Government is just another word for "things we do together"

Like not letting other people's 10-year-olds walk around without an adult escort.

Some thoughts:

1) Apparently the parents were forced by CPS to sign a "safety plan" agreeing not to let the children play unsupervised until CPS could marshal their full administrative resources to review the case. When the father at first refused, the CPS official said they'd take the kids if he didn't sign the contract. This is a strange sort of "agreement." Obviously, it's not voluntary in any sense of the word, and coercive in every sense of that word. Kafkaesque.

2) The Washington Post leaves out the details of what happened when the police came:

The police asked for the father’s ID and when he refused, called six patrol cars as backup. Alexander went upstairs and the police called out that if he came down with anything else in his hand “shots would be fired,” according to Alexander. (They said this in front of the children, Alexander says). 

At least they didn't specifically threaten to kill the kids.

3) In America, black people get shot for walking in the street. I guess white people might get shot for letting their kids walk alone where there might be black people.

The Criminal Element

Wired has a truly shocking report of deception and lawlessness by the U.S. Marshals service, the Florida State Attorney's office, and local police departments:

Police in Florida have, at the request of the U.S. Marshals Service, been deliberately deceiving judges and defendants about their use of a controversial surveillance tool to track suspects, according to newly obtained emails.

At the request of the Marshals Service, the officers using so-called stingrays have been routinely telling judges, in applications for warrants, that they obtained knowledge of a suspect’s location from a “confidential source” rather than disclosing that the information was gleaned using a stingray.

Once, when a police officer made the mistake of actual describing how the location information was obtained, the State's Attorney issued a stern rebuke with strict orders never to tell the truth again, to ensure "that we may continue to utilize this technology without the knowledge of the criminal element."

When the ACLU made a FOIA request to get to the bottom of what was going on, the U.S. Marshals swept in and seized the evidence:

The release of the emails showing interference by a state attorney and the U.S. Marshals Service comes two weeks after agents from the Marshals Service took the extraordinary measure of seizing other public documents related to stingrays from the Sarasota Police Department in order to prevent the ACLU from examining them.

The documents, which were responsive to a FOIA request seeking information about Sarasota’s use of the devices, had been set aside for ACLU attorneys to examine in person. But hours before they arrived for the appointment to view the documents, someone from the Marshals Service swooped in to seize the documents and cart them to another location.

The police argue that the use of these stingrays without a warrant is unobjectionable "because the devices don’t collect the content of phone calls and text messages, but instead operate like pen-registers and trap-and-traces, collecting the equivalent of header information." Perhaps so, but it is hard to see how this justifies their secret use, or how it justifies lying about using them in sworn affidavits. Or am I over-reacting?

Crime down, prosecutions ... down?

On Friday, I published a chart showing that, despite dropping crime rates, the rate of people being sentenced in federal court has gone up.

As I mentioned then, one plausible explanation for this mismatch is that there is just something particular about federal crimes (which are a small slice of overall crimes). So I went looking for some state-only data. I was able to find some data on the number of number of felonies filed in Illinois courts each year since 1997. If you add that data, you get this chart:

(All three lines are normalized to an index rate of 100 in 1997, so this shows their relative change over time.)

The blue line is the new Illinois data. Unlike the federal sentencing rate (which has gone up despite the drop in crime) the Illinois felony-filing was steady between 1997 and 2006, after which it began to mirror the drop in the overall crime rate. So that's kind of encouraging. And it's evidence that undercuts my implicit hypothesis that the prosecution rate isn't at all sensitive to the crime rate.

Crimes down, Convictions ... up!

Crime rates in the United States have been plummeting for over 20 years. The cause of this turnaround is a topic of much debate and controversy. The Freakonomics guys say we can thank Roe v. Wade. Kevin Drum says we can thank unleaded gas. The authoritarians say we can thank boots on the ground and pigs in the pen. And there are many other plausible theories. Perhaps the most plausible theory is that a lot of things came together at once. But no one denies that we've seen a remarkable and remarkably unexpected drop in crime—all kinds of crime: rape, murder, theft, etc.

This got me to thinking. Even though you hear more and more about this dropping crime rate, you don't hear much about prosecutors sitting around on their hands with nothing to do. So I wondered whether there was any data on the relationship between the number of crimes committed and the number of people who are actually being convicted of crimes.

Although I'm sure such data exists, I couldn't find it on the Google. So I had to create it myself:

The red line is the crime rate in years 1995 through 2011. You can see there is a precipitous decline. The source for this data is the US Department of Justice.

The green line is the number of people convicted of crimes in federal court in years 1995 through 2011. The source for this data is the United States Sentencing Commission.

What you see, obviously, is a remarkable mismatch. As the crime rate goes down, the number of people convicted of crimes goes up.

Now, one obvious objection to this graph is that it comparing apples to oranges: all crimes versus federal convictions. And that's true. So one possible explanation for this mismatch is that federal crimes have expanded despite the overall fall in the crime rate. But my working assumption is that the federal conviction data is a good proxy for the overall state and federal conviction rate. (Some support for my assumption is provided by the fact that overall incarceration rates continued to rise even while crime rates plummeted.)

Anyhow, you can draw your own conclusions. My conclusion is the obvious one: criminal justice is a one-way ratchet.  

Prosecutor considering whether to enforce unconstitutional eavesdropping law on a "case by case basis"

Reader(s)™ may recall previous coverage here of Illinois's unconstitutional "eavesdropping" law that makes it a felony for a citizen to make an audio recording a police officer in public.

Last we heard, the law was struck down on First Amendment grounds by the Seventh Circuit Court of Appeals. The state (Cook County, actually) appealed to the Supreme Court, but the writ of certiorari was denied. Thus the matter was settled: the law of the land is that this unconstitutional law is unconstitutional and unenforceable anywhere in this jurisdiction.

So imagine my surprise when I ran across this story today:

A Jacksonville [Illinois] man who had his phone seized for recording an on-duty police officer is not likely to be charged under the state’s controversial [sic: should read "unconstitutional"] eavesdropping law. 

Morgan County [Illinois] State’s Attorney Robert Bonjean said Monday that he is not anticipating prosecuting an eavesdropping charge against Randy Newingham — at least not at this time.

For the public at large, this does not mean that recording on-duty officers will never be prosecuted in Morgan County.

“We’ll review those reports and we’ll continue to monitor the decision from the 7th Circuit court,” Bonjean said. “I don’t foresee myself making any blanket decision, just taking it on a case by case basis.”

Let's break down this lawless nonsense.

First, he says he'll "continue to monitor the decision from the 7th Circuit." What a bizarre statement. Is he continuing to monitor Brown v. Board as well? The case is over. O-vah. The law is unconstitutional. That means you don't get to prosecute people for violating it anymore.

Yet Mr. Bonjean says he doesn't foresee "making any blanket decision, just taking it on a case by case basis." Let me help you out, Mr. Bonjean: the 7th Circuit made the blanket decision for you. When a federal circuit court finds a state law unconstitutional, that ruling is—well, it's kind of like a magical blanket that gets put over the entire state, and that blanket makes the law in question unconstitutional everywhere it touches. So you just get to cozy up underneath the blanket and prosecute the other laws that haven't been found unconstitutional (yet).

Mr. Bonjean apparently doesn't understand how legal authority works in a common law system:

“Quite honestly, I haven’t made a decision,” Bonjean said. “Officially I’ve [indicated] to [Police Chief Tony Grootens] that I won’t file charges. But technically it’s a felony charge, so I have three years from the date of the offense to file a charge.”

Do you understand what happens when you prosecute someone for violating a "law" that has been found unconstitutional? That's called violating a person's civil rights. The Seventh Circuit's opinion is "clearly established law" that would make prosecuting Mr. Newingham illegal. You might want to brush up on this stuff, sir.

It gets worse, actually, when you read the comments of Tony Grootens, the Chief of Police of the department which made the false arrest:

Grootens said he believed that Newingham was sincerely ignorant of the law.

“Believe me, [the State’s Attorney’s Office is] busy enough,” Grootens said. “There’s more pressing things on their plate right now than to go with that. I already took care of it. … I told him not to be doing it. He honestly thought he was OK to do it, so now if he continues to do it, I can’t tell you that he certainly won’t be arrested.”

This final comment should probably be the motto of his police department, encircling the badge: "We can't tell you that you certainly won't be arrested." Even if your conduct has been specifically found to be protected under the First Amendment by the federal court of appeals whose rulings are law in this jurisdiction, they can't guarantee that you won't be arrested for committing a phony felony.

Was Snowden Really a Spy?

News broke yesterday that Edward Snowden, the NSA leaker, has been indicted under the Espionage Act. Though this is unsurprising, it has provoked some outrage. To some, Snowden is a whistle-blower doing God's work—an insider and true believer who became disenchanted by what he learned of the NSA's abuses and excesses, and felt the only choice was to make them public. Such conduct seems unworthy of criminal prosecution.

As a civil libertarian who's highly skeptical of government power, I am glad that the documents we have were leaked, and look forward to more. But I'm not sure Snowden is really wearing a white hat.

It seems increasingly plausible, in fact, that Snowden wasn't an insider who became disenchanted, but rather an outsider who purposefully infiltrated the NSA with the specific intent to make its secrets public. For example, the Los Angeles Times reports that Snowden has long been critical of the NSA:

A self-taught computer whiz who wanted to travel the world, Snowden seemed a perfect fit for a secretive organization that spies on communications from foreign terrorism suspects.

But in hundreds of online postings dating back a decade, Snowden also denounced "pervasive government secrecy" and criticized America's "unquestioning obedience towards spooky types."

At least online, Snowden seemed sardonic, affably geeky and supremely self-assured. In 2006, someone posted to Ars Technica, a website popular with technophiles, about an odd clicking in an Xbox video game console. A response came from "TheTrueHOOHA," Snowden's pen name: "NSA's new surveillance program. That's the sound of freedom, citizen!"

It is strange that a person who made these comments would be granted a top-secret security clearance and allowed access to the country's most secret double-secrets, unless it was all just a clever cover story (which I doubt). On the other hand, it makes me feel a bit safer that the NSA's all-seeing surveillance wasn't all-seeing enough to know they had given an obvious mole super-user access to their servers.

But it also provides a possible answer to another nagging question: why was a lowly nerd like Snowden given access to these super-secret documents? One possibility is that he actually wasn't given access to these documents, but took it. In other words, he used his admin privileges to probe the NSA's databases and went looking where he shouldn't have, all with the specific intent of exposing anything he found and considered objectionable.

Obviously, this is rank speculation on my part. ("Rank Speculation" would be a great sub-title for this blog, after all.) But if it's true that Snowden was on a mission to divulge, and that he went looking for documents he wasn't supposed to look at, it's harder to be outraged at the decision to prosecute him—even if you think (as I do) that his actions ultimately further the public interest.

UPDATE (6/24/2013):

According to the South China Morning Post, Snowden now admits that he took the Booz Hamilton job with the specific intent to gather and divulge the NSA's secrets:

"My position with Booz Allen Hamilton granted me access to lists of machines all over the world the NSA hacked," he told the Post on June 12. "That is why I accepted that position about three months ago."

The missing check: the plaintiff's bar

The Guardian and the Washington Post broke blockbuster stories this week about the NSA using cooperative (some would say pliant) corporations to gather and mine electronic data such as phone records, emails, VOIP, etc.

Over at the Volokh Conspiracy, "national security conservative" Stewart Baker does his best to defend the NSA:

In short, there’s less difference between this “collection first” program and the usual law enforcement data search than first meets the eye.  In the standard law enforcement search, the government establishes the relevance of its inquiry and is then allowed to collect the data.  In the new collection-first model, the government collects the data and then must establish the relevance of each inquiry before it’s allowed to conduct a search.

If you trust the government to follow the rules, both models end up in much the same place.  I realize that some folks simply will not trust the government to follow those rules, but it’s hard to imagine a system with more checks and restrictions and doublechecks than one that includes all three branches and both parties looking over NSA’s shoulder.

In theory, you could add the check of exposing the system to the light of day, but that means wrecking much of its intelligence value. Or you could simply prohibit the collection-first model (and lose the ability to spot terrorism patterns by matching disparate bits of data). I doubt that those “solutions” are worth the price.

As usual, Mr. Baker is laughably incorrect. It's nice that he pays at least lip service to the idea of transparency before swatting it aside. But he hasn't thought it through. One of the major problems with the current legal apparatus is that judges on the FISA court are making secret interpretations of the law. Thus, people like Congressman James F. Sensenbrenner, who largely drafted the Patriot Act, can be "extremely disturbed" at the way it is being secretly used by law enforcement. This can happen because secret rulings provide no check on government power. If the FISA court judges deny a warrant or a request, the government will just tweak it and come back. Eventually the government will get what it wants because the FISA court judges, like everyone else, care more than anything about just being left alone.

And then, of course, there is the fact that the intelligence courts just kind of have to take the government's word on a lot of stuff. For example, there's a case from the FISA appeals court that rejects a brave service provider's Fourth Amendment challenge on behalf of its customers to a government directive to spy on them. Here's part of the reasoning:

The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. 

In re Directives [redacted text] pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1015 (2008). (You know you're in trouble when there's redacted information in the case title.) Well, at least now we know where to stuff those "government assurances."

The redacted nature of the opinion-making also leads to this:

A Parting Shot. The petitioner fires a parting shot. It presented for the first time at oral argument a specific privacy concern that could possibly arise under the directives. This parting shot may have been waived by the failure to urge it either before the FISC or in the petitioner's pre-argument filings in this court. We need not probe that point, however, because the petitioner is firing blanks: no issue falling within this description has arisen to date. Were such an issue to arise, there are safeguards in place that may meet the reasonableness standard. We do, however, direct the government promptly to notify the petitioner if this issue arises under the directives.[10]

Id.

I have never read a more Kafkaesque passage in the Federal Reporter. What was the "specific privacy concern" that the service provider raised at oral argument? Apparently even the argument is top secret, because the opinion doesn't say. (It's presumably explained in footnote 10, which is redacted.)

But let's leave aside transparency, because Mr. Baker completely ignores another obvious "check" that is missing against the NSA surveillance program: civil liability. In 2008, Congress passed a law (the FISA Act Amendments of 2008) providing blanket (and retroactive!) immunity for any one or any company who is sued "for providing assistance to an element of the intelligence community." 50 U.S.C. § 1885a(a). Such cases are to be "promptly dismissed." As a result, there isn't even a threat that Google, or Verizon, or any of the other companies that have been providing assistance to the NSA could be sued. If they are, they can just file a one page motion to dismiss and it will be immediately granted.

These companies are in the business of making money. The threat of huge class-action lawsuits can certainly provide a real check on their actions. But Congress removed that threat in 2008. Now the information companies have literally nothing to lose by cooperating with the government because they cannot be sued for doing so. On the other hand, the government can obviously drive up legal costs and threaten them with civil contempt if they don't cooperate. So it's no surprise that the government has now what it assured the FISA court it didn't have in 2008: a database of incidentally collected information from non-targeted United States persons.

National Security Conservatives

You really must read this blog post over at the Volokh Conspiracy by Stewart Baker, a self-styled "national security conservative." In the post, entitled "Sex Secrets of the Security Line," Baker describes his recent insight into the behavior of men in the security line at the airport. It boils down to this: men see the security process as an opportunity to display their ruthless efficiency and, in so doing, sexually arouse any women in the vicinity. Seriously.

I feel a kind of competitive pressure to keep the line moving. I’m not happy to see more than about six inches of distance between my luggage and the bags in front of me on the belt. Every delay in pulling out my laptop or my liquids, every last minute bit of change I have to throw haphazard into the bin, every stutterstep as I realize it’s a whole-body scanner, not a metal detector, so belt and watch have to come off too –- all detracts from the performance.

* * *

In part we do it to keep our place in the hierarchy of guys.  But in the end, what we’re really hoping for is an Alice Munro moment — that our easy concentration and economical movements will set up in someone “a procession of sparks and chills,” followed a few pages later by, well, what we deserve for all that demonstrated competence.

(The reference to Alice Munro is to a post-opening epigraph from a Munro story in which a female character is titillated by observing her man's competence at the stove. "What we deserve" is sex.)

Baker's insight is not the source of his own motivation. Rather he claims to now understand why so many other people (men, at least) are frustrated with the TSA. Their stated frustrations carry "a distinct whiff of testosterone," Baker says, and this is because they find their inability to display competence in the security line to be emasculating. So they act out and go into "full high-school rebellion mode." Baker has a series of suggestions to alleviate this frustration.

Although I strongly disagree with Baker's take on the TSA, and probably even his take on the nature of reality, I enjoyed the post because it was an open look into an alien mind. It even gave me my own insight, which is this: I see now that every policy "national security conservatives" promote and everything they do—and I mean everything: the wars, the crackdowns, the mass incarcerations, etc—is part of a lifelong and sadly misguided effort to get laid.

Seventh Circuit strikes down Illinois's unconstitutional "eavesdropping" law

UPDATE:

The Supreme Court denied cert. in this case, so the decision of the Seventh Circuit stands, and the aspect of the Illinois wiretapping law that criminalizes the recording of police officers in public is unenforceable in Illinois.

ORIGINAL POST (5/8/2012):

In an opinion issued today, the Seventh Circuit Court of Appeals ruled unconstitutional, on First Amendment grounds, the Illinois law that makes it a felony to make audio recordings of police officers in public. Richard Posner (the man, not the kidney) dissented.

Previous coverage here, here, and here.

The uses and abuses of federal power

A nice synopsis:

While federal agents were raiding a medical marijuana dispensary and the nation’s first pot trade school in Oakland, run by one of California’s most prominent legalization advocates, less than a mile a way, a gunman was murdering seven people at a Christian nursing school. The feds couldn’t have predicted the rampage, but it’s hard to imagine a starker illustration of misplaced law enforcement priorities.

Terrible arguments in favor of Illinois's "wiretapping" statute

Illinois's unconstitutional "wiretapping" statute makes it a felony to make an audio recording of police officers going about their business in public spaces. A bill had been pending in the legislature to fix this before the Illinois Supreme Court gets around to it. That bill, however, has been killed.

The State Journal-Register article quotes three legislators making three different arguments against the bill. Each of the arguments is ridiculous.

Ridiculous argument #1:  Representative Jim Watson, one of the opponents of the bill, had this to say:

Why should [the police] have to go get a court order to record these people when these people can record them?

This is just hogwash. Police have every right to record the activities of citizens going about their business in public. And they do so all the time. For example, as Radley Balko points out, many cops are equipped with microphones during arrests. No warrant required.

Ridiculous argument #2: Representative Jim Scacia says that the bill opens the possibility for citizens to alter audio recordings of interactions with police to make them look bad. If that's truly a concern, here's an idea: make it a felony to alter audio recordings of interactions with police to make them "look bad." My guess is that if there were such a law it would never be enforced because this never actually happens. Making audio recordings of police officers is perfectly legal in most states. You have not missed the scandal of altered, make-cops-look-bad audio recordings in those states. It doesn't exist.

Ridiculous argument #3: Representative Dennis Reboletti says,

We should not be creating an atmosphere where people enter this ‘got you’ mode and try to tape law enforcement, trying to catch them (doing things).

Hmm. A lot of people think that people behave better when they're being monitored. That's part of the point of police departments, in fact. And in a state like Illinois, which has a horrid history of corruption and torture by police, you might think that some "gotcha" citizen reportage might be welcomed.

But even if you accept Mr. Reboletti's dubious premise that citizen recordings of police officers should be discouraged, it doesn't follow that such conduct should be criminalized and made a felony. For example, the goal of discouraging gotcha recordings could be achieved by making these kinds of recordings inadmissible in court. You could even make the recordings contraband. These would be laws only a Nazi could be proud of (and I hate Illinois Nazis) but at least they would accomplish the stated goal without putting people in prison for pressing "record" while standing on the street corner.

In any event, Mr. Reboletti's argument is ultimately disingenuous because it is already legal to take pictures of and make video recordings of police officers "doing things" in public, as long as there is no audio. If the goal is to discourage an atmosphere where citizens can make a record of cops' public activities, there is no justification for this discrepancy.

All of this goes to show that the law is unconstitutional. No one can come up with a compelling state interest that this law is narrowly tailored to address. No one can even come up with a non-ridiculous argument. The law is a disgrace.

Illinois "eavesdropping" statute ruled unconstitutional

A while back I posted about the Illinois "eavesdropping" law that makes it a felony to make audio recordings of police officers going about their business in public. I opined that the law is unconstitutional, at least as applied to that conduct.

Yesterday, a Cook County judge agreed with me and struck down the law.

In other news, a bill is pending in Springfield that would allow people to

record the conversation of a law enforcement officer who is performing a public duty in a public place and any other person who is having a conversation with that law enforcement officer if the conversation is at a volume audible to the unassisted ear of the person who is making the recording.

So I guess it would still be a felony to record a cop who is whispering.

Is it a felony to videotape a police officer on the job in Illinois?

The short answer is yes.

Should it be?

Consider this, one of my favorite Supreme Court passages (from City of Houston v. Hill):

The Constitution does not allow such speech to be made a crime. The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.

That case struck down a law that made it a crime "for any person to assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty," which had been used to justify the arrest of a bystander for "verbal challenge [of a police officer] during an investigation."  The specific "verbal challenge" was: "Why don't you pick on somebody your own size?"

It seems to me that if there is a right to shout at the police—and there is—there should also be a right to document their official activities in public.

UPDATE:

See here for an update regarding judicial and legislative action on this law..

Dangerous moves

A while back, I mentioned that until just a few years ago "dancing in the streets" was illegal in Minneapolis.

Apparently, however, dancing in the Jefferson Memorial remains criminal:



More here.

UPDATE:  As the article at Reason.com notes, these reprobates were at the Jefferson Memorial because of a recent D.C. Circuit case holding that there is no constitutionally protected right to dance in the Jefferson Memorial.  Here's my favorite part of the opinion:

In creating and maintaining the Jefferson Memorial in particular, the government has dedicated a space with a solemn commemorative purpose that is incompatible with the full range of free expression that is permitted in public forums.

Yes, you read that right:  the most powerful appeals court in the land actually wrote that "the Jefferson Memorial [is] . . . a space . . . that is incompatible with the full range of free expression."

Whoa.