Category Archives: Fourth Amendment

The Supreme Court will hear a gun control case in December that could significantly limit the ability of state and local governments to regulate guns for public safety reasons.

The case involves a New York City regulation on transporting handguns that was repealed in July. Although that original rule is no longer in effect, for now the court has not determined the matter to be moot, so the case will move forward.

In this dispute and others, opposition to gun regulations is often grounded on the premise that once an individual interest is identified as a fundamental right, that interest prevails over all countervailing public concerns.

That premise is profoundly mistaken. And, importantly, it is inconsistent with the way that constitutional doctrine has developed with other fundamental rights, such as freedom of speech and freedom of religion. Second Amendment rights should be treated no more favorably, despite the political rhetoric of gun rights supporters who claim that any firearm regulation is an unconstitutional infringement on their rights.

Of course, a constitutional right does carry with it a strong presumption against government interference with that particular activity, even though the exercise of the right involves a societal cost. We protect freedom of religion, for example, even though we know that some religious practices like pulling children out of school after the eighth grade might be considered problematic or harmful.

But there is a critical difference between assigning a high value to a constitutional right when balancing it against social concerns, and arguing that the right necessarily overrides the publics ability to regulate that activity in ways that may be needed to protect the community.

The doctrine surrounding freedom of speech is instructive. No one doubts that speech rights are taken seriously in America. Yet the right to free speech is not absolute and can be regulated in numerous circumstances. Courts subject government regulations that affect speech to different standards of review that balance the publics interest against the individuals liberty. Among factors considered are the kind of speech involved and the location and manner of the restriction.

For example, a ban on rallies on public streets in residential neighborhoods after 9 p.m. would likely be upheld even though it burdens speech, so long as the law did not discriminate based on the message rally speakers expressed.

So too with protections for personal privacy under the Fourth Amendment, which prohibits unreasonable searches and seizures by the government. That amendment doesnt bar all searches and seizures, but instead requires that such intrusions be reasonable, a concept that inherently involves some kind of balancing of interests. Hence, we all must endure airport security screening searches because they are a reasonable means to protect air travel safety.

The individual right to bear arms for self-defense, as announced by the Supreme Court in 2008, is likewise not unlimited. Even though the court in that case struck down a flat ban on possession of handguns that might be used for self-defense in peoples homes, it observed that states could for historical and public-policy safety reasons prohibit people with felony convictions or people with mental illness from possessing guns, demonstrating that the very scope of the Second Amendments protection takes account of countervailing public objectives.

For instance, some states require that gun owners keep their firearms locked up if there are children living in the home, even though gun owners might prefer easier access to firearms for self-defense.

Or consider the contours of self-defense itself. A Second Amendment right to keep guns for self-defense does not eliminate the need for society to think about how guns should be responsibly employed, even in self-defense situations. If someone uses a gun purportedly for self-defense purposes and kills another person, the Second Amendment does not preclude an evaluation of whether the alleged threat was sufficient to justify the use of deadly force or whether the killing involved excessive force because reasonable nonlethal alternatives were available for the shooter to defend himself.

The national debate now has focused on proposed regulations such as background checks and assault weapons bans. Whether specific measures would be permissible under the Constitution depends on their particulars, but the big point is that particulars matter.

In evaluating gun control regulations, its legitimate to take into account the social harms and risks arising from individuals keeping, bearing and using firearms.

Constitutional analysis of the Second Amendment, as with other fundamental rights, requires some kind of balancing of interests, which includes considering the states need to promote public safety.

Vikram D. Amar is dean and professor of law at the University of Illinois College of Law. Alan E. Brownstein is professor of law at the UC Davis School of Law.

Originally posted here:
Commentary: What the gun lobby gets wrong about the Second Amendment - The Daily World

Newly declassified judicial opinions, released last week, revealed that the government has again violated the rules for access to vast databases containing Americans private communicationsand that its warrantlessly searching these databases on a massive scale.

The databases contain communications collected under Section 702 of the Foreign Intelligence Surveillance Act (FISA), a controversial statute that authorizes the warrantless collection of Americans international communications in the name of foreign intelligence. Relying on this law, the government vacuums up billions of Internet and phone communications and stores them for years in agency systems. These databases include untold volumes of sensitive and private information, including the communications of Americans suspected of no wrongdoing.

Once these conversations are intercepted and stored, the FBI and other agencies exploit whats known as the backdoor search loophole: they query Section 702 databases for information about Americans, including in criminal investigationswithout obtaining a warrant at any stage of the process. Only a handful of anemic statutory and court-ordered restrictions apply to the governments backdoor searches. The Foreign Intelligence Surveillance Court (FISC) has held that the FBI is permitted to engage in these warrantless queries so long as the FBI believes a query is reasonably likely to return foreign intelligence information or evidence of a crimea very low threshold.

As Liza Goitein outlined, the opinions released last week provide an unprecedented look at the breadth of the FBIs backdoor searches, and they show that the FBI has failed to abide by even the most minimal limitations. In particular:

Faced with these violations, in October 2018, the FISC found that the FBIs procedures were inadequate and unreasonable. But it held that the FBI could cure the deficiencies simply by creating records of U.S.-person queries and documenting the basis for its backdoor searches. The FBI initially refused to adopt even these basic requirementsit did so only after appealing to the Foreign Intelligence Surveillance Court of Review (FISCR), which largely endorsed the FISCs opinion.

To put the FBIs violations in context, readers should keep in mind the bigger picture: the constitutional problems posed by warrantless searches of Section 702 databases for Americans information. Nothing in the newly released opinions meaningfully addresses or remedies those problems. Indeed, the FISC continues to allow the FBI to conduct backdoor searches under a remarkably permissive set of rules, including at the earliest stages of criminal investigations.

At bottom, the drawn-out fight in the FISC was about two simple documentation requirements. These requirements are no substitute for a warrant. Even if the FBI could manage to properly document its warrantless searches, which it has apparently struggled to do, its queries would violate the Fourth Amendment. The newly released opinions provide even more evidence that the current system fails to adequately protect Americans privacy.

The Backdoor Search Problem

To understand the scope of the constitutional problems with backdoor searches, as well as the rules that the FBI violated, some background:

In 1978, largely in response to unlawful executive branch surveillance, Congress passed the Foreign Intelligence Surveillance Act. To conduct electronic surveillance inside the United States, FISA generally requires the government to apply to the FISC for an order approving surveillance of a particular target. The government must establish, among other things, probable cause to believe that the target of surveillance is a foreign power or agent of a foreign power. Following the attacks of September 11, 2001, the Bush administration conducted widespread warrantless wiretapping of Americans communications without FISC authorization, in violation of FISA. Years later, Congress amended FISA to ratify elements of President Bushs warrantless wiretapping program, as reflected in Section 702.

Section 702 allows the government to target any non-U.S. person abroad who is reasonably likely to communicate foreign intelligence informationdefined expansively to encompass information related to the foreign affairs of the United States. There is no requirement of probable cause to believe that targets are associated with foreign powers, and there is no judicial review of individual targets. Instead, the FISC annually reviews the targeting and minimization procedures that apply to Section 702 surveillance. Targeting decisions are left to the discretion of agency analysts.

Notably, the governments Section 702 targets need not have any connection to terrorism investigations or criminal activity. Targets may be academics, journalists, or human rights workersanyone likely to communicate about foreign intelligence.

The resulting surveillance is incredibly broad. Last year, the United States targeted more than 164,000 individuals and groups under Section 702, likely resulting in the mass collection of more than a billion communicationsincluding emails, video calls, telephone calls, texts, and online chats. This vacuuming up of foreigners messages means a vast number of Americans international communications end up in government hands, too.

Not only are Americans communications warrantlessly collected in enormous quantities, but they are retained for years by default, routinely searched, and used in later investigationsincluding in domestic criminal investigations that are unrelated to the original foreign intelligence purpose behind the surveillance.

In 2014, the Privacy and Civil Liberties Oversight Board explained that the FBI conducts backdoor searches as a matter of course, whenever the FBI opens a new national security investigation or assessment. To better understand the scope of the issue, civil liberties advocates and Congress sought data about precisely how often the FBI conducts these searches. Until very recently, the FBI has refused to count, estimate, or report these numbers.

But as weve now learned from one of the recently declassified FISC opinions, in 2017, the FBI ran 3.1 million searches of Section 702-acquired information, on just one of its systems. Although the FBI records dont differentiate between query terms associated with Americans and those associated with foreigners, the FISC explained that, given the FBIs domestic focus[,] it seems likely that a significant percentage of its queries involve U.S.-person query terms.

As the ACLU has written elsewhere, Section 702 surveillance violates the Fourth Amendment because it permits the government to intercept, use, and disseminate the international communications of U.S. persons without obtaining a warrant or submitting to any kind of individualized court review. The fact that Americans conversations are captured while targeting foreigners abroad does not justify dispensing with these safeguardsand the governments backdoor searches for Americans communications only compound the constitutional problems.

Yet the FBI continues to conduct these searches, even though FBI agents have repeatedly failed to comply with the modest requirements that Congress and the FISC have imposed.

Newly Declassified Opinions Reveal the FBIs Systemic Compliance Violations

The FISC and FISCR opinions declassified last week show that the FBI resisted its congressional mandate to track U.S.-person queries, conducted backdoor searches in violation of existing court-ordered rules for those queries, and resisted documenting the basis for future queriesthwarting meaningful oversight in the process.

The FBIs Failure to Track Backdoor Searches for Americans Communications

When Congress renewed Section 702 surveillance authorities in early 2018, it imposed a documentation requirement for backdoor searches. Each time an agency queries its Section 702 databases with a United States person query term, it is required to create a record of that fact.

In March 2018, the FBI submitted its Section 702 targeting and minimization procedures to the FISC for its annual review. After the FISC expressed initial concerns, the FBI submitted amended versions in September 2018. In the September 2018 procedures, the FBI proposed that it would comply with Congresss new directive by recording all queries of its Section 702 databases, but it would not record or track which of those queries were U.S.-person queries.

In an October 2018 ruling that was declassified just last week, FISC Judge James E. Boasberg painstakingly explained why the FBIs proposal did not satisfy the statute. The FBI then appealed to the FISCR, which likewise concluded that Congress expressly required agencies to record their use of U.S.-person query terms. After the FISCRs ruling, the FBI finally agreed to comply and amended its proposed minimization procedures accordingly. The FISC approved the FBIs revised procedures in September 2019.

Meanwhile, for 21 months, from January 2018 until September of 2019, the FBI did not conduct the count that Congress had mandated as part of its decision to renew Section 702 powers.

The FBIs Failure to Document Its Basis for Its Backdoor Searches

The FISC-approved rules for access to Section 702 communications generally allow FBI agents to conduct backdoor searches when they believe a search is reasonably likely to return foreign intelligence information or evidence of a crime.

In the proceedings leading up to the October 2018 FISC opinion, the government reported that, since April 2017, a large number of FBI queries did not meet the requisite standard. (These improper queries are discussed at length below.)

Although Judge Boasberg concluded that the FBIs querying standard was lawful as written, he held that the FBIs procedures, as implemented, failed to satisfy the requirements of Section 702 and the Fourth Amendment. His holding was based in part on the fact that, unlike personnel at the CIA, NSA, and NCTC, FBI personnel did not memorialize their reasons for believing that query terms were appropriateand this omission contributed to the FBIs significant violations of the querying standard.

Adopting the recommendation of court-appointed amici, Judge Boasberg reasoned that, if the FBI documented the basis for its queries, it would result in fewer violations of the querying standard. Notably, the court proposed documentation in limited circumstances: only after FBI personnel conduct the U.S.-person query, review any responsive metadata, and decide to examine responsive content information.

The FBI refused and appealed to the FISCR. Although the FISCR did not formally reach the issue on appeal, it characterized the documentation requirement as a modest measure that would alleviate the most significant concerns raised by the FISC. Following the FISCRs opinion, the FBI relented and adopted the documentation requirement.

While this modest measure will generate data that could be used for oversight purposes down the road, it does little to restrain the vast number of warrantless queries that the FBI uses to access Americans private communications.

Violations of the Existing Limits on Backdoor Searches

The October 2018 FISC opinion describes substantial and systemic FBI violations of the existing limitations on backdoor searches. Of especially serious concern to Judge Boasberg was the large number of queries evidencing a misunderstanding of the querying standardor indifference toward it[.]

As just one example, the FBI conducted queries using 6,800 Social Security numbers, which are clearly U.S. persons information. Other illegal searches stemmed from investigators trying identify Americans to collaborate as potential confidential sources of information.

In another instance, FBI agents used 70,000 identifiers to search for information about FBI employees or contractorscontrary to the advice of the FBI Office of General Counsel, which had explained that higher-level approval would be required for these searches.

Theres a systemic problem lurking here. Indeed, its of interest that these types of bulk queries could be thought to be permissible at all. One of the issues is that FBI interprets the querying standard quite liberally. It argued to Judge Boasberg that even when an individual query would not satisfy the low querying threshold, it may nevertheless be permissible to engage in so-called categorical batch querying.

In an effort to justify its batch queries, the government posited the following hypothetical: say an employee at a cleared defense contractor has access to certain technology and unlawfully plans to sell it. According to the government, if 100 employees of the contractor have access to that technology, the FBI could properly run a categorical query of the identifiers associated with these 100 employeeseven though a search for any one of those employees on his or her own is impermissible.

The flaws in this logic are obvious. What would prevent the FBI from conducting a batch query using identifiers associated with everyone in a particular neighborhood or city? Although Judge Boasberg was rightly skeptical of the governments reasoning, the new FISC-approved minimization rules do not expressly prohibit categorical batch queries.

Going Forward

In light of what weve learned about the governments backdoor searches of its Section 702 databases, its clear that Congress and the courts have a role to play in safeguarding Americans fundamental privacy rights.

Congress and the courts should prohibit warrantless backdoor searches for the information of Americans and individuals in the United States. These warrantless searches of Section 702 databases violate the Fourth Amendments fundamental protections. The few rules governing these searches havent been followedand they are no substitute for a warrant.

Congress and the courts should protect metadata from abusive searches. Although Judge Boasberg rightly recognized that metadata can implicate privacy interests, he nevertheless allowed the FBI to query and access non-content metadata without documenting the basis for the query. In addition, the FISCs opinion expanded the FBIs ability to indefinitely retain Americans metadata collected under Section 702.

Congress should reform FISA to ensure judicial review of Section 702 surveillance in public courts. To date, no civil court has reached the merits in a challenge to Section 702 collection, in part because of the difficulty litigants face in establishing standing. The ACLU has brought two challenges to Section 702Amnesty International USA v. Clapper, Wikimedia v. NSAthat the government has sought to block on standing grounds.

Given the number of Americans impacted by this novel and invasive surveillance, the public courts have a vital role to play in determining what set of safeguards the Constitution requires.

Courts should enforce the governments compliance with its obligation to provide notice of Section 702 surveillance. The government should, but does not, fully comply with its obligation to notify individuals when it intends to use Section 702 information against them in criminal proceedings. Notice is essential to ensure that defendants subject to this surveillance have the opportunity to challenge it and to seek redress. In order to facilitate this judicial review, courts should require the government to disclose to defendants basic information about how it obtained their communications under Section 702, including the queries that agents used to identify defendants communications.

Here is the original post:
How to Address Newly Revealed Abuses of Section 702 Surveillance - Just Security

The Honorable Jerrold Nadler

Chairman

U.S. House Committee on the

Judiciary

2138 Rayburn House Office Building

Washington, D.C. 20515

The Honorable Doug Collins

Ranking Member

U.S. House Committee on the

Judiciary

2142 Rayburn House Office Building

Washington, D.C. 20515

The Honorable Adam Schiff

Chairman

U.S. House Permanent Select Committee on Intelligence

Capitol Visitor Center, HVC-304

Washington, D.C. 20515

The Honorable Devin Nunes

Ranking Member

U.S. House Permanent Select Committee on Intelligence

Capitol Visitor Center, HVC-304

Washington, D.C. 20515

Dear Chairman Nadler and Ranking Member Collins and Chairman Schiff and Ranking Member Nunes,

The undersigned groups write to urge you to ensure that any legislation to reauthorize expiring FISA authorities scheduled to sunset on December 15, 2019 include key reforms to Section 702.

On October 8, 2019, the Office of the Director of National Intelligence released alarming new information related to surveillance conducted under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which poses a serious threat to the privacy of both U.S. and non-U.S. persons. The documents reveal significant privacy violations, including the wrongful use of this powerful tool for personal purposes, queries that violated both the statute and the Fourth Amendment, and efforts by the Federal Bureau of Investigation (FBI) to evade laws designed to access how often this tool is turned against people in the United States. In addition, the opinions raise additional concerns regarding the extent of the government's so-called abouts collection.

These abuses demand action by Congress and underscore the need to reform Section 702. In particular, we urge you to ensure that any legislation reauthorizing provisions of FISA include the following reforms:

Congress must prohibit warrantless backdoor searches. Though Section 702 prohibits the targeting of Americans, the government routinely conducts warrantless searches of Section 702-acquired information looking specifically for information of Americans. For years, civil liberties advocates have decried the governments practice of conducting these warrantless backdoor searches as a dangerous end-run around the Fourth Amendment. These documents prove the point, revealing tens of thousands of searches conducted in violation of the law, which requires them to be conducted only when reasonably likely to return foreign-intelligence information or evidence of a crime. In some instances, FBI personnel reportedly even queried FISA information to spy on relatives in violation of the law.

These large-scale privacy violations underscore the significant threat that the backdoor search loophole poses to the rights of people in the United States. They also demonstrate the urgent need to ensure court approval of any searches of Section 702 information looking for information about U.S. persons to prevent abuse. Thus, we urge Congress to prohibit backdoor searches looking for information about U.S. persons absent a probable cause warrant.

Congress must prohibit abouts collection. The documents also raise questions regarding the scope of the governments abouts collection, which involves collection of communications that are not to or from a surveillance target. In response to persistent compliance violations, the government ended certain types of abouts collection in 2017. However, these documents raise questions regarding whether the government is engaged in new abouts collection that Congress did not authorize. Based on the documents, it appears that the Foreign Intelligence Surveillance Court (FISC) rejected arguments made by the appointed amicus regarding whether certain surveillance practices could constitute abouts collection, which would trigger Congressional notification requirements prior to initiation. Given this divergence, it is crucial that Congress clearly define and prohibit any type of abouts collection.

The abuses in the documents also underscore the need to further strengthen the role of court-appointed amicus, enhance transparency, and ensure prompt declassification of novel and significant FISC opinions. It should not have taken a full year to declassify the October 2018 opinion, which covers numerous significant issues.

The reforms referenced above are necessary additions to, not substitutes for, those that our organizations and others have already highlighted regarding Section 215 and other FISA authorities scheduled to sunset on December 15. However, the FBIs inability to comply with the law compels further Congressional action.

Sincerely,

Access NowAdvocacy for Principled Action in GovernmentAmerican Civil Liberties UnionAmerican-Arab Anti-Discrimination CommitteeAmericans for ProsperityAntiwar.comArab American InstituteBrennan Center for Justice at NYU School of LawCampaign for LibertyCenter for Democracy & TechnologyColor of ChangeConstitutional AllianceDefending Rights & DissentDemand ProgressDue Process InstituteThe Electronic Privacy Information Center (EPIC)Fight for the FutureFree Press ActionFreedom of the Press FoundationFreedomWorksGet FISA RightGovernment Accountability ProjectGovernment Information WatchHuman Rights WatchIndivisibleMedia AllianceMillion Hoodies Movement for JusticeNAACPNational Association of Criminal Defense LawyersNational Coalition Against CensorshipNew America's Open Technology InstituteOakland PrivacyOCA - Asian Pacific American AdvocatesOpen the GovernmentPeople For the American WayThe Project On Government OversightRestore The FourthRootsAction.orgSouth Asian Americans Leading Together (SAALT)TechFreedomWikimedia Foundation, Inc.X-Lab

Here is the original post:
Groups Urge Surveillance Reforms as End-of-Year Deadline Approaches - Human Rights Watch

Trump Doral (Photo by Joe Raedle/Getty Images)

Yes, Donald Trumps decision to award himself the G-7 Summit at his Doral Resort is a violation of the Foreign Emoluments Clause of the Constitution. And its probably a violation of the Domestic Emoluments Clause. In fact, its probably the most obvious violation of those clauses in American history. Its self-dealing; its corrupt; its an impeachable offense on its own. The House Judiciary Committee is going to investigate the self-dealing, because they pretty much have to.

Trump has, of course, violated the Emoluments Clause before. Hes actually facing two lawsuits about that. In fact, the Fourth Circuit just agreed to hold an en banc rehearing of one of the emoluments lawsuit.

Emoluments Clause is probably enough law for the political press to handle for one scandal. But, just among us chickens, can we also talk about how the Trump administration is potentially violating laws regarding the assignment of government contracts? Like, ALL of the them?

This isnt Nam, there are rules. Hosting the G-7 is, at base, the awarding of a government contract. We have multiple, overlapping statutes regarding that process. There are procedures. There are forms. Those forms require signatures. Getting a government contract is a big part of our economy. Since our economy is based on competition, as opposed to central planning, its simply NOT A THING for the President of the United States to just pick winners of that economy, before we even get to the part where picking himself the winner is a violation of the Constitution.

Im no expert on the laws regarding government contracts, because government compliance lawyer has never been my calling. But, unlike anybody at the White House apparently, I can Google. Heres the header from the Legal Information Institute which is just Wikipedia for people who dont want to pay Westlaw:

The United States Government is the single largest procurer of goods and services in the world, and the Department of Defense (DOD) accounts for the lions share of federal acquisitions. Three major characteristics distinguish Government acquisitions from private sector contracts. First, Government contracts are subject to myriad statutes, regulations, and policies which encourage competition to the maximum extent practicable, ensure proper spending of taxpayer money, and advance socioeconomic goals. Second, Government contracts contain mandatory clauses which afford the Government special contractual rights, including the right to unilaterally change contract terms and conditions or terminate the contract. The most important clauses are the Changes clause, the Termination for Convenience clause, and the Default clause. Third, due to the Governments special status as a sovereign entity, claims and litigation follow the unique procedures of the Contract Disputes Act.

Government contracts are subject to several statutes, including the Competition in Contracting Act and the Federal Acquisition Streamlining Act. In addition to statutes, there are a multitude of regulations which govern acquisitions by executive branch agencies. Foremost among these is the Federal Acquisition Regulation (FAR), which is codified in Parts 1 through 53 of Title 48, Chapter 1 of the Code of Federal Regulations. Executive branch agencies may issue their own regulatory supplements to the FAR, such as the Defense Federal Acquisition Regulation Supplement (DFARS). The FAR is amended pursuant to the Administrative Procedure Act, with proposed changes issued jointly by the DOD, the General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA), in coordination with the FAR Council.

The Federal Acquisition Regulation (FAR) is a dense section of law, codified in Title 48 of the U.S. Code. The prohibition against self-dealing in this space is not one of those ephemeral norms that Trump disregards all the time. The self-dealing prohibition is codified right in the statute:

48 CFR 3.601 Policy.

(a) Except as specified in 3.602, a contracting officer shall not knowingly award a contract to a Government employee or to a business concern or other organization owned or substantially owned or controlled by one or more Government employees. This policy is intended to avoid any conflict of interest that might arise between the employees interests and their Government duties, and to avoid the appearance of favoritism or preferential treatment by the Government toward its employees.

(b) For purposes of this subpart, special Government employees (as defined in 18 U.S.C. 202) performing services as experts, advisors, or consultants, or as members of advisory committees, are not considered Government employees unless

(1) The contract arises directly out of the individuals activity as a special Government employee;

(2) In the individuals capacity as a special Government employee, the individual is in a position to influence the award of the contract; or

(3) Another conflict of interest is determined to exist.

Again, the law is complicated and full of exceptions and Im no compliance wonk. But the point is that this law EXISTS. So do others. The Trump administration needs to show that it complied with the law, or show that it doesnt need to comply with the law because it is eligible for some sort of exception. ALL OF THAT MUST BE WRITTEN DOWN. If those arguments dont hold water, Trump is in violation of statute. If those arguments are lies, on official government documents, those lies are crimes.

Making the Emoluments Clause argument against the president for this deal is valid, but its a little bit like pursuing a Fourth Amendment violation against the president for a car-jacking. Sure, it probably is. But, also, THERE ARE LAWS AGAINST CAR-JACKING.

President Trump and his administration, including his administrations lawyers, act like our laws are mere guidelines that dont apply to a strong president. Thats just not true. Awarding yourself a government contract is, at least, a facial violation of law. Does Trump have a defense? Mick Mulvaney suggests that he just wont show us the governments defense to these CHARGES which is also not an acceptable answer.

Trump, obviously, isnt allowed to do this. WHO IS GOING TO TELL HIM?

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

The rest is here:
President Trump Is Violating More Than The Emoluments Clause With His Doral Summit - Above the Law

MINNEAPOLIS (WCCO) A lawsuit against a southern Minnesota city and its police department alleges that excessive force was used in an arrest earlier this year, leaving a man with several broken bones and nearly $150,000 in medical bills.

The American Civil Liberties Union (ACLU) filed the lawsuit Monday against the city of Worthington and its police department. The suit names the police chief, Troy Appel, officer Mark Riley, and Rileys friend, Evan Eggers, who was on a ride-along at the time of the arrest.

The victim is identified as Kelvin Francisco Rodriquez, an Iowa man who works in Worthington.

During the arrest on Jan. 12, he suffered four broken ribs and internal bleeding due to lacerations to his pancreas and liver, according to the ALCU. The lawsuit alleges that he told officers multiple times that he needed to go to a hospital but they refused to take him to one for several hours.

By the time Rodriquez got medical attention, he had to be airlifted to a hospital in South Dakota, where he was hospitalized for five days, incurring close to $150,000 in medical bills.

The lawsuit alleges that Rodriquezs Fourth Amendment rights were violated by the use of excessive force and his Fourteenth Amendment rights were violated by the delay in medical treatment.

Dashcam Video Of Kelvin Rodriquezs Arrest

In a statement released by the ACLU, Rodriquez says hes speaking about what happened to him because its happening to other people in the Worthington.

As a human being, I ask that the police be held accountable for not adequately doing their job and respecting me as a human being, he said. My wife and children saw me going in and out of life and death. I think it is fair to ask for justice.

According to the lawsuit, Rodriquezs arrest came after he noticed a squad car trailing him and, out of fear of how police treat minorities in Worthington, tried to avoid them by turning into a parking lot.

The squad car followed Rodriquez into the lot, where he quickly parked his car and started to run. But when the squad cars emergency lights flashed, he stopped and put his hands up. This can be seen in police dashcam video.

Riley ordered Rodriquez to get on the ground and put his hands behind his back. While out of view of the dashcam video, Riley places his knee and full body weight on Rodriquezs ribs, the lawsuit alleges. Rodriquez can be heard on the video moaning in pain.

The lawsuit is seeking damages to be paid to Rodriquez, although no specific dollar amount was listed.

This is the second time that the ACLU has sued Worthington and its police department over what it claimed was the use of excessive force. In 2016, Anthony Promvongsa was pulled over by a drug task force and punched and kneed while he was still seat-belted in his car.

That case ended with a $60,000 settlement for Promvongsa, and the city agreeing to a number of policy changes dealing with use of force.

Among the policy changes was a requirement for Worthington officers to document when they see officers using force. The lawsuit filed on behalf of Rodriquez accuses the police department of not following this and other policies related to use of force.

WCCO reached out to the Worthington Police Department for comment.

Read this article:
ACLU Sues Worthington For Arrest That Left Man With Nearly $150K In Medical Bills - WCCO | CBS Minnesota

Signup to receive the Early Edition in your inboxhere.

Before the start of business,Just Securityprovides a curated summary ofup-to-the-minute developments at home and abroad. Heres todays news.

TURKEY AND SYRIA

The House yesterday overwhelmingly approved a resolution formally condemning President Trumps withdrawal of U.S. troops from northern Syria. The non-binding measure, which passed in a 354-60 vote, states Congress opposition to the troop pullback and calls on Turkey to halt its military action in Syria. The resolution also urges the Trump administration to present a clear plan for an enduring defeat of the Islamic State group (ISIS). Connor OBrien reports at POLITICO.

The House vote was followed by a White House meeting with congressional leaders in which Trump apparently insulted top Democrats, calling House Speaker Nancy a third-rate politician, before they walked out, accusing the president of having a meltdown. Pelosi and other Democratic leaders in Congress said they cut short the contentious high-level briefing on the Syria crisis after it quickly devolved into an insult-fest and it became clear the president had no plan to prevent the potential resurgence of ISIS in the Middle East. Katie Rogers reports at the New York Times.

White House press secretary Stephanie Grisham offered a different account of the meeting, saying in a statement that Trump was measured and decisive and that Pelosi had no intention of listening. While Democratic leadership chose to storm out and get in front of the cameras to whine, everyone else in the meeting chose to stay in the room and work on behalf of this country, Grisham added. Clare Foran reports at CNN.

Trump later lashed out at Pelosi on Twitter, accusing the speaker of experiencing her own meltdown, while adding that she needs help fast! There is either something wrong with her upstairs, or she just plain doesnt like our great Country, the president wrote in a message. AFP reports.

Just hours before the meeting, Trump had defended as strategically brilliant his decision to pull American troops out of Syria, insisting that the U.S. had no interest in intervening in the ongoing conflict between Turkey and the Kurds because it was over land that has nothing to do with us and the Kurds, who helped the U.S. in its campaign against ISIS, were no angels. Trump however sent mixed signals by playing down the regions importance to America while hitting back at critics, citing a letter he apparently sent to Turkish President Recep Tayyip Erdogan last week as evidence that he had not given the leader a green light to advance Turkish forces into Syria. Seung Min Kim and Mike DeBonis report at the Washington Post.

In the Oct. 9 letter, which began with the sentence Lets work out a good deal!, Trump called on his Turkish counterpart to negotiate an end to Turkeys assault against U.S.-allied Kurdish fighters, warning him: dont be a tough guy, dont be a fool. You dont want to be responsible for slaughtering thousands of people, and I dont want to be responsible for destroying the Turkish economy and I will, Trump wrote, adding, history will look upon you favorably if you get this done the right and humane way. Vivian Salama reports at the Wall Street Journal.

Trump shrugged off concerns that his decision to pull back had cleared the way for Russia, Iran, the Syrian government and ISIS to advance in the territory and reassert influence in the area. I wish them all a lot of luck, Trump said of the Russians and Syrians, adding, if Russia wants to get involved with Syria, thats really up to them. Peter Baker and Catie Edmondson report at the New York Times.

Syrian forces last night entered the strategic border town of Kobani, blocking one route for the Turkish military to create a safe zone free of Syrian Kurdish fighters along the frontier as part of its week-old assault. The AP reports.

The Turkish incursion into northeast Syria has so far killed 218 civilians and wounded more than 650 others since it began a week ago, the Kurdish-led administration in the region said today. Reuters reports.

More than a thousand Syrian refugees have crossed the Iraqi border in the days since U.S. troops withdrew troops and Turkey moved in to push Kurdish-led forces from its southern frontier, aid groups said. Louisa Loveluck and Mustafa Salim report at the Washington Post.

The U.N. Security Council expressed concern yesterday over the risks of a deterioration in the humanitarian situation in northeast Syria and the escape of ISIS fighters, but made no reference to the Turkish offensive on U.S.-allied Syrian Kurdish militia and did not urge Turkey in its statement to end its operation. Reuters reports.

Iraqs Foreign Minister Mohammed Ali-Hakim declared today that his country would only take back Iraqi citizens detained in Syria who were fighters with ISIS and their families, saying that the home nations of other former Islamic State group members and their families should take the necessary measures. The AP reports.

Turkey is very unlikely to be expelled from NATO over its incursion into northern Syria, the AP reports.

Vice President Mike Pence today arrived in Ankara in an unlikely bid to persuade Erdogan to end Turkeys military incursion into Syria. Pence will lead a high-level delegation that includes Secretary of State Mike Pompeo and U.S. national security adviser Robert OBrien, the AP reports.

TRUMP AND CONGRESSIONAL INVESTIGATIONS

Former top adviser to Secretary of State Mike Pompeo Michael McKinley yesterday told impeachment investigators that he resigned last week out of frustration over the Trump administrations mistreatment of career U.S. diplomats and the alarming allegations related to efforts to pressure Ukraines president into investigating President Trumps political rivals, including former vice president Joe Biden and his son Hunter. Carol Morello and John Hudson report at the Washington Post.

McKinley said he quit his job because of Trumps attacks on the ousted U.S. ambassador to Ukraine [Marie Yovanovitch] and the State Departments unwillingness to protect career diplomats from politically motivated pressure, according to people familiar with the closed-door testimony. McKinley also warned that efforts to pressure Ukraine to procure negative information on political opponents would have a serious impact on foreign service morale and the integrity of our work overseas. Andrew Desiderio and Kyle Cheney report at POLITICO.

Former White House senior director for European and Russian affairs Fiona Hill reportedly said she believed that U.S. Ambassador to the European Union (E.U.) Gordon Sondland created a national security risk because his inexperience could be exploited by foreign governments. Hill did not say Sondland acted maliciously but described his use of a personal phone for official diplomatic business and said he told foreign officials they could visit the White House whenever they wanted, according to two people familiar with Hills closed-door testimony before the House this week. Nicholas Fandos and Adam Goldman report at the New York Times.

Lawmakers are set to hear from Sondland today about his knowledge of efforts by Trump to urge Ukraine to investigate the Bidens and allegations the president withheld hundreds of millions of dollars in military aid to Ukraine as part of that effort. Josh Lederman reports at NBC News.

Energy Secretary Rick Perry reportedly contacted Rudy Giuliani this spring at Trumps direction to address the presidents concerns about alleged Ukrainian corruption, a sign of how closely the presidents personal lawyer worked with the administration on Ukraine policy, Timothy Puko and Rebecca Ballhaus report on an exclusive interview with Perry at the Wall Street Journal.

Senate Majority Leader Mitch McConnell outlined the next few months of impeachment yesterday at the Senate Republicans weekly luncheon. McConnell told the caucus that House Democrats wanted to move expeditiously, possibly approving articles of impeachment by Thanksgiving, adding that the Senate could deal with the trial by Christmas. Rachael Bade and Erica Werner report at the Washington Post.

One by one, a parade of Trump administration career diplomats and senior officials has offered a cascade of revelations, Michael D. Shear and Nicholas Fandos report on the latest disclosures at the New York Times, writing that just a week after the White Houses declaration to House impeachment investigators, it has become clear that Trumps attempts to stonewall the Democrat-led inquiry that has imperiled his presidency and ensnared much of his inner circle are crumbling.

The addition of former Rep. Trey Gowdy to Trumps legal team dealing with the House of Representatives impeachment inquiry raises pertinent questions, Sidney Blumenthal comments at Just Security, proposing 10 questions that Gowdy needs to answer.

Sondland wedged his way into Ukraine policymaking anyway, attending the new presidents inauguration in Kiev in May and briefing Trump afterward, all over the objections of the national security adviser at the time, John Bolton, Sharon LaFraniere, Michael Crowley and Michael S. Schmidt write at the New York Times ahead of Sondlands testimony today.

Impeachment investigations have moved at staggering speed and produced a torrent of damaging revelations for the White House, Stephen Collins writes in an analysis at CNN, noting the key testimony on the horizon.

OTHER DEVELOPMENTS

Three American diplomats were briefly detained on Monday in Russia near the military testing site where a mysterious explosion released radiation in August, it was reported yesterday by the New York Times.

Chinese diplomats in the U.S. must now notify American authorities before holding any meetings with U.S. officials under new rules which the Chinese Embassy in the U.S. called a violation of the Vienna Convention. The BBC reports.

President Trump appeared to confirm [yesterday] that U.S. nuclear weapons are being housed at Incirlik Air Base in Turkey, making him the first U.S. official to publicly acknowledge what has been considered an open secret for years, Zachary Cohen reports at CNN.

A fourth man involved in a campaign fraud case involving associates of Trumps personal lawyer Rudy Giuliani is being held in federal custody, Edward Helmore reports at the Guardian.

Dozens of Democratic lawmakers yesterday pushed the State Department to label three white supremacist groups as foreign terrorist organizations, arguing that reclassification could help the U.S. seriously confront the escalating crisis of white extremist violence. Emily Birnbaum reports at the Hill.

The second part of the analysis of last weeks Foreign Intelligence Surveillance Court (F.I.S.A. Court) opinion, including what the opinion reveals about the number of F.B.I. queries that did not comply with internal rules, the statute, or the Fourth Amendment, is provided by Elizabeth Goitein at Just Security.

More here:
The Early Edition: October 17, 2019 - Just Security

In the second episode of Netflixs Living Undocumented, a six-part documentary series following the lives of several undocumented immigrants in the U.S., lawyer Andrea Martinez is wheeled out of a Kansas City Immigration and Customs Enforcement facility on a stretcher. Her heels are off and her left knee is bloody. Moments earlier, cameras caught an ICE agent shoving her to the ground as she tried to enter the building with her three-year-old client, Noah. He was reuniting with his detained, pregnant mother before they were both deported to Honduras.

In the next scene, Martinez says to the camera, The fact that an ICE agent would assault me in front of cameras and 40 observers, knowing that Im an attorneyimagine, just imagine, how immigrants are treated in private ICE detention facilities.

At the time, Martinez and her colleague, attorney Megan Galicia, were accompanying Noah and his stepfather, Luis Diaz, to the ICE facility. Diaz was hesitant to go inside because he is also an undocumented immigrant, so the lawyers planned for him to hand off Noah in the parking lot. ICE agents previously said Diaz would not be detained, but when he arrived with his stepson, the agents told the lawyers Diaz would need to go inside because of the rain. As Martinez and Galicia asked Diaz if he wanted to enter the facility, an ICE agent approached and threatened to detain him if he didn't go inside. As the lawyers tried to join him, the ICE agent pushed them out of the door and locked it. Martinez fell to the ground, and says she suffered a fractured foot and a concussion.

Inside, Noah and his mother were deported, and Luis was detained anyway. When the agents finally let Martinez inside the facility, the officer tried to get her arrested for forcibly entering without permission. "It was the most strange set of events, because when you're told you have to come into a space and then the ICE agent flips and calls the police and lies, you think, 'What world am I living in?'" she told ELLE.com. "'What is happening?'"

Though a criminal investigation occurred right after, the U.S. Attorney for the Western District of Missouri, Timothy Garrison, decided not to press charges. But this past Thursday, Martinez, represented by the ACLU, filed a civil complaint in the U.S. District Court, Western District of Missouri, suing the U.S. government for excessive force and unlawful search and seizure in violation of the Fourth Amendment, as well as the two ICE agents for assault, battery, false arrest, false imprisonment, and negligent infliction of emotional distress.

ELLE.com spoke with Martinez to discuss her lawsuit, her experience watching the documentary, and how she takes care of herself with such an intense job.

After law school, I spent nine months in Guatemala assisting with a human rights organization called International Justice Mission. I returned to the U.S. and spent a year as a law clerk for a federal judge at the U.S. Court of Federal Claims. During that year, I married my Honduran husband and did his immigration paperwork and realized it is a very complicated field of law. People started asking me questions about immigration law, and I became increasingly interested in the complexities of the field and decided that I was going to dedicate my career to it, in large part because I always wanted to be a human rights lawyer. I believe the rights of immigrants are human rights, and this is the human rights struggle of our day.

It started when my colleague Megan Galicia received an email to a Listserv in April 2018. It was a plea to help a pregnant detained woman. Megan said she sat on it for a couple of days. One night she couldn't sleep because she kept thinking about this Bible verse that says, I was in prison, and you visited me, from Matthew 25. She felt tormented by the thought of what it would be like to be a pregnant woman detained in a place [where] you don't speak the language, you don't know anyone. Megan finally came to me and said, "No other lawyers have agreed to take the case. Do you feel like we should go visit this woman?" And I told her, "Yeah, let's go visit her."

Courtesy of Netflix

Megan and I visited Kenia. It was really disturbing to see a pregnant immigrant woman with no criminal history being detained in a county jail with people who had committed crimes. We started reaching out to local press to talk about how disturbing this new ICE policy was. This was a fairly new policy at that time, that ICE would detain pregnant women; they used to not, in our experience. The Kansas City Star wrote up a newspaper article about her being detained, and little did we know, Netflix was scouring the internet, looking for stories of immigrants that they could feature in a new documentary. I got a call from some film producers and they said, "Hey, we'd like to follow Kenia's story. Can we come film them?" We asked Kenia and Luis if that was something they would be open to. They both said yes. And wow, did [Netflix] show up.

I don't think it's happened to any immigration attorney before. It sent shockwaves throughout the lawyer world because, of course, we expect to be able to do our jobs without getting assaulted or physically injured. Thats one of the reasons why this lawsuit is so important. Lawyers simply cannot be assaulted when doing their jobs or tricked the way that we were. These ICE agents have no excuse for behaving the way they did. There were cameras, there were observers, but they were peaceful and they were in a public space. My advice is that whenever ICE is around, people need to take out their phones and start recording what's happening.

I've been going to therapy for about a year now, since the ICE assault happened, and I immediately was like, I think I need to go to more therapy. It's really hard. It was very distressing to be locked in a room with an armed ICE agent who had just assaulted me and who was refusing me medical treatment and was trying to take my phone and not letting me call the police.

Courtesy of Andrea Martinez

It's a disgrace to the United States how these immigrants are treated. The problem is that many immigrants who are abused and mistreated by ICE are eventually deported, or [are] so voiceless that they don't sue or can't sue. That's why this lawsuit is so important. This case was about me, but it represents a lot more. It represents, in my opinion, all the immigrants who have suffered abuse and mistreatment by officials at the Department of Homeland Security and have never gotten justice for the suffering that they've endured.

Im a huge proponent of self care and taking the time you need to take care of yourself first. If we're going to help other people, we have to make sure we're strong and we're healthy as advocates. For me, that means I really prioritize my faith. Also, the other immigration lawyers throughout the United States, they're such an encouragement. We don't act like competitors. We're just all sort of surviving, and there's something that's really beautiful about that. It's a community.

Go here to see the original:
The World Watched as an ICE Agent Pushed an Immigration Lawyer to the Ground. Now, Shes Suing the U.S. Government. - ELLE.com

The Fourth Amendment is in a sorry state. The constitutional provision intended to protect us and our property from unreasonable searches and seizures has been weakened over decadesa fact that ought to be of acute concern at a time when surveillance technology is increasingly intrusive and secretive. A modernization of Fourth Amendment doctrines is long overdue.

In his new book, The Fourth Amendment in an Age of Surveillance, David Gray, a professor at the University of Marylands Francis King Carey School of Law, attempts to outline what such a modernization might look like. To establish why reform is necessary, he offers a historical account. Gray traces the concepts embodied in the amendment back to mid-18th-century concerns in both England and the American colonies about overly broad permissions for executive agents. In England, the focus of the controversy was general warrants, which were vague in purpose and almost unlimited in scope.

In the colonies, the controversy focused on writs of assistance, a specialized kind of general warrant, ripe for abuse. In a five-hour-long speech before the Massachusetts Superior Court in 1761, the lawyer James Otis Jr. condemned writs of assistance, declaring them the worst instrument of arbitrary power, the most destructive of English liberty. John Adams, who witnessed Otiss oration, decades later described it as the moment when the Child Independence was born. A distaste for needless and indiscriminate intrusions into homes and other property is thus baked into Americas revolutionary DNA. It was eventually codified in the Fourth Amendment, with its prohibition of unreasonable searches and seizures and guarantee that no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The doctrines used in interpreting the amendment have evolved over time. The rise of modern police forces prompted the judiciary to develop the exclusionary rule (which ensures that evidence collected via Fourth Amendment violations is inadmissible), the Miranda warning (which, as anyone who has seen a TV cop show in the last four decades can tell you, holds that once youre in police custody officers must tell you that you have the right to remain silent and the right to an attorney), and the warrant requirement (which holds that searches are per se unreasonable if theyre conducted without prior approval from a judge or magistrate).

The interpretation of the Fourth Amendment has also evolved in response to technological development. Notably, the advent of eavesdropping devices gave rise to the reasonable expectation of privacy test, first formulated in Supreme Court Justice John Harlans concurrence in Katz v. United States (1967) and subsequently adopted by the Court. According to the test, government agents have conducted what the law considers a search if they have violated an individuals subjective expectation of privacy and if that expectation is one that society is prepared to accept as reasonable.

Unfortunately, Gray writes, the Katz test has proven inadequate to the task of regulating the means, methods, and technologies that have come to define our contemporary age of surveillance. Gray puts in his crosshairs three post-Katz doctrines that have had the effect of leaving some of the most intrusive surveillance technologies outside the purview of Fourth Amendment challenge.

First, thanks to the public observation doctrine, police do not necessarily need a warrant to peek into your backyard with a drone. (Some states have passed legislation mandating warrants for drone surveillance, but these requirements go beyond what is required by current Fourth Amendment interpretation.) Nor do police need a warrant to track your public activities for days at a time. As Gray points out, there wouldnt even seem to be a Fourth Amendment issue if the government were to install GPS trackers in every car or computer and then use those trackers to keep an eye on all citizens public movements. After all, as the Katz Court held, What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.

The third-party doctrine likewise offers little reassurance. According to this doctrine, you have no reasonable expectation of privacy in information you voluntarily surrender to third parties, such as Internet providers and banks.

In an era of Big Data and ubiquitous electronic communication, the implications of the third-party doctrine are significant. For example, police today can deploy devices called stingrays that mimic cellular towers. Each cell phone is constantly playing a game of Marco Polo with nearby cell towers, seeking a connection. A stingray emits a boosted signal, forcing all nearby phones to connect to it. This allows police to monitor the location of a targets cell phone. Using a stingray, law enforcement can also uncover information about a targets communications, such as the number of texts sent, the recipients of texts, the phone numbers dialed, and the duration of calls. But stingrays can also collect all of this information about the communications of innocent people. Thanks to the third-party doctrine, there is no clear Fourth Amendment remedy to this invasion of privacy.

Finally, the rules about legal standing in Fourth Amendment cases have, according to Gray, also weakened the remedies available to citizens. Under the rules that emerged after Katz, plaintiffs must demonstrate that they have suffered a violation of their reasonable expectation of privacy. So, for example, citizens outraged about the National Security Agencys metadata collection program lack the standing to file their own Fourth Amendment suits; they have to be able to explain how the program violated their reasonable expectations of privacy. Or, in another instance, when Amnesty International challenged the FISA Amendments Act of 2008, a law giving the federal government broad power to snoop on U.S. citizens international communications, the Supreme Court ruled in 2013 that the organization lacked standing to challenge the law, even though Amnesty works with many international partners. As Justice Samuel Alito wrote for the Court, respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.

With its citations from old dictionaries and other contemporary texts, Grays exhaustive word-by-word and clause-by-clause dissection of the Fourth Amendment should appeal to originalists. His take on standing may raise a few eyebrows, but he does a noble job of defending his claim that an original public understanding of the Fourth Amendment reveals that it protects a collective right to prospective relief, not just relief for past individual harms. The amendment does protect individuals, Gray believes, but its individual protections are derived from the collective right.

Gray proposes several ways to improve Fourth Amendment protections in light of the high-tech surveillance techniques that are now available to authorities. Surveillance conducted by drones and stingrays could, he argues, be curtailed via a remedy modeled on the Wiretap Act. Under that 1968 legislation, passed in the wake of the Katz ruling, officers seeking a wiretap order must establish probable cause, exhaust other investigative methods, and ensure that the wiretap is time-limited. The act also requires that officers regularly report back to the court that issued the wiretap warrant.

When it comes to Big Data, Gray proposes a range of constraints governing the aggregation, collection, analysis, and storage of data.

Perhaps Grays most interesting proposal flows from his collective-right theory of the Fourth Amendment. He would allow individuals and organizations to have standing to challenge programs that threaten the people as a whole. This would allow, say, the American Civil Liberties Union to challenge the legality of New York Citys stop-and-frisk program. Such other programs and technologies as persistent aerial surveillance, metadata surveillance, and license-plate readers would be open to challenge under Grays understanding of the Fourth Amendment.

Not everyone will be convinced by Grays analysis. Some critics will undoubtedly dispute his collective-right theory of the Fourth Amendment and quibble with his Wiretap Act-like remedies. However, these disagreements will not detract from the fact that his book is a welcome and informative contribution to the public debate about surveillancea debate that will lastingly shape how we live together and how we understand privacy and liberty.

Matthew Feeney is a policy analyst at the Cato Institute.

Read the rest here:
Protecting Privacy - The Weekly Standard

Aug 22 FEATURE MAIN, Live Local, NEWS & VIEWS No Comments on LIVE LOCAL, LIVE SMALL: What freedoms and liberties do we stand to lose?

The Guardian reported:

The warrant covers the people who own and operate the site, but also seeks to get the IP addresses of 1.3 million people who visited it, as well as the date and time of their visit, and information about what browser or operating system they used.

There are a variety of concerning aspects to this set of events. First, and most obviously, are those related to the First Amendment (freedom of speech and assembly) and the Fourth Amendment (protection from unreasonable search and seizure). The Department of Justice wants the IP addresses of every visitor to the siteand from that information the physical location of each visitor can be ascertained. It makes identification not all that difficult. Besides freedom of speech, there are questions about the scope of the warrant. The Fourth Amendment makes it clear a warrant must specify locations to be searched and probable cause. Orin Kerr noted in the Washington Post:

Courts have allowed the government to get a suspects entire email account, which the government can then search through for evidence. But is the collective set of records concerning a website itself so extensive that it goes beyond what the Fourth Amendment allows? In the physical world, the government can search only one apartment in an apartment building with a single warrant; it cant search the entire apartment building.

Additionally, one has to be concerned that one branch of government would use their power to collect private information about citizens it feels threatened by. It looks like a personal score to settle. People who disagree with the executive branch are to be identifiedand to what end specifically? Over 200 people have already been charged with felony rioting at the inauguration. Why does the Department of Justice need to identify 1.3 million people who might disagree with the executive branch? It is frightening not only for civil liberties but for what it can mean on the slippery slope of settling political scores with citizens. Ask the Mothers of the Disappeared in Argentina: This is dangerous.

At the end of June, the executive branch asked the states to turn over voter registration information for the voter fraud commission. The information requested voter rolls, dates of birth and the last four digits of social security numbers. North Carolinas bipartisan State Board of Elections and Ethics Enforcement announced it would turn over publicly available information to the commission, but not social security numbers and dates of birth. Some states have refused to comply. I have to admit: The possibility of finding oneself purged from the voter rolls is a scary idea.

About 10 years ago, I found myself dropped from the voter registration rolls. It was a bit of a surprise; I showed up on election day and was informed I was not registered to vote in New Hanover County. The poll worker asked if I had registered to vote?

Yes, I answered. I have voted at this precinct location for the past six years. I usually come in with one of my parents and we would take turns standing with the dog outside, because a family that votes together stays together.

After much hemming and hawing with the poll workers, I was given a provisional ballot. I sorted out my registration and, thankfully (fingers crossed), have not had a problem since.

I come from a family that makes voting a priority. I am comfortable advocating for that right with people in positions of authority.

Recently, my household went through the citizenship process and one of the recurring themes in the process was voting is one of the most important ways to participate in a democracy and preform a civic duty. At the Naturalization Ceremony, the League of Women Voters were standing by with voter registration forms for each of the newly sworn-in citizens.

It doesnt take a giant leap of imagination to see those two lists overlap: Who visited a website the executive branch dislikes and who voted against the candidate in the last election? Where there is a match, how hard would it be to drop a name from the rolls? As far-fetched as this would have sounded 18 months ago, it is just not hard to imagine right now. If they control who can vote, they can control who wins an election. The timing of demanding these two sets of data is startling and frightening.

Dreamhost is challenging in the warrant and a hearing is scheduled on August 18. What is possibly more frightening than the above scenario is the possibility this is just a litmus test. If successful, where does it stop? What speech and assembly freedoms could we lose?

In the wake of the events at Charlottesville and escalating concern regarding North Koreawhich strike a primal and emotional chordit is hard to focus on something as dry as a justice department warrant. But that is exactly why it is important. The events surrounding the warrant and what happens with the information gathered will directly impact the publics ability to talk back to power and speak freely.

Allowing one branch of the government to target citizens who disagree is dangerous The possibilities of the internet are a fascinating double-edged sword. Never before in history have we had the ability to share information, opinions and ideas with such immediacy. Social media and web tools can allow for assemblies with short notice on a scale not previously imaginedand the documentation of the assemblies can be shared and made available around the world as they unfold. But the footprint and trackability of online activity is the other side of the coin. Potentially targeting someones voting rights based upon political opinions is not what the constitution intends.

Its important: protecting citizens rights to vote, speak and participate in democracy. It is essential to our future.

CharlottesvilleDepartment of Justiceencore magazineFourth AmendmentGwenyfar RohlerLeague of Women VotersMothers of the Disappeared in ArgentinaNaturalization Ceremonynew hanover countyNorth KoreaOrin KerrState Board of Elections and Ethics EnforcementUnited States ConstitutionWashington PostWilmington NC

FUZZY FOLK: Stray Owls pick up a drummer, drop a record and head to ILM NEWS OF THE WEIRD

See the rest here:
LIVE LOCAL, LIVE SMALL: What freedoms and liberties do we stand to lose? - encore Online

In New Jersey, yet another bill amending the animal cruelty statute (S1640) was recently passed into law. The amendments [e]stablish . . . requirements concerning necessary care of dogs, domestic companion animals, and service animals, and for tethering of dogs.

Many of the other provisions requiring necessary care to a companion animal are reasonable if the laws are appropriately enforced by professional law officers, who have sought guidance from individuals with expertise in animal health, care, and handling. Unfortunately this is not the case in New Jersey, where the animal cruelty statute is improperly enforced.

This makes the following provision extremely problematic and of concern to companion animal owners and their attorneys in the State:

any humane law enforcement officer or agent of the New Jersey Society for the Prevention of Cruelty to Animals or county society for the prevention of cruelty to animals, certified animal control officer, or other State or local law enforcement officer may immediately enter onto private property where a dog, domestic companion animal, or service animal is located and take physical custody of the animal, if the officer or agent has reasonable suspicion to believe that the animal is at risk of imminent harm due to a violation of this act.

While an earlier provision requires a showing of probable cause before a court of competent jurisdiction could issue a subpoena permitting law enforcement to enter private property and seize an animal, this latter provision impermissibly violates the Fourth Amendment of the Constitution.

A district court case provides clarity of rights under the Fourth Amendment:

In Badillo v. Amato, Case No. 13-1553, slip op. (D.N.J. Jan. 28, 2014) the Court denied then Monmouth County SPCA Chief Amatos motion to dismiss, in relevant part, Badillos allegation that Amato violated his right to be free from illegal search and seizure under the Fourth Amendment. In this case, Badillo, a priest of the Santeria religion was issued nine municipal court summons for animal animal abuse and neglect after Amato went around to the back of . . . [Badillos house, opened the gate and let himself in the fenced backyard without permission or a warrant and began taking pictures . . . Case No. 13-1553, slip op., at p. 3 (D.N.J. Jan. 28, 2014).

As the Court explained, finding that the Complaint sufficiently pleaded Fourth Amendment violations by Amato to survive a motion to dismiss, the Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized. Id., at p. 8 (quoting U.S. Const. amend. IV.)

The Court reaffirmed that not only is the home sacrosanct but that protections afforded by the Fourth Amendment extend not only to a persons home, but also to the curtilage surrounding the property. Id., at p. 8-9 (citing Estate of Smith v. Maraso, 318 F.3d 497, 518-519 (3d Cir. 2003).

It appears that the foregoing provision of the newly amended animal cruelty statute, permitting entry to private property based on merely reasonable suspicion and in the absence of a court order would violate the Fourth Amendment.

Additional concerns about these amendments, previously discussed, remain included in the final adopted law.

For example, a person may not keep a dog (or other domestic companion animal) in an animal crate or carrier for transport, exhibition, show, contest, training or similar event if the top of the head of the dog touches the ceiling of the animal carrier or crate when the dog is in a normal standing position. There are many acceptable, safe dog carriers that permit dogs to stand, turn around and lie down comfortably, but the top of their head would touch the ceiling of the crate.

The public must be adequately informed about this new requirementthat does nothing to provide for the welfare of dogs transported in dog carriersso they are not victims of animal cruelty citations issued by over zealous agents and officers of the NJ or County SPCAs. As noted in the State of New Jersey Commission of Investigation 2000 report on Societies for the Prevention of Cruelty to Animals, at least one County society (Warren) routinely stopped vehicles with horse trailers for proof that a Coggins test certificate was available as required by the NJ Department of Agriculture. As the report concluded:

Not only is the absence of a certificate not cruelty, but SPCA personnel lack the expertise to know whether the horse described in the certificate, such as a Bay or Chestnut [which are specific horse colors and patterns], is in fact the horse being transported.

It would not be unprecedented if humane officers decided to target people traveling with dogs throughout the state, and started pulling over and issuing summons related to the size the their dog carriers.

Dog owners beware!

[View source.]

Excerpt from:
Violations Of The Fourth Amendment And Other Concerns About Amendments To New Jersey's Animal Cruelty Statute - JD Supra (press release)