Concurring Opinions » Civil Rights

Physical Punishment and Parental Rights

Elizabeth A. Wilson — Sun, 12 Feb 2012 04:29:20 +0000

A recent study published online in the Canadian Medical Association Journal brings up the unresolved debate about parental rights and physical punishment of children. This study lends support to an argument I made some years ago in an article called “Suing for Lost Childhood” about the use of the delayed discovery rule in child sexual abuse cases. In my article, I argued that physical abuse of children and neglect can have impacts on children’s development that are as destructive as sexual abuse, but for a variety of reasons we are as a culture more attuned to issues related to children and sexuality. (I later called the analysis used in that article “narrative genealogy” as it traces the cultural origins and migrations of stories that ultimately had shaping effects on legal decisions.)

The CMAJ study reviews 20 years of published research on physical punishment of children and concludes that no evidence exists of positive outcomes. Physical punishment is correlated with aggression and antisocial behavior, cognitive impairment and developmental problems, as well as depression, spousal abuse, and substance abuse. Co-author Joan Durrant says, “”There are no studies that show any long term positive outcomes from physical punishment.” Summaries of the study say that the study refutes the frequent argument that aggression comes before corporal punishment and not vice versa. (I’ll get to the viral video of the dad shooting his daughter’s computer with a .45).

Despite the volume of studies showing the harmful effects of physical punishment (not to mention emotional abuse and physical and emotional neglect), it remains difficult even in some Western countries to challenge parents’ legal right to hit their children. The Canadian Supreme Court ruled corporal punishment within “reasonable” limits to be legal in 2004. The practice is legal in all 50 states. In contrast, the UN has been out in front of this issue. After a 2006 report found shockingly high levels of violence against children in all aspects of their lives, the UN created the position of the Special Rapporteur to the Secretary General on the issue of Violence Against Children. Since 2009, Marta Santos Pais has served in that position and the United Nations has staked out an aggressive stance anti-violence.

U.S. ratification of the Convention on the Rights of the Child (CRC) has been stalled by fears (not completely unwarranted) that the Child Convention will undermine parental rights. In response to comments by President Obama suggesting that his administration was rethinking the U.S.’s position on the CRC — now a non-signatory outlier with Somalia– the culture wars are again beginning to ramp up. A coalition of US organizations has set November 20, 2012 as the target date for the U.S. to ratify the CRC. A coalition of groups opposed to the CRC and in favor of a “Parental Rights Amendment” to the U.S. Constitution are preparing to oppose ratification. The domestic debate about the ratification CRC may soon become fiercer, now that an Optional Protocol allowing children to file an individual complaint to the Committee on the Rights of the Child will open for signatures on February 28^th.

Coincidentally, as I write this, the internet is roiling from a video a father uploaded on his daughter’s facebook where he excoriates her for a disrespectful and swear-word laden post that made it seem as if her parents are using her as a slave. The father tells his story in language just as vivid as his daughter, and I’m with him until the point when he takes his .45 and fires 8 or 10 rounds into his daughter’s computer. (“And this one’s from your mother…!”) Available here. If a husband shot a .45 into a wife’s computer, I have no doubt it would be considered an act of domestic violence. But there seems to be a lot of support for the father out there.

Tempest in Tempe: First Amendment in the Desert

Derek Bambauer — Fri, 10 Feb 2012 22:10:48 +0000

In the spirit of the excellent colloquy here about Marvin’s thinking on First Amendment architectures, I bring up this news item: Arizona State University blocked both Web access to, and e-mail from, the change.org Web site. ASU students had begun a petition demanding that the university reduce tuition. The university essentially made three claims as to why it did so (below, in order of increasing stupidity):

It was a technical mistake;
Change.org was spamming ASU; and
ASU needs to “protect the use of our limited and valuable network resources for legitimate academic, research and administrative uses.”

#1 and #2 run together. If spam is the problem, you don’t need to block access to the Web site. However, if you are concerned that students are going to read the petition, and sign it, you do need to block access to the Web site.

For #2, sorry, ASU, this isn’t spam. Spam is unsolicited bulk commercial e-mail. Change.org is, allegedly, sending unsolicited political e-mail. And that’s protected by the First Amendment – see, for example, the Virginia Supreme Court’s analysis of that state’s anti-spam law that covered political messages. Potential political spammers have a sharp disincentive to fill recipient’s inboxes – it’s a sure-fire way to annoy them into opposing your position.

For #3, ASU doesn’t get to determine what academic and research uses are “legitimate.” If they throttle P2P apps, that’s fine. If they limit file sizes for attachments, no problem. But deciding that the message from Change.org is not “legitimate” is classic, and unconstitutional, viewpoint discrimination.

This looks like censorship. I think it’s more likely to be stupidity: someone in ASU’s IT department decided to block these messages as spam, and to filter outbound Web requests to the site contained within those messages. But: with great power over the network comes great responsibility. Well-intentioned constitutional violations are still unlawful. It would also help if ASU’s spokesperson simply admitted the mistake rather than engaging in idiotic justification.

As I mention in Orwell’s Armchair, public actors are increasingly important sources of Internet access. But when ASU and other public universities take on the role of ISP, they need to remember that they are not AOL: their technical decisions are constrained not merely by tech resources, but by our commitment to free speech. Let’s hope the Sun Devils cool off on the filtering…

Cross-posted at Info/Law.

Lebron v. Padilla cont.

Elizabeth A. Wilson — Wed, 01 Feb 2012 01:39:33 +0000

I received an interesting question asking how my analysis is informed by the recent trend in Bivens cases (outside the national security context) to “assimilate the Bivens inquiry to the Court’s now restrictive jurisprudence on implied statutory causes of action.” Here is a brief answer. I’m not in general agreement with an approach conflating implied constitutional and statutory causes of action as, say, two variants of federal common law, because I do believe it makes a difference whether the source is a statute or the Constitution. But even if you accept the premise of the more restrictive approach, it is problematic that due regard is not being given to the extensive activity of Congress with respect to Bivens that lies between legislating and not-legislating, between creation of an express cause of action and silence.

As I pointed out in my post on Lebron, Congress has on numerous occasions taken affirmative steps to preserve and ratify Bivens and to clarify its relation to statutorily created remedies. This is true in the 1974 amendments to the FTCA creating a cause of action against the government for law enforcement constitutional torts while preserving a Bivens remedy against individual officers. It is also true of the Westfall Amendment to the FTCA. (Under Westfall, suits against individual federal officials are automatically converted to suits against the federal government unless it is alleged that a statute expressly creating a private right of action has been violated or unless that the U.S. Constitution has been violated.) With the Westfall Act, Congress made a place in its statutory framework for a cause of action that already existed. This may not be “action” in the exact sense of creating an express cause of action, but it is not exactly “inaction” either.

A few years ago, James Pfander and David Baltmanis published an article in the Georgetown Law Journal arguing that courts should stop treating Bivens as a threshold inquiry into whether a particular constitutional claim will support a cause of action. Instead, Pfander and Baltmanis argue, courts should begin with a presumption that a well-pleaded complaint for an unconstitutional invasion of individual rights gives rise to an action for damages under Bivens and then look to evidence that Congress intended to displace the remedy. They base their argument on the some of the Congressional activity that I mentioned in my earlier post, particularly the Westfall Act, and argue that these legislative acts preserving and ratifying Bivens put it on a firmer statutory foundation.

While I am in general agreement that courts should look more closely at the legislative context, I think this approach too broad. Congress’ pattern of legislative activity in relation to Bivens could also be taken as ratifying the Supreme Court’s current Bivens jurisprudence – i.e., the case-by-case, claim-by-claim threshold inquiry. Congress intervenes when it wants, as it did after the Supreme Court, in McCarthy v. Madigan, held that a federal prisoner bringing a Bivens action for violation of his Eighth Amendment rights is not required to exhaust administrative remedies available through the Bureau of Prisons grievance procedure. Congress responded to Madigan by enacting legislative changes to require exhaustion of administrative remedies in Bivens and other cases. So far, Congress has not intervened in light of the narrowing in the Supreme Court’s Bivens jurisprudence. Nonetheless, it does seem to me basically correct to argue that this extensive legislative activity means something in the Bivens context – it just doesn’t seem to have had attention called to it.

Now, an argument about congressional activity ratifying Bivens arguably does not fully address the point made by then Justice Rehnquist in his dissent in Carlson v. Green. Noting that the majority opinion stated that the 1974 amendments made it clear that Congress viewed FTCA and Bivens as complementary causes of action, Justice Rehnquist disagreed, saying “I think it more likely that they reflect Congress’ understanding (albeit erroneous) that Bivens was a constitutionally required decision. If I am correct, the comments [accompanying the 1974 amendments] comprise merely an effort on the part of the Senate committee to avoid what it perceived as a constitutional issue.” Perhaps if you are hostile to Bivens, as Justice Rehnquist was, no amount of activity by Congress preserving or ratifying Bivens will be persuasive, because such legislative action can always be interpreted as a reaction to antecedent judicial action. Pfander & Baltmanis have an argument about why congressional intent can be inferred from the structure of the Westfall Act, but their view does not go to this question and to the question of Bivens’ independent viability.

Lebron v. Rumsfeld: the Fourth Circuit Drops an Anvil on Bivens

Elizabeth A. Wilson — Sat, 28 Jan 2012 15:43:12 +0000

I’m going to interrupt my look at the ECHR’s decision in Othman, in order to offer a few observations on the Fourth Circuit decision this week in Lebron v. Rumsfeld. (There has been a little discussion on Lawfare.) This case is one of two Bivens cases that had been pending involving Jose Padilla. (The other is still before the Ninth Circuit and the parties have just been ordered to brief the effect of the Fourth Circuit decision, especially with respect to the issue of non-mutual collateral estoppel). In Lebron, the Fourth Circuit found that “special factors” preclude a Bivens remedy in cases involving “enemy combatants” in military detention, even in cases of U.S. citizens held in the United States. It’s a blunt instrument of a holding. While a number of issues were before the Court, this post looks at the Bivens part of the decision and identifies a few errors in the Court’s reasoning. The Fourth Circuit overreads Supreme Court precedents on Bivens dealing with the military and ignores Congress’s clear intention to preserve Bivens for citizens in its post-9/11 activity in the field of national security.

For those who are not national security junkies, Jose Padilla is the U.S. citizen who after training at an Al Qaeda training camp was arrested in the United States while allegedly engaged in activities related to a “dirty bomb” plot. He was then transferred to a military brig, held incommunicado, and subjected to “enhanced interrogation techniques” (aka torture). Padilla filed suits in South Carolina against Rumsfeld (and other Department of Defense officials) and against John Yoo in California for damages related to the injuries he suffered while in military detention. Estela Lebron is his mother.

“Special factors” is part of the two-prong Bivens test. Before fashioning a Bivens remedy, a court must consider whether any existing alternative process protects the interest at issue; if not, the court must engage in the kind of “remedial determination that is appropriate for a common law tribunal,” taking account of any “special factors counseling hesitation.” (Bush v. Lucas). In Lebron, the Fourth Circuit found two “special factors” especially important – first, that military affairs are delegated by the Constitution to Congress and the President as Commander in Chief; and second, that judicial scrutiny in cases involving national security pose formidable issues of administrability. Though the facts before the Court involve a designated “enemy combatant” held in special circumstances by the military, the logic of the decision potentially gives it much broader sweep.

The Fourth Circuit’s decision here leans heavily on two Supreme Court precedents involving Bivens and the military context, United States v. Stanley and Chappell v. Wallace, but radically enlarges their application. Both of those cases held that an enlisted man is precluded from bringing a Bivens suit for injuries sustained in the course of his military service. (Stanley is a particularly ugly case involving a soldier who sustained injuries after enrolling in an Army program testing the effects of chemical weapons but was secretly ministered LSD.) Both cases hold that the explicit constitutional grant of authority to Congress to “make Rules for the Government and Regulation of the land and naval Forces” and Congress’s subsequent exercise of that authority in enacting the Uniform Code of Military Justice mean that Congress has created an alternate remedial scheme in the case of military servicemen that provides the exclusive remedy to servicemen for injuries that are “incident to service.” In other words, Stanley and Chappell are best read as cases dealing with the internal regulations of the military – with soldiers who have voluntarily waived some of their rights, not with prisoners who are being involuntarily held. In Lebron, the Fourth Circuit takes the limitation of injuries “incident to service” and transforms it into something much different — injuries “incident to the conduct of armed conflict.” Given that the government has argued that the war on terror – I know we’re not supposed to use that term anymore, but whatever the new war is, it feels a lot like the war on terror to me – potentially encompasses the entire world, this would mean that no citizen could ever sue military personnel for anything done in the name of national security.

As important as its over-reading of Stanley and Chappell is the error the Fourth Circuit arguably makes in concluding that Congress has affirmatively decided not to provide a damages remedy to citizen enemy combatants for injuries suffered in detention. The Court points to the lack of express causes of action in the Military Commissions Act of 2009, the Military Commissions Act of 2006, and the Detainee Treatment Act of 2005 as evidence that “Congress was no idle bystander” to the debate about detainee treatment. That Congress did not expressly create causes of action in these statutes is taken as “ample evidence” that “congressional inaction has not been inadvertent” (citing Schweiker v. Chilicky). Since the “special factors” analysis goes to the question of which branch is better suited to create the remedy, the Fourth Circuit concluded that it should not intrude into areas constitutionally delegated to a coordinate branch.

The mistake the Court makes here is not to recognize that although these statutes did not create a damages remedy for alien enemy combatants, they were careful to preserve damages remedies available to citizens. By 2004, after the cases of John Walker Lindh and Yaser Hamdi, Congress was well aware that U.S. citizens could be designated enemy combatants. (Full disclosure: I was counsel of record on an amicus brief focused on special factors in the Ninth Circuit appeal in Padilla v. Yoo – the following sentences draw from that brief.) In 2005, in the DTA, Congress stated that “[n]othing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody…of the United States.” In the MCA, Congress limited the stripping of jurisdiction to aliens in U.S. custody. §2241(e)(2)(stripping federal courts of jurisdiction “to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”) In addition, the U.S ratified the Convention against Torture (CAT) without lodging a reservation against the obligation in Art. 14 to provide a remedy for victims of torture occurring within the United States. In a set of “Reservations, Understandings, and Declarations” accompanying its ratification, Congress expressed his understanding that the CAT required it to provide a private right of action only “for acts of torture committed in territory under [its] jurisdiction.” In its first report to Committee on Torture, the treaty body overseeing implementation of the CAT, the Department of State enumerated Bivens as one of the existing federal laws that would provide the required right of action. In ratifying the CAT, Congress surely realized that one agency of government that might potentially torture is the military.

The Court’s reading of these statutes would be correct if Padilla were an alien, but he is not. As I’ve shown, 41 Seton Hall L. Rev. 1491, the pattern of post-9/11 damages claims brought thus far is that they succeed to greater or lesser extent when brought by citizens or resident aliens and fail completely when brought by aliens abroad. Padilla’s enemy combatant label may put him in different category from other post-9/11 Bivens plaintiffs, but it seems to me clearly wrong to say that Congress has expressed its intent to foreclose a Bivens remedy in the case of citizen enemy combatants.

The E.U. Data Protection Directive and Robot Chicken

Derek Bambauer — Wed, 25 Jan 2012 21:32:04 +0000

The European Commission released a draft of its revised Data Protection Directive this morning, and Jane Yakowitz has a trenchant critique up at Forbes.com. In addition to the sharp legal analysis, her article has both a Star Wars and Robot Chicken reference, which makes it basically the perfect information law piece…

Why Scalia is Right in Jones: Magic Places and One-Way Ratchets

Derek Bambauer — Tue, 24 Jan 2012 17:05:12 +0000

The Supreme Court handed down its decision in U.S. v. Jones yesterday, and the blogosphere is abuzz about the case. (See Margot Kaminski, Paul Ohm, Howard Wasserman, Tom Goldstein, and the terrifyingly prolific Orin Kerr.) The verdict was a clean sweep – 9-0 for Jones – but the case produced three opinions, including a duel between Justices Antonin Scalia and Samuel Alito. Thus far, most privacy and constitutional law thinkers favor Alito’s position. That’s incorrect: Justice Scalia’s opinion is far more privacy protective. Here’s why:

Scalia’s theory is basically Katz (reasonable expectation of privacy) plus trespass. For Scalia, the conduct in Jones – law enforcement attaching a GPS transmitter to Jones’s car, and then tracking its movements – is a search because “The Government physically occupied private property for the purpose of obtaining information.” But, that’s not quite precise enough: the key is that the government must “physically intrud[e] on a constitutionally protected area.” (emphasis mine) The tricky part, naturally, is deciding what counts as such an area. Scalia disposes of Oliver (the open fields case) by emphasizing that a field “is not one of those protected areas enumerated in the Fourth Amendment.” Katz is still around for “Situations involving merely the transmission of electronic signals without trespass.”

Scalia thus wants to create magic places: spots where any governmental intrusion, with any physicality, is a search. The home is certainly such a place (see Kyllo) – Jane Yakowitz pointed out to me that this has to explain why the Court took cert in Florida v. Jardines, when we already have Caballes and Place on the books. Determining which places are magic is hard. It’s here that Scalia’s originalism does its work: Scalia wants to apply the understanding and expectations from 1791 to sort places into protected/magic and unprotected.

Alito thinks this is rubbish: his footnote 3 openly makes fun of Scalia’s contention that we can analogize the Jones facts to a constable hiding in a coach (“this would have required either a gigantic coach, a very tiny constable, or both”). His method would instead simply apply the Katz reasonable expectation of privacy test, which he rightly points out is more consonant with the Court’s jurisprudence since its rejection of the physical trespass test set out in Olmstead. This approach looks analytically cleaner, although Alito forthrightly acknowledges the circularity inherent in the reasonable expectations test – expectations derive from the law, in addition to driving it. And, of course, there is the one-way ratchet worry: the government can reduce our reasonable expectations of privacy by abusing our privacy.

Alito, though, proceeds to mess up a previously tidy picture by inventing two new considerations for Fourth Amendment analysis: the duration of the information-gathering (such as GPS tracking), and the severity of the crime. Scalia rightly smacks Alito around for this, as he fails to ground this analysis in anything remotely resembling precedent. At best, this is judicial activism, and at worst, it’s an invitation for a wave of new cases where the government tests boundaries and magnifies the threat posed by those surveilled.

I like Scalia’s approach much better. It sets out clearly that there are some spaces that get heightened privacy protection: we don’t have to engage in the weighing involved in the reasonable expectations test, so it’s cheaper, and there won’t be instances where judges decide that in fact society is willing to permit certain observations in the home, for example. Scalia’s approach is a firewall: it offers a redoubt for privacy. And, it maintains the viability of Katz in other instances. Alito’s two additional considerations point towards the worry that makes me prefer Scalia. Imagine observation of the interior of a home – say, using tiny drones – that would clearly constitute a search under the magic places theory. If the observation is fairly short, or if the crime involved is serious (drug smuggling, terrorism, child pornography), Alito’s analysis would find that there isn’t a search, and hence no need for a warrant. Scalia’s approach always forces the cops to get a warrant. That reassures me.

There are two issues that neither Alito nor Scalia deals with, although to her credit Justice Sonia Sotomayor tackles both: pervasive surveillance, and cloud computing. Pervasive surveillance involves the government’s increasing capabilities to deploy low-cost observation technology – everything from traffic cameras to facial recognition technology – and to store, index, and analyze the resulting torrent of data. Cloud computing involves the shift from maintaining information on devices we control to storing it on devices controlled by Google or Apple or Amazon. The former presents the mosaic theory that the D.C. Circuit endorsed in its opinion in Jones. The latter invites us to re-visit the third party doctrine, whereby one loses any reasonable expectation of privacy if one turns over data to someone else (unless that someone is, say, a priest or lawyer). One failing of the two major opinions in Jones is that they fail to provide any guide for how the Court thinks about these issues – other than to hope mightily that Congress will take care of it for them.

I like Scalia’s hybrid with its magic places. What our privacy rights are when we venture outside the castle walls is a topic the court reserves for another day.

Cross-posted at Info/Law.

Jones is a Near-Optimal Result

Paul Ohm — Tue, 24 Jan 2012 16:11:21 +0000

Thanks to Danielle for inviting me to post my thoughts. I’ll try to come up with some new, original thoughts in a later post, but to start, let me offer an abridged version of what I posted yesterday on my home blog, Freedom to Tinker.

I think the Jones court reached the correct result, and I think that the three opinions represent a near-optimal result for those who want the Court to recognize how its present Fourth Amendment jurisprudence does far too little to protect privacy and limit unwarranted government power in light of recent advances in surveillance technology. This might seem counter-intuitive. I predict that many news stories about Jones will pitch it as an epic battle between Scalia’s property-centric and Alito’s privacy-centric approaches to the Fourth Amendment and quote people expressing regret that Justice Alito didn’t instead win the day. I think this would focus on the wrong thing, underplaying how the three opinions–all of them–represent a significant advance for Constitutional privacy, for several reasons:

Justice Alito?

Maybe I’m not a savvy court watcher, but I did not see this coming. The fact that Justice Alito wrote such a strong privacy-centric opinion suggests that future Fourth Amendment litigants will see a well-defined path to five votes, especially since it seems like Justice Sotomayor will likely provide the fifth vote in the right future case.

Justice Scalia and Thomas showed restraint.

The majority opinion goes out of its way to highlight that its focus on property is not meant to foreclose privacy-based analyses in the future. It uses the words “at bottom” and “at a minimum” to hammer home the idea that it is supplementing Katz not replacing it. Maybe Justice Scalia did this to win Justice Sotomayor’s vote, but even if so, I am heartened that neither Justice Scalia nor Justice Thomas thought it necessary to write a separate concurrence arguing that Katz’s privacy focus should be replaced with a focus only on property rights.

Justice Sotomayor does not like the third-party doctrine.

It’s probably best here just to quote from the opinion:

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U.S., at 742; United States v. Miller, 425 U.S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “dimunition of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

Wow. And Amen. Set your stopwatches: the death watch for the third-party doctrine has finally begun.

The wrong case for a privacy overhaul of the Fourth Amendment.

Most importantly, I’ve had misgivings about using Jones as the vehicle for fixing what is broken with the Fourth Amendment. GPS vehicle tracking comes laden with lots of baggage–practical, jurisprudential and atmospheric–that other actively litigated areas of modern surveillance do not. GPS vehicle tracking happens on public streets, meaning it runs into dozens of Supreme Court pronouncements about assumption of risk and voluntarily disclosure. It faces two prior precedents, Karo and Knotts, that need to be distinguished or possibly overturned. It does not suffer (as far as we know) from a long history of use against innocent people, but instead seems mostly used to track fugitives and drug dealers.

For all of these reasons, even the most privacy-minded Justice is likely to recognize caveats and exceptions in crafting a new rule for GPS tracking. Imagine if Justice Sotomayor had signed Justice Alito’s opinion instead of Justice Scalia’s. We would’ve been left with a holding that allowed short-term monitoring but not long-term monitoring, without a precise delineation between the two. We would’ve been left with the possible new caveat that the rules change when the police investigate “extraordinary offenses,” also undefined. These unsatisfying, vague new rules would have had downstream negative effects on lower court opinions analyzing URL or search query monitoring, or cell phone tower monitoring, or packet sniffing.

Better that we have the big “reinventing Katz” debate in a case that isn’t so saddled with the confusions of following cars on public streets. I hope the Supreme Court next faces a surveillance technique born purely on the Internet, one in which “classic trespassory search is not involved.” If the votes hold from Jones, we might end up with what many legal scholars have urged: a retrenchment or reversal of the third-party doctrine; a Fourth Amendment jurisprudence better tailored to the rise of the Internet; and a better Constitutional balance in this country between privacy and security.

Welcoming Experts to Discuss the Supreme Court’s Decision in United States v. Jones

Danielle Citron — Tue, 24 Jan 2012 13:26:15 +0000

As my co-blogger Dan Solove noted, the Supreme Court ruled in United States v. Jones, finding the warrantless GPS surveillance of a car unconstitutional. There’s much to discuss about the majority opinion written by Scalia (with Roberts, Thomas, Kennedy, and Sotomayor), a concurrence written by Sotomayor, and a concurrence by Alito (with Ginsburg, Breyer, and Kagan). We’re lucky to have experts on board to help us sort it out: Margot E. Kaminski, Executive Director of the Yale Information Society Project and Research Scholar and Lecturer at Yale Law School whose scholarship focuses on civil liberties, privacy, and surveillance, guest blogger Paul Ohm, Associate Professor of Law at the University of Colorado School of Law and former computer programmer and network systems administrator who has authored many important pieces on privacy and surveillance, and Priscilla “Cilla” Smith, Senior Fellow at the Yale Information Society Project who has co-authored “When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches,” 121 The Yale Law Journal Online 177 (2011) (with Nabiha Syed, David Thaw and Albert Wong). In a week or so, we will also be hearing from my colleague Renée Hutchins, Associate Professor of Law at the University of Maryland Francis King Carey School of Law, whose article “Tied Up in Knotts?” GPS and the Fourth Amendment, 55 UCLA Law Review 1 (2007) appeared in many district and Court of Appeals decisions wrestling with warrantless GPS tracking on cars.

Supporting the Stop Online Piracy Act Protest Day

Danielle Citron — Wed, 18 Jan 2012 15:11:15 +0000

As my co-blogger Gerard notes, today is SOPA protest day. Sites like Google or WordPress have censored their logo or offered up a away to contact your congressperson, though remain live. Other sites like Wikipedia, Reddit, and Craigslist have shutdown, and more are set to shut down at some point today. There’s lots of terrific commentary on SOPA, which is designed to tackle the problem of foreign-based websites that sell pirated movies, music, and other products–but with a heavy hand that threatens free expression and due process. The Wall Street Journal’s Amy Schatz has this story and Politico has another helpful piece; The Hill’s Brendan Sasso’s Twitter feed has lots of terrific updates. Mark Lemley, David Levine, and David Post carefully explain why we ought to reject SOPA and the PROTECT IP Act in “Don’t Break the Internet” published by Stanford Law Review Online. In the face of the protest, House Judiciary Committee Chairman Lamar Smith (R-TX) vowed to bring SOPA to a vote in his committee next month. “I am committed to continuing to work with my colleagues in the House and Senate to send a bipartisan bill to the White House that saves American jobs and protects intellectual property,” he said. So, too, Senator Patrick Leahy (D-VT) pushed back against websites planning to shut down today in protest of his bill. “Much of what has been claimed about the Senate’s PROTECT IP Act is flatly wrong and seems intended more to stoke fear and concern than to shed light or foster workable solutions. The PROTECT IP Act will not affect Wikipedia, will not affect reddit, and will not affect any website that has any legitimate use,” Chairman Leahy said. Everyone’s abuzz on the issue, and rightly so. I spoke at a panel on intermediary liability at the Congressional Internet Caucus’ State of the Net conference and everyone wanted to talk about SOPA. I’m hoping that the black out and other shows of disapproval will convince our representatives in the House and Senate to back off the most troubling parts of the bill. As fabulous guest blogger Derek Bambauer argues, we need to bring greater care and thought to the issue of Internet censorship. Cybersecurity is at issue too, and we need to pay attention. Derek may be right that both bills may go nowhere, especially given Silicon Valley’s concerted lobbying efforts against the bills. But we will have to watch to see if Representative Smith lives up to his promise to bring SOPA back to committee and if Senator Leahy remains as committed to PROTECT IP Act in a few weeks as he is today.

Martin Luther King Day Links

Frank Pasquale — Mon, 16 Jan 2012 18:11:28 +0000

To mark the day, a few reflections:

1) Nicholas K. Peart, Why is the NYPD After Me?

Less than two years later, in the spring of 2008, N.Y.P.D. officers stopped and frisked me, again. And for no apparent reason. This time I was leaving my grandmother’s home in Flatbush, Brooklyn; a squad car passed me as I walked down East 49th Street to the bus stop. The car backed up. Three officers jumped out. Not again. The officers ordered me to stand, hands against a garage door, fished my wallet out of my pocket and looked at my ID. Then they let me go. I was stopped again in September of 2010. This time I was just walking home from the gym. It was the same routine: I was stopped, frisked, searched, ID’d and let go. . . .

[L]ast year, the N.Y.P.D. recorded more than 600,000 stops; 84 percent of those stopped were blacks or Latinos. Police are far more likely to use force when stopping blacks or Latinos than whites. In half the stops police cite the vague “furtive movements” as the reason for the stop. Maybe black and brown people just look more furtive, whatever that means. These stops are part of a larger, more widespread problem — a racially discriminatory system of stop-and-frisk in the N.Y.P.D.

2) MLK’s Legacy: The Charleston Hospital Workers’ Strike of 1969:

During the year after her husband’s assassination, Coretta Scott King made several visits to Charleston, S.C., where hospital aides at what was then the Medical College of South Carolina were involved in a protracted fight for decent wages. After a 113-day strike, the union won an agreement that led to wage increases and new grievance procedures.

The campaign was led by Mary Moultrie, a South Carolina native . . . In Moultrie’s telling, the gains that the union won lasted only for a few years. Because South Carolina is a right-to-work state, the union couldn’t manage to maintain much strength. But Moultrie didn’t give up: She was still organizing as recently as 2008.

3) Adam Kotsko, On the commemoration of Martin Luther King

Above all, they say: we gave you formal equality and canonized the man who forced us to do so — now can we please not talk about this any more? Yet things are not quite so fargone as that. Despite their formidable power, despite all the efforts of domestication and neutralization they’ve devoted to it, they can’t fully control the meaning of such a powerful symbol. We should be glad that this date is on the calendar, not so that we can passively honor that symbol but so that we can continue to struggle over its meaning.

4) Glenn Loury, Ghettos, Prisons, and Racial Stigma (Tanner Lectures, 2007)

[O]ne can see from the table[s] that the experience of incarceration for poorly educated black men is estimated to be four times more prevalent in the later than in the earlier cohort – 58.9% as compared to 17.1%. The massive scale of this policy shift is stunning. To repeat: there is a nearly three-fifths chance that a black male with less than HS diploma born between 1965-69 will have gone to prison or jail at least once prior to reaching age 35.

5) John Paul Stevens review of William Stuntz, The Collapse of American Criminal Justice

While only 10 percent of the adult black population uses illegal drugs, as does a roughly equal percentage—9 percent—of the adult white population, blacks are nine times more likely than whites to serve prison sentences for drug crimes. “And the same system that discriminates against black drug defendants also discriminates against black victims of criminal violence.” As “suburban voters, for whom crime is usually a minor issue,” have come to “exercise more power over urban criminal justice than in the past,” police protection against violent felonies has disproportionately extended to suburban neighborhoods rather than the urban centers where more black individuals reside.

The “bottom line,” Stuntz explains, has been that “poor black neighborhoods see too little of the kinds of policing and criminal punishment that do the most good, and too much of the kinds that do the most harm.” In this sense and others, Stuntz concludes, our criminal justice system has “run off the rails.”

6) Ten OTHER things Martin Luther King said.

7) If you missed it last year; some commentary on Michelle Alexander’s The New Jim Crow.

Paul Krugman notes today that MLK would be “disappointed” in what the US has become since his death. I think the feeling of alienation and indignation would be much stronger than that.

John Bingham on Emancipation in Washington DC

Gerard Magliocca — Mon, 16 Jan 2012 13:42:50 +0000

On this Martin Luther King day, I thought I would celebrate with this quote from Bingham on the legislation that abolished slavery in the District of Columbia; a message that applies to every struggle for human freedom:

We are deliberating here today upon a bill which illustrates the great principle that this day shakes the throne of every despot upon the globe, and that is, whether man was made for government or government made for man. Those who oppose this bill, whether they intend it or not, by recording their votes against this enactment, reiterate the old dogma of tyrants, that the people are made to be governed and not to govern. I deny that proposition. I deny it because all my convictions are opposed to it. I deny it because I am sure that the Constitution of my country is against it.

Needed Steps Forward on the Privacy and Civil Liberties Oversight Board

Danielle Citron — Thu, 12 Jan 2012 16:30:45 +0000

Thanks to terrific privacy blogger Melissa Ngo and privacy scholar and change maker Peter Swire, I’ve learned about some exciting developments about the Privacy and Civil Liberties Oversight Board. One might say: “Privacy and Civil Liberties Oversight Board, what?” And that ignorance would not be surprising–it’s been dormant for too long, at least until some recent activity. The 9/11 Commission recommended the creation of a privacy and civil liberties oversight board, which was created in 2004 and placed within the White House. The original Board members included Carol E. Dinkins, of Texas, Chairwoman; Alan Charles Raul, of the District of Columbia, Vice Chairman; Theodore B. Olson, of Virginia; and Francis X. Taylor, of Maryland. The Chairwoman and Vice Chairman were confirmed by the Senate on February 17, 2006. In 2008, Congress passed and President Bush signed the “Implementing the 9/11 Commission Recommendations Act of 2007,” which took the Privacy and Civil Liberties Oversight Board out of the White House and established it “as an independent agency within the executive branch.” One of the Board’s tasks was to review the FBI’s use of national security letters. Terms for the original board expired in January 2008, but President Bush delayed the nomination of new board members for many months and none were confirmed by the Senate. That’s pretty much where things stayed–a Privacy and Civil Liberties Oversight Board with no members and no action.

Last year, President Obama nominated the terrific James X. Dempsey, Vice President for Public Policy at the Center for Democracy and Technology, and Elisebeth Collins Cook, who worked in the Justice Department in the Bush administration. In turn, privacy groups, including Melissa Ngo’s Privacy Lives, called for the nomination and confirmation of experts to the board. In December 2011, the White House has announced that President Obama has sent more nominations to the oversight board to the Senate: Rachel L. Brand, of Iowa, to be a Member of the Privacy and Civil Liberties Oversight Board for a term expiring January 29, 2017; David Medine, of Maryland, to be Chairman and Member of the Privacy and Civil Liberties Oversight Board for a term expiring January 29, 2018, and Patricia M. Wald, of the District of Columbia, to be a Member of the Privacy and Civil Liberties Oversight Board for a term expiring January 29, 2013. It’s a terrific group, and hopefully the Senate won’t take its time moving forward.

Without question, this is a crucial step forward. We need oversight on a host of issues, from airport screening and cyber security to fusion centers. As my co-blogger Frank Pasquale and I have documented, state run and federally funded fusion centers are in dire need of accountability, network accountability to be precise. At any one of the existing 72 fusion centers, one might find state law enforcement working alongside DHS, FBI, and DEA agents as well privacy security analysts. In the case of the Washington Joint Analytical Center, an employee from Boeing is co-located at the fusion center, having access to information from the fusion center and sharing Boeing’s intelligence capabilities. As a Boeing executive said, the company hopes to “set an example of how private owners of critical infrastructure can get involved in such centers to generate and receive criminal and anti-terrorism intelligence.” Let’s think through what this means: private sector partners have access to intelligence that certain individuals, possibly job candidates, pose potential “threats.” We’ve seen from fusion center blunders that ordinary citizens engaging in political speech have been placed on watch lists. In one case, the Maryland fusion center shared inaccurate and damaging information with the Information Sharing Environment. It reported to the DEA and NSA and others that 53 activists from Greenpeace and Moms Against the War, including two Catholic nuns and a Democratic candidate for local office, were “terrorists.” And as we have seen, much to the chagrin of serious Republican contender Ron Paul, the Missouri Information Analysis Center’s 2009 report to highway patrolmen explained that “violent extremists” typically associate with third party candidates, such as Ron Paul and Bob Barr, and that “potential threats” included anti-immigration and anti-tax advocates. According to the report, violent extremists could be identified through their use of bumper stickers indicating support for libertarian groups. In a similar vein, a California fusion center warned local police to expect violence at antiwar protests: “You can make an easy kind of link that, if you have a protest group protesting a war where the cause that’s being fought against is international terrorism, you might have terrorism at that protest. You can almost argue that a protest against the war is a terrorist act.” Ever hear about the First Amendment’s freedom of expression and association? Oversight is in order.

H/T: Peter Swire

Wikimedia Commons Image (NJ fusion center)

Secure Identities on the Internet

Frank Pasquale — Mon, 02 Jan 2012 16:36:15 +0000

Katharine Gelber offers a thoughtful review of The Offensive Internet in the Australian Review. (David Levine conducted an interview with the book’s editors, Martha Nussbaum and Saul Levmore, available here.) I contributed an essay to this volume, and I found both the other essays in it and the conference it was based on very illuminating. As Gelber notes,

Anyone who believes the Internet to be exclusively, or even primarily, a site for the democratisation of the media or a mechanism to enhance participation in public discourse needs to read this book. This outstanding collection tackles the dark side of the Internet, its use by ‘cyber mobs’, liars, aggressive misogynists and purveyors of hate to distribute their views largely with impunity, while their targets suffer the consequences of this predominantly unregulated arena for speech. . . .

The ubiquity of the Internet, the permanence of posts, and the accessibility of data through search engines that do the looking for you mean that material that makes its way online can affect people’s lives over the long term and in profound ways. When you combine these features with the anonymity of posters and the difficulty of regulating the Internet, it means that people do things and say things on the Internet that they would not do or say in face to face conversations, or at least if they did there would be legal and moral consequences. The Internet as a medium provides a uniquely powerful and wide reaching mechanism with which to do bad things, yet relatively little work to date has acknowledged this aspect of it.

A growing feminist literature, ranging from the work of co-blogger Danielle Citron and that of Ann Bartow, to interventions in social web and other communities, also highlights these problems.

Some will say: if you don’t like a given online community, just join another one. But the ubiquity of options on the internet often amounts to little more than a mirage of choice. You may really like Google+ or Instagram and find it to be a more congenial environment than Facebook or Twitter. (As Liz Kelley put it, “Instagram is homey; Twitter is noisy.”) But just try dragging all your friends or followers to them.

Moreover, digital networks aren’t just leisure activities for many people. Public deliberation occurs on them. Entities like Klout have started a competitive game of influence accumulation with career implications. And they can be important forums for the development of identity, as Rob Horning explains:

The more effort we put into crafting identity online, the more material we supply to Facebook and search engines to associate with contextual ads and other marketing initiatives. For this organizational work we are compensated not with wages but with a stronger sense of self, measurable in hard, quantifiable terms. How many friends do you have? How often do they update? How many photos have you shared? How many times have they been looked at? And so on.

All of this is to say that as Web 2.0 has infiltrated our everyday life, it has transformed our habitus — sociologist Pierre Bourdieu’s term for our manifest and class-bound way of being in the social world — into an explicit productive force without our conscious consent. By continually enticing us to produce more and enrich our self-concept, it presents a clear danger to our ability to maintain a coherent sense of ourselves — to sustain a feeling of ontological security, as Anthony Giddens puts it. Inundated with digital information from all sides — from friends, marketers, and the fruits of own unbounded curiosity — we can fritter away our time shuffling and reshuffling the little bits of novelty without performing a synthesis.

The data deluge and constantly shifting metrics of digital capitalism are hard enough to deal with. The types of civil rights concerns raised by The Offensive Internet shouldn’t be burdening anyone.

X-Posted: Madisonian.

Russian Human Rights Council Recommends Quashing Khodorkovsky’s Conviction

Jeffrey Kahn — Sat, 31 Dec 2011 14:24:45 +0000

Russian President Dmitrii Medvedev met Tuesday with Mikhail Fedotov, Chairman of Medvedev's Human Rights Council. The Khodorkovsky report was the first topic that Mr. Fedotov raised.

Just before Christmas, Russian President Dmitrii Medvedev’s Council on the Development of Civil Society and Human Rights recommended that the December 2010 conviction of Yukos-Oil-CEO-now-prisoner Mikhail Khodorkovsky be annulled. That announcement (unfortunately, only available in Russian, but reported by the BBC, among others) coincides with massive street protests not seen in Russia since shortly before Christmas 1991, when the Soviet Union collapsed.

The Council’s recommendation was based on a 427-page report on Khodorkovsky’s conviction that the Council gave to President Medvedev. The report contained the analysis of nine scholars that the Council selected last spring from Russia, Germany, the Netherlands, and the United States. I was the American contributor. The report on the Council’s website is in Russian, but you can find an English-version of my portion of the document here.

The Khodorkovsky case will be the focus of a “hot topics” panel on Friday morning, January 6, at 10:30 at the AALS Conference in Washington D.C. How does the case relate to the recent protests in Russia? What does it say about the rule of law in Russia and prospects for reform? Come to the panel and find out!

Original Habeas Writ

Danielle Citron — Sun, 25 Dec 2011 19:53:30 +0000

My brilliant colleague Lee Kovarsky is an expert on the theory and practice of habeas corpus. He’s a wunderkind. One can find him, in any given week, arguing habeas petitions before an appellate court, working on the first habeas casebook entitled Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation with his co-author Brandon Garrett, and, as I imagine is true this week, grading civil procedure exams. Professor Kovarsky is also writing ground-breaking articles. Here is the abstract for his most recent work entitled Original Habeas Redux, published by the Virginia Law Review:

In Original Habeas Redux, I map the modern dimensions of the Supreme Court’s most exotic jurisdiction, the original habeas writ. The Court has not issued such relief since 1925 and, until recently, had not ordered a case transferred pursuant to that authority in over fifty years. In August 2009, by transferring a capital prisoner’s original habeas petition to a federal district court rather than dismissing it outright, In re Davis abruptly thrust this obscure power back into mainstream legal debate over both the death penalty and the Supreme Court’s appellate jurisdiction.

Scrambling to understand how the authority has evolved since its nineteenth-century heyday, commentators have been severely limited by the absence of any data reporting the attributes of the original petitions themselves. I have filled that empirical void by collecting and organizing the only modern original habeas data, and this Article presents those results for the first time. The data shows that the vast majority of original petitioners are criminally confined, but that they are not collaterally challenging that confinement in their initial habeas proceedings. Original writ procedure is now primarily a vehicle for litigating “successive” habeas corpus petitions that are otherwise subject to severe jurisdictional limits in the federal courts.

I argue that, in light of the writ’s history and the data I have compiled, Davis is not a blip in an otherwise constant state of original habeas inactivity. I observe that the availability of original habeas relief has historically exhibited two over-arching characteristics: (1) that the Supreme Court’s Article III appellate power to grant it is basically coextensive with Article III judicial power common to all federal courts; and (2) that the Court does not actually exercise that authority when it may avail itself of jurisdictional alternatives. I also present data confirming that the availability of conventional appellate jurisdiction exerts the dominant influence on the modern original habeas docket’s composition. I ultimately advance what I call the “capital safety valve paradigm”–the idea that original habeas should and likely will emerge as a means to ensure that the death penalty is not erroneously imposed.

Messerschmidt v. Millender: What’s Next, After the Supreme Court Rules?

Kyle Graham — Sun, 04 Dec 2011 23:02:39 +0000

Not Quite Messerschmidt, But You Get The Idea

The United States Supreme Court will hear oral argument tomorrow in Messerschmidt v. Millender. In this § 1983 case, the Court will consider the circumstances in which a law enforcement officer who prepares or executes an overbroad and/or insufficiently particularized search warrant is entitled to qualified immunity from damages.

Orin Kerr has posted an analysis of the case over on SCOTUSblog; I have little to add to his thoughtful commentary. As Professor Kerr appears to, I anticipate that the Supreme Court will find that on the facts before it, the police officers in question are entitled to qualified immunity, and reverse the United States Court of Appeals for the Ninth Circuit.

But what if it doesn’t? The case will return to the district court, and that’s when the really interesting (and under-examined) legal issues will arise. A very large share of the appellate caselaw that involves claims brought under § 1983 concentrates upon whether a defendant or defendants are entitled to qualified immunity. There is a relative dearth of precedent concerning matters such as damages and, especially, causation. On any remand in Messerschmidt, however, possible causation and damages problems with the plaintiffs’ case may loom large, as they did in the last warrant case decided by the Supreme Court, Groh v. Ramirez.

In Groh, as some of you may recall, a law enforcement officer (an ATF agent, to be precise) goofed by failing to list the items to be seized in the search warrant itself (in the space on the warrant reserved for identification of these items, he simply typed in the premises to be searched). These items were identified in the affidavit, however, which also stated probable cause for the search. On these facts, the Groh majority held that qualified immunity was not available to the officer.

Once the case was remanded back to the district court, the United States (Groh was a Bivens case) emphasized that the error in question really wasn’t the cause of significant damages. To understand this argument, recall that in tort law, a plaintiff must show that the defendant’s negligence was a “but for” cause (also known as a “cause-in-fact”) of the plaintiff’s injury. The key word is “negligence,” to be distinguished from “conduct.” The Third Restatement of Torts illustrates this point using a hypothetical driver who hits a pedestrian while driving 57 miles per hour in a 50-mile-per-hour zone. According to the Restatement, if the pedestrian sues the driver for negligence, her claim will falter for lack of causation, unless the driver would not have hit the pedestrian (or would have caused less damage) if he had been driving at the 50-mile-per-hour speed limit. (Significantly, in the Restatement’s ‘non-negligent’ counterfactual, the driver is operating his vehicle at a speed that’s at the very cusp of negligence.)

Similarly, on remand in Groh, after pointing out that conventional tort rules regarding causation apply in § 1983 cases, the United States argued that in a perfect world that resembled what actually happened—except that there was no drafting error with the warrant—a search warrant for the premises still could and would have been issued and executed, in precisely the same way that the flawed warrant was. Therefore, according to the United States, the plaintiff in Groh should receive only nominal damages, since the agent’s error, properly isolated, did not cause any actual damages.

Groh settled prior to trial, so we don’t know how that argument worked out for the United States. Nevertheless, it seems likely that if the Supreme Court affirms the Ninth Circuit in Messerschmidt, the defense will make a similar argument on remand. The principal damage item in Messerschmidt appears to be the alleged emotional distress associated with the officers’ entry. (Here, keep in mind that the warrant was executed at around 5:00 a.m.) As in Groh, the defense will stress that the same entry presumably would have occurred pursuant to a properly tailored warrant, meaning that the plaintiffs’ primary damage item wasn’t really caused by the problem with the warrant.

This argument has its strengths and weaknesses (or at least, limitations), which I will avoid for now. Perhaps the more important point is that while we all focus a great deal on qualified immunity, other elements of a § 1983 cause of action remain precedential terra incognita, or nearly so, as to many of the different types of claims catalyzed by the statute. It takes time to “fill in” the law surrounding a legal theory, and there simply haven’t been enough published decisions regarding many § 1983 theories for this to have occurred.

Moreover, certain attributes of a cause of action tend to be “filled in” faster than others. My suspicion is that but-for causation is typically either the last, or one of the last elements of a claim to develop a substantial body of useful caselaw-created rules. The delay owes to the fact that but-for causation is doubly shielded from appellate review. A jury normally determines the “cut-off” line between negligence (or otherwise improper conduct) and non-negligent behavior; and as the Restatement hypothetical illustrates, it is this cut-off that serves as the baseline for their subsequent causation determination. In effect, an appellate court tasked to review a but-for causation determination by a jury must peer inside a black box that is itself hidden inside another black box. Little wonder, then, that there exist few useful but-for causation guideposts in the caselaw.

Pretext, the Rule of Law, and the Good Official

Jeffrey Kahn — Tue, 29 Nov 2011 20:15:38 +0000

Justice Scalia, author of Whren v. United States and Ashcroft v. al-Kidd (used with permission, www.courtartist.com)

How should citizens in a republic bound by the rule of law regard the pretextual use of law by state officials? If the United States Supreme Court is any indicator of the answer in our own republic, we are pretty ambivalent about pretext.

Sometimes we don’t care very much. In its most well-known case on the subject, Whren v. United States (1996), the Court upheld the pretextual use of the traffic code (which was prolix enough to be violated sooner or later by just about any car on the road). Whren’s car was stopped by a vice squad cop who had a hunch (but not probable cause to believe) that Whren had drugs in his car. One lesson of this case is that you should always signal before making a turn. Justice Scalia, writing for a unanimous Court, had another one: the police are free to do “under the guise of enforcing the traffic code what they would like to do for different reasons.” In other words, a green light to pretextual traffic stops.

Sometimes, we care a great deal. In Kelo v. City of New London (2005), the Supreme Court categorically rejected the idea that government officials may “be allowed to take property under the mere pretext of a public purpose, when [their] actual purpose was to bestow a private benefit.” Likewise, interpreting Title VII in their concurrence in Ricci v. DeStefano (2009) (which concerned a city fire department), Justices Alito, Scalia, and Thomas highlighted the subjective component of liability in a civil suit for employment discrimination in a disparate-treatment case: the employer is liable if its facially legitimate reason for a decision turns out to be “just a pretext for discrimination.” Justice Frankfurter long ago chastised the Court for sustaining a law “because Congress wrapped the legislation in the verbal cellophane of a revenue measure.” The concept of limited and enumerated powers seems to suggest a general disapproval of pretext.

Does repeated pretextualism — whether one is making or enforcing the law — weaken the rule of law? When tempted to use a law for an unintended purpose, how should the “good” official (read the adjective however you like) distinguish an innovative use from a destructive one? My own motivation for this research stems from concern that using law to achieve an objective that the law was clearly unintended to achieve might do something destructive to the rule of law itself. Maybe it does some harm to the official who wields power in that pretextual way, too, an official who may be the worst-placed government agent to exercise the sort of discretion that creative administration of the law demands. Pretextualism may be habit-forming and, like cigarettes, unhealthy.

After the break, I’ll share my working definition of pretext and two cases separated by more than fifty years, but adopting the same pretextual technique to evade restrictions on government action. One involves a Soviet spy whose case troubled the Supreme Court so much that the Court heard oral argument twice. Surprisingly, that case foretold and influenced the “easy” Whren case. The other involves a former college football player caught up in the current “War on Terror.” That case, Ashcroft v. al-Kidd, was decided in May, also referencing Whren, but this time without such unanimity and with a lot more unease about pretext.

By pretext, I mean the use of legal authority for a purpose clearly and substantially different than the original reason for which the power was granted. Pretextual use of laws will often be covert or unacknowledged. That is, officials may feign to exercise their authority under the law’s original purpose or seek refuge in a double purpose. But I do not mean to include the lawful use of subterfuge or deceit (such as when police conduct a sting or lie to a suspect during consensual questioning). Those tactics may raise serious issues, but not pretext as I define it. Nor do I mean to include prosecution for a lesser offense, such as convicting Al Capone for tax evasion. Officials certainly wished they had the evidence to convict Capone of much more, but their tax prosecution was squarely within the intended use of that provision of the criminal code. Michael Whren was never tried for violating the traffic code; it was a means to a different end that was used to avoid the Fourth Amendment’s restriction of the police. Capone was indicted, tried, and convicted, for doing precisely what the law forbid. Eliot Ness and his Untouchables didn’t use this law to evade some other restriction on their conduct. The prosecution was the point.

Abel v. United States (1960)

KGB Colonel Rudolf Ivanovich Abel

Consider the case of Rudolf Abel, the master KGB spy whose seizure, conviction, and exchange for U-2 pilot Francis Gary Powers I examine in a recent article. Abel’s arrest was a classic instance of pretext. The Fourth Amendment required FBI agents to obtain a warrant before they could seize Abel and search his room. My research into the case convinced me that a warrant could have been obtained had one been sought. But the men who pushed into Abel’s room early one morning, warrantless, knew that an arrest warrant carried undesirable consequences. Such an arrest would lead to an arraignment in open court, the appointment of counsel, and all the attendant publicity such a hearing would entail. That would ruin any hope of turning Abel into a double agent in an existential fight against the Soviet Union.

When Colonel Abel was rousted from his bed, he was therefore awakened on a pretext. The FBI asked the INS to seize Abel under the pretext of enforcing the country’s immigration regulations while the FBI directed the operation from the doorway. At the time, the INS could seize Abel without a warrant, acting only on the basis of an internal departmental order.

The tale then takes a turn that might seem to have come from today’s headlines. Abel was secretly flown from New York to McAllen, Texas, where he was interrogated without a lawyer and kept virtually incommunicado for almost seven weeks. Following this unsuccessful effort to break him, the Justice Department then used the evidence obtained during their raid to convict him of espionage. The use of this immigration authority for the unintended purpose of counterespionage neatly skirted the constitutional protection against unreasonable searches and seizures, not to mention official disappearances. On a purely formalistic level, the officials complied with the requirements of this immigration law. On another level, the pretextual use of this statute produced results hard to justify as lawful. When his lawyer argued pretext in an effort to exclude the (damning) evidence, the Supreme Court sustained his conviction. The vote was close, 5-4, and Justice Douglas mockingly noted the real reason why a warrant was never sought for this arrest: “If the FBI agents had gone to a magistrate, any search warrant issued would by terms of the Fourth Amendment have to ‘particularly’ describe ‘the place to be searched’ and the ‘things to be seized.’ How much more convenient it is for the police to find a way around those specific requirements of the Fourth Amendment! What a hindrance it is to work laboriously through constitutional procedures! How much easier to go to another official in the same department! The administrative officer can give a warrant good for unlimited search. No more showing of probable cause to a magistrate! No more limitations on what may be searched and when!”

Ashcroft v. Abdullah al-Kidd (2011)

Former Attorney General John Ashcroft

Fast foward fifty years. Abdullah al-Kidd (a U.S. citizen and former University of Idaho football star) was cooperating with the FBI in a counterterrorism investigation. The FBI alleged (how truthfully is sharply disputed) that al-Kidd was about to flee the country. A criminal warrant for his arrest could not be sought because there was no probable cause to believe that al-Kidd had broken any law. So the FBI obtained a material witness warrant, which may be had from a judge on grounds substantially easier to meet. The material witness statute, 18 U.S.C. § 3144, was originally intended to secure “the testimony of a person [that] is material in a criminal proceeding” when it is impracticable to do so by other means, such as a subpoena or deposition.

Al-Kidd alleged that he was then held for sixteen days in high-security prisons in three states, housed with convicted criminals, subjected to frequent strip-searches, routinely shackled, and forced to sleep without clothes when he was not kept awake by bright lights in his cell. He was interrogated without counsel. He was then subject to severe restraints on his travel for fifteen more months.

Al-Kidd claimed that the material witness statute was used pretextually, to interrogate him as a suspect in his own right, not as a witness to someone else’s wrongdoing. His lawyers observed that his arrest was mentioned in congressional testimony by FBI Director Robert Mueller as an example of success in the Government’s counterrorism operations ( a strange statement if made about a witness, but not if made about a suspect). In any event, al-Kidd was never called to testify at the trial, which ended in an acquittal on some counts and a hung jury on others. So the Government never used the testimony that it claimed was material enough to justify his lengthy detention.

Al-Kidd filed a Bivens action, alleging that his arrest was part of a nationwide policy to use the material witness statute pretextually. When Acting Solicitor General Neal Katyal began his argument for the United States last March, he started as you would expect a defense of pretextualism under the favorable Whren precedent to start: “This lawsuit seeks personal money damages against a former Attorney General of the United States for doing his job, allegedly with an improper motive …” It was the right rhetorical focus. Justice Scalia, delivering the opinion of the Court, noted that the Whren opinion “swept broadly to reject inquiries into motive generally” and “only an undiscerning reader” would disagree. On the strength of the Whren analysis, the Court held that the material witness warrant “cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive.”

But it turns out that the case wasn’t quite as easy for the Supreme Court to decide as Whren had been fifteen years earlier. The opinion was announced on the last day in May, with concurring opinions by Justices Kennedy, Ginsburg, and Sotomayor (Justice Kagan took no part in the case). Although no one dissented, the latter two opinions concurred only in the judgment reversing and remanding the lower court decision that had allowed the action to proceed. Justice Kennedy (who, like Justice Ginsburg, had joined the Whren opinion) had more trouble. He insisted that the opinion he joined left “unresolved whether the Government’s use of the Material Witness Statute in this case was lawful.” Justice Ginsburg seemed to wonder, given al-Kidd’s allegations, whether the material witness warrant had been validly obtained in the first place. In addition, Justice Ginsburg wondered at the alleged conditions of his confinement, especially since he was “[o]stensibly held only to secure his testimony[.]“ And Justice Sotomayor, also questioning the validity of the warrant, refused to join the majority’s opinion because “it unnecessarily resolves a difficult and novel question” of constitutional law. For the newest justice participating in the case (and the one with far and away the most prosecutorial experience), ”[w]hether the Fourth Amendment permits the pretextual use of a material witness warrant for preventive detention of an individual whom the Government has no intention of using at trial is, in my view, a closer qusetion than the majority’s opinion suggests.”

Ok, You Asked For It: A Bit More About Wal-Mart v Dukes

Michael Zimmer — Thu, 17 Nov 2011 17:40:37 +0000

I have been asked why I am so fearful that the Supreme Court’s decision in Wal-Mart v. Dukes foreshadows the demise of systemic theories challenging patterns or practices of discrimination. After all, the case is about class actions. My fear is that, has it done in other areas, the lower courts and the Supreme Court itself will look back and declare that systemic antidiscriminaiton law is as it was described in Wal-Mart. My fear is based on articles by Barry Friedman in the Georgetown Law Review, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1647745, and Margaret Moses’ article, Beyond Judicial Activism: When the Supreme Court is No Longer a Court, 14 U. Penn. J. of Const. L. 161, http://papers.ssrn.com/sol3/papers.cfm?abstract _1781243. Friedman analyzes recoent decisions by the Robert Court that do not expressly overrule precedent but interpet so that nothing but hollow shells are left. Moses shows how the Robert Court reaches out to decide issues to impose the majority’s public policy predilections, thereby underminng precedent, even where the parties did not bring those issues to the Court or where those issues were never decided by lower courts or sometimes even briefed by the parties.

Wal-Mart itself is an exmple of the Court looking back to precedent but in doing so radically distorting it. General Telephone Co. v. Falcon was an earlier class action case in which the Court rejected the “across the board” theory of class actions. The “across the board” theory had approved class actions where a plaintiff, claiming one type of discrimination, could being a class action challenging every kind of discrimination of the employer. Falcon claimed he was a victim of defendant’s hiring discrimination but he tried to bring a class action challenging the employer’s promotion discrimination. After deciding such “across the board” class actions could not generally be brought under Rule 23, the Falcon Court, in a footnote, described two exceptions where a plaintiff could still bring a class action claiming more than one type of discrimination: 1. If the employer used a common test in more than one context, for example if in Falcon General Telephone used the same employment test for both hiring and promotion decisions and 2. if the employer had a “general policy” of discrimination.

The plaintiffs in Wal-Mart did not try to bring an “across the board” class action challenging all the ways that Wal-Mart discriminated. Instead, their action focused on Wal-Mart’s discriminatory pay and promotion practices at its stores. Since the level of pay was significantly influenced by whether an employee had been promoted or not, pay and promotion were closely interwined, unlike the hiring and promotion claims in Falcon. Falcon was inapposite Wal-Mart, yet the Court relied on it to reject plaintiffs class action. The Court turned the two exceptions from Falcon which would allow a plaintiff to bring a class action that reached more than one type of employer discriminaiton into a limit on the scope of class actions involving a single type of discriminatioin. Thus, it now appears that class actions challenging a single type of employer discrimination will be denied unless the employer uses either an employment test or has a general policy of discrimination. Since the Wal-Mart majority was unable to conceptualize the operation of Wal-Mart’s policy granting unchecked discretion to store managers on pay and promotions as a pattern or practice of discriminaiton, my fear is that lower courts and the Supreme Court itself will decide that systemic disparate treatment claims are limited to situations challenging the employer’s use of an employment test or where the employer has a formal, i.e., general, policy of discrimination. That would mean that Teamsters, Hazelwood and Bazemore, which interpreted Title VII to prohibit systemic patterns or practices of discriminaiton, are victim of stealth overruling.

Because the Wal-Mart majority hollowed out class action precedent to truncate class actions, that misuse of precedent forewhadows the use of the language in Wal-Mart to truncate the substance of the systemic theories of discrimination.

Conference Announcement: Rights Working Group

Frank Pasquale — Wed, 16 Nov 2011 15:55:44 +0000

The conference “Securing Our Rights in the Information-Sharing Era” will be held in San Francisco early next month. From the announcement:

This year marks not only the 10 year anniversary of 9/11, but also 15 years since the passage of the “Illegal Immigration Reform and Immigrant Responsibility Act of 1996″ (IIRAIRA), the bill that established the 287(g) program which later set the stage for Secure Communities program . . . . The government has . . . invest[ed] in enforcement strategies that violate our civil liberties and human rights. As the government has expanded these tactics, it has also invested resources to build a massive, complicated information sharing system where law enforcement agencies are given new powers. Law enforcement can now search through emails, listen to phone calls, track purchases and collect files on people who may or may not be suspected of any crimes. Local law enforcement is enforcing federal immigration laws, engaging in racial profiling and funneling migrants into detention and deportation. These enforcement tactics employed across the country and at the borders in the name of national security and immigration enforcement are affecting the rights of everyone in the United States.

For those interested in an academic treatment of information-sharing, Citron and I wrote this piece last year.

Leo, J. Edgar, and Ruth

Jeffrey Kahn — Fri, 11 Nov 2011 04:50:07 +0000

Hoover or DiCaprio?

Clint Eastwood’s biopic of J. Edgar Hoover opens nationwide tomorrow. The New York Times’s Manohla Dargis liked it, and liked Leonardo DiCaprio in it. So, if you can’t wait until the April release of Titanic 3D to get your Leo fix, this is your weekend. Of course, J. Edgar is no Jack Dawson. So you may need another reason to see the film.

Here’s one. According to the Times review, the film begins with a voiceover by the title character: “Communism is not a political party — it is a disease.” Strong words, but strongly felt by many back then (and a few even now). And that’s a point worth remembering today as we continue to fight the sadly named “GWOT” — the Global War on Terror.

Consider the year 1952, the midpoint of Hoover’s reign. The Soviet Union had successfully tested three atomic bombs. The Korean War was entering its third year, with hundreds of thousands of military and civilian casualties. President Truman’s proclamation of a national emergency to fight the “world conquest by communist imperialism” led Congress to pass the Emergency Powers Continuation Act, extending the statutory duration of a wide variety of exceptional presidential powers. Senator Joseph McCarthy had discovered communists infiltrating the United States Government.

Of course, Hoover wasn’t alone fighting communists. Besides politicians like McCarthy, Hoover’s contemporary for much of his career was Ruth B. Shipley, the Chief of the State Department’s Passport Office. (As it happens, Ruth’s older brother, A. Bruce Bielaski, preceded Hoover as the Director of the Bureau of Investigation, the precursor to the FBI.) As I detail in a recent article in the Connecticut Law Review based on materials from the National Archives, Shipley controlled travel then with paper files and miles of file cabinets, but her method resonates with how we control travel today, using computerized terrorist watchlists. Mrs. Shipley took second to no one in her zeal to keep communists and other subversives grounded.

Ruth B. Shipley, not Kate Winslet

In my forthcoming book, Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists (University of Michigan Press, forthcoming 2012), I argue that Mrs. Shipley’s approach was just an analogue version of the digital No Fly List used today. The legal and policy premises are exactly the same: some people are too dangerous to travel, but for various reasons can’t be charged with a crime or otherwise detained. (The No Fly List is just one of many watchlists; for example, there is one for maritime travel, too.) It is up to the FBI’s Terrorist Screening Center to craft the lists that contain their names, just as Mrs. Shipley’s Passport Office red-flagged (ironically enough) the passport applications of Americans deemed too dangerous to travel. Your chance of obtaining redress against this system for claims of mistake or misjudgment are as slim today as they were back then, also for many of the same reasons.

A recurring criticism of my argument is that this historical analogy doesn’t work. I’ll revisit the issue later this month (I’m about to fly — FBI-permitting — to the University of Connecticut School of Law to present my case there). But for now, as a simple test, ask yourself whether the words of one of the country’s most successful Supreme Court lawyers describe your (and Leo’s) world or the world of Ruth and J. Edgar:

“In short, several officials gather secretly behind closed doors, peruse secret intelligence reports and purport to arrive at a fair judgment affecting not only the citizen’s right to travel but also his reputation and possibly his livelihood and financial well-being.”

The year was 1952. The source is Eugene Gressman, The Undue Process of Passports, 127 New Republic 13, 14 (Sept. 8, 1952).