12345...1020...


An end to immigration checks on Greyhound buses reaffirms Fourth Amendment argument from civil rights groups – The San Diego Union-Tribune

Just over a week ago, the Greyhound bus company announced that it would no longer allow Border Patrol agents to conduct immigration searches on its buses without a warrant. The company long maintained that while they didnt agree with the searches, they were bound by federal law to allow them.

Civil rights groups and immigrant rights advocates have appealed to the bus company over the past couple of years, urging Greyhound to refuse to comply with these checks, citing the Fourth Amendment right in the U.S. Constitution protecting people from unreasonable searches and seizures without a proper warrant. After the Associated Press obtained a memo written by the U.S. Border Patrols recently retired chief, confirming that bus companies like Greyhound are not required to consent to these checks, Greyhound announced that it would no longer allow the practice.

The American Civil Liberties Union has been among the groups that have applied pressure to Greyhound, with chapters in 10 states writing to the company in 2018 in an effort to get it to reverse the practice back then. In a recent email interview, David Loy, legal director for the American Civil Liberties Union of San Diego and Imperial Counties, and Eva Bitran, staff attorney in the advocacy department of the ACLU of Southern California, offered some background on this issue and their insight into why advocacy groups have opposed these checks. (This interview has been edited for length and clarity.)

Q: What has been some of the history behind these immigration checks on buses?

Eva Bitran: We dont know precisely when the checks started, but reports of systematic, aggressive questioning of Greyhound passengers by CBP (U.S. Customs and Border Protection) agents date back to at least 2010. The basic story, which weve heard repeated throughout the border region, is that CBP officials board Greyhound buses without a warrant or a specific target in mind and subject customers to harassment and racial profiling, singling out riders based on the color of their skin, language they speak, or accent they have. (Reporters note: Border Patrol has been reported as saying that they do not profile passengers based on their appearance, and that they question all passengers during these searches.)

Q: How and when did the ACLU first learn of these immigration bus checks? What were the concerns the ACLU had about these checks? And what was the ACLUs response to those concerns?

Bitran: In early 2018, ACLU affiliates across the country started hearing reports of CBP presence on Greyhound buses, some of which gained national notoriety, as noted in our 2018 letter. These stories shared a familiar pattern. ... (and) These operations violate the constitutional rights of individuals detained without individualized reasonable suspicion. Because they take place on Greyhounds private property, we saw that Greyhound had an opportunity to protect its customers from racial profiling and harassment by CBP.

Our response was to draft a letter to Greyhound in 2018 documenting several incidents in 2017 and 2018 along the southern and northern borders, and the coasts asking it to exercise its own Fourth Amendment rights denying bus access to Border Patrol agents without a warrant. Greyhound initially declined to do so, and so we mounted a public campaign that included distributing KYR (Know Your Rights) material in bus stations and disseminating a petition that got over 200,000 signatures.

Q: Why has this practice been something that civil rights and immigration advocates have disagreed with?

David Loy: We objected to CBPs profiling and harassment because it violates the core constitutional rights against unlawful search and seizure and racial discrimination. The Constitution applies equally throughout the entire country. Like any law enforcement agency, CBP must adhere to the Constitution.

Q: Whats the response to the Border Patrols argument that the checks help prevent human trafficking, drugs and illegal immigration?

Loy: The Constitution is consistent with effective law enforcement. Law enforcement agencies have ample means to prevent and address illegal activity without violating the Constitution. Racial profiling and unlawful harassment undermine the community trust essential to effective law enforcement.

Q: Who would you say has been most impacted by this practice, and why does that matter?

Loy: Everyone riding Greyhound buses has been impacted by CBPs unlawful harassment, but those most impacted are persons of color and persons speaking languages other than English, or with accents assumed to be foreign. Such persons may be U.S. citizens or lawful residents, but even if they are not, they retain fundamental constitutional rights against racial profiling and unlawful search and seizure.

Q: Why should people, whether they travel by bus or what their citizenship status may be, be concerned about these kinds of bus searches?

Loy: Everyone is at risk when anyones constitutional rights are violated. Unless law enforcement is held accountable to its duty to adhere to the Constitution, the violation of one communitys rights inevitably leads to violation of everyones rights. History shows that abuses of power begin with marginalized and vulnerable communities, but they rarely stop there.

See the original post:

An end to immigration checks on Greyhound buses reaffirms Fourth Amendment argument from civil rights groups - The San Diego Union-Tribune

Justices make the tough but right call in cross-border shooting case | TheHill – The Hill

The U.S. Supreme Court held last week in Hernandez v. Mesa that the parents of a Mexican national shot and killed in Mexico by a U.S. Border Patrol agent cannot sue that agent in federal court. The decision was 5-4, dividing the court along what many observers regard to be predictable ideological lines.

But to view this decision through the lens of partisan ideology would be a mistake.

The incident that launched the case is horrifying. When 15-year-old Sergio Adrin Hernndez Gereca was playing in a cement culvert between El Paso, Texas, and Cuidad Juarez, Mexico, in 2010, the Border Patrol agent detained his friend and shot Hernndez in the face, killing him. Hernndez was standing in Mexican territory.

At bottom, this case was not about whether Hernndezs family deserves an avenue for seeking redress for the alleged violation of their sons Fourth and Fifth Amendment rights. Rather, it is about the power of federal courts to provide a remedy where Congress has provided none.

The key legal precedent at issue in Hernandez originates from Bivens v. Six Unknown Federal Narcotics Agents, a 1971 decision in which the Supreme Court held that a person victimized by an unlawful arrest and search could bring a claim for damages in federal court directly under the Fourth Amendment, even though neither the text of that amendment nor any federal statute authorized such a claim.

That decision has been called into question by the court in recent years, based on the idea that recognizing claims not provided for in the Constitution or by Congress risks engaging federal courts in the exercise of legislative rather than judicial power.

The question in the Hernandez case was whether to extend the Bivens decision into the new context of a cross-border incident that was alleged to have violated the victims constitutional rights. In light of the international context of this dispute, the court concluded that fashioning a judicial remedy not created by Congress risked interfering not only with Congresss legislative authority but also with the presidents authority, as it pertains to national security and international affairs.

In other words, if the federal courts are effectively going to make up a right to sue that no constitutional or statutory text endorses perhaps an altogether dubious enterprise they at least should avoid such an undertaking in circumstances presenting considerations of foreign relations and border protection; such considerations are meant to be addressed by the executive branch, and involve the weighing of costs and benefits of a kind the judiciary is ill-suited to assess.

True, the result of acknowledging that federal courts lack the power to improvise judicial remedies in this context means that the victims parents in this case cannot recover damages in a federal civil action. But the proper way to address that undesirable outcome is to urge Congress to enact legislation that would authorize the lawsuit that Hernandezs parents seek.

There are several statutes in which Congress has authorized claims against government officials for alleged wrongdoing. Section 1983 of Title 42 of the U.S. Code permits the recovery of damages for constitutional violations by state officials. The Federal Tort Claims Act provides a remedy for most claims against federal government employees, but it does not apply to claims arising in a foreign country.

Either of these provisions could be amended to extend the ability to sue federal government officials for conduct that violates rights of persons abroad. The fact that neither of these statutes nor any other statute permits these suits provides a fairly strong indication that it would be inappropriate for the federal courts to permit them on their own initiative.

It is indeed tragic that Hernandez lost his life in this incident. It is also tragic that his parents cannot seek monetary damages for their loss in U.S. federal courts. But the culprit in this tragedy should not be seen as a block of conservative ideologues on the Supreme Court but, rather, a Congress that has opted not to open our courthouse doors to those whom our officials harm abroad.

A. Benjamin Spencer is the Bennett Boskey Visiting Professor of Law atHarvard Law School and the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law. Follow him on Twitter @PROFSPENCER.

See the original post here:

Justices make the tough but right call in cross-border shooting case | TheHill - The Hill

Bivens Liability and Its Alternatives – Reason

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

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

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

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

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

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

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

[Cross-posted from Summary, Judgment.]

See the original post:

Bivens Liability and Its Alternatives - Reason

One thing these two New Mexico sheriffs agree on: ‘Red flag’ law will end up in court – Las Cruces Sun-News

What every New Mexican should know about the state's new "Red Flag" law Las Cruces Sun-News

LAS CRUCES - New Mexico's Extreme RiskFirearmProtection Order Act will take effect on May 20, after Gov. Michelle Lujan Grisham signed it into law on Tuesday.

Addressing New Mexico sheriffs who opposed the bill and threatennot to enforce it, Lujan Grisham said ignoring the law was not an option.

"If they really intend to do that, they should resign as a law enforcement officer and leader in that community," she said.

A majority of New Mexico sheriffs opposed the law, which provides for civil orders requiring individuals to surrender their firearms within 48 hours if a court views them as presenting a threat to themselves or others.

While much of the opposition to the billcentered on the Second Amendment right to bear arms, critics of the bill also raised questions about due process rights, searches and seizures and the prospect of overreach by law enforcement.

San Juan County Sheriff Shane Ferrari on the day he took the oath of office, Monday, Dec. 31, 2018.(Photo: Hannah Grover/The Daily Times)

"We have a saying in law enforcement: You don't look for an elephant in a shoebox," San Juan County Sheriff Shane Ferrari told the Sun-News. "That restricts law enforcement from going outside the scope of their duties looking for things they're not supposed to. If I'm looking for a TV set, that doesn't mean I get to open your underwear drawer."

As originally filed, Senate Bill 5 would have required sheriff's deputies to search a respondent's home for firearms and ammunition, creating an opportunity for searches without a criminal warrant, Ferrari said. The bill was amended before passage, however.

In its final version, the law allows relatives, employers or school administrators to file affidavits requesting a law enforcement agency to petition a court for a civil order requiring an individual to surrender their firearms.

For reporting on how legislation affects you,subscribe to the Las Cruces Sun-News today.

"We still have some constitutional issues, where you're being ordered by the government to give up your guns when you didn't commit a crime," Ferrari said, while indicating relief that deputies would be serving a court order rather than entering someone's home to confiscate their guns.

"That's a fight for another day," Ferrari said. "At some point, either the U.S. Supreme Court or the New Mexico Supreme Court is going to have to look at these issues."

Doa Ana County Sheriff Kim Stewart, a supporter of the bill, agreed the law will be reviewed in court.

"It's groundbreaking legislation," Stewart said in an interview for the Sun-News. "It will be challenged in court and probably it should be. I think some of it hopefully will be clarified."

Doa Ana County Sheriff Kim Stewart at the podium during the Board of Commissioners meeting on Tuesday, August 13, 2019.(Photo: Algernon D'Ammassa/Sun-News)

Stewart said the law includes confusing language about standards of evidence to be met in considering a petition, and some conflation of criminal and civil process among other details.

She claimed credit for one improvement made to the bill during this winter's legislative session: What happens if a law enforcement officer is subject to a protective order seeking their guns?

"That's not something where agencies want to be pitted against each other," Stewart said. "That's got to be decided by someone other than the local agency. That's got to go to the Attorney General or the District Attorney's office."

On her recommendation, legislative staff incorporated the change in a floor amendment to the bill.

More:Doa Ana County Commission votes against supporting red flag bill

Other questions remain, Stewart said, including what her agency is supposed to do if a persondoes not comply with an order to surrender their guns.

"Can we search the garage? Does it mean we can search the barn? Where does that stop?" she asked. "What if he has a storage locker full of guns? Can we go and search the storage locker?"

An additional problem, in the event guns are confiscated, is that her agency would be stuck with the costs of storing and even the maintenance of impounded weapons. In this respect, she described the law as "an unfunded mandate."

She could not predict how often the new law would be used, but observed that a 2019 law allowing the confiscation of guns from domestic abusers and stalkers had not yet been used to impound a single weaponin Doa Ana County.

Stewart said she wished more sheriffs had offered input to improve the bill instead of categorically opposing it.

Legislative staff "are tasked to write a law and they would like the law to be as reasonable and realistic and valuable as possible," Stewart said. "When they reach out and the only answer is no, that hinders them."

Ferrari, on the other hand, said sheriffs opposed to SB 5 would have been on board with amending existing statutes providing for civil commitments in cases where a subject presents a danger.

"The one thing we agree on is this: People that are threatening themselves or others shouldn't have a firearm," Ferrari said."We already have a law on the books that allows law enforcement to take a person who's a threat to themselves or others and we can immediately take them down to the hospital."

Senate Bill 5 sponsors Sen. Joseph Cervantes, D-Las Cruces, right, and Reps. Daymon Ely, center, D-Corrales, and Joy Garratt, left, D-Albuquerque, during a floor debate at the New Mexico state Senate on Friday, Feb. 7, 2020.(Photo: Morgan Lee/AP)

Ferrari said the statute allows for legal counsel and judicial review, and focuses on getting treatment to people who need it rather than focusing on their property.

"Both sides would have agreed on that, but egos got in the way," Ferrari said. "They weren't happy with amending something. It was all about the title. It wasn't the new law that the new governor came up with. It was a campaign promise that was met."

Ferrari maintained thelawstill presents Fourth Amendment concerns regarding privacy and property. He called it "a Pandora's box skirting around constitutional limits" in ways that will be tested before judges.

Ferrari argued that the law can be manipulated by law enforcement to use a civil process for discovery of criminal evidence.

"Unfortunately, the train was really being driven by a lot of Second Amendment stuff because we're talking about guns here, and not everybody's a gun owner," he said. "Well, now let's talk about me beating on your door and coming into your house."

Stewart, on the other hand, said: "It's about having another tool in our bag and I think we use them let's give law enforcement a little more credit I think we use these things judiciously."

As elected law enforcement officers, Ferrari argued he and other sheriffs were exercising a duty to warn the public about legislation that endangered their liberties.

In opposition to gun legislation filedduring the 2019 legislative session, a majority of New Mexico countiespassed resolutionsstating they would not require their sheriffs to enforce the proposals if they became law.

More: What people in 'Second Amendment sanctuaries' should know about red flag laws

Ferrari spoke to the Sun-News days before Gov. Lujan Grisham signedthe bill and issuedher challenge to sheriffsresistant to enforcing the law. He made clear that sheriffs answered to voters.

"Our job is to stand between law enforcement and the public," he said. "We answer to no one but the public. No one. We're not overseen by a division of anything, we don't share our powers like country commissioners and city councilors.We are directly responsible for the people who put us in power. "

Enforcing protective orders under the act might also endanger his deputies, Ferrari said:"This can put law enforcement at risk and it also can put the public at risk. It definitely treads on that line of trust that we have."

For Stewart, the rhetorical focus on the Bill of Rights by sheriffs opposed to SB 5risked omitting the rule of law.

"I take an oath to the Constitution and the laws of the state of New Mexico," Stewart said. "If I swear allegiance to the Constitution of the U.S. only, I could never arrest a murderer or a rapist. The U.S. Constitution doesn't mention them. The only thing that gives me that power is the state."

Stewart's support for the law have made her unpopular with the New Mexico Sheriff's Association, which has firmly opposed red flag laws. "They don't talk to me," she said.

Kristin Wamle and Sam McBurney open carry at a Doa Ana County Commission discuss a resolution supporting a NM red flag bill in Las Cruces on Tuesday, Jan 28, 2020.(Photo: Nathan J Fish/Sun-News)

More:New Mexico 'red flag' bill protested at the state Capitol in Santa Fe

Where she and Ferrari agreeis that the new law has ambiguities and unclear consequences that will lead to court challenges and perhaps amendments in subsequent legislative sessions in Santa Fe.

"There are real legitimate questions that this doesnt address and that will certainly be ferreted out through the legal system and the judiciary," Stewart said.

Ferrari expressed little faith that lawmakers would improve the law next year, and did not guess how courts might rule on legal challenges to a law he criticized as both ill-conceived and rushed.

"What is more important," he asked, "that New Mexico joins the red flag club or that we have good legislation? Because we don't."

Algernon D'Ammassa can be reached at 575-541-5451,adammassa@lcsun-news.comor @AlgernonWrites on Twitter.

More: New Mexico Republican Party calls donkey target practice complaint 'fake outrage'

Read or Share this story: https://www.lcsun-news.com/story/news/2020/03/01/new-mexico-red-flag-law-challenged-sheriffs-gov-lujan-grisham/4823861002/

Read more from the original source:

One thing these two New Mexico sheriffs agree on: 'Red flag' law will end up in court - Las Cruces Sun-News

Cops are using body cameras to live-stream from crime scenes – Fast Company

One morning last April, SWAT teams swarmed a house in Henry County, Georgia. A gunman had taken his girlfriend and her teenage son hostage. But some of the officers werent only equipped with live ammunition: They were live, sending video from smartphones that were mounted on their chests back to a nearby command post where supervisors huddled over laptops. In two of the streams, the supervisors saw SWAT officers wounded by gunfire. Another stream, from a phone dropped into a window, offered audio of what was happening inside. When the police used a robot to deliver another phone to the gunman, that was also secretly streaming video. By the time the standoff was over, 17 hours later, the gunman had killed his hostages before fatally shooting himself. And a new technological era had begun.

We were able to verify the gunmans and officers locations, and gather more intelligence because we were live-streaming, says Randall McGlamery, the police departments spokesperson. Henry County, which adopted the technology in 2017, is one of the first of a growing number of police agencies using live video to remotely monitor encounters from the vantage point of officers chests. If youre in a chase or if youre in a flight or if we think somethings wrong, we can tap in live, and in real time know whats happening remotely, and report to other people whats going on, says McGlamery.

The technology also heralds other new tantalizing police-enhancing tools, he adds: I think weve just touched the bottom level of what is going to happen in the future.

After a series of high-profile police shootings in recent years, public demand for stronger police transparency and accountability has helped lead governments across the U.S. to spend millions of dollars putting body-worn cameras on officers. Now, advances in hardware and data connectivity are supercharging the devices with features that promise a new set of police powers, and a new set of questions.

Ive been doing this for 30 years and to see that advance in technology is phenomenal, says Sergeant Steve Saunders of the Cincinnati Police Department. The ability to tune inthats a game changer.

In February, Cincinnati said it had the largest fleet of live-streaming cameras anywhere: Nearly 1,000 of its officers can stream video from their chests, using devices made by Axon, the body camera and electroshock weapons giant formerly known as Taser. The cameras rely on LTE connections to transmit video over the internet; once an officer puts their camera into recording mode, authorized users are permitted to tune in through a cloud-based platform.

[Photo: courtesy of Axon]According to Saunders, live video could have helped police commanders during an active shooter situation at a bank building downtown last yearanswer questions faster, like, is the threat just in the lobby of the building or did they get into the tower? Extra eyes on a scene could also help officers during tense or risky encounters.

Saunders and others believe that streaming might also make citizens feel more comfortable interacting with police officers if they knew their encounters were being monitored by a third party in real time.

Eventually, mental health workers could even tune in in order to help police evaluate and speak with people in emotional distress, he mused, and could potentially be another asset to us in the field, says Saunders.

Live video is a feature that agencies are increasingly making required for officer safety reasons, says Alex Popof, CEO of Visual Labs, which doesnt sell its own hardware like Axon but helps departments turn smartphones into streaming-ready body-worn cameras. The startup says it is working with more than 100 law enforcement agencies, including Henry County and Fontana, California, as well as the security teams for the San Francisco 49ers and Baltimore Ravens.

Axon says that a handful of departments in the U.S. are using its new cameras, which can cost as much as $699 per device. That doesnt include other costs, such as a subscription to the companys Evidence.com cloud-based data management platform. But as part of a 10-year, $26 million contract with Axon, Cincinnati will go all in on its ecosystem of connected technologies: cameras that activate when an officer draws a weapon, automatic transcriptions of audio, video redaction tools, and new Tasers. The department is also considering adopting a new app for streaming live video from aerial drones, called Axon Air, based on a partnership with drone maker DJI. Were looking at it for search and rescue operations, says Saunders.

From a real-time crime center, Cincinnati police commanders would eventually be able to tap into body camera and drone footage, in addition to live feeds from hundreds of existing neighborhood surveillance cameras. Having that situational awareness as a field commander is unprecedented, Saunders says. But I also think its so new for us, we still havent really figured out what its going to mean for us in the future.

There are also unprecedented questions about what this technology means for the public. A connected network of cameras providing up-close, real-time images from the street or inside buildings or homes raises civil rights concerns that pre-recorded video and stationary surveillance footage does not. Experts caution that streaming live police video could also expose sensitive footage to abuses like leaks and hacking. And live video risks transforming tools that are intended for transparency into roving, on-the-ground nodes in a growing web of surveillance technologies.

Police body cameras were never supposed to be like another kind of surveillance camera; they were supposed to be an oversight mechanism, says Jay Stanley, a senior policy analyst with the American Civil Liberties Union. The danger is that by streaming to a centralized location, they become much more like government surveillance and less like oversight.

Streaming video nudges the devices into more Orwellian territory.

Streaming video nudges the devices into more Orwellian territory and transmutes police body cameras into a significant new surveillance technology, says Stanley. Among other things, streaming is a step that eases the pathway towards live real-time face recognition, a scenario that could violate Fourth Amendment protections and lead to dangerous misidentifications. Unless you load a photo set onto a device, youre going to have to be relying on the cloud, which means streaming.

Axon uses facial-detection software to help police redact faces in body camera footage, but the company has said it would pause development of software for recognizing those faces, citing the concerns of an ethics panel it assembled. Axons former head of AI was also opposed to real-time facial recognition before he left the company, and a handful of U.S. cities have passed ordinances that ban or restrict the use of automated surveillance tools such as face recognition by police.

But Axon hasnt ruled out using the technology in the future and has even secured a patent for it. They may decide to do it down the road, and I may disagree with that, Barry Friedman, a constitutional law professor at New York University and a member of the ethics panel, told me in 2018. But they are definitely thinking through some of the problems.

For now, in any case, the company cannot prevent police departments from already combining video from its cameras with a growing array of facial-recognition tools. Such software can easily be applied to pre-recorded video, and both Amazon and Microsoft sell cloud-based recognition tools to law enforcement for that purpose. Third-party apps like Clearview AI, designed to ID individuals using a phones camera, could allow police to attempt to identify people passing an officers body camera in real time.

I think all of these surveillance technologies will raise the stakes of all the others, says Stanley. A technology like face recognition makes it more important to put limits on a technology like streaming.

Even as body cameras have been widely adoptedtens of thousands have been sold in the U.S.there are no national standards regarding them. Many cities have laws that govern how theyre used, who can access the footage, and how its released, but most of those rules were written before the introduction of live video. In a 2014 report, the Justice Dept., which has spent tens of millions of dollars to help departments buy body cameras and cloud storage, advised agencies to proceed very cautiously when it comes to combining police cameras with features such as face recognition and live feed, given potentially serious risks to public privacy.

In Cincinnati and Henry County, the tech has stoked more immediate anxieties, but not from the public: Even if streaming only works when a camera is recording, police officers themselves worry about supervisors tuning in to scrutinize their every move. When you tell somebody I have the ability to live-stream at any moment, theyre going to have privacy concerns, says McGlamery.

The growth and normalization of surveillance may not be a strong argument for more of it.

In Cincinnati, where the police are already using live-streaming on a case-by-case basis, there is no specific policy around the feature yet. Saunders acknowledges the publics concerns about real-time face recognitioneveryones going to deal with that in some way in the future, he saysbut reckons that live-streaming on its own does not pose the same risks.

Were on scenes all the time where citizens are live-streaming on Facebook Live or Twitter, he says. We just have a new app that came to town, the Citizen app, that lets people upload video, so its just the way technology has gone. People have home surveillance cameras like the Ring video doorbell, or other things that they can upload and put on Facebook in minutes, let alone live-stream stuff.

But the growth and normalization of surveillance may not be a strong argument for more of it. Police departments and municipalities may also be helping to foster that kind of surveillance culture by partnering with Amazon-owned Ring to help promote its devices and to streamline the collection of neighborhood videos. (Cincinnatis police department has asked citizens to register their home surveillance cameras as part of its camera network, but it is not a Ring partner.) Meanwhile, growing calls for legislation around surveillance show that the public does care about who uses these kinds of technologies and how they fit together, says Stanley.

However, in many cases, including in Cincinnati, police are using tools like live streaming before formulating written policies, or before they have notified the public, much less sought its input. When it comes to tools like streaming, Stanley says, the community should not only be informed but should be asked if they want departments to have that capability in the first place.

View post:

Cops are using body cameras to live-stream from crime scenes - Fast Company

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

Buy Photo

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read or Share this story: https://www.jconline.com/story/news/crime/2020/02/28/hearing-set-west-lafayette-teen-accused-stabbing-his-father/4902180002/

Go here to see the original:

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

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

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

Ethan Miller | Getty Image

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Subscribe to CNBC on YouTube.

Read more here:

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

NY Safe Act’s Mental Health Reporting Is Bad But Proposed Mental Eval Bill Is Worse – AmmoLand Shooting Sports News

OpinionPart Five

New York -(AmmoLand.com)- We will now drill down into the critical mental health area of the new restrictive New York gun bill so you can see and truly appreciate the extent to which the proposed bill builds upon the present mental health law affecting New Yorkers who simply wish to exercise their Second Amendment right, tightening the noose on those New Yorkers, for it is in New Yorks Mental Hygiene Law that things become interesting.

When Cuomo signed the New York Safe Act into law in 2013, Section 20 of the Safe Act was codified into law.

A new State governmental reporting system was added to the Mental Health Law that did not previously exist. Section 20 of NY Safe, codified in Section 9.46, Subsection (b) of Article 9 of the Mental Health Law of the Consolidated Laws of New York, sets forth:

Notwithstanding any other law to the contrary, when a mental health professional currently providing treatment services to a person determines, in the exercise of reasonable professional judgment, that such person is likely to engage in conduct that would result in serious harm to self or others, he or she shall be required to report, as soon as practicable, to the director of community services, or the directors designee, who shall report to the division of criminal justice services whenever he or she agrees that the person is likely to engage in such conduct. Information transmitted to the division of criminal justice services shall be limited to names and other non-clinical identifying information, which may only be used for determining whether a license issued pursuant to section 400.00 of the penal law should be suspended or revoked, or for determining whether a person is ineligible for a license issued pursuant to section 400.00 of the penal law, or is no longer permitted under state or federal law to possess a firearm.

Section 9.46 (b) of the Mental Health law of New York insinuates itself not only into the Second Amendment but also insinuates itself into the unreasonable searches and seizures clause of the Fourth Amendment and violates the equal protection clause of the Fourteenth Amendment as well. No less Proposed Section 7.09 (M) of New Yorks Mental Hygiene Law unconstitutionally infringe upon fundamental rights, but, its impact of those American citizens and residents of New York who wish to exercise their right to keep and bear arms is even more intrusive and egregious.

There is an obvious presumption in favor of maintaining sensitive medical information among medical providers. New Yorkers expect this as does every American. If that were not the case Americans would, quite understandably, be reluctant to divulge such information, especially if doing so might negatively impact the exercise of their fundamental right to keep and bear arms.

But New York State Government officials have their own agendaand that agenda is unrelated to the needs and best interests of the individual. And the concern is very real since Government bureaucrats, operating with the Hive Mentality of all Collectivists, likely dont give a damn about the privacy concerns of individual Americans, anyway. And, even if they did care about individual Americans' privacy concerns, they would be obliged to relinquish such concerns consistent with the requirement of their jobs and their wish to hold onto their jobs.

Proposed Section 7.09 (M) of New Yorks Mental Hygiene Law, were it to become law, would permit the State Government to entwine itself extraordinarily deep into medical matters, where it should never go, and it does so, even more somuch more sothan the mental health reporting requirement as set forth in the present New York law.

No other State has anything like this or has, to our knowledge, proposed anything, as yet, quite like it. Andrew Cuomo wants New York to be in the vanguard of the most extreme and outrageous anti-Second Amendment measures existent in the Nation and he is succeeding in that endeavor. That was the purpose for Cuomos having pushed, quickly through the State legislature, in the dead of night, by emergency decree, sans debate, his New York Safe Act. And that is what informs Cuomos actions to this very day. But, you might wish to ask the New York Governor and the other anti-Second Amendment zealots who drafted the mental health evaluation bill why they feel that enactment of this bill is necessary since the Safe Act already requires mental health providers to divulge confidential mental health matters to State Government officials if those providers believe that a patient poses a danger to self or others.

The New York Safe Act and New York's new mental health evaluation bill opens the floodgates to impermissible Constitutional infringement of a fundamental right from the get-go, unconstitutionally infringing exercise of the right of the people to keep and bear arms of every New York firearm's owner: tens of thousands of New Yorkers.

But, as horrible as the New York Safe Act reporting requirement is, the mental health evaluation bill is many times worse. The NY Safe Act requirement depends upon mental health provider acquiescence to the reporting law.

Cuomo and other Anti-Second Amendment zealots must have realized that mental health providers might very well be reluctant to violate a sacred trust between physician and patientas doing so would be detrimental to the health and well-being of the patient, and contrary to the faith the patient has placed in his medical provider that the patient's sensitive medical information will remain confidential, and contrary to the rights and liberties codified in the U.S. Constitution.

After all, there is an obvious presumption in favor of maintaining sensitive medical information. In fact, New Yorkers may, quite understandably, avoid conveying embarrassing and sensitive personal information to their physician or mental health provider if they believe such information can and will be divulged to New York State Government officials who have their own agendaunrelated to the needs and best interests of the individual. That concern is very real, since Government bureaucrats, consistent with the Hive Mentality of Collectivists, likely dont give a damn about the needs and concerns of individual Americans. And, even if they did care about the individual Americans' privacy, they would be obliged to relinquish such concerns consistent with the requirement of their jobs and their wish to hold onto their jobs.

So, realizing that the mental health reporting requirements would not, or could not, and, perhaps, have not, yielded the results they wanted, the Anti-Second Amendment zealots and Collectivists went back to the drawing board and devised a new scheme to avoid the problems inherent in the mental health reporting requirement as it presently exists. The scheme cunningly devised, as illustrated in the new mental health evaluation bill, essentially dispenses with the need for the New York Safe Act's mental health reporting requirement since New York State administrators, or those mental health practitioners working directly for the State Government, insinuate themselves directly into the firearms acquisition process in the first instance, obviating the need for mental health providers to get involved in the second instance.

If the mental health evaluation bill were enacted into law, a person who wishes to acquire, sell, exchange or dispose of a firearm must undergo a mental health evaluation, irrespective of any ongoing relationship a person may have with a personal mental health provider.

For, if an individual realizes that he or she must undergo a mental health evaluation that will forever be part of the State records, that person may have second thoughts about obtaining a firearm in the first place. Cuomo, along with the Legislative team that drafted the mental health evaluation measure, must have known this, and anticipating the results, are hopeful that many would-be firearms' owners would voluntarily forsake exercise of their fundamental right. After all, it would be far easier for Cuomo's Government if law-abiding New York residents were simply discouraged from being compelled to jump through the labyrinthine hurdles of obtaining a firearm at the get-go than it would be and, in fact has been, to attempt to divest New Yorkers of their firearms after the fact, when they would be more averse to do so.

And Cuomo might well succeed because, if an individual realizes that he or she must undergo a mental health evaluation that will forever be part of State records, that person may have second thoughts about obtaining a firearm in the first placehence the reason for proposing such a bill at all.

About The Arbalest Quarrel:

Arbalest Group created `The Arbalest Quarrel' website for a special purpose. That purpose is to educate the American public about recent Federal and State firearms control legislation. No other website, to our knowledge, provides as deep an analysis or as thorough an analysis. Arbalest Group offers this information free.

For more information, visit: http://www.arbalestquarrel.com.

Read the original post:

NY Safe Act's Mental Health Reporting Is Bad But Proposed Mental Eval Bill Is Worse - AmmoLand Shooting Sports News

What the 2020 election means for encryption – The Verge

This is a living guide to encryption: what it is, what it isnt, why its controversial, and how it might be changed. This guide will be updated as events warrant.

Encryption is the process of scrambling information so only the intended recipients can decipher it. An encrypted message requires a key a series of mathematical values to decrypt it. This protects the message from being read by an unwanted third party. If someone without the key tries to hack in and read the message, theyll see a set of seemingly random characters. Using modern encryption techniques, extracting the original message without the key is nearly impossible.

That basic process is a fundamental building block of network security, ensuring that information can travel over the public internet without being intercepted in transit. Without some form of encryption, it would be impossible to implement basic online services like email, e-commerce, and the SSL system that verifies webpages.

While most uses of encryption are uncontroversial, the wide availability of techniques has opened up new political questions around lawful access. Presented with a warrant for a particular users information, businesses are legally required to turn over all the information they have. But if that information is encrypted and the company doesnt have the key, there may be no way to work back to the original data.

Some products hold copies of user keys and decrypt data when served with a warrant, including Gmail, Facebook pages, and most cloud storage providers. But messaging apps like WhatsApp, Telegram, and Signal do not, and the device encryption used by iOS also makes the phones local data inaccessible. That approach has both privacy and security benefits: since the data is not available outside of the local device, the apps are far more resilient to breaches and centralized attacks.

In 2014, James Comey, the then-director of the FBI, wrote a memo spelling out his concerns about encryption. Those charged with protecting our people arent always able to access the evidence we need to prosecute crime and prevent terrorism even with lawful authority, he wrote.

Comey went on to warn that encryption would make it more difficult for law enforcement to catch suspected criminals. If communications are encrypted by default, he said, the government cant monitor and collect communications, even if a judge allows them to do so. Encryption, he summarized, will have very serious consequences for law enforcement and national security agencies at all levels. Sophisticated criminals will come to count on these means of evading detection. Its the equivalent of a closet that cant be opened. A safe that cant be cracked. And my question is, at what cost?

The governments position on encryption hasnt evolved a whole lot in the intervening years. Attorney General William Barr and Sen. Lindsey Graham (R-SC) argued last year that hardened encryption makes it difficult to figure out when messaging platforms are used to coordinate crimes. If a large-scale terrorist attack is carried out, the government needs to act quickly to understand the national security risks. Hardened encryption could make this discovery process harder.

In 2016, in the wake of the San Bernardino shooting, the FBI asked Apple to hand over information from the suspects iPhone. At first, the company complied, giving the FBI data from the suspects iCloud backup. Then the FBI demanded access to the phones local storage. This would have involved Apple deploying an entirely new version of iOS to the device, which the company refused to do. In a statement, a company spokesperson said: We believed it was wrong and would set a dangerous precedent.

The FBI responded by trying to force Apple to help, citing the All Writs Act of 1789. Just before a hearing on this case, however, the FBI was able to unlock the iPhone using an anonymous third-party company. The phone did not contain much new information the FBI hadnt already had, but the conflict escalated the fight between tech companies and the government over encryption.

In 2019, after the shooting at the Pensacola Naval Air Station, the government again asked for Apples assistance unlocking the suspects iPhone. Apple did not comply, but it did hand over data from the suspects iCloud backups. In response to Apples refusal to unlock the shooters iPhone, President Donald Trump tweeted: We are helping Apple all of the time on TRADE and so many other issues, and yet they refuse to unlock phones used by killers, drug dealers and other violent criminal elements.

A week later, it was revealed that the company had dropped plans to allow users to encrypt their iCloud backups after the FBI argued the move would harm future investigations.

In March 2019, Facebook CEO Mark Zuckerberg published a memo laying out his vision for a new privacy-focused social network. In it, he stated the companys plan to roll out encryption across its various messaging apps. People expect their private communications to be secure and to only be seen by the people theyve sent them to not hackers, criminals, over-reaching governments, or even the people operating the services theyre using, he wrote.

The news set off a firestorm of criticism from certain politicians most notably, AG Barr. In a letter to the company, Barr, along with officials in the United Kingdom and Australia, wrote, Companies should not deliberately design their systems to preclude any form of access to content, even for preventing or investigating the most serious crimes. They added that encryption put people at risk by severely eroding a companys ability to detect and respond to illegal content and activity, such as child sexual exploitation and abuse, terrorism, and foreign adversaries attempts to undermine democratic values and institutions, preventing the prosecution of offenders and safeguarding of victims. They asked Facebook to stop the encryption rollout. Facebook did not comply with this request.

Republicans seem to want US tech companies to comply with law enforcement in the event of a major national security attack. They do not want US tech companies to make accessing user data more complicated through end-to-end encryption. In his letter to Facebook, Barr asked Zuckerberg to allow law enforcement to obtain lawful access to content in a readable and usable format, as reported by The New York Times.

Most Democratic presidential candidates are supportive of end-to-end encryption. When asked whether the government should be able to access Americans encrypted conversations, Sen. Bernie Sanders (I-VT) said: [I] firmly [oppose] the Trump administrations efforts to compel firms to create so-called backdoors to encrypted technologies. Sen. Elizabeth Warren (D-MA) did not answer directly, but she said that the government can enforce the law and protect our security without trampling on Americans privacy. Individuals have a Fourth Amendment right against warrantless searches and seizures, and that should not change in the digital era. During his primary run, former South Bend, Indiana mayor Pete Buttigieg said, End-to-end encryption should be the norm. Former New York City mayor Mike Bloomberg, in an op-ed from 2016, argued against end-to-end encryption and said tech companies shouldnt be above the law in refusing court orders to hand over user data.

Section 230 of the Communications Decency Act protects websites from lawsuits if a user posts something illegal. Theres been a large debate about whether companies should continue to have these protections, with various lawmakers proposing plans to change or amend Section 230.

In January, one proposed change called Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (EARN IT) sought to strip tech companies of their Section 230 protections if they didnt comply with new rules for finding and removing content related to child exploitation. And while the bill, titled the National Strategy for Child Exploitation Prevention, didnt lay out many specifics, complying with these rules would likely mean not encrypting some user data.

Apple has taken the lead on the issue so far, and it has been careful to valorize law enforcement and lawful access provisions, while firmly opposing a backdoor. As CEO Tim Cook framed it in an open letter at the start of the San Bernardino case, Apple is willing to do everything it can including turning over iCloud logs and other user data but unlocking device encryption is a step too far. Up to this point, we have done everything that is both within our power and within the law to help [the FBI], Cook wrote. But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.

For the most part, other tech companies have lined up behind Google with the Facebook-owned WhatsApp leading the way. In response to Barrs letter in 2019, Will Cathcart, head of WhatsApp, and Stan Chudnovsky, who works on Messenger, said the company was not prepared to build the government a backdoor in order to access user messages. Cybersecurity experts have repeatedly proven that when you weaken any part of an encrypted system, you weaken it for everyone, everywhere, they wrote. It is simply impossible to create such a backdoor for one purpose and not expect others to try and open it.

Still, many tech companies that rely on government contracts have had to walk a more politically delicate line. Microsoft supported Apple publicly during the San Bernardino case, but more recent statements from Microsoft CEO Satya Nadella have taken a softer line. In January 2020, Nadella expressed opposition to backdoors but optimism about legislative or other technical solutions, saying, We cant take hard positions on all sides.

As tech companies like Facebook continue to move forward with large-scale encryption projects, more major changes could come in the form of legislation aimed at helping or hurting large-scale encryption initiatives. In 2019, Rep. Ted Lieu (D-CA) reintroduced a 2016 bill called the Ensuring National Constitutional Rights for Your Private Telecommunications Act (ENCRYPT), which would create a national standard for encrypted technology. Rep. Zoe Lofgren (D-CA), along with a bipartisan coalition, also introduced the Secure Data Act, which would stop federal agencies from forcing tech companies to build backdoors into their products, thereby weakening encryption. Finally, theres still the draft of the National Strategy for Child Exploitation Prevention, which would make it much harder for tech companies to encrypt their products.

Continued here:

What the 2020 election means for encryption - The Verge

Bernie Asked If Democrats Are ‘Staging Coup Against’ Him. He Refuses To Answer. – The Daily Wire

Socialist Bernie Sanders, the front-runner in the race for the Democratic nomination for president, refused to answer during an interview on CNN whether the Democratic Party was trying to take the nomination away from him.

President Trump questioned last night the timing of Buttigiegs withdrawal, tweeting in part, this is the real beginning of the Dems taking Bernie out of play, no nomination again, CNNs Anderson Cooper said to Sanders. He also also tweeted again this afternoon, they are staging a coup against you.

Is he right? Cooper asked.

Sanders refused to answer the question.

You know what, I really wish that the president of the United States, might kind of spend his time doing his job, Sanders responded. Maybe, just maybe, he might wanna worry about the coronavirus, he might wanna worry about the stock market, he might worry about the 500,000 people in this country who are homeless, or the massive level of income and wealth inequality that exists.

So, President Trump, stay out of the Democratic primary, Sanders continued. Why dont you do your job for a change as president? Stop lying, stop running a corruption administration, pay attention to the American people not just your own political aims.

WATCH:

Trump has repeatedly accused the Democrats of plotting to take the nomination away from Sanders again, writing in January, They are taking the nomination away from Bernie for a second time. Rigged!

Mini Mike is a 54 mass of dead energy who does not want to be on the debate stage with these professional politicians, Trump tweeted last month. No boxes please. He hates Crazy Bernie and will, with enough money, possibly stop him. Bernies people will go nuts!

The Dems are working hard to take the prized nomination away from Bernie. Back room politics, which Bernie is not very good at, Trump tweeted last week. His people will not let it happen again!

The Daily Wire highlighted Sanders extreme policy stances in a profile piece last year:

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

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

Continue reading The Daily Wires profile piece on Bernie Sanders here.

Read more here:

Bernie Asked If Democrats Are 'Staging Coup Against' Him. He Refuses To Answer. - The Daily Wire

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

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

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

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

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

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

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

Residents costs

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

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

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

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

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

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

No unintended tax

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

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

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

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

Evelyn Shaw is chairwoman of the Fayetteville Public Works Commission.

See original here:

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

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

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

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

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

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

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

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

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

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

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

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

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

Here is the original post:

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

Bill Barr can’t be trusted to reform unconstitutional FISA surveillance – Washington Examiner

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

Is Barr kidding?

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

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

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

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

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

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

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

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

Obviously, FISA is badly in need of reform.

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

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

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

Sound familiar?

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

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

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

View post:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See original here:

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

Greyhound to stop allowing regular immigration checks on buses – Peninsula Daily News

By Gene Johnson

The Associated Press

SEATTLE Greyhound, the nations largest bus company, said it will stop allowing Border Patrol agents without a warrant to board its buses to conduct routine immigration checks.

The companys announcement Friday came one week after The Associated Press reported on a leaked Border Patrol memo confirming that agents cant board private buses without the consent of the bus company. Greyhound had previously insisted that even though it didnt like the immigration checks, it had no choice under federal law but to allow them.

Greyhound Lines operates the Dungeness Line on the North Olympic Peninsula with stops in Port Angeles, Sequim, Discovery Bay and Port Townsend. The company took over the Dungeness Line in 2018 from Olympic Bus Lines, whose buses were boarded by Border Patrol agents seeking undocumented immigrants in 2008-09.

In an emailed statement, Greyhound said it would notify the Department of Homeland Security that it does not consent to unwarranted searches on its buses or in areas of terminals that are not open to the public such as company offices or any areas a person needs a ticket to access.

Greyhound said it would provide its drivers and bus station employees updated training regarding the new policy, and that it would place stickers on all its buses clearly stating that it does not consent to the searches.

Our primary concern is the safety of our customers and team members, and we are confident these changes will lead to an improved experience for all parties involved, the statement said.

U.S. Customs and Border Protection, which includes the Border Patrol, did not immediately return a call seeking comment.

Greyhound has faced pressure from the American Civil Liberties Union, immigrant rights activists and Washington state Attorney General Bob Ferguson to stop allowing sweeps on buses within 100 miles of an international border or coastline. In many cases, the buses being checked were not crossing or even approaching an international boundary.

Critics say the practice is intimidating and discriminatory and has become more common under President Donald Trump. Border Patrol arrests videotaped by other passengers have sparked criticism, and Greyhound faces a lawsuit in California alleging that it violated consumer protection laws by facilitating raids.

We are pleased to see Greyhound clearly communicate that it does not consent to racial profiling and harassment on its buses, Andrea Flores, deputy director of policy for the ACLUs Equality Division, said in an email.

By protecting its customers and employees, Greyhound is sending a message that it prioritizes the communities it serves.

Ferguson said in an email his office will follow up with Greyhound to ensure compliance.

Todays announcement from Greyhound confirms what should have been obvious to the company since I contacted them a year ago it has both the power and the responsibility to stand up for its customers, who suffered for far too long from Greyhounds indifference to CBPs suspicionless bus raids and harassment, he said.

The Border Patrol has insisted that it does not profile passengers based on their appearance, but instead asks all passengers whether they are citizens or in the country legally. The agency says the bus checks are an important way to ferret out human trafficking, narcotics and illegal immigration.

Some other bus companies, including Jefferson Lines, which operates in 14 states, and MTRWestern, which operates in the Pacific Northwest, have already taken similar steps to those announced by Greyhound. Flores said the ACLU would continue to push others to follow suit.

The memo obtained by the AP was dated Jan. 28, addressed to all chief patrol agents and signed by then-Border Patrol Chief Carla Provost just before she retired. It confirms the legal position that Greyhounds critics have taken: that the Constitutions Fourth Amendment prevents agents from boarding buses and questioning passengers without a warrant or the consent of the company.

When transportation checks occur on a bus at non-checkpoint locations, the agent must demonstrate that he or she gained access to the bus with the consent of the companys owner or one of the companys employees, the memo states. An agents actions while on the bus would not cause a reasonable person to believe that he or she is unable to terminate the encounter with the agent.

Greyhound previously argued that case law, including a 1973 Supreme Court ruling, did not extend the Fourth Amendments protections to commercial carriers.

Follow this link:

Greyhound to stop allowing regular immigration checks on buses - Peninsula Daily News

Interview With James Goodale: Stunning How Few In US Care About Threat Posed By Assange’s Case – Shadowproof

Editors Note Shadowproof editor Kevin Gosztola is in London for WikiLeaks founder Julian Assanges week-long extradition hearing.

Stay tuned to Shadowproof, as well as his Twitter, for coverage. And if you support our work and are able to help fund Kevins reporting, go here to donate.

James Goodale is one of the more prominent First Amendment lawyers in the United States. He represented the New York Times in the Pentagon Papers case. In 2013, Goodale wrote the book, Fighting For The Press, which outlined the threat to press freedom if President Barack Obamas administration prosecuted WikiLeaks founder Julian Assange.

No First Amendment attorney has been as outspoken on what will happen to journalism if the U.S. government successfully extradites Assange and brings him to trial in the U.S. for violating the Espionage Act.

Ahead of the first part of Assanges extradition hearing, I spoke with Goodale about the U.S. governments argument that Assange is not protected by the First Amendment. He also addressed the evidence of an espionage operation against Assange while he was in the Ecuador embassy. The operation was reportedly backed by the CIA.

Below is an edited transcript of our conversation. In a few areas, the audio cut out, but it is still possible to understand all of Goodales key points on what is at stake in this case.

GOODALE: I have dreaded the beginning of the extradition hearing because I do not want Assange back in this country to be tried under the Espionage Act. So thats my general point of view. I do not think that he should be tried under the Espionage Act because the act was designed for espionage and not for reporting the truth, which is what Assange did. And I dont want the law stretched any further than it has already been stretched.

With respect to the precise nature of the hearing, while the principal issue in the extradition hearing will be whether or not the offense complained of is a political offense and therefore does not hit the middle of the target with respect to the First Amendment, its close enough. So I am following that issue very carefully to see how the court will deal with it.

Seems to be, generally speaking, the actions that Assange took were against the interests of the United States, against its political interests, and therefore he is being sent back for a political trial. If, in fact, Im correct in that and the judge agrees with me, then he cant be extradited. So thats quite important.

A second issue that Im following is the CIAs tapping of his phone. It is quite clear that the CIA made a deal with a Spanish security company [inaudible]to have that Spanish security company videotape and audio tape everything that went onincluding importantly Assanges conversations with his lawyers.

If you have a conversation with your lawyer and its being taped, that is really fundamentally bad.

More to the point, in terms of the history of the Espionage Act as applied to these proceedings in the United States, Daniel Ellsberg, who leaked the Pentagon Papers to the New York Times, was tried under the Espionage Act back in 1973. That prosecution was dismissed because it came to the attention of the court that the plumbers, employees who were in the White House under President Richard Nixons tutelage, broke into the office of Ellsbergs psychiatrist.

That is very much the same as breaking into the conversations, and as a consequence, Ellsbergs trial was dismissed. By analogy, therefore, Assange should not come back to this country because his rights have been completely fouled up.

Third thing Im following is that the government is taking this very strange position that Assange has no First Amendment rights whatsoever. That position is based on the idea that Assange is not an American citizen and therefore he doesnt get First Amendment protections. The government has said theyre going to put that into the court. I will be listening carefully as to what exactly that position is.

GOSZTOLA: Is there any argument to be made that a person who is a non-American would not have First Amendment rights? Or are they concocting this argument, making it up on the fly out of whole cloth?

GOODALE: I would agree with the fact that theyre concocting it [but not necessarily out of whole cloth].

What happened once a long time ago was that a drug dealer in Mexico was arrested in violation of the Fourth Amendment, and the Supreme Court said hey, the guys in Mexico. He doesnt get the protection of the Fourth Amendment. I dont think that applies to this case because, first of all, its a First Amendment case, and secondly, in the drug dealer case, he was being pilloried in Mexico.

In Assanges case, when he broadcast his informationthat is to say when he put it on the netit went worldwide, and it came into this country. So he was in the country, and if hes in the country, he should get the protection of the First Amendment. The drug dealer to whom I referred was not in this country.

Pretty disturbing that the government would take somebody who is in a country other than the United States, namely Assange, and say that hes subject to the Espionage Act of this country but he doesnt get the protection of the other laws that would otherwise protect him. Its the most outrageous goddamn thing Ive ever heard.

GOSZTOLA: What were talking about here are secrecy laws within the United States that have bearing on First Amendment rights for U.S. citizens. Then those laws are being imposed on someone who is a foreigner. If the First Amendment doesnt apply to Julian Assange, then how can this secrecy law? How can he be accused of violating the Espionage Act?

GOODALE: Exactly, how can the government have it one way and not the other way? You cant have it both ways. Hes not subject to it and hes out. Or he is subject to it and he gets the protection. It seems to me that when you think about this concept as applied to Assange, it makes no sense.

With a world that is tightly bound by the internet and thus we could have another example of this down the line. A precedent that the United States can go all over the world and pick up people who they think are stealing their secrets and try them under U.S. law when theyre in fact in some other country, not covered by protections of U.S. law, is a pretty outrageous concept.

GOSZTOLA: We see this reluctance to describe or allow Assange to be treated as a publisher. Of course, people dont want to say hes a journalist. But at minimum we can agree hes a publisher.

Does it matter whether people describe him as a whistleblower or a journalist? Ive always had a tough time trying to see him as a whistleblower because hes not the originator of the information.

GOODALE: We got the leaker, Chelsea Manning. The leakee, thats Julian Assange. Then weve got the publisher and thats anybody who puts the leaks on his website. So lets look at and see what Julian Assange does. Does he fit into the leaker category? No he doesnt. Is the leaker category the same as the whistleblower category? So hes not a leaker. So hes not a whistleblower. Then what is he? Hes a journalistic entity whos receiving information.

Hes very much the same as a reporter. Ok, and then he takes the information. He passes it on to the New York Times, among others. And the New York Times publishes it, and then Assange publishes, too. So, as Ive said, hes a publisher so hes wearing two hats: one is as a quasi-journalist and one as a publisher.

With respect to being a publisher, it doesnt matter whether you call him a journalist or not. He should be entitled to all protections that every publisher, including the New York Times, the Guardian, and the others get, under the First Amendment if in fact the First Amendment applies, which I think it does.

It makes no difference whatsoever under the law because if, in fact, you are gathering information you should be protected under the laws of this country regardless of whether we call that person a journalist, a leakee, or anything else. The function that he performs is something that the First Amendment protects. Its something that freedom of speech [inaudible] freedom of speech laws of any country should protect. It doesnt matter what you call him.

GOSZTOLA: You make the comparison between Assange and New York Times Neil Sheehan, who was involved in publishing the Pentagon Papers.

GOODALE: Many years ago, the government tried to do the same thing to Neil Sheehan. They had a grand jury all set up. They were going to indict him, and they were going to indict him under the Espionage Act. For reasons no one really knows, the grand jury got disbanded. They never went after Sheehan, but Sheehan and Assange are identical in terms of what happened to them and the function they performed.

GOSZTOLA: If you can apply the Espionage Act, then he has First Amendment rights. And then if he has First Amendment rights, how would all the details from the espionage operation be weighed to show the case could not go forward?

GOODALE: The basic argument you make is that the trial, if many, has to be fundamentally flawed if, in fact, everything that youve told your attorneys and told your colleagues is in the hands of the entity that is trying to prosecute you, namely the United States. So thats why I say its the same as breaking in on Ellsbergs psychiatrist, which is what the U.S. government did and the judge took a look at it and said Ive got to throw the whole case out.

Weve got to remember that Ellsberg was in the same position as Sheehan. Tried under Espionage Act for criminal [inaudible]. So that case got thrown out, so why shouldnt the Assange case get thrown out? So why shouldnt the extraditing court in [the United Kingdom] say its so fundamentally flawed? Hes not going to go back.

GOSZTOLA: The media organizations or editors are sensitive. They describe him as a source and not a partner, even though there was collaboration. They may be doing this because they dont want to treat him as a journalist. Is there a liability issue?

GOODALE: I do not think there is a legal liability issue that causes the American press and particularly those who partnered with him to parse the definition of what Julian Assange was doing in this case. I think myself that its absolute foolishness on behalf of the journalist profession to try to distance themselves from Assange in any way we can. And thats what were really talking about when establishment press, journalists generally speaking, say well hes not really a journalist. Hes a source.

Its all a bunch of nonsense as far as Im concerned. He is performing for all practical purposes, and particularly for all legal purposes, all the functions of a journalist. So come on. Wake up, American press. This guy is doing enough of what youre doing so that, when hes penalized for what hes doing, the penalties are going to come back and get you. Wake up.

Julian Assange, because hes not the ordinary person youd meet in any kind of circumstances, the journalists are standing askance and they dont want to be associated with him. But too bad for those journalists who dont want to be associated with him.

Cmon. Hes going to get pilloried, perhaps, without your support. You better stand up and support him because whatever happens to him is going to happen to you, and down the line, whats going to happen is really bad.

And whats really bad is the United States is going to end up with an Official Secrets Act, by which leaking not only is criminalized but receiving leaks in the capacity of a leakee is also going to be criminalized. And that is really bad because youre just inviting governments, particularly authoritarian governments, to control their information.

And if they lose control, you go to jail. They dont really believe that what you have received is that criminal. In fact, its the fact that youve got it and they dont have it. And if they dont have it, they cant control you. Wake up, American press.

GOSZTOLA: Do you feel like the press and all the people who should be concerned have responded adequately?

GOODALE: One person is concerned, the present speaker. One person speaking out against one of the greatest threats to the American press in the history of the United States. The answer to your question is no one seems to be paying any attention.

If, in fact, you were to follow world pressthe world press is covering this fully and completely. The American press isnt covering it at all, as far as I can see. Thus far. And it will be very interesting to see what the press does as to the coverage of the trial in England.

The rest of the world is concerned. Why shouldnt the U.S. press be concerned? I just dont get it.

GOSZTOLA: There are [members of parliament] from European countries, who will be there as observers, but there isnt a single person from [the U.S.] Congress who is going over to watch proceedings.

GOODALE: Thats a very good point. The German parliament [inaudible] briefing sessions related to Assange, and they will have observers. To the best of my knowledge, the U.S. will have no one.

Part of the problem in this country, which is different from other countries, is theres a sour taste in the mouths of journalists with respect to Assanges activities vis-a-vis the [Democratic National Committee (DNC)] leak. That is most freshly in their mind and because of that happenstance, and the fact that it was looked into by Mueller and is still around, has made Assange particularly unpopular. But so what?GOSZTOLA: The case that they tried to bring against Julian Assange and WikiLeaks around the issue of hacked material but we saw a court defend the right of publishing hacked material in the United States and it seems like the political establishment just cant accept that that is a part of our law.GOODALE: Well, thats another good point. That case was decided by my former First Amendment partner, Judge John Koetl.

He decided the First Amendment applies to Julian Assange in this country, and that Julian Assanges activities with respect to the release of information concerning the DNC was protected by the First Amendment. That suit was brought by the DNC, and Judge Koetl went out of his way to say that the activities of Assange in releasing that information were fully protected by the First Amendment.

If the Justice Department is going to succeed in persuading the world that the First Amendment doesnt apply here, theyre going to have to overrule Judge Koetls decision.

Go here to see the original:

Interview With James Goodale: Stunning How Few In US Care About Threat Posed By Assange's Case - Shadowproof

Column: What happened in Vegas should stay in Vegas – Seacoastonline.com

Well, that was chaos. Wednesday night the Democratic presidential candidates took the stage in Las Vegas to debate. It was not boring. The circular firing squad left no one unscathed. Most seemingly shocked by it was former New York City Mayor Bloomberg, clearly unprepared to defend from the well-predicted target on his back.

Sen. Elizabeth Warren is being credited for her attack-dog approach going after almost everyone, but most strongly, Bloomberg. She thought she had him against the ropes a few times; she wouldnt have if Bloomberg were better prepared to answer. She attacked him for refusing to, on stage, waive any non-disclosure agreements women had signed with his company. He stuttered and stumbled. It was uncomfortable. I think the answer would be pretty simple: I cant undo legal documents on a political stage, nor should I. That would be exploitative. Im not a lawyer, but I really hope a pressured pronouncement in a political venue for political gain cant be a legal way to cancel a contract.

She then went after him for calling people bad names. Look, its not nice, but if claim you havent called people bad names to their faces or behind their backs, I dont believe you. I think Im a generally nice person, but Ive gotten mad enough to name-call and the more annoyed I am the more creative my choice of words. Sure, you can mince, well, calling someone this is worse than calling someone that. But, is it? Im far more offended that Warren called herself a Native American and stole a heritage to advance her education and career than I am by the nonsense-names Bloomberg called anyone. We shouldnt call anyone derogatory anythings, but we all have. Its not a disqualifier unto itself. And, my Republican friends, you cant support Donald Trump and be offended by Bloombergs name-calling.

We had some back and forth between the two rising stars, Mayor Pete Buttigieg and Sen. Amy Klobuchar. I can summarize it best as: Youre a doo doo head! No, youre the doo doo head! It was that intellectual. Mayor Pete is upset that in a recent interview Sen. Klobuchar couldnt come up with the name of the Mexican president. As Klobuchar pointed out the election for president isnt a game of Jeopardy. Campaign days are long, with dozens of questions, interviews and conversations every day. People get tired and so do their brains. People forget things they know. It's not worth the way too many seconds Mayor Pete spent on it.

Joe Biden went after Bloomberg for his support of the New York City police policy of stop and frisk when he was mayor. I dont support stop and frisk. I think it goes against the Fourth Amendment of the Constitution. I simply dont understand this bizarre tactic of Democrats going after each other for who is more racist, sexist or bigoted. What an odd and pandering approach. When one of them is the nominee, have they thought about how they are going to support said racist, sexist or bigot against Trump?

The most interesting part of the grudge-match presidential debate was the race to the extreme left. We knew about Universal Health Care and the Green New Deal. These candidates went even further left. Bernie Sanders wants to force companies to give a chunk of their companies to their employees. Why would anyone start a big business if they have to give it away? Warren wants a wealth tax. The idea that you punish success is anti-American. Whats she going to do with that money? Pay for far more things than it could afford. My favorite is Universal Childcare. Cradle-to-grave control of our children paid for by taxpayers. Then shes going to mandate increasing wages for childcare workers. She wants the government to set industry specific salaries and wages.

Bloomberg didnt jump in on the new nonsense, but lets not forget hes the guy who told New Yorkers how much soda, per ounce, they can drink. He did have the most accurate comment of the night: I cant think of a way that would make it easier for Donald Trump to get re-elected than listening to this conversation.

The yelling over each other and hand waving seemed below the office of the president. The bar of our expectations of respect and civility has been lowered of late, but least it was entertaining.

Alicia Preston is a former political consultant and member of the media. Shes a native of Hampton Beach where she lives with her family and three poodles. The views expressed are those of the writer. Write to her at PrestonPerspective@gmail.com.

See the article here:

Column: What happened in Vegas should stay in Vegas - Seacoastonline.com

112 Media Mistakes in the Trump Era: The Definitive List – Sharyl Attkisson

Click here to support independent journalism at SharylAttkisson.com

But as self-appointed arbiters of truth, weve largely excused our own unprecedented string of fact-challenged reporting. The truth is, formerly well-respected, top news organizations are making repeat, unforced errors in numbers that were unheard of just a couple of years ago.

Our repeat mistakes involve declaring that Trumps claims are lies when they are matters of opinion, or when the truth between conflicting sources is unknowable; taking Trumps statements and events out of context; reporting secondhand accounts against Trump without attribution as if theyre established fact; relying on untruthful, conflicted sources; and presenting reporter opinions in news storieswithout labeling them as opinions.

So since nobody else has compiled an updated, extensive list of this kind, here are:

USA Today misstated Melania Trumps arrival date from Slovenia amid a flurry of reporting that questioned her immigration status from the mid-1990s.

Multiple outlets including Politico, the New York Times, the Washington Post, CNN, AP, Reuters and the Wall Street Journal reported the same leaked information: that Trump fired FBI Director James Comey shortly after Comey requested additional resources to investigate Russian interference in the election.

The Justice Department, Deputy Attorney General Rod Rosenstein and Acting FBI Director Andrew McCabe said the media reports were untrue and McCabe added that the FBIs Russia investigation was adequately resourced.

The New York Times Jonathan Weisman reported that Comey testified Trump Attorney General Jeff Sessions told Comey not to call the Russia probe an investigation but a matter. Weisman was mistaken about the attorney general and the probe. Actually, it was Obama Attorney General Loretta Lynch (not Sessions) who told Comey to refer to the Hillary Clinton classified email probe (not the Russia probe) as a matter instead of an investigation.

CNN edited a video that made it appear as though Trump impatiently dumped a box of fish food into the water while feeding fish at Japans palace. The New York Daily News, the Guardian and others wrote stories implying Trump was gauche and impetuous. The full video showed that Trump had simply followed the lead of Japans Prime Minister.

MSNBC personality mistakenly stated that Trump had banned the Red Cross from visiting children separated from illegal immigrant parents.

NBC reporter Leigh Ann Caldwell reported that outgoing Supreme Court Justice Kennedy only retired after months of negotiations with Trump that concluded with Trump agreeing to replace Kennedy with Judge Kavanaugh.

Support Sharyl Attkissons fight against government overreach in Attkisson v. DOJ and FBI for the government computer intrusions. For more info visit:https://www.gofundme.com/sharyl-attkisson-4th-am-litigation

Washington Post reporter implied Trump doesnt understand NATO countries. In fact, Trump met with the Finnish President at the NATO summit. Further, Finland is a NATO partner, just not a member.

The New York Times issues a major correction (below) to an original unfair article about U.S. Ambassador to the United Nations Nikki Haley.

The New York Times falsely reported that a man, Mark Judge, testified he remembered an incident more than 30 year ago in which Supreme Court nominee Brett Kavanaugh is accused of assault. Judge actually said the opposite: he does not remember such an incident, and that the allegations are absolutely nuts. The Times corrected its article in an editors note.

Multiple news outlets report that Deputy Attorney General Rod Rosentein has resigned or been fired. Neither turns out to be true. Axios and others eventually update and clarify their erroneous reports.

NBC News falsely reports that President Trump praised Confederate General Robert E. Lee. Actually, Trump had praised the Union General Ulysses S. Grant.

CNNs Jeff Zeleny reports that President Trump has decided to fire a deputy national security adviser upon the First Ladys demand. The Wall Street Journal reports the adviser has been escorted out of the White House. Later, its reported that neither case was true. This did not happen. She is still here at the WH, a senior official told the press. The adviser was reassigned to another job.

Its discovered that nearly everything written by a Der Spiegel reporter, who had been honored by CNN, about a supposedly racist Trump stronghold town was fabricatedlike much of his other work.

NBC reports that Trump was the first President since 2002 not to visit the troops at Christmastime. But he (and First Lady Melania) did. NBC added a note to its story but left the false headline in place.

CBS News claimed, in June of 2018, that Trump spokesman Sarah Huckabee Sanders would retire by the end of the year. She didnt. As of May 2019, she was still on the job and there had been no correction or editors note. The same CBS story also quoted sources as saying the departure of White House assistant Raj Shah was also imminent. It wasnt. Shah continued to serve seven more months.

The New York Times issues a correctionto a report that falsely stated former Trump campaign chairman Paul Manafort asked for campaign polling to be given to a Russian oligarch, Oleg Deripaska, who has ties to Russia President Putin.Instead, the Times now claims, Manafort actually asked his associate Rick Gates to give polling data to Ukrainian oligarchs not Deripaska.

While working at Politico, one of the New York Times reporters, Ken Vogel, got caught sending drafts of stories to democratic officials. Another co-author, Maggie Haberman, was considered a friendly by Clinton campaign officials who turned to her when she worked at Politico.

We have had her tee up stories for us before and have never been disappointed. We can do the most shaping by going to Maggie, wrote Clinton officials in emails.

Fox TV affiliate in Seattle, Washington airs fake, doctored video of President Trump that altered his face and made it appear as though he had stuck his tongue in and out while giving an Oval Office address.

The Buzzfeed exclusive with anonymous sources implicating Trump in potentially criminal behavior (that Democrats and pundits said would be the nail in Trumps impeachment coffin) is refuted in a rare rebuke from Special Counsel Muellers office. Buzzfeed stands by its reporting.

Fight improper government surveillance. Support Attkisson v. DOJ and FBI over the government computer intrusions of Attkissons work while she was a CBS News investigative correspondent. Visit the Attkisson Fourth Amendment Litigation Fund. Click here.

The New York Times and Washington Post are among the publications that issue corrections after falsely reporting that an anti-Trump activist had served in the Vietnam War.

Additionally, multiple news employees, including a CNN employee, apologize for mischaracterizing as the aggressors Trump-supporting teenagers at a pro-life rally.

The UK Telegraph apologizes for all the facts it got wrong in a Jan. 19 article criticizing the First Lady.

Fight government overreach and double-standard justice by supporting the Attkisson Fourth Amendment Litigation Fund for Attkisson v. DOJ and FBI for the government computer intrusions. Click here.

While some media outlets responsibly reported and properly attributed allegations in the racist attack alleged by actor Jussie Smollett, others did not. Some unskeptically furthered the narrative that Smollett, who is black, was attacked by Trump-supporting racists who put a noose around Smolletts neck, shouted racial slurs, told him its MAGA (Make America Great Again) country, and poured bleach on him. While details are still emerging as of this date, Chicago police have stated that Smollett is no longer considered a victim of the crimes he alleged. The New York Times receives special mention here for adding a biased non sequitur in its early reporting that treated skepticism of Smolletts story as if it were unfounded, and fit in a dig at President Trumps son.

But the lack of progress in the investigation has fueled speculation about whether the report was exaggerated. The presidents son Donald Trump Jr., who is known to disseminate conspiracy theories on his Twitter feed, retweeted an article this week about Smollett declining to turn over his cellphone to the police.

Its as good a day as any to point out that The Washington Post and others reported last November that Trump was imminently about to fire DHS Secretary Kirstjen Nielsen. The Post confirmed this with five anonymous sources. The firing was said to be likely to happen the following week.

Nielsen remained on the job for five more months before resigning.

Testimony by former Trump lawyer Michael Cohen seemed to put the final nail in the coffin of the dossier claim reported by many that Cohen had visited Prague to meet with Russians to help collude on Trumps behalf. Cohen told Congress hes never been to Prague or the Czech Republic, for that matter. McClatchy even reported that Cohens cell phone had pinged off Prague towers. Where did this apparently false information come from? Four people spoke with McClatchy on condition of anonymity due to the sensitivity of information shared by their foreign intelligence connections. Each obtained their information independently from foreign intelligence connections, reported McClatchy.

The Washington Post deleted a tweet containing false reporting about a January 19 incident regarding a standoff between Trump-supporting pro-life Catholic high school students and a pro-choice Native American activist. The Post wrongly stated, without attribution, that the activist had fought in the Vietnam War. The activist also falsely stated that a high school student had blocked him and wouldnt allow him to retreat. These events were later called into question, and the Washington Post is being sued in a multi-million dollar libel suit over its allegedly false reporting and misrepresentations. The Post also posted an editors note on this date stating that a more complete assessment of the incident contradicted or failed to confirm accounts as originally reported, including that a particular student was trying to instigate a conflict.

Multiple reporters and media outlets have provided false information and/or quoted incorrect anonymous sources as to the timing of the release of Special Counsel Muellers report on Trump-Russia collusion. The Washington Post said it would be out in summer of 2018. Bloomberg said it would be shortly after the 2018 Midterm elections. In February 2019, CNN, The Washington Post and NBC reported the report was coming the last week of February. However, it was not announced at that time.

Continued here:

112 Media Mistakes in the Trump Era: The Definitive List - Sharyl Attkisson

The case for repealing FISA and reforming the FBI and CIA – Washington Examiner

Like most of what ails us today, the seeds of the current crisis in republican governance the severance of Washingtons omnipotent law enforcement and intelligence apparatus from democratic accountability were sown in the 1960s and 70s. That was when we began to erase the salient distinction between law and politics. Under the guise of national security, we insulated governmental actions and policies from the reckoning of our citizens, whose safety and self-determination hang in the balance.

Fast forward to 2020. The FBI, in its bungling partisanship, very likely swung the 2016 presidential election away from its preferred candidate, Hillary Clinton. The sprawling community of intelligence agencies (led by the FBI and CIA) covertly used dubious foreign sources to justify monitoring an American political campaign and, later, a U.S. presidential administration. To do so, it invoked daunting foreign-counterintelligence surveillance powers, based on a fever dream that its bte noire, Donald Trump, was an agent of the Kremlin. And the Foreign Intelligence Surveillance Court recently chastised the FBI for feeding it false and unverified information the secret court apparently calculating that this extraordinary public expression of wrath will divert attention from its own shoddy performance in approving highly intrusive spy warrants based on sensational, blatantly uncorroborated rumor and innuendo.

As usual, Washington is reacting with high-decibel inertia. In an era of hyperpartisanship, Democrats defend the politicization of the law enforcement and intelligence that resulted in the Trump-Russia investigation. Republicans, meanwhile, wail about being victimized even as the victim-in-chief ham-handedly dabbles in his own mini-version of the abuse: the Ukraine kerfuffle, in which the president sought, however futilely, to leverage the investigative and foreign affairs powers of the executive branch for domestic political advantage.

Few are willing to confront the crisis. Even acknowledging it seems politically impossible. Not only are Democrats invested in defending the Russia investigation and its excesses, but their post-Watergate surveillance reforms forged the modern law enforcement and intelligence apparatus, which tends to be politically like-minded, at least in the supervisory ranks. For their part, Republicans pay lip service to limited government and political accountability while continuing to see national security and law-and-order hawkishness as key to political success. Any questioning of the status quo, as opposed to criticism of the individual abuses that the status quo reliably produces, is framed as a green light to foreign sabotage and domestic lawlessness.

Yet there are indications weve reached an inflection point: The public is growing weary and not a little bit angry. The politicization of law enforcement and intelligence-gathering threatens everyone, regardless of political persuasion. And officials seem always to escape accountability.

Consider the center-right, the part of the political spectrum where the FBI and aggressive spy powers have traditionally found their staunchest defenders, myself very much among them. We see several Trump operatives (Carter Page, Michael Flynn, George Papadopoulos, Roger Stone, and Paul Manafort) subjected to groundless surveillance or prosecuted with unseemly zeal for process crimes (usually, misleading investigators), or for offenses unrelated to the fictional Trump-Kremlin conspiracy. In stark contrast, government officials who misled investigators, judges, and lawmakers evade prosecution. The latest example: the Justice Departments mid-February announcement that the FBIs former deputy director, Andrew McCabe, will not be indicted despite serially misleading agents who were probing a media leak that he orchestrated.

Here is the problem: The immense powers wielded by our law enforcement and intelligence apparatus are essential to protecting the United States. The agencies that wield them, as currently constructed, are not.

The intelligence communitys performance is often subpar. While officials have played an admirable part in preventing a reprise of the 9/11 atrocities, they have also promoted misconceptions that they and their intrusive information-collection techniques are fit tools for the tasks at hand. For example, the notion that international terrorism is primarily a law enforcement matter led for years to a focus on post-attack prosecutions rather than the prevention of attacks from happening. Indeed, the specter of jihadist strikes ebbed only after domestic law enforcement was subordinated to military operations against overseas terrorist sanctuaries. And lets not forget the bulk collection of communications and metadata involving tens of millions of innocent Americans, supposedly necessary for intelligence agencies to target a relative handful of bad actors which amounted to the risible suggestion that heaping ever more hay in the stack somehow makes the needles easier to find.

Yes, we need aggressive intelligence collection, mission-focused rather than warehoused without much discrimination, to protect the nation from very real foreign threats. But this is a political responsibility, and government officials who carry it out must be accountable. When officials are permitted to shroud their work in complete secrecy, making themselves unaccountable, an outraged public will eventually react to abuses of power by demanding that the powers themselves be pared back or repealed. Our nation would be imperiled from without by foreign aggressors, even as we remained threatened from within by a politicized bureaucracy.

Some history is in order. In its 1967 ruling in Katz v. United States, the Supreme Court completed its transformation of the Fourth Amendment. Originally, it had been rooted in principles of trespass, a venerable criminal-law doctrine whose application is straightforward: The government must respect property rights. The new rule of the road was expectation of privacy. That is a fluid standard, evolving as do technology (which enables government monitoring without physical trespass) and the publics expanding conception of zones of personal activity and intercourse that should be shielded from prying, investigative eyes.

Brokering the eternal tension between security and privacy is a political task. It should be governed by legislated rules that police can easily carry out. Instead, weve put our police in the position of intuiting what privacy invasions the courts might indulge. That is asking them to do policy, not policing.

National security is also a political policy matter, categorically different from law enforcement. In requiring judicial warrants for wiretaps in ordinary criminal investigations in Katz, the court recognized that distinction, stressing that its ruling did not encompass government actions to protect national security. In 1968, Congress recognized the same distinction when it enacted the federal wiretapping statute. Lawmakers took pains to note that they were not encroaching on the presidents constitutional authority to protect national security and guard against espionage by obtaining foreign intelligence, including by electronic surveillance.

What about the crossroads where national security and law enforcement intersect? In the 1972 Keith case, the Supreme Court was forced to confront it, in that instance regarding insurrection and its related crimes by domestic terrorists. The intelligence agencies sought to treat the matter as a security threat, suitable for such national defense tactics as warrantless surveillance, not a policing challenge calling for the due process and substantive safeguards attendant to court prosecutions in peacetime. Reasoning that politically motivated violence was bound up with constitutionally protected political dissent, the court ruled that the rabble-rousers rights to privacy and expression had to be respected, even if a judicial warrant requirement was certain to make monitoring them more difficult (and preventing their attacks more challenging). Again, however, the justices caveated that the scope of our decision involves only the domestic aspects of national security (emphasis added). The court was not saying that foreign powers and their agents were entitled to the due process protection.

Such caution was well-founded. In 1948, in the Chicago & Southern Air Lines decision written by Justice Robert Jackson, an iconic figure in politics, national security, and jurisprudence, the Supreme Court explained why judges were not institutionally competent to regulate foreign intelligence matters or be taken into executive confidences regarding them. The very nature of executive decisions as to foreign policy is political, not judicial. In our system, Jackson observed, such decisions are wholly confided to the executive and legislative branches. Because the most significant decisions a free society makes are those about its security, they must be left to the political actors directly responsible to the people whose welfare they advance or imperil, not to the unaccountable judiciary.

But Washington threw caution to the wind. The FBI and judges were already making policy decisions about where constitutional protections should yield to law enforcement demands. In 1978, in the Foreign Intelligence Surveillance Act, Congress extended this delegation to intelligence policy.

Enacted in the wake of Watergate and domestic spying scandals that led to Congresss Pike and Church Committee inquiries, FISA empowered federal judges to oversee the executives foreign intelligence collection. Originally, this power was limited to the FBIs surveillance of clandestine foreign agents in the United States; later, it was dramatically expanded to cover intelligence collection targeting foreigners outside the U.S. Plainly, lawmakers calculated that the creation of a separate court to handle all applications for foreign-intelligence surveillance would grow judicial expertise, addressing the institutional incompetence problem to which Jackson had alluded. FISA is heedless, though, of the more serious constitutional problem: the transfer of responsibility for innately political national security decisions to nonpolitical unelected officials i.e., away from democratic accountability.

It is the culture of law enforcement to expect independence from politics. Such independence is imperative for the legitimacy of the criminal justice system, on which depend the rule of law and thus domestic peace and prosperity. The framers understood that nothing lends itself to tyranny more than police powers unmoored from political accountability. The FBI and the Justice Department (of which the bureau is a component) are part of the executive branch, answerable to the president, who is accountable to the public. Prudently, however, the executive branchs political leadership does not involve itself in day-to-day policing, content to set programmatic enforcement priorities (e.g., deciding whether to allocate more resources to violent crime or healthcare fraud). There is no political interference in decisions about what cases to bring and which defendants to charge. Those are left to police professionals, who apply Congresss penal statutes in proceedings overseen by courts.

National security, on the other hand, is an innately political responsibility. Indeed, the foreign counterintelligence mission is conducted solely to support the presidents national defense duties, not to develop prosecutable court cases. If the FBI and the courts are doing national security, they are necessarily practicing politics. Arms of government that make political determinations cannot properly be independent of political oversight and accountability.

Ive always believed the FBI could handle these related but different responsibilities. History proved me wrong. The bureau arrogantly insists on independence from political oversight not just in criminal cases but even when it is carrying out national security functions. It wants a free hand to act and even make policy judgments in the political realm, but it demands insulation from political accountability. The courts, analogously, have shed their healthy reluctance to become embroiled in national security policy disputes, as well as their formerly laudable line-drawing between political questions and controversies fit for judicial resolution.

FISA was a well-meaning effort to give a modicum of due process to Americans suspected of acting as foreign agents. In point of fact, it does not provide meaningful due process because it cannot replicate the adversarial search for truth that is the hallmark of judicial proceedings. The FBI and Justice Department appear ex parte before the court; the surveillance subject cannot be effectively represented, and the proceedings are classified, so the expectation is that no one will ever check the executives representations. This is unlike criminal cases, which lead to prosecution, discovery, and significant legal consequences if government agents duped the judge into granting warrants.

More important, the FISA framework intended to provide more oversight of executive surveillance has had the opposite effect. Because the judges are not constitutionally responsible for national security, they are loath to second-guess the officials who are. The system perversely incentivizes those officials to seek warrants on questionable premises. They know that the judge will probably approve the warrants. Once thats done, the agents can brandish these judicial imprimaturs as proof that their actions are unimpeachable and thus to claim there is no legitimate reason for Congress, much less the public, to pierce the veil of secrecy.

And now, with the Trump-Russia investigation, weve witnessed the abuse of power many FISA critics predicted for decades: the pretextual invocation of FISA surveillance powers to conduct a criminal investigation for which the investigators lack a criminal predicate in this instance, the hunt for some crime that might render Donald Trump unelectable or removable. Worse, and quite naturally, the abuse has happened in a political context: the incumbent Democratic administration using the threat posed by a hostile power, Russia, to rationalize foreign counterintelligence surveillance of the opposition partys political campaign, an abuse that continued for two years and impeded the Trump administrations capacity to govern.

This was all predictable. It may even have become inevitable, as law enforcement was increasingly intertwined with political policymaking in the areas of privacy and national security, and as intelligence-gathering and criminal investigations were increasingly intermingled.

A fix is not that hard to grasp. It is doubtful, though, that our political culture could muster the consensus and will it would take for implementation.

The FBI should be relegated to the investigation and prosecution of crime. The bureau excels in executing its law enforcement duties and can be trusted to operate with minimal political supervision because the criminal justice system features transparent judicial oversight. The foreign counterintelligence mission should be transferred to other intelligence community components and subjected to beefed-up congressional regulation and oversight. FISA should be repealed, with the courts returned to their judicial role of providing a forum for those injured by governmental overreach, rather than aiding and abetting in the overreach.

Much more rethinking of the intelligence community needs to be done. The Claremont Institutes Angelo Codevilla, an insightful and provocative intelligence expert, argues the CIA is obsolete, politicized, and counterproductive. He would assign foreign intelligence responsibilities to the departments that carry out national defense and foreign relations missions mainly, the Defense and State Departments tailoring the gathering of intelligence to the practical needs of these missions. This would strip down the so-called deep state, a leviathan that warehouses mountains of intelligence to the detriment of our liberties and with dubious benefits to our security. Codevilla would also repeal FISA.

His ideas are worth exploring. What is already clear, however, is that national security against foreign powers is not a fit responsibility for police agencies and courts. Assigning it to them is a failed experiment: a temptation to intrusive surveillance of innocent citizens and politicized law enforcement. We should end the experiment before the public, in its frustration over the lack of accountability, clips the powers vital to our national defense.

Andrew C. McCarthy, a former chief assistant U.S. attorney in New York, is a senior fellow at National Review Institute, a contributing editor at National Review , and a Fox News contributor.

See more here:

The case for repealing FISA and reforming the FBI and CIA - Washington Examiner

The Role of Originalism in Torres v. Madrid – Reason

In late March, the Supreme Court will hear argument in a Fourth Amendment case, Torres v. Madrid, on what is a Fourth Amendment "seizure." The question in Torres is whether a person is "seized" if the government uses physical force to try to stop someone but the force does not succeed in stopping her. The suspect was driving away from the police, a police officer shot at the car and injured her, but she continued to drive away. Was the shooting that injured her a Fourth Amendment "seizure"?

In this post, I want to discuss a really interesting question that I see underlying Torres: To what extent should the Court defer to common law rules in interpreting the Fourth Amendment when the context in which the rules were announced is very different from today?

I. Concept One Way, Consequences the Other

Before I get to the common law rules, I want to point out that there are lots of ways of resolving Torres without reference to the common law rules. When I first heard about the Torres case, my thoughts were drawn to two other issues; the concept of seizures and the practical implications of how to interpret it in this setting. Because I suspect many readers will focus on these arguments, I thought I would flag them and say how I think they may cut.

On one hand, the usual concept of a Fourth Amendment seizure would point to the answer being that no seizure occurred. In modern Fourth Amendment law, a seizure is ordinarily a taking of control of an item. An officer does not take control of a person when he shoots a person but she does not stop. So you might say, as the court below did, that a shooting without a taking control is not a seizure.

On the other hand, a pragmatist might say that whether a person is seized in this kind of situation will come up mostly in excessive force actions permitted by modern Supreme Court caselaw. If we rely on Fourth Amendment law for a sensible excessive force doctrine, it would make sense to call any shooting of a person a seizure. That way it can allow civil suits in federal court based on it. So you might say, as some amicus briefs filed in Torres say, that a shooting without a taking control should be a seizure for those practical reasons.

So far this is pretty interesting. The concept of seizures seems to point one way, and the practical consequences seem to point the other way. It's the kind of tension that makes for an interesting case.

II. Enter the Originalist Syllogism

But what makes Torres a really fascinating case, I think, is the role of originalism in settling the dispute. So now let's turn to the common law rules that are the focus of a lot of the briefing so far in the case. The brief of the petitioner, plaintiff Roxanne Torres, relies heavily on the following originalist syllogism:

(1) at the time of the Fourth Amendment's enactment, it was considered an "arrest" for an officer to apply physical force to a person in an unsuccessful effort to detain them;

(2) an arrest is a type of Fourth Amendment seizure; and therefore,

(3) it is a seizure for the government to apply physical force to a person in an unsuccessful effort to detain them.

This is a really interesting syllogism, I think, because it seems right in some ways but questionable in others.

On one hand, it's true that at the time of the Fourth Amendment's enactment, it generally was considered an "arrest" for an officer to apply physical force to a person in an unsuccessful effort to detain them. On the other hand, there's a twist here. Although the briefs filed so far don't flag this, my sense is that the common law context in which courts defined arrest in this way is quite different from the context today.

And that differences raises a really fun legal question for the originalist-inclined: When a concept was defined at common law in a specific context that is different from the context in which it arises today, should you apply the common law definition? Or does the different context suggest a need for a different definition?

III. The Forgotten Context of the Arrest Cases

In modern Fourth Amendment law, defining an arrest typically matters to determine if sufficient causes existed to make the act legal. An arrest requires probable cause. You need to know when an arrest occurred because you need to know if the government had sufficient cause to satisfy the Fourth Amendment.

But the definition of arrest arose at common law in a very different context. Here's my tentative sense of the history, which I'll be happy to correct later if it turns out I misunderstood things:

The world of arrests at common law was dramatically different from what it looks like today. There were no professional police officers. Arrests could be made by private parties or else by part-time officialsmost often constables, but also sheriffs and watchmen who were supposed to make arrests and bring arrestees to the local justice of the peace. Most arrests were made by a warrant ordering the constable or other official to make the arrest. The warrant was a court order commanding that the constable or other official make the arrest and bring the prisoner to the judge.

But there was a problem. The part-time officials such as constables (and I'll just call them all constables for the sake of brevity) didn't have much interest in making arrests and detaining people after the arrest. It was dangerous and time-consuming work, and they in general weren't paid for it. Who wants to risk getting hurt arresting someone and forcibly bringing him to the local judge? There's not nothing in it for the constable. So part of the law regulating constables at common law was about forcing the constables to do their jobsto make arrests and to detain prisonersor else face civil suits or criminal punishment.

The law regulating constables had two features relevant here. First, the constable was required to at least try to execute the warrant. A constable who declined to do it could be charged with a crime or sued for neglect of duty.

And second, a constable who made an arrest but then let the prisoner go could be charged with the crime of escape (see 590-95) or sued in tort under the tort of escape. A constable was liable for escape when he made an arrest but then the prisoner went free, either because the constable intentionally let the prisoner go (called "voluntary escape") or the prisoner escaped despite the constable's efforts to detain him (called "negligent escape").

The law of negligent escape was pretty tough on constables. As one treatise summarized, "the only excuse" for not holding on to a prisoner was an "act of God or the public enemy"in other words, crazy unforeseeable situations. It sounds to me less like a negligence standard than strict liability.

To modern ears this all seems exceedingly weird. A modern crime of escape exists, but it punishes the prisoner who escaped from custody. As I read the history, though, the common law regulation of escape was different. It punished the constable who made the arrest but then either negligently or intentionally let the prisoner escape.

IV. Unsuccessful Uses of Physical Force Then and Now

Why does this matter? Well, maybe it doesn't. But it might matter, I think, because it means that the common law caselaw on the meaning of "arrests" arose in a very different context than we know today. The elements of escape required that an arrest had occurred first. As a result, courts typically defined what was an "arrest" when saying whether a constable was liable for escape.

This context is interesting, I think, because the practical consequence of defining arrest in that era would seem to be really different than the practical consequence of defining a seizure today. When courts defined arrests at common law, they were trying to figure out when a constable was sufficiently in charge of a person such that the constable was then subject to legal action for letting the person escape.

This could matter, I think, because in that setting it would have made no sense to require that the constable actually get the person to submit to the officer before saying an arrest had occurred. The underlying tort and crime was not doing a sufficient job keeping a person detained. A constable who announced an arrest and actually laid his hands on the person to be arrested, but then couldn't bring the person into a quasi-permanent detention, was guilty of the exact same thing as the underlying cause of actionletting the person go. It would make sense to treat those the same way.

Indeed, if I understand the context correctly, it's hard to imagine a different common law rule. If the common law had required actual submission before the law of escape applied, then civil and criminal liability would hinge on a metaphysical question: Was there a non-zero amount of time when the constable had control of the person to be arrested?

Consider an example. Imagine a constable has a warrant ordering him to arrest John Smith. The constable walks up to John Smith, announces Smith's arrest, and physically grabs Smith. Smith resists, breaks free, and runs away. Unless the rule were that these facts amounted to an arrest, the constable would not be liable for escape if the person had not been controlled for any time but would be liable if the person had been controlled even for a hundredth of a second. But in a melee between the constable and the arrestee, how could you possibly distinguish these two cases?

The more obvious place to draw the line in that common law doctrinal context would be that any touching (when the arrest was announced, at least) was enough to say there was an arrest. That way it didn't matter whether the constable had grabbed Smith and Smith instantly broke free or the constable grabbed Smith and held him for a fraction of a second or thirty seconds or thirty minutes. They would all be treated together, sensibly, as an escape that followed an arrest.

V. Does This Matter For Torres?

To me this all raises an interesting question: Does the different context between an "arrest" at common law and an arrest today mean that the common law definition should be looked at more skeptically for possible application today? Or do we say that an arrest is an arrest, and that the same definition should apply? To what extent does the different context call for a different rule?

I think there is at least some precedent in the Fourth Amendment excessive force context for saying that the context of old rules means that they should no longer apply uncritically today. That was the reasoning of the Court in Tennessee v. Garner when the Court rejected the common law feeling-felon rule for the reasonableness of stops. But assuming that was right in Garner, whether that same thinking should lead to similar skepticism of the common law definition of arrests is another question.

Anyway, I don't personally have a view of what the right answer is here. And it's possible that none of this will get flagged in the briefs or be something the Justices decide to take on. But I think it's a really interesting set of questions.

See the article here:

The Role of Originalism in Torres v. Madrid - Reason


12345...1020...