Coyote Blog

I am not an expert, but each and every one of these seem pretty bad.

For example:

1. Smith v. Maryland (1979)

The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." But according to the Supreme Court's 1979 decision in Smith v. Maryland, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

Lawyers call this the third-party doctrine. Prosecutors and police call it the gift that keeps on giving. Let's say the cops want to know what websites you've been reading. The third party doctrine lets them get that information from your internet service provider without obtaining a search warrant first. So much for that pesky Fourth Amendment and the privacy rights it was designed to protect.

Despite the title, I should make it clear that I oppose the proposed legislation in Arizona to allow warrant-less searches of  abortion clinics.  The stated justification for the law is to ensure safety and healthy conditions at clinics, but the law is transparently about harassing a particular type of business.

However,  I must admit I get some schadenfreude from this.  Supporters of the bill say that they are only extending the current standards applied to many other businesses, such as restaurants and bars, to abortion clinics.

Regulators from OSHA to the health department have tremendous powers to barge into private businesses and conduct searches without a warrant, whatever the text of the Fourth Amendment might say.  They justify this with licensing regimes that require these businesses to have state licenses, and then require businesses accept these extra-Constitutional searches as a prerequisite for the license.

I have opposed these licensing regimes for years, in part because the consumer protection justification is often a sham -- what they really want is to be able to exercise control of private businesses.  In some cases, these laws are used to protect incumbents.  In some cases (e.g. here) they are used to try to shut down the entire (legal) industry.

Statists on the Left have generally poo-pooed these concerns.  Their typical response is that businesses are just whining, and that only those in violation of the law have something to fear.  Now, they suddenly are recognizing that an unannounced search per se is threatening.

Update:  I find abortion proponents on the Left to be among the worst examples of faux libertarians.  They claim their issue is about choice regarding one's body, but then tend to simultaneously support all kinds of government interventions in personal medical decision-making.  They are all for the sanctity of private property when there is an abortion clinic on the site;  not so much otherwise.

Less than 12 hours after CBS aired is horrid, uncritical infomercial for the NSA, a federal judge has ruled that the NSA likely violated the Fourth Amendment with its domestic wiretapping and data gathering.

CISPA passes the House.  Here's hoping for gridlock in the Senate because, whatever he might promise, there is no way Obama is going to veto legislation that helps Hollywood while simultaneously expanding the Administration's warrant-less search power.

Given recent legislative and judicial decisions, there are vanishingly few electronic records that the government cannot rape at will.  Increasingly, government agencies can access electronic data without even bothering with silly stuff like warrants or judicial review.  

The Drug Enforcement Administration is trying to access private prescription records of patients in Oregon without a warrant, despite a state law forbidding it from doing so. The ACLU and its Oregon affiliate are challenging this practice in a new  that raises the question of whether the Fourth Amendment allows federal law enforcement agents to obtain confidential prescription records without a judge’s prior approval. It should not.

In 2009, the Oregon legislature created the Oregon Prescription Drug Monitoring Program (PDMP), which tracks prescriptions for certain drugs dispensed by Oregon pharmacies, including all of the medications listed above. The program was intended to help physicians prevent drug overdoses by their patients and more easily recognize signs of drug abuse. Because the medical information revealed by these prescription records is highly sensitive, the legislature created robust privacy and security protections for the PDMP, including a requirement that law enforcement must obtain a warrant before requesting records for use in an investigation. But despite those protections, the DEA has been requesting prescription records from the PDMP using administrative subpoenas which, unlike warrants, do not involve demonstrating probable cause to a neutral judge.

While the government needs a search warrant to access paper medical records, it apparently feels it can look at electronic records without a warrant,.  Which explains one reason why the Administration is so excited about the new medical records requirements in Obamacare.   You didn't think HIPAA applied to the government, did you?  And if you wondered why Obamacare requires doctors to ask medically-unrelated questions (e.g. on gun ownership), now you know.

Search warrant required for GPS tracking

Victory courtesy of the freaking TSA.  Making a mockery of the Fourth Amendment for nearly 10 years now.

This whole argument about corporate personhood is an enormous distraction.

Corporations have certain rights not because they are legally persons, but because they are formed by and made up of persons.

Here is my simple formulation.  Inidividuals have the right to free speech.  Individuals have the right to association.  It is crazy to then posit that individuals, when they associate, no longer have free speech rights.   If five of us gather on a park bench, we have not somehow given up our speech or other rights by doing so.  And the fact that we may form a formal club or organization among us with bylaws and hierarchies does not change this fact one bit.

By the way, if the First Amendment does not apply to individuals who have assembled into a corporation, does the Fourth Amendment apply?  How about the Fifth?  or Sixth?  of Seventh?  or Eighth?

I am afraid we are on a path to thoroughly eviscerating the Fourth Amendment simply because police forces find it too big of a hassle to comply.  Just look at almost every case of abuses of search and seizure rules or of missing search warrants and you almost never see a time-based urgency that is often used as an excuse to end-around the rules.   What you almost always see is just, well, laziness.

Here is yet another example (bold added):

Now comes the news that the FBI intends to grant to its 14,000 agents expansive additional powers that include relaxing restrictions on a low-level category of investigations termed “assessments.” This allows FBI agents to investigate individuals using highly intrusive monitoring techniques, including infiltrating suspect organizations with confidential informants and photographing and tailing suspect individuals, without having any factual basis for suspecting them of wrongdoing. (Incredibly, during the four-month period running from December 2008 to March 2009, the FBI initiated close to 12,000 assessments of individuals and organizations, and that was before the rules were further relaxed.)

This latest relaxing of the rules, justified as a way to cut down on cumbersome record-keeping, will allow the FBI significant new powers to search law enforcement and private databases, go through household trash, and deploy surveillance teams, with even fewerchecks against abuse. The point, of course, is that if agents aren’t required to maintain a paper trail documenting their activities, there can be no way to hold the government accountable for subsequent abuses.

Freedom dies because we couldn't be bothered with all the work to protect it.

PS-  why is it no one wants to address any of the paperwork hassles in starting construction or opening a restaurant or getting a liquor license or starting a taxi service or any number of other private enterprises, but the government jumps right on the task of streamlining the work it takes to spy on me.

My column this week in Forbes elaborates on a theme I discussed last week in this blog.

I am not a big fan of prohibition, or the income tax (16th Amendment) before it, but in some sense these come from a better time.  Instead of dealing with the Constitutional problems of these initiatives by having a series of judges stare at the Constitution with their eyes crossed until the problem disappears, they actually wrote and passed a Constitutional amendment.  The took the wording of the Constitution seriously.

Consider alcohol prohibition.  Today, would we even bother modifying the Constitution?  After all, we’ve driven a forty year war on drugs — with massive spending, highest in the world imprisonment rates, militarization of our police, and frequent slashes into the heart of the Fourth Amendment — with nary a hint of the need for a Constitutional Amendment.  In fact, in Raich, the Supreme Court ruled that medical marijuana legally (under state law) grown, sold, and consumed in California could still be prohibited by the Federal government under their Constitution powers to regulated interstate commerce.  It seems almost quaint today that we sought a Constitutional change for Prohibition.

Several of the amendments in the Bill of Rights, notably the second and the tenth, are no longer treated by many folks as "real."  Just old TJ kidding around.

Over the last several years, I have worried that the Fourth Amendment is rapidly heading in the same direction.  This week has been a bad week.

First up, today's decision that if cops have some reason to think valuable evidence is being destroyed, they can bust down your door without a warrant.  Toilet flush?  Must be getting rid of drugs.  Can be seen in the window at the computer?  Must be deleting child porn.  Silence?  Must be destroying evidence really quietly.

Think I am exaggerating?  Here are the facts of the case:

It began when police in Lexington, Ky., were following a suspect who allegedly had sold crack cocaine to an informer and then walked into an apartment building. They did not see which apartment he entered, but when they smelled marijuana smoke come from one of the apartments, they wrongly assumed he had gone into that one. They pounded on the door and called "Police. Police. Police," and heard the sounds of people moving.

At this, the officers announced they were coming in, and they broke down the door. They found Hollis King smoking marijuana, and put him under arrest. They also found powder cocaine. King was convicted of drug trafficking and sentenced to 11 years in prison.

Sounds of people moving in apartment = break the door down, no warrant needed.  This is just a joke, though I must also say the drug war has already gutted any number of Constitutional protections, so its not surprising to see yet another blow to liberty in the name of rounding up anyone who might be smoking a joint.  (more here)

The other case is perhaps even more egregious, and comes from Indiana, where the state Supreme Court decided that citizens must defer to agents of the state, even when those agents are violating the law.   In particular, if a cop wants to enter your house for no reason at all without a warrant, you can't resist.

"We believe … a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence," David said. "We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest."

David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.

Escalation of violence is a two-way street.  Why is the homeowner, the innocent party, the one who is made legally responsible for such escalation?  Why isn't it the agent of the state who is responsible for any such escalation?  And while a homeowner may have plenty of opportunities to protest illegal entry after the fact (though this is debatable in real life) I would argue that the police officer had plenty of opportunities before the fact to get a freaking warrant.

National security letters strike me as one of the worst Constitutional abuses to come out of the last 10 years, which is saying a lot given the post-9/11 theories of executive authority from torture to indefinite detention to even ordering people killed.

The national security letters deserve particular scrutiny because they evade the Fourth Amendment while building in a prior restraint on speech that prevents recipients from challenging the letters or even complaining about them.  This is self-sustaining policy -- ie policy that prevents the dissemination of information that might prove it is a threat or a failure -- at its worst.

The Justice Department's inspector general revealed on March 9 that the FBI has been systematically abusing one of the most controversial provisions of the USA Patriot Act: the expanded power to issue "national security letters." It no doubt surprised most Americans to learn that between 2003 and 2005 the FBI issued more than 140,000 specific demands under this provision -- demands issued without a showing of probable cause or prior judicial approval -- to obtain potentially sensitive information about U.S. citizens and residents. It did not, however, come as any surprise to me.

Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand -- a context that the FBI still won't let me discuss publicly -- I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.

Anyone want to bet how many of these things really are national security related, and how many are related to other investigations (particularly drugs)?

There are zillions of people involved in these major investigations.  There is no good argument against adding one more who is in on the secret - ie a judge - and a lot of reasons to do so.

Via Valley Fever:

In upholding the conviction of Josue Acosta Marquez, (a.k.a. Martin Contreras-Pulido) in an interstate marijuana smuggling case, the Circuit Court judges wrote that federal agents and Iowa cops did nothing wrong when they planted the electronic monitoring device on a pickup truck used by Marquez while it was parked at a Wal-Mart. Police accessed the unit seven times to change the batteries -- always in a public place -- and tracked the pickup as it drove between Des Moines and Denver.

Since anyone can see a vehicle parked or driving in public places, the use of electronics to enhance surveillance doesn't violate Fourth Amendment rights regarding unreasonable search and seizure, wrote Justices Roger Wollman, James Loken and John Gibson.

No warrant neeeded. And there's nothing stopping cops from planting those suckers as often and wherever they like, says the Eighth Court judges.

First, I have always thought that extended surveillance of a home or moving vehicle, beyond say a few hours, should require a warrant, even if it is all performed in public places.  I think most folks would consider such actions by a private party to be intrusive (thus many state stalking laws) and we generally hold the state to an even tighter standard.

Second, cost is important.  A surveillance approach that is difficult and expensive is less likely to be abused than one that is suddenly 10x or even 100x less expensive.  The judges acknowledge this, but then ignore the problem completely in their statement when they write:

It is imaginable that a police unit could undertake "wholesale surveillance" by attaching such devices to thousands of random cars and then analyzing the volumes of data produced for suspicious patterns of activity. Id. Such an effort, if it ever occurred, would raise different concerns than the ones present here.

Just get a freaking warrant -- its not that hard, especially in this case when we are talking about extended surveillance and no particular rush to get started. This kind of lazy law enforcement has become endemic, and we shouldn't tolerate it.

Libertarians vote for Republicans when they get tired of Democrat's authoritarian meddling in economics.  Libertarians vote for Democrats when they get tired of Republican's tough-on-crime/terrorism/sex/drugs civil rights violations.  But what to do when Republicans like Bush expand government like Democrats, and Democrats like Obama show little respect for individual liberties:

Google and an alliance of privacy groups have come to Yahoo's aid by helping the Web portal fend off a broad request from the U.S. Department of Justice for e-mail messages, CNET has learned.

In a brief filed Tuesday afternoon, the coalition says a search warrant signed by a judge is necessary before the FBI or other police agencies can read the contents of Yahoo Mail messages--a position that puts those companies directly at odds with the Obama administration.

Yahoo has been quietly fighting prosecutors' requests in front of a federal judge in Colorado, with many documents filed under seal. Tuesday's brief from Google and the other groups aims to buttress Yahoo's position by saying users who store their e-mail in the cloud enjoy a reasonable expectation of privacy that is protected by the U.S. Constitution.

The government theory in the case seems pretty bizarre to me.  I guess the folks who have been trying to convince me to use PGP aren't so paranoid after all.

But all that aside, it strikes me there is a need for legislative action here to cement electronic privacy.  A couple of weeks ago, Julian Sanchez had a good article describing the crazy state of electronic privacy law -- its worth a read because it is hard to excerpt, the rules being so Byzantine.  But here is one snippet:

Suppose the police want to read your e-mail. To come into your home and look through your computer, of course, they'd need a full Fourth Amendment search warrant based on probable cause. If they want to intercept the e-mail in transit, they have to go still further and meet the "super-warrant" standards of the Wiretap Act. Once it lands on your Internet Service Provider's server, a regular search warrant is once again the standard"”assuming your ISP is providing access "to the public." If it's a more closed network like your work account, your employer is permitted to voluntarily hand it over. But if you read the e-mail, or leave it on the server for more than 180 days, then suddenly your ISP has become a "remote computing service" provider rather than an "electronic communications service provider" vis a vis that e-mail. So instead of a probable cause warrant, police can get a 2703(d) order based on "specific and articulable facts" showing the information is "relevant and material" to an investigation"”a much lower standard"”provided they notify you. Except they can ask a judge to delay notification if they think that would impede the investigation. Oh, unless your ISP is in the Ninth Circuit, where opened e-mails still get the higher level of protection until they've "expired in the normal course," whatever that means.

Unfortunately, this aggressive approach to the Fourth Amendment seems to be well embedded in the Obama administration:

Yesterday a federal judge in San Francisco ruled that the Al Haramain Islamic Foundation can recover damages under the Foreign Intelligence Surveillance Act (FISA) for illegal eavesdropping on telephone conversations between its officials and its American lawyers. U.S. District Judge Vaughan Walker rejected the Obama administration's argument that the state secrets privilege barred the foundation's lawsuit. Although Barack Obama ran on a promise to use the privilege less promiscuously than his predecessor, his Justice Department, like Bush's, claimed that even acknowledging the warrantless wiretapping of Al Haramain would endanger national security.

Al Haramain learned about the surveillance after the government accidentally gave its lawyers a classified document discussing it, but the foundation was not allowed to cite that document in making its case. Instead it relied on public statements by various federal officials that Walker concluded were sufficient to show the surveillance had occurred. Since there was never any serious question that warrantless surveillance of communications involving people in the United States violated FISA, the government lost its case once Walker refused to let it hide behind the state secrets privilege. "Under defendants' theory," he noted, "executive branch officials may treat FISA as optional and freely employ the SSP to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority....Because FISA displaces the SSP in cases within its purview, the existence of a FISA warrant is a fact that cannot be concealed through the device of the SSP."

This story was interesting, in a creepy Orwellian sort of way, in that it has turned out to be really, really hard to bring suit against this administration for this crime because people have a hard time demonstrating in court that they have standing to sue.  In effect, one has to show that he has been wiretapped to then sue that the surveillance was illegal, but the information to prove that one has been wiretapped is classified and therefore unavailable.  Only an accidental leak allowed this case to proceed.

Ilya Shapiro:

Well of course they aren't "” but that's constitutionally irrelevant:  Corporations aren't "real people" in the sense that the Constitution's protection of sexual privacy or prohibition on slavery make no sense in this context, but that doesn't mean that corporate entities also lack, say, Fourth Amendment rights.  Or would the "no rights for corporations" crowd be okay with the police storming their employers' offices and carting off their (employer-owned) computers for no particular reason? "” or to chill criticism of some government policy.

Or how about Fifth Amendment rights?  Can the mayor of New York exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he'd like to move his office there?

So corporations have to have some constitutional rights or nobody would form them in the first place.  The reason they have these rights isn't because they're "legal" persons, however "” though much of the doctrine builds on that technical point "” but instead because corporations are merely one of the ways in which rights-bearing individuals associate to better engage in a whole host of constitutionally protected activity.

That is, the Constitution protects these groups of rights-bearing individuals. The proposition that only human beings, standing alone, with no group affiliation whatsoever, are entitled to First Amendment protection "” that "real people" lose some of their rights when they join together in groups of two or ten or fifty or 100,000 "” is legally baseless and has no grounding in the Constitution. George Mason law professor Ilya Somin, also a Cato adjunct scholar, discusses this point here.

Via the Arizona Republic, from a deposition by Sheriff Joe Arpaio:

Arpaio says he was not well versed on the Fourth Amendment to the U.S. Constitution, or its counterpart in the Arizona Constitution, which prohibit unreasonable searches and seizures.

Yeah, no kidding.  This is just kind of bizarre.  I get the whole ghost-writer thing, but at least Obama actually seems to have read the book that was ghost-written for him:

Maricopa County Sheriff Joe Arpaio has not read the book he co-authored in 2008, which includes information on Arpaio's philosophy on America's immigration problem and how to cope with the nation's porous borders.

Arpaio's lack of familiarity with the book, "Joe's Law - America's Toughest Sheriff Takes on Illegal Immigration, Drugs and Everything Else That Threatens America," was among the revelations to emerge from a nine-hour deposition the sheriff gave as part of a racial-profiling lawsuit filed against the Sheriff's Office.

Update: There is a spin in the article that Sheriff Joe is just a delegator, like any good corporate executive.  I am generally considered to be far more comfortable with delegation than average, and even I know a lot more about my business than Sheriff Joe does about his.    Part of the reason is likely that I don't spend 95% of my time on media and PR events to boost my name recognition at public expense.  And you can be dang sure that I know certain pieces of legislation that are important to my business, like the Fair Labor Standards Act and the Service Contract Act, better than my lawyers.

Via Carlos Miller:

Police in California used their Taser on a legless man, then dragged him out of his apartment where they sat him on a curb handcuffed and naked from the waist down for several minutes as neighbors complained of brutality.Gregory Williams, 40, a double-amputee, ended up spending six days in jail on charges of domestic violence and resisting arrest before he was released with dropped charges.

It all began when Williams apparently was reluctant to let Child Protective Services in to search his house in response to an anonymous tip.  I don't know the laws in California, but CPS officials often have scary, broad powers that go beyond any reasonable definition of Fourth Amendment rights.

In this case, police get double abuse points for seizing the camera of a bystander video taping the event (something that is entirely legal but which police treat as illegal) and allegedly deleting the video of the police handling of Williams.

I observed a while back that "Eliot Spitzer has been brought down for a crime most libertarians don't
think should be a crime, by federal prosecutors who should not be
involved even if it were a crime, and using techniques, such as
enlisting banks as government watchdogs of private behavior, that
stretch the Fourth Amendment almost out of recognizable shape."

Megan McArdle makes a pretty good point about the last part:

I'm not distressed to hear that the Feds were spying on Eliot Spitzer.
No, not because I don't like the man, but because I think maybe we should
spy on our politicians, all the time. No probable cause, you say? I
fling back at you Mark Twain's observation that America only has one
distinct criminal class: Congress. . . . I think it's entirely
appropriate that the anti-corruption police watch politicians like
hawks. They've chosen public office; that conveys a lot of
responsibility to the public, including assuring them that your votes
aren't being bought outright. I also think that politicians, when
caught in a crime, should automatically get the maximum penalty; if
they think the law is such a good idea, they ought to suffer heartily
when they disregard it.

Over the past few days, I have posted a lot on first and fourth amendment issues, from wiretaps and detentions to free speech to prosecutorial abuses.  It turns out I could have saved my self a lot of time and just linked this great interview with former Judge Andrew Napolitano.

We are in a fit of
constitutional chaos when the government views constitutional guarantees as
discretionary. As Americans, we order our lives on the belief that we have
extraordinary freedoms. We believe those freedoms don't come from the
government. They come from our humanity. The government doesn't give freedom; the government
under the Constitution is restrained from interfering with it. I can
basically say whatever I want about the government. I can basically travel
wherever I want to go. I can basically worship however I see fit. If the
government comes to the view that those freedoms are discretionary, no matter
how noble the stated [reason to restrict them] may be, then we're in a state of
constitutional chaos. We will not be able to order our lives based on freedom.
We won't know who will be prosecuted or who'll just be swept away.

On the Patriot Act:

Let's put aside all of
the procedural problems with enacting it. Forget about the fact that there was
no debate. Forget about the fact that most members of Congress didn't even have
an opportunity to read it. It is a direct assault on at least three amendments
to the Constitution: the First Amendment, the Fourth Amendment, and the Fifth
Amendment. The PATRIOT Act legitimates the notion that if we
give up certain freedoms, the government will keep us safer. I reject that
notion from a moral and legal point of view. I also reject it from a practical
point of view. It doesn't work. The government doesn't need our freedoms to
keep us safer. No one"”no lawyer, judge, or historian"”can point to a single
incident in American history where national security was impaired because
someone insisted on their right to free speech or their right to privacy or
their right to due process.

The PATRIOT Act encourages what the
government calls "national security letters""”basically, self-written search
warrants. It violates the Fourth Amendment, which prohibits self-written search
warrants. The PATRIOT Act and two of its predecessors, the Foreign
Intelligence Security Act of 1977 [FISA] and the Electronic
Privacy Act of 1986, authorized the government to obtain search warrants by
bypassing [longstanding tradition in] the courts. Today an FBI agent investigating a
person need only satisfy her or himself that the person under investigation is
a threat to national security. The agent doesn't have to demonstrate evidence
to a judge

On the regulatory state:

[The FDR era] began, in my view,
the dark part of American history where the federal government believed that it
could solve any problem that was national in scope, irrespective of whether it
was a federal problem. A federal problem is one arising
under the 18 specific enumerated powers given to the federal government under
the Constitution. A national problem is something
that exists in New Jersey and California and Texas and Illinois. But just
because it's national doesn't mean it's federal and therefore can be addressed
by the federal government....

In terms of the
government control of our lives, in terms of the percentage of our income that
the government takes from us, in terms of the types and the areas of human
behavior we let the government regulate, we are infinitely less free. And as
Jefferson once said, it is in the natural order of things that the government
should be greater and human
liberty lesser.

Women have
much more freedom. African Americans have much more freedom. Gays have much
more freedom. The discrimination that was rampant, and often caused by the
government, 40 or 50 or 60 years ago"”there's been progress in those areas. But
the destruction of federalism, the centralization of power in Washington, the
belief that Washington can regulate all aspects of our lives will, if not
checked, lead us to a totalitarian form of government. Freedom is the power and
ability to obey your own free will and conscience rather than the free wills
and consciences of others.

The interview also has a very useful short summary of the history of FISA and the Patriot act, and demonstrates how the incremental assaults on the fourth amendment have added up.  I encourage you to read it all.  In addition to this interview, Reason also had a good debate on the Patriot Act here.