Monthly Archives: August 2022

from the well,-it's-several-years-of-prison-either-way dept

There are a few questionable assumptions made by the Fourth Circuit Appeals Court in its denial [PDF] of a suppression request, but the opening suggests drug cartels might want to vet their employees a little better.

David Sierra Orozco was paid to drive a car with over $100,000 in drug-tainted cash hidden in a secret dashboard compartment. When police pulled him over, he acted suspiciously: He quickly shut down the GPS application running on his smartphone and struggled to answer where he was going with the money. His odd behavior continued when he arrived at the station: When police found five SD cards wrapped in a $100 bill in Orozcos shoe, Orozco tried to destroy them by eating them. When police got a warrant to search the phone and SD cards, things went from bad to worse for Orozcoboth the phone and the chips contained graphic and heinous child pornography.

If you want your cash runner to survive detainment and questioning by police, make sure theyve got a good story to tell and, more importantly, a shoe free of evidence linking them to another crime entirely.

That being said, there are some problematic assumptions made here by the Appeals Court.

Orozco was unable to provide a good cover story during the stop. He also was not the owner of the vehicle he was driving. Officers noticed the dashboard of the car was not flush and bore tool marks, suggesting it had been recently removed. That resulted in the calling of a drug dog to the scene. The dog alerted on the passenger side door, which was apparently enough to justify allowing the dog to search the cars interior. It alerted on the dashboard. The dash was removed and officers found $111,252 hidden in a secret compartment.

Officers arrested Orozco, seized both cellphones found in the car, and then supposedly added to their probable cause by performing this meaningless act:

In a money line-up, some cash is placed into a bag, and several identical control bags are filled with things other than the cash. The K-9 is then paraded past each bag. Here, the K-9 alerted to only the bag containing the money found in Orozcos car.

Most cash in circulation has drug residue on it, thanks to cash still being king in drug transactions and cross-contamination occurring in ATMs and other places where cash is stored/distributed. So, a dog alerting on cash should be indicative of nothing more than the presence of US currency.

The next bit of probable cause is Orozcos fault, though.

At the station, Corporal Robert Kimbrough searched Orozcos person. He found a folded-up $100 bill in Orozcos shoe, and as he unfolded it, five micro-SD cards fell out onto the floor. Orozco quickly scooped up two of the cards and shoved them into his mouth. Kimbrough managed to recover one SD cardthough chewed and inoperablefrom Orozcos mouth; Orozco apparently swallowed the other.

The officers obtained a warrant to search the seized Samsung phone and the three remaining operable SD cards for evidence of drug trafficking. They never got a chance to find drug trafficking evidence, apparently.

Narcotics officers began searching one SD card; they immediately saw what they believed to be child pornography. A second warrant was then obtained for the SD cards; two SD cards contained several hundred images and videos of child pornography. A third warrant was then issued for the Samsung smartphone; its internal temporary storage contained five child pornography images.

This is the equivalent of plain view. Cops were searching for evidence of one thing and came across evidence of something else. Narrowly crafted warrants are supposed to prevent officers from going fishing for other criminal evidence, but it appears in this case, the CSAM was one of the first things seen by the officer perform the search of the SD card.

That leaves Orozco with only one option: asserting officers had no probable cause to perform the search. And, while there are cases where its tough to see the connection between seized electronic devices/storage, the court says there was enough here to justify the initial search.

We begin with Orozcos argument that the warrant affidavit did not give cause to believe he was engaged in illegal drug trafficking. Orozcos argument essentially boils down to the idea that it is not illegal to be paid to drive a car and that [c]ash is not contraband. This is true. And so, Orozco insists, driving another persons car with a large sum of drug-tainted cash stashed in a secret compartment is not enough evidence of drug-trafficking activity to justify further investigation. There, we disagree.

That Orozco might propose an innocent explanation for his conduct does not defeat probable cause.

The court notes the probable cause is still a pretty low bar and officers are not expected to consider every conceivable innocent explanation for things theyve observed when seeking a warrant.

But there also must be a nexus something linking the items being searched to the suspected crime. And Orozco pretty much defeated any inference of innocence in the SD cards by doing what he did when they were discovered by an officer.

We begin with the SD cards, which Orozco hid in a $100 bill inside his shoe. That alone is suspicious and might reveal a connection between those SD cards and Orozcos ongoing criminal conduct. But we need not fret about whether it is by itself suspicious enough to establish probable cause to search the cards. Because after dropping the cards on the ground, Orozco shoved some in his mouth and started chewing, and apparently swallowed one.

The court says this action pretty much undermines Orozcos assertions that officers did not have probable cause to believe the SD cards contained evidence of wrongdoing.

Orozco does not argue that chewing memory cards is typical, innocent behavior. Chewing on the chips can be taken only as an attempt to hide something. Orozco just insists that the something is not necessarily evidence of his crime. And so, he argues, more was required of the warrant application to tie the SD cards to the crimes for which he was being investigated.

Orozcos contentions defy longstanding legal principles. Intentionally destroying an item before it can be examined would permit someone to believe the item is inculpatory.

Because the most logical assumption was that Orozco was trying to destroy evidence related to the suspected crime he was arrested for, a warrant to search the cards for evidence of that crime was enough to justify the search that uncovered a completely separate crime. Not only was this evidence in plain view (seen immediately by investigators), it would also have been inevitably discovered during the course of the search.

Orozco took a bad situation and made it immediately worse. That it likely would have ended up just as badly for him by the time the searches were performed is unfortunate (for him), but without the attempted (and apparently partially successful) ingestion of SD cards, he would have at least had a better shot as disproving the nexus between the SD cards in his shoe and the alleged drug money in his dashboard.

That being said, the court says something really interesting about the Supreme Courts Riley decision that seemingly inverts the Supreme Courts findings in that case, which established a warrant requirement for cellphone searches incident to an arrest. Justifying the warrant requirement, the Supreme Court said searching a smartphone is like searching someones house. Every phone contains a wealth of private information, making it far more intrusive than simply searching an address book or wallet or suitcase (analogies made by the government).

Here, the court says that because phones are like houses, thats pretty much all the probable cause anyone needs to secure a warrant.

Though smartphones were decades away at the time of Anderson, the Supreme Court has since noted that searching ones smartphone is like searching his home. See Riley v. California, 573 U.S. 373, 39597 (2014). Much like homes, cellphones contain a digital record of nearly every aspect of [their owners] livesfrom the mundane to the intimate. A phone will often contain the suspects Internet browsing history, a calendar, photographs labeled with dates, locations, and descriptions, a record of all his communications with various associates, and location information allowing one to reconstruct [his] specific movements down to the minute. The all-encompassing information on cellphones explains why unconstrained warrantless cellphone searches, like warrantless home searches, contravene the Fourth Amendment. But it is also why phones can provide valuable incriminating information about dangerous criminals. So just as it is sometimes reasonable to believe that a suspects home may contain evidence of their crimes, it might be reasonable to believe that his cellphone will. At least this might be true for crimes like drug trafficking that involve coordination.

Maybe the Appeals Court isnt reading Riley the way it comes across here. At least I would hope not. The point of the Riley decision was that searching a phone is as intrusive as searching a house. This footnote implies something else: that the nexus between phones and suspected criminal activity is pretty much a foregone conclusion. Fortunately, the court only says it might be reasonable to believe phones contain evidence. But its a twist on Riley I didnt see coming.

A suppression challenge requires several things to be successful. Attempting to eat SD cards, however, definitely isnt one of those things. Suppression denied.

Filed Under: 4th amendment, probable cause

Original post:
Appeals Court Says No Evidence Suppression For Arrestee Who Tried To Eat Five SD Cards Found In His Possession - Techdirt

Following a recent U.S. Supreme Court decision closing the door on lawsuits for various violations of constitutional rights, the federal appeals court based in Denver has agreed an inmate may not sue a federal prison guard for allegedly assaulting him in his cell.

Anderson Coutinho Silva, who is incarcerated at the U.S. PenitentiaryAdministrative Maximum Facility in Florence, ran into resistancefrom the U.S. Court of Appeals for the 10th Circuit in his attempt to seek monetary damages from the guard who reportedly entered his cell while he was restrained, jumped on him, and called in other guards to cut off Silva's clothes.

Such lawsuits against federal employees are legally known as a "Bivens remedy," which the Supreme Court has applied to a limited set of constitutional violations. But after the Court's conservative majority in June severely restricted the scope of Bivens remedies to other constitutional rights, a three-judge panel for the 10th Circuit felt obligated to dismiss Silva's complaint.

"First and foremost, we are left in no doubt that expanding Bivens is not just 'a disfavored judicial activity,'" explained Senior Judge Bobby R. Baldock in an Aug. 1 order, "it is an action that is impermissible in virtually all circumstances."

The concept of a Bivens remedy stems from a 1971 Supreme Court decision, Bivens v.Six Unknown Named Agents.In that case, federal narcotics officers entered a man's home without a warrant, arrested and strip searched him. A majority of the Court decided plaintiff Webster Bivens could sue for a violation of the Fourth Amendment, which prohibits unreasonable searches and seizures.

Since then, the Supreme Court has recognized a Bivens remedy exists for two other scenarios: sex discriminationunder the Fifth Amendment and deliberate indifference to an inmate's serious medical needs under the Eighth Amendment.

However, Baldock noted in the 10th Circuit's order, the Supreme Court subsequently"performed its own version of Bonapartes retreat from Moscow and progressively chipped away at the decision to the point that very little of its original force remains."

In early June, the Court handed down a 6-3 decision inEgbert v. Boule, in which the majority said a man who was allegedly beaten up by a U.S. Border Patrol agent may not sue for excessive force. While dissenting Justice Sonia Sotomayor believed theEgbertcase was "substantially similar" to that of Webster Bivens, the majority concluded Bivens remedies are not availablewhen Congress or the executive branch is "better equipped" to create a method for addressing constitutional violations.

For the Border Patrol, that amounted to an administrative process for handling grievances. Justice Clarence Thomas, writing for the majority, added that it is irrelevant whether such processes "do not provide complete relief" to someone whose constitutional rights are violated.

In Silva's lawsuit, he alleged corrections employee Brandon Shaw entered his cell, out of view of the security cameras, and beat him physically. Shaw reportedly radioed three other guards who "helped Officer Shawl (sic) hold me down and attacked me. ... They then took me to the restraint cell and cut my cloths (sic) off."

Silva, who represented himself, also claimed a guard threatened Silva if he did not drop his complaint. The lawsuit sought $10 million in damages, the discipline of all officers involved, and Silva's relocation from the Florence prison.

U.S. Magistrate Judge Michael E. Hegarty evaluated Silva's claims and recommended dismissing the lawsuit. A Bivens remedy, Hegarty concluded, was not available for the excessive force claim Silva was alleging, in large part because there was already a process for handling such complaints: filing an administrative grievance with the prison.

Silva protested that the prison's procedures were not as effective as a lawsuit.

"The institution grievance process has never worked since guards will not discipline other guards. That is why the defendant wants nothing more than to have everythingstay in-house where defendant's employer will sweep everythingunder the rug," Silva wrote.

Nonetheless, U.S. District Court Senior Judge Christine M. Arguello signed off on Hegarty's recommendation. Silva appealed to the 10th Circuit.

Represented by lawyersfrom Georgetown University Law Center and the nonprofit group Rights Behind Bars, Silva argued his claim of excessive force stemmed from the Eighth Amendment's prohibition on cruel and unusual punishment. Because the Supreme Court had already approved of a Bivens remedy under the same constitutional amendment failing to provide medical care to inmates Silva contended his lawsuit should be allowed to proceed.

"If this would be an extension of Bivens, it would be the most modest of modest extensions," attorney Samuel Weiss told the 10th Circuit panel during oral arguments in March. The government countered that excessive force and deliberate indifference to medical needs were not the same, and the court should not unilaterally permit inmates to sue for assaults by federal prison officials.

"It is certainly true that if there is a new claim and a new way for prison guards to be sued involving the use of force, they will have to hesitate and think twice," warned Assistant U.S. Attorney Karl L. Schock. "Now it may be that Congress decides thats a good thing. But that is a policy judgment that should be made by Congress."

Shortly after oral arguments, the Supreme Court issued its decision inEgbert.Baldock, writing for the panel, concluded the Supreme Court had given clear instructions not to expand a Bivens remedy to lawsuits like Silva's. Because excessive force is different from medical indifference, and given the existence of the prison's grievance process, Silva could not hold Shaw liable.

"We heed the Supreme Courts warning and decline Plaintiffs invitation to curry the Supreme Courts disfavor by expanding Bivens to cover his claim," Baldock wrote.

TheEgbertdecision reverberated through the federal judiciary almost immediately. In addition to Silva's case, a federal judge in Colorado recently dismissed a transgender inmate's similar assault claim against a prison guard, citing the restrictive new guidance from the Supreme Court.

"The law was already heading in this direction even beforeEgbert, but I thinkEgbertjust reinforces how rare the case will be today in which federal officers can be sued for damages for even the most egregious violation of our constitutional rights,"Stephen I. Vladeck, a professor at theUniversity of Texas School of Law, told Colorado Politics at the time.

The case is Silva v. United States et al.

Read the original:
SCOTUS decision prompts 10th Circuit to toss prisoner's lawsuit over alleged assault by guard - coloradopolitics.com

By Jim Saunders, The News Service of Florida

TALLAHASSEE In a legal battle rooted in the discovery of a 13-year-old human trafficking victim working as a dancer, a federal appeals court Monday largely upheld restrictions that Miami Beach placed on nude strip clubs.

A three-judge panel of the 11th U.S. Circuit Court of Appeals rejected arguments that a city ordinance unconstitutionally imposed increased worker-identification requirements on strip clubs and allowed the city to inspect logs of workers entering and leaving the establishments.

The court, however, found that the city overstepped its legal authority when it required clubs to confirm that dancers are U.S. citizens, legal residents or otherwise eligible to work in the country.

Miami Beach passed the ordinance after police discovered that the 13-year-old girl was working as a nude dancer at Club Madonna after running away from home and being taken by four adult captors, according to the ruling. The club challenged the ordinance, leading to years of legal battling.

In part, the club argued that the ordinance violated First Amendment rights. Mondays ruling agreed that the ordinance implicates the First Amendment because it singles out an industry that engages in expressive activity for special regulation, but the panel concluded that the measure did not violate the rights.

The ordinances core identification and record-keeping requirements are necessary to achieve the citys stated and obviously important interests in preventing human trafficking and barring minors from dancing nude on a public stage, said the 54-page main opinion, written by Judge Stanley Marcus and joined fully by Judge Richard Story and partly by Judge Kevin Newsom. The requirement that workers or performers produce two forms of identification instead of just one which the club says is unnecessarily burdensome combats the rampant use of counterfeit forms of identification on Miami Beach and reduces the likelihood that a victim of human trafficking or a minor will perform onstage. Given the significant latitude we afford policymakers, and our obligation to defer to a legislative bodys reasoned judgment, we hold that these core identification-verification and record-maintenance requirements are reasonable when measured against the statutes aims.

The appeals court, which upheld a ruling by a federal district judge, also rejected a challenge to part of the ordinance allowing the city to inspect documents and worker logs upon demand. The club argued that the ordinance violated a prohibition on warrantless searches under the U.S. Constitutions 4th Amendment.

But in upholding that part of the ordinance, the panel pointed to extensive regulation of the adult-entertainment industry.

Based on a substantial history of heavy regulation, we conclude that the nude dancing and adult entertainment industry is closely regulated for Fourth Amendment purposes so that no reasonable expectation of privacy could exist for the proprietor, the opinion said. From limitations concerning the hours of operation, to zoning restrictions, to prohibitions on their ability to serve alcohol, to rules governing the very size of the establishments, adult entertainment businesses are routinely and pervasively regulated by cities and municipalities.

The court, however, agreed with the club that the city could not require establishments to verify that dancers are citizens or otherwise eligible for employment. Marcus wrote that federal law governs such requirements, and Congress provided an exemption for verifying the employment eligibility of contract workers or casual hires.

Here, the ordinance fails the relevant constitutional test because, by requiring certain businesses to verify the employment eligibility of independent contractors and casual hires, it obstructs federal law, the opinion said.

Marcus wrote that the unconstitutional part of the ordinance was severable and did not prevent the other requirements from being in effect.

See original here:
Appeals Court Upholds City Ordinance Related to Strip Club Restrictions - tallahasseereports.com

I have several questions about abortion law enforcement and the Grace Act proposal. Dont prosecutors and law enforcement prioritize their efforts every day? Any group that has a role in public safety, health care, emergency management, protective services, etc. must set priorities so they can address the most urgent needs first. Wont they continue to do it, even in the event of alleged abortion activity?

Speaking of protective services, if the existing rights of children will now apply to the unborn, will we be allowed and required to report suspected child neglect of a fetus to Texas Child Protective Services?

Finally, this question is for the sincerely honest people whose religious beliefs led them to work and pray to end abortion: Did you first work and pray to end rape, incest, sexual coercion, grooming and exploitation of women and girls? It seems that not getting those sins out of the way led directly to a significant amount of the current sin of abortion.

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It was disconcerting to read two professors of religion (Blake Burleson, July 9, and Jack Hill, July 21) write in support of a womans right to abort her preborn child.

If Burleson and Hill have respect for the Bibles authority and church history, they should know that all our rights come from God, or as Christian philosophers might argue, natural law. First-century Christians prohibited the practice of abortion in the Didache.

No one has a right to commit an act of violence against an innocent human being in this case, the newly developing, prenatal child in a mothers womb. Such a right is not justified under any basic understanding of Christian Scripture.

Job 31:15, asks the penetrating question, Did not the one who made me in the womb also make them? Did not the same God form us both in the womb? Jeremiah 1:5, states, I chose you before I formed you in the womb; I set you apart before you were born ...

Just a few weeks pregnant with Messiah Jesus, Mary visited her cousin Elizabeth, then six months along in her pregnancy of John the Baptist. Luke 1:41 records the poignant moment, When Elizabeth heard Marys greeting, the baby leaped inside her, and Elizabeth was filled with the Holy Spirit. Elizabeth concluded, ... How could this happen to me, that the mother of my Lord should come to me?

If, indeed, the Scriptures declare that God-ordained life is growing in a mothers womb from conception (Ruth 4:13, Psalm 51:5), then what right, pray tell, can exist to justify the killing of that preborn human life?

The Fourth Amendment to our Constitution was cited in Roe v. Wade as one basis for a right to privacy, allowing a woman to end the life of her developing baby through abortion. The amendment actually says, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ... Nothing there about a right to take the developing life of a preborn human being in a mothers womb.

Inalienable rights are derived, as our Declaration of Independence states, from our Creator. No Christian theologian has a right to conclude any differently.

A womans right to control her own body comes to an end when a genetically different human being is present and growing in her womb.

Then, the inalienable right to life must be extended to that preborn baby, as well.

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LETTERS: The law, our rights and abortion | Letters | wacotrib.com - Waco Tribune-Herald

Manipulative, deceitful, aggressive, remorseless, lacking empathy and affect all are classic definitions of psychopathic social behavior, according to psychiatric evaluations. These are traits also emblematic of today's legal fictions called corporations entities that have taken control of our democracy and our lives, entities that exist only for the purpose of increased revenue and profit, without innate moral impulse. It is time we finally grapple with the problematic status of "legal person" or "corporate personhood" now granted by law, and call corporate behaviors out for what they are and do.

The financial power corporations wield, spending billions of dollars to lobby and litigate, exerts massive influence in the selection of judges, lawmaking and elected officials to a degree far beyond the power of any of us as individuals. It also binds those legally bribed recipients to their will and bidding.

Corporate power under the guise of constitutionally sanctioned "personhood" has invaded every aspect of individual life in our nation criminal justice, education, environment, housing, press and media, health and safety. To maximize profits, they control availability and cost of consumer goods, from gasoline to prescription drugs to infant formula. Subsidized by taxpayer dollars, they manipulate and corrupt regulatory processes with the goal of attaining total privatization of all public amenities. The ultimate goal is restricting the role of government solely to that of maintaining military and police power.

There is such a thing as common good that is necessary in a productive, healthy and stable society. We all need housing, safe food and air, health care, education and dependable infrastructure. Privatizing these amenities makes them available only to the wealthy, weakening the whole of society and creating anger, frustration and cynicism with democracy itself.

Now, with corporations as "persons," it is extremely difficult to curtail their profit-driven activities. For example, those of us working for healthcare justice through the formation of a unified, publicly financed, universal healthcare system, face the prospect of corporate healthcare insurance companies taking refuge from accountability for waste, abuse and fraud by posing as "persons" with equal constitutional rights to "privacy" and freedom from "discrimination." Already, as "persons" with free speech and equal protection under the law, corporations feel blameless in marketing cigarettes and other dangerous and unhealthy products to children, desecrating the environment, loosening gun laws and a whole plethora of antisocial, destructive-but-profitable endeavors.

Turning corporations into persons began gradually. In the 1886 U.S. Supreme Court decision Santa Clara County v. Southern Pacific Railroad, the court appeared to grant a corporation the same rights as an individual under the 14th Amendment. Since that time, judges have acted in accordance with the concept of "corporate personhood," allowing companies to hold property, enter contracts, to sue and be sued, just like a human being striking down local, state and federal laws designed to protect actual citizens from corporate harm. Since then, hundreds of decisions favoring corporate interests have been enshrined in the fiction that, as "persons," corporations enjoy such constitutional rights as free speech, religious freedom, privacy and protection from discrimination and self-incrimination.

In a sweeping expansion of corporate rights, the 2010 case of Citizens United v. Federal Election Commission (FEC), SCOTUS ruled that political speech by corporations is a form of free speech that is covered under the First Amendment. Money itself was enshrined as "speech." Thus has evolved SCOTUS's complicity as handmaiden to corporate hegemony. Witness SCOTUS's recent evisceration of the Environmental Protection Act and overturning New York gun regulations.

As well, corporations now may hide behind the safeguards against regulatory searches stated in the Fourth Amendment. This ruling dramatically expanded the already outsized political influence of wealthy donors, corporations and special interest groups, and allowed the creation of super PACS where the source and spending of monies is secret.

Since the Citizens United decision, Move to Amend was created as a national, non-partisan, grassroots organization that seeks to blunt corporate power by amending the United States Constitution to end corporate personhood. HJR (House Joint Resolution) 48, introduced by Rep. Pramila Jayapal in 2021-2022, proposes such an amendment stating the rights protected by the Constitution are the rights of natural persons only. This amendment requires federal, state and local governments to regulate election contributions and expenditures, and requires that any such contributions be publicly disclosed. It also prohibits the judiciary from construing the spending of money to influence elections to be speech under the First Amendment or abridging the freedom of the press. HJR 48 is currently under consideration with 100 co-sponsors in the House and 25 in the Senate.

Even as a U.S. Supreme Court reversal is unlikely and a constitutional amendment to undo Citizens United would be difficult, there are still interim policy solutions available. HR1, the For the People Act, passed the House in 2021 but was stymied in the Senate. That bill would expand voting rights, change campaign finance laws to reduce the influence of money in politics and ban partisan gerrymandering. Only public pressure will force our representatives in the Senate to end the filibuster and pass this bill while we work on amending the Constitution.

In our first paragraph, above, we identified the hallmarks of psychopathic corporate behavior. The Corporation, a 2004 documentary (free on YouTube), expands on this proposition following the traits of various corporations that fit these criteria in an entertaining and informative format. Coming soon is The New Corporation: The Unfortunately Necessary Sequel (see the trailer at http://www.movetoamend.org), revealing how corporations are taking over society with more sophisticated branding as socially conscious entities. Move to Amend has sponsored and will be promoting this upcoming, eye-opening Canadian film.

We'll never have an authentic democracy so long as corporations are granted the same rights as individuals. That's why Move to Amend educates and organizes to abolish corporate constitutional rights. The reckless pursuit of profit without regard to the wellbeing of the planet or the humans that live here should be rejected.

Please join Move to Amend to protect our rights against the frightening encroachment of corporate hegemony. Start by signing its petition online, (www.movetoamend.org/amendment) and checking out its calls to action. It's beyond time to remove corporate psychopathy from the commonwealth.

Corinne Frugoni (she/her) is a retired local family practice physician. She lives in Arcata. Patty Harvey (she/her) is a retired professor who taught at College of the Redwoods. She lives in Willow Creek. They are co-directors of the combined organizations, Humboldt chapters of Health Care for All-CA and Physicians for a National Health Program.

Read the original here:
Corporations Aren't People but They Can Be Psychopaths - North Coast Journal

By Eric FeltenRealClearInvestigations https://www.realclearinvestigations.com/articles/2022/08/02/electric_car_drivers_why_you_might_not_be_pumped_over_privacy-jolting_mileage_taxes_845286.html

The environmental impact of electric cars may still be unknown, but leaders are growing concerned about the threat they pose to the financing of the nations highway system. Because freeways and bridges are funded, in large part, through federal and state taxes on gasoline and diesel fuel, the battery-powered future will test whether roads can just be paved with good intentions.

Lawmakers on both sides of the aisle are trying to devise new ways to raise that fuel tax revenue, which in fiscal year 2020 delivered $35 billion to the federal government and an additional $51 billion to state and local governments. But experts say that proposed fixes to the anticipated highway funding shortfall involving charging drivers for the miles they travel by tracking their movement pose a significant threat to personal privacy and liberty.

The Infrastructure Investment and Jobs Act, passed with bipartisan support last year, authorized the Department of Transportation to launch new pilot programs to test ways to collect necessary fees. These include a range of high-tech means such as accessing location data from third-party on-vehicle diagnostic devices, smart phone applications, telemetric data collected by automakers, motor vehicle data obtained by car insurance companies, data obtained from fueling stations, and any other method that the Secretary [of Transportation] considers appropriate.

Location data that is, information about where people are and where theyve been is highly sensitive, said Lee Tien, legislative director at the Electronic Frontier Foundation, a nonprofit that defends civil liberties in cyberspace. It can reveal what they do, who theyre with, where they worship, what medical procedures theyre having.

While the infrastructure act authorizes a pilot program to test collecting the personal information needed to charge drivers for their use of roads and highways, it doesnt answer the far thornier questions about how to protect that data. Will only the feds track drivers? Will each state and locality that currently depends on fuel taxes also monitor drivers? If so, will the data be pooled? Will destinations be tracked along with mileage?

These questions are arising as the Biden administration demands more energy-related data across the board as it seeks to achieve its ambitious climate change goals. The Securities and Exchange Commission, for example, wants almost all U.S. companies to tally and disclose the total amount of carbon emitted in producing their products. The Federal Highway Administration and the Department of Transportation proposed new regulations in July requiring states to measure carbon dioxide emissions associated with transportation and report those figures to the federal government. States will be required to establish emissions targets aligned with national policy established by Bidens climate-related executive orders.

Advocates of new highway user fees acknowledge the threat to privacy and promise to find ways to protect sensitive information. Asked about the risks posed by tracking vehicles, Rep. Sam Graves of Missouri, ranking Republican member of the House Committee on Transportation and Infrastructure, pointed to a previous statement: For years, I have been talking about the need to eliminate the gas and diesel taxes. Its time to move this solution toward reality, but in doing so, we must ensure that privacy concerns are addressed.

The Department of Transportation isnt taking on these issues from scratch. For more than a decade, DOT has been awarding grants to states willing to work out the kinks in a pay-as-you-go system. Pilot programs have been funded in states such as Minnesota, Iowa, and Nevada. The Nevada Vehicle Miles Traveled Fee Study found The greatest barrier to public acceptance is recognized as insuring driver privacy to the greatest extent allowed by available technology.

Asked by RealClearInvestigations about such concerns, a spokesman for the Department of Transportation said, "Privacy is of paramount importance and a requirement that has to be addressed in the pilot programs."

Drivers have proved to be accepting of technologies that track travel when they offer obvious benefits, such as skipping toll booths or fighting crime. E-ZPass shares data with law enforcement agencies conducting criminal investigations in accordance with subpoenas, court orders or amber alerts.

At Capitol Hill hearings last year, witnesses assured lawmakers that threats to privacy could be overcome. Peter J. Basso, chair of the Mileage-Based User Fee Alliance said, The pilots are showing the technical viability of a mileage-based system, and are showing how to address questions of protection of personal privacy and data security.

But privacy experts such as Theodore Claypoole, an Atlanta lawyer who edits the HeyDataData blog, cautions that concerns might increase if such tracking becomes universal.

He said a lot of people do understand they are less anonymous on the road than they used to be. Cars these days come default-set to gather and horde data on their drivers. What app doesnt reveal its users geo-locations? Insurance companies place bugs in some cars to tell what kind of drivers we are. Every day we are stalked by the Billion-Byte Beast, and yet we remain relatively blas about it. But gathering information on our driving for tax purposes is something different, says Claypoole. Its the federal government, not businesses, hoovering up our sensitive information. Do we find this more frightening, or less so?

Similarly, once it used to be difficult to collect comprehensive information about someones movements. It might take a team of field agents the FBI has traditionally used five cars to tail a single suspect in an automobile. Surveillance used to have what privacy scholars call high transaction costs. Those costs served as a protection of ones privacy.

The Supreme Court has wrestled with the question of protecting privacy in an age of tracking devices, but hasnt resolved what happens to ones personal information when it is being lawfully collected. In a 2012 decision, United States v. Jones, the court considered whether police could place a GPS device on a suspects car without a warrant. The court ruled, 9-0, that such tracking was an unreasonable search that violated the Fourth Amendment of the Constitution.

But that ruling did not settle the question of what the government could or couldnt do with the same sort of information when it is, in essence, freely handed over. In a concurring opinion, Justice Sonia Sotomayor noted that the biggest threats to privacy may come from technologies that invite surveillance: With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones.

It turns out that people are not as quick to give up freedoms as one might think. The Government Accountability Office published a report in January on the state-level user-fee pilot programs. The GAO wrote, Many state DOT officials told us that drivers felt concerned that a government-administered mileage fee system may track their location and collect personal data. They reported that public acceptance of mileage fee systems remains limited by concerns about protecting privacy.

Recently, some abortion-rights activists worry that states with strict anti-abortion laws might prohibit travel to other states for the purpose of obtaining an abortion. (Missouri has already considered such a law.) Could vehicle tracking be used to identify individuals who cross a state border and drive to the address of an abortion provider?

Privacy advocates suggest that activists may not want there to be digital tire tracks showing them driving to the sites of controversial political rallies such as on Jan. 6, 2021 in Washington.

Convincing the public that the government will protect their privacy and wont track their travel, the GAO found, made for major challenges facing mileage fee systems. Minnesota DOT officials were blunt about the lack of trust people have in the tech-enabled state: The public does not want governments to have their travel or personal information.

Privacy advocates tell RCI that sooner or later highway funding will move to user fees and probably sooner, given the effect electric vehicles will have on fuel tax revenues. And yet, for all the assurances made in pilot programs that privacy will be protected, the public remains unconvinced. Will the government have to change those attitudes, or will rules be made by bureaucrats? Will voters have a say in whether and how their travels are tracked? Or will they find that the decision has been made for them?

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EV drivers might not be pumped over mileage taxes - The Highland County Press