting of a suspect does not effect a seizure unless the 'gunshotterminate[s] [the suspect's] movement or otherwise cause[s] the government to have physical control over him.'"

It gets worse. The police shot Torres while she was in her car in the parking lot of her apartment building. The officers were there to arrest somebody else but claimed that they saw Torres acting in a suspicious manner. Torres thought she was being carjacked, later testifying that the officers, who were wearing tactical vests, never identified themselves when they approached her. What she saw were threatening figures standing at her car windows. So she drove away and was shot twice while fleeing for her life. Torres only learned that she had been shot by the cops when she was arrested a day later at the hospital. The excessive force complaint that Torres filed against those officers was killed off by the 10th Circuit's ruling.

The U.S. Supreme Court is scheduled to hear oral arguments in Torres's case on March 30. She deserves to prevail. There is no question that the officers engaged in the "application of physical forcewhether or not it succeeded in subduing the arrestee." As Torres and her lawyers point out in their brief, when the officers "shot at Ms. Torres with the intent to stop her from leaving and two of the bullets struck her body, she was in that moment seized within the meaning of the Fourth Amendment, regardless of what happened next."

Precisely. The 10th Circuit's decision should be overruled.

Link:
The Supreme Court Tackles Police Shootings, Excessive Force, and the Fourth Amendment - Reason

Attorneys for a woman charged with murder in a 1981 former cold case involving the death of a babywant to suppress DNA evidence police obtained from her trash, saying doing so violated her rights.

Theresa Rose Bentaas, 58,was chargedwith first- and second-degreemurder in March 2019 after DNA evidence matched her to a baby who in 1981 was foundwrapped in blankets.

Baby John Doe, named Baby Andrew by the anonymous donor who paid for his funeral, was found in what is now 33rd Street and Sycamore Avenue, with the umbilical cord still attached.

Bentaas' privately retainedattorney, Clint Sargent, on Friday filed a motion to suppress DNA extraction, testing, sequencing and profile evidence. He also filed more than 30 pages in briefs supporting the motion.

Theresa Bentaas(Photo: Minnehaha County jail)

Sargent and co-counsel Raleigh Hansman requested the following evidence be excluded from trial, saying it violated her Fourth Amendment rights:

Laboratory reports, interviews of Theresa and her husband Dirk Bentaas andbuccal swabs of Theresa and Dirk Bentaas.

"As a free member of the general public, law enforcement's extraction of Bentaas' DNA from the items pulled from the trash and the subsequent creation of her DNA profile for the testing of Baby Doe case constitutes an unreasonable search under the Fourth Amendment," Bentaas' attorneys wrote in the brief.

More: Theresa Bentaas posts bond, released from jail

Pulling the trash was lawful under both South Dakota and federal law, but extracting the DNA from the items from that trash pull is a "separate invasion of privacy...that must be considered a separate search under the Fourth Amendment,"the brief states.

If a Fourth Amendment violation is brought up in a case, the defendant must establish a factual connection between the alleged constitutional violation and the challenged evidence.

If Bentaas were to prove the evidence is "fruit of the poisonous tree,"the burden would shift back to the government to show that evidence is untainted.

The brief also states if there wouldn't have been an "illegal search and seizure of Bentaas' DNA," a warrant allowing law enforcement to get swabs from Bentaas or her husband wouldn't have been issued.

The brief goes on to say thatan affidavit in support of a search warrant for Bentaas' buccal swabs didn't showa "fair probability" that evidence of a crime would have been found from Bentaas' buccal swab.

"The decision to seek a search warrant for Bentaas' DNA only after receiving the DNA results from the trash pull items speaks for itself," Sargent writes.

The grave of Baby Andrew John Doe, an infant who was found dead in a ditch in 1981, is shown. Police arrested Theresa Rose Bentaas decades later on Friday, March 8, 2019 after determining through DNA that she was the mother.(Photo: Loren Townsley / Argus Leader)

The brief accuses law enforcement of exaggerating lab results. In January 2019, when Parabon Labs got a DNA match that was possibly "up to a third cousin" in the family tree for Baby Andrew, a detective took the information to put together a basic family tree, according to the brief. The family tree was shared with a Parabon genealogist, who recommended getting follow-up DNA.

Baby Andrew: Theresa Bentaas appears in court, trial date set

"Under the guise of the trash pull, Detective Mertes circumvented the search warrant requirement for DNA and deprived Bentaas of her Fourth Amendment right against unreasonable search and seizure," Bentaas' attorneys wrote in the brief.

The state's "failure to obtain a search warrant to extract, test and sequence the DNA on the items submitted to the SD Forensic Lab violated Bentaas' Fourth Amendment right against unreasonable search and seizure," the brief states.

The state had not filed a response as of Friday.

Up until March 8, 2019, Bentaas was a member of the general public, the brief goes on to say, which gives her greater privacy interest in her DNA.

Baby Andrew's body was exhumed in 2009and sent via FedEx to the University of North Texas, were DNA was extracted. The body was returned to Sioux Falls, where it was buried at St. Michael's Cemetery on Cliff Avenue.

From 2010 to 2018, the DNA profile of Baby Andrew was run through the South Dakota DNA database once per year. No matches were found.

On Jan. 24, 2019,Parabon NanoLabs, Inc. a Virginia company to which Sioux Falls police had sent Baby Andrew's DNA completed a "Genetic Genealogy Report," a lead-generation tool to identify remains by making connections through DNA and genealogy.

A DNA profile found possible family trees, include "what they had found so far was approximately a third cousin which was fairly far out from the direct DNA of this baby," according to the brief.

That report led police to a Sioux Falls couple, Theresa Rose (Josten) Bentaas and Dirk Bentaas.

Police on Feb. 11, 2019, did a trash pull at Bentaas' home. They seized cigarettes and cigarette butts, cotton swabs, Kleenex with hair, hair with yellow cardboard, ear plugs, water bottles, glass bottles, beer cans, beer bottles and dental floss.

Theresa Rose Bentaas, 57, was arrested Friday morning after police determined through DNA that she was the mother of Baby Andrew. Argus Leader

Police obtained a search warrant for buccal swabs from Theresa and Dirk Bentaas.

Female DNAfound on a water bottle, Coors Light can and cigarette butts from the trash pull "could not be excluded as being from the biological mother of Baby (Andrew) Doe." DNA from two different men was also linked to Baby Andrew.

Police interviewed Dirk and Theresa Bentaas later in February 2019. Police did a cheek swab on both. In that interview, Theresa Bentaas said she was "young and stupid" and admitted to being pregnant in 1980-1981.

Test results from the cheek swabs showed "extremely strong evidence" to support the biological relationship between Theresa Bentaas, Dirk Bentaas and Baby Andrew.

Theresa Bentaas was arrested in March 2019. She posted bond and has been out of custody sinceMay 2019. Bond conditions included that she be required to wear a GPS ankle monitor, hand over her passport, check in at her attorney's office once a week and live with a family member.

Bentaas' trial is scheduled for April. Her next court appearance is scheduled in March.

Email reporter Danielle Ferguson at dbferguson@argusleader.com, or follow on Twitter at @DaniFergs.

Read or Share this story: https://www.argusleader.com/story/news/crime/2020/02/14/attorneys-theresa-bentaas-look-suppress-dna-evidence-baby-andrew-case/4765639002/

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Attorneys for Theresa Bentaas look to suppress DNA evidence in Baby Andrew case - Argus Leader