digital privacy at risk under modern self-incrimination jurisprudence

Late last year I read some interesting reporting from BBC about privacy in the digital age. The case at issue involved the state of Florida compelling an alleged voyeur to reveal the lock code of his iPhone which had been seized with probable cause. The defendant refused, citing his Fifth Amendment privilege not to incriminate himself, but a Florida appeals court has ruled that the privilege could not have been invoked to block surrender of the code.

bbc stock footage never looked so corporate and scary.

That’s an interesting result by itself; though, as a state-level appeal, that decision only has controlling precedent (for now) in Florida. But the BBC reporting really caught my attention for revealing some of the rationale of the appeals court’s decision, authored by Judge Anthony Black, in the story’s second half:

Judge Black referred to a famous Supreme Court case, Doe v US 1988, in which Justice John Paul Stevens wrote that a defendant could be made to surrender a key to a strongbox containing incriminating documents but they could not “be compelled to reveal the combination to his wall safe”.

“We question whether identifying the key which will open the strongbox – such that the key is surrendered – is, in fact, distinct from telling an officer the combination,” wrote Judge Black. “More importantly, we question the continuing viability of any distinction as technology advances.”

It happens that Justice Stevens was a favourite of mine before his retirement from the bench in 2010, and in fact this blog reviewed his 2014 book detailing his proposed constitutional amendments. I understood him to be a left-leaning civil libertarian, so it was surprising to hear an opinion of his cited to diminish the reach of one of the pillars of the Bill of Rights. I found the Doe opinion to be a quite interesting exercise in linguistic gymnastics, particularly, as Judge Black noted, amid the rapid advance of technology and the numerous and contentious questions about privacy that it has created. But beyond that, the case history led me down a 60-year-long rabbit hole of jurisprudence that I believe serves as a cautionary tale of how the Court can get it very wrong and the dramatic effects it can have on basic rights. With great care taken to exclude superfluous detail, I summarize that epic journey for you here.

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The Intercept v. McDonnell v. United States

One of the great journalistic developments of the last few years is the rise of The Intercept, the self-styled adversarial journal cofounded by Glenn Greenwald, Laura Poitras, and Jeremy Scahill. Founded in the immediate aftermath of Edward Snowden’s NSA leak as an avenue for publication and analysis of those documents, the site has become a relatively fearless and eloquent site for objective reporting and progressive editorials.

But like any media group with an ideological agenda, the temptation for an unsubstantiated stretch to support a general claim is high. A short op-ed at the close of the Supreme Court’s term in late June by staff contributor Jon Schwarz raised my eyebrows for its sharp and sarcastic rhetoric accusing the Court of being self-contradictory and even activist in legitimizing the corrupting role of money in politics. The prevalence of pay-to-play corruption as a talking point in coverage of this election cycle motivates a closer look at both the editorial and the case.

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The New York Times, the Supreme Court, and the slow death of the Fourth Amendment

It’s Supreme Court decision season as its term ends. On Tuesday, the New York Times ran a giant graphic on its front page purporting to document a leftward shift in the ideological bias of the Supreme Court. I learned about this from a damning takedown of the attribution of that graphic in an article on the blog of the nonprofit media watchdog FAIR (Fairness and Accuracy In Reporting). What’s particularly interesting about that FAIR article is that it cites, in mockingly discrediting the assertion of any kind of progressive “golden age” for the Court, a shocking case that I had only days before learned about from a friend. The opportunity to criticize both the Times and the Court in one go was too much for FAIR to resist, and the same goes for me now.


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DOJ targeted killing white paper makes chilling mockery of sense, english

As is well known, American citizen Anwar al-Awlaki was killed by a drone attack in Yemen on 30 September 2011. He was alleged by the government to have been a “senior talent recruiter” for al-Qaeda, primarily by creating “radicalising” YouTube videos. The administration never charged or indicted him of him with any crime, much less tried him before an impartial tribunal, so his killing should offend the Fifth Amendment to the Constitution. The Obama Administration doesn’t agree with that straightforward analysis, but was unwilling to reveal the legal basis for their assumption of the power to execute American citizens in secret with no charge, trial, or congressional or judicial oversight. Members of Congress begged the Administration for months following al-Awlaki’s killing for memos explaining the Administration’s position, and finally the Administration deigned earlier this month to yield a draft white paper dated fifteen months ago — not to Congress proper, mind you, but to two of its subcommittees.

That white paper has now been leaked publicly. While it is unclear whether it completely details the Administration’s thinking, the paper is sufficiently devastating that Democratic California Representative Barbara Lee said in an open letter to the Los Angeles Times that it “should shake the American people to the core.” But Obama’s a nice guy, right, so how bad can it really be?

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important week for SCOTUS, health law, administration

Nina Totenberg and others reported in NPR’s health blog Sunday that the Supreme Court is very soon to hand down its decision in the controversial case of the Affordable Care Act. Indeed, it appears the decision has been scheduled to be given on Thursday. At issue are four distinct questions. The first was whether the suit, brought by 20 states against the federal government, can even be decided now by the Court since an 1867 law regarding taxes might be prohibitive. It appears to be the case that the justices feel that they can. The second, and most interesting to me and it seems most other people, is whether the so-called “individual mandate” provision to purchase health insurance or be assessed a fine is allowed by Congress’s broad powers to regulate interstate commerce. The third concerns whether a vast expansion of Medicaid mandated by the law is impermissably coercive on the states, who bear the responsibility of that program’s administration. Finally, the fourth is the resulting question of severability: if any part of the law should be found to be unconstitutional, how much of the rest of the law can be permitted to stand?

I wrote much earlier this year, among other things, about how this decision will be both interesting and significant. At first I thought I would wait until the ruling to talk about the case in any detail, but instead I’ll now attempt to predict how the Court will rule on this question and analyze a few other significant rulings handed down this week.

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Supreme Court unanimously supports arbitrary discrimination in churches

In a rare unanimous decision, the Supreme Court today held (pdf) that churches are free to hire and fire ‘ministers’ without regard to anti-discrimination law. At issue was the case of Cheryl Perich, a teacher at the Hosanna-Tabor Lutheran Church and School in a suburb of Detroit. She developed narcolepsy and began the 2004-2005 school year on medical leave. After a while, Perich announced her fitness and intent to return, but school administrators seem to have convinced the congregation that this was unlikely to be true, and it offered to pay some of her medical expenses if she would resign: pure Christian love. Perich refused and instead obtained a doctor’s note certifying her again to work by late February, but the school had already contracted another teacher to replace her and seemed intent to block her. Perich appeared on the first day she was certified to work again, but was asked to leave and told she was likely to be fired. She responded by threatening legal action under the Americans with Disabilities Act. Chief Justice Roberts notes in the unanimous opinion that her termination letter was quick to follow, citing as grounds “Perich’s ‘insubordination and disruptive behavior,’ as well as the damage she had done to her ‘working relationship’ with the school by ‘threatening to take legal action.’”

Roberts writes for the Court that ever since the Civil Rights Act, there has been a ‘ministerial exception’ for employment discrimination prevention, which he defends at length (more on that shortly). Because Perich conducts religious instruction 45 minutes every day and attends a weekly religious meeting with her class; and because her title of “called” teacher means that the Lutherans believe she has been literally called by God (and the congregation) to her position and was required to take some religious instruction herself, unlike “lay” teachers the school also sometimes employs to perform many of the same religious functions when God hasn’t gotten around to calling someone; and the fact that the majority of her instruction is in a wide variety of secular matters, owing to her four-year run as a kindergarten teacher and most recent year in the fourth grade, notwithstanding; the Court decided that she is a ‘minister.’ Indeed, in a concurring opinion, Justice Thomas notes that it ought to be up to the church to decide who is and is not a minister. And in a concurring opinion written by Alito and joined by Kagan (that’s right, Alito and Kagan agreeing on a concurring opinion!), the Justices argue that the term ‘minister’ itself ought not to be used at all, since many religions don’t have such a term.

My main issue with this ruling is that it smells like melodramatic bullshit. Roberts spends pages talking about the historical rationale for and the application of the first amendment, going from implementation failings of the magna carta’s promises of popular freedom to issues about territorial governance to clashes between slave owners and abolitionists to issues of property rights. Roberts and Alito both avoid the obvious likelihood that this isn’t really about the need for religions to have the power to choose their ministers free of governmental meddling, the latter opinion expressly prohibiting an inquiry to determine whether that argument isn’t just a convenient excuse, a ‘pretext for discrimination,’ since that would require making ‘a judgment about church doctrine.’ But isn’t that really the point?

Here we have a woman who is going to be terminated first for having a medical condition and second for trying to sue over that attempt to terminate her since All Good Lutherans settle their disputes within the church. The merits of the ADA suit aren’t even addressed in this decision; the suit simply is dropped since this school teacher is actually a ‘minister’ because she prays with her class and teaches them about God 15% of the time in a church-run school. Do we really suppose the Lutherans want to fire this woman because narcolepsy is a sign of satanic possession, or because their eleventh commandment is ‘Thou shalt not sleep on thine job’? But Roberts waxes poetic about what an order to reinstate, or even pay damages to, the complainant would mean: “Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.”

But how far do we take this? Couldn’t this church fire anyone it pleases and claim immunity to accountability since it might be that doctrine supports the decision? Is there not now an incentive, under the concurring opinions, for faith-based organizations to label anyone a ‘minister’ (or corresponding title) in order to secure legal exemption for civil wrongdoing? Roberts condescendingly refutes this argument that the Court’s decision opens the door to ‘a parade of horribles,’ dispelling the spectre of church-and-hence-state-sanctioned child-molesting priests (never could happen!) by explicitly noting that criminal acts and police investigations are not granted this blanket immunity and absolute prohibition, respectively, under this ruling. But a host of noncriminal activities appear to be fair game, modern civil rights and fair employment legislation notwithstanding, under this unanimous decision; and all thanks to an amendment which sought, according at least to Roberts’s own opinion, mainly to prohibit the government from installing its own religious leaders. Is that really the only thing that makes religious groups more sacred (forgive the pun) than every other social organization recognized by law and answerable to the ADA?

Some experts are not pleased. As usual, Nina Totenberg at NPR did some excellent journalism (increasingly a rarity at the offices of her august employer) to find out what people who matter think about this:

“It’s unanimous that she counts as a minister, it’s unanimous that ministers can’t sue, it’s unanimous that it doesn’t matter that whether the church had a religious reason or not,” [University of Virginia law professor Douglas] Laycock said. “The courts can’t inquire into that. That’s the story here today.”

“When the court says you can have no inquiry into whether this religious reason is pretextual and just a cover for some kind of discrimination, that’s a big deal,” [George Washington University law professor Ira Lupu] said.

The only silver lining is that this decision might not carry much sway as a precedent. The majority opinion was clear that while Perich is a minister, the Court is not establishing a minister test with this ruling. Still, it is clear that our secular democracy still has a healthy — even unanimous — respect for faith, and common sense and civil rights be damned.

Book Review: “Making Our Democracy Work: A Judge’s View” by Stephen Breyer

Making Our Democracy Work is the work of a left-leaning sitting Supreme Court Justice, Stephen Breyer. Well-titled, the book is a treatise that explains the goals of the Court as set out in the Constitution and its successes and failures over the last couple centuries, as well as the means that its author believes ought to be emphasized today in order to realize a constitutional democracy based on civil rights, not simply on paper but in actual practice.  Justice Breyer suggests an arsenal of tools and focuses that he believes — convincingly — the Court can and should use to maintain a public trust in enforcing “our Constitution’s liberty-protecting limits.”

The book is just as no-nonsense as you might expect and require of a sitting high court judge: it is divided into discrete, functional parts that each build in their own way in spare but effective prose to the ultimate and multifaceted thesis.

The first part explores the historical basis for the remarkable trust and deference that the American people grant the Court, explicitly relying only on well-accepted but detailed historical accounts of a few important cases. Breyer explores in entertaining prose the first great test of the nascent Court in Marbury v. Madison; points out a miscarriage in the treatment of the Cherokees under the Jackson administration when he ignored a Court order protecting their rights; visits what is hailed as one of the worst decisions the Court ever made in Dred Scott; counters with a triumph of cooperation between the judiciary and the executive in Brown v. Board of Education and school integration in Little Rock; and concludes with an analysis of the contentious 2000 decision Bush v. Gore. The exercise was to demonstrate that ours is “a nation that has gradually come to place confidence in the Court.”

The second part is Breyer’s vision for the manner in which the Court ought to function to preserve Constitutional guarantees by maintaining the public trust while not yielding to political pressures. This is clearly easier said than done, and the proffered mechanism of emphasis on the purposes (whether determined or inferred) and the consequences (more often real than imagined) of legislation — as opposed to fealty to wording or precedent or archaic interpretation, which are acknowledged as well to have a place in crafting decisions — seems phrased specifically to convince strict constructionists like Breyer’s colleague Antonin Scalia. But it is easy to forgive the explicit emphasis on these tools given the herculean job Breyer performs in justifying their application both through specific examples and accessible abstractions. Breyer’s approach is multifaceted too, as he also explores justifications in depth for qualified deference to the specialized expertise of executive administrations, state authorities, and lower federal courts. I was struck by the breadth and restraint of Breyer’s judicial vision.

The third and final part is devoted to an exploration of the Court’s duty to protect individual rights. Between detailed and painful discussions of Court failures with WWII Japanese internment cases and recent relative successes with Terrorism cases like Hamdi and Boumediene, Breyer demonstrates how the Court has and (sometimes) uses the power to check executive excesses to guarantee constitutional liberties. Importantly, he underscores the tenuous successes of the Court in maintaining a functioning democracy by quoting Bush 43’s reaction to the Boumediene ruling: “We’ll abide by the court’s decision — that doesn’t mean I have to agree with it.”

Overall, the book is an eminently readable, educational treatise unlikely to be less informative than any text book on the subjects it addresses, and it has an aggressive collection of notes. There are also a pair of appendices: the first is a collection of images relating to the cases discussed throughout the book that Breyer hopes will remind readers that they “were decided by, and the principles have a profound effect on, human beings” in order to drive home the real importance of these issues; the second is among the shortest and most effective descriptions of what it is the Supreme Court actually does that I have ever read, which is indispensable for anyone unfamiliar with or prone to needing to explain to others the function that our government’s third and ‘weakest’ branch (according to Hamilton) performs.
I fault the book for repeating certain phrases and themes a little too often, but that seems more like a failing of sloppy editors, a symptom of the desire to make the book exceedingly consumable to the layman, or perhaps a forgivable idiosyncrasy of the author; and it is my only major criticism. I recommend the book heartily, and close with the final passage from its conclusion, which summarizes its laudable purpose:
The stories this book sets forth are told from the point of view of one judge. I have drawn my own lessons from them. I hope that they lead others to study the stories and ponder their lessons about our constitutional history. Then they too will be better able to help make our democracy work. I hope so.
That is why I have written this book.
 
Published 2010, 270 pages.

2012 will be interesting times

It seems obvious the 2012 election will be really lousy. No one will primary Obama (I wrote both the national democrats and the democrats of washington state imploring them to consider whether they ought to challenge him and how I could help, to no avail) and it is inconceivable that any non-Romney candidate could win the GOP nod. While a number of dems are up for reelection in the Senate, it seems easy to believe that everyone hates Congress but thinks their congressmen are decent. So are we in for another four years of Hope? Or if the economy doesn’t spring to life, can we expect independents to vote Romney with their wallets?

There are a number of wildcards worth considering, I think. The Tea Party is still alive, and we saw a few dramatic races determined by their influence in 2010. Now we’ll also have whatever influence Occupy manages to express, and it still has half a year to organize in earnest before the legislative races heat up. At the very least, these forces could make things interesting, if not determining races in surprising ways. Consider influential seats won by the Tea Party (Marco Rubio, Rand Paul), as well as prominent losses (Sharron Angle, Christine O’Donnell). Indeed, O’Donnell beat a popular establishment republican, Michael Castle, in that primary, and he might have given the eventual winner, democrat Chris Coons, a run for his money. I’d expect similar dynamics this year.

Then we have Americans Elect, an online electoral party. While it appears to be run by some shady, monied interests, it does promise to be perhaps the most open and transparent party in history. In all likelihood, nothing will come of it since most folks won’t have heard of it come election day and will throw in with the same tired two-party duopoly, but they do claim to be well on their way to securing ballot access in all 50 states. With the kind of money they have, they might well eventually be perceived as a force to be reckoned with by September, and it is still unclear how the Americans Elect party will even decide its ticket.

But perhaps most significant, there are two important cases pending before the Supreme Court that will be decided before the election. Less important on the national stage is Arizona’s immigration bill, SB-1070, but it will be interesting to hear Obama argue it, and either way the decision is going to piss off a lot of people. More interesting is Obamacare, where the Court will decide on the individual mandate and whether its constitutionality could kill the entire law. No matter what, this issue is bad for Obama. Suppose the bill is upheld. This will further enrage the right-wing and small-government zealots, who might just answer the call to canvas for whomever the GOP finally settles on in order to prevent four more years of creeping Islamic socialism. Suppose the bill is partially or totally killed. Obama already has a problem with his base, and the health bill was virtually the only major legislation he managed to pass. It’s death in a 5-4 decision could be enough to disillusion just enough supporters that their man can get anything done in this climate, and they might just sit at home in November. Either way, Obama has got to be running scared at this point.

And now consider again how lousy the GOP field is. The base has been sailing from one sweetheart non-Romney candidate to the next. Romney should be cleaning up, but he is so reviled that his eight-vote Iowa victory was more like an embarrassing loss to Rick Santorum, the gay-hater, of all people. And there’s virtually no one left. Gingrich seems like he is more bent on revenge, inviting Romney to ‘cut the pious baloney’ at today’s debate, than winning what he must realize is now an unwinnable nod. Perry is too stupid to leave now even though it must be obvious he has no chance even in South Carolina after his loss in Iowa and inevitable rout in New Hampshire, where he has roughly 5% support according to a recent Ramussen poll. He’ll be gone just like Bachmann by February.

What is certain is that Ron Paul will not be allowed the nomination by the republican elite, and he is doing a lot better now than he was four years ago. Many of his supporters are not republicans, and even the ones who are would surely vote for him on a third-party ticket before voting Romney. Paul’s incentive to leave the party once it becomes inescapably obvious that he won’t be their guy at the convention will be high since he could do well as the libertarian nominee. While that would help Obama more than Romney, a number of disaffected progressives would probably sooner vote for Paul, or not at all, than for Obama. After all, Paul says all the right things about civil liberties and wars that made for great talking points against Bush before it became a democrat doing all the same things. But his own racist and anti-choice positions will be disqualifying for many who would otherwise turn to Obama.

If I had to call the election today, I’d say its a nailbiter of a win for Obama. But I think things will look a lot different by the summertime conventions, and it will be interesting to watch events unfold. Santorum’s recent surge is probably not unlike the similar week-long spikes his other minor opponents enjoyed throughout the fall, but the difference now is that the time for fooling around has passed. Momentum he gets from the caucuses and primaries could matter a lot more since there aren’t any non-Romney candidates left (excluding Huntsman, Roemer, and maybe other folks I haven’t even heard of) and there’s no more time to dally. It’s just too soon to tell.