Two bills have been introduced so far — S.436 in the Senate and H.R.1076 in the House. Each of the companion bills is titled "Internet Stopping Adults Facilitating the Exploitation of Today's Youth Act," or Internet Safety Act.

Each contains the same language: "A provider of an electronic communication service or remote computing service shall retain for a period of at least two years all records or other information pertaining to the identity of a user of a temporarily assigned network address the service assigns to that user."
…
The legal definition of electronic communication service is "any service which provides to users thereof the ability to send or receive wire or electronic communications." The U.S. Justice Department's position is that any service "that provides others with means of communicating electronically" qualifies.

That sweeps in not just public Wi-Fi access points, but password-protected ones too, and applies to individuals, small businesses, large corporations, libraries, schools, universities, and even government agencies. Voice over IP services may be covered too.

Even the most asymptotic libertarians must recognize the propriety of (basic) child pornography restrictions (since the child cannot validly consent).

But just because a government function is legitimate does not automatically imply that every government action in pursuit of that function is also legitimate. (There was a time, eons ago, when we spoke of laws in furtherance of enumerated powers being "necessary and proper." Alas…)

This proposed Internet SAFETY Act (which will almost certainly die in committee) is the height of government impropriety. Besides the absurdly prohibitive cost — the boring old financial cost — of establishing, implementing and maintaining these records, there is also the cost in terms of the privacy rights regarding the 99.9999% of Internet use that is not "trafficking in kiddie porn." That is a bona fide cost that simply must be weighed against the purported benefits of preventing or punishing such trafficking. It has been settled doctrine, for centuries, that sometimes justice must overlook the guilty in order to protect the innocent.

Compare this nightmarish bill to how we approach government censorship. While few dispute the propriety of not affording First Amendment protection to child pornography, that does not translate into giving government free rein to censor willy-nilly (as Justice Kennard would say) "for the children." The bar is set higher than that — much higher than that.

That is the respect we afford to the First Amendment. The Fourth Amendment deserves no less respect.

(Via Sex Crimes Blawg.)

Police officers pulled over a man with a sign in his pickup truck window that read "Abort Obama, not the unborn" and confiscated the placard, but later returned it after police supervisors found the officers' actions "overzealous."
…
Adrian Andrews, special agent in charge of the Secret Service's Oklahoma City field office, said agents determined Harrison was not a threat.
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Harrison said the sign was back up in his truck, and that he was considering whether to pursue a civil matter against the police department for what he considers a violation of his right to free speech.

More power to him, but I would suggest that his grievance concerns the Fourth Amendment, not the First.

Law enforcement may only single out and stop a particular vehicle based on reasonable suspicion that some offense has occurred. (The standard ought to be the higher constitutional hurdle of "probable cause," but that's a whole other blogpost.)

Which invites the question: "Reasonable suspicion" — of what? Bad taste?

There was a bit of blogospheric buzz over whether "abort" is synonymous with "assassinate" (it's not), but that debate misses the point. Even a sign reading "Assassinate Obama" would still not rise to the level of reasonable suspicion of any crime. The pesky fact that the president was nowhere near Oklahoma City at the time certainly precludes that absurd proposition.

Where the Fourth and First Amendments intersect would be if the (still absurd) suggestion were made that Harrison were somehow attempting (while motoring down a highway) to incite a riot. In that case we would switch from Fourth Amendment jurisprudence to First Amendment precedent — specifically Brandenburg v. Ohio, 395 U.S. 444 (1969), which makes clear that potentially "dangerous" speech (and remember — "dangerous" is itself a dangerous word) may only be censored if it creates a risk of "imminent lawless action."

This isn't that.

While it is certainly too much to ask that rank-and-file police officers be held to the standard of "constitutional scholar," it is not too much to ask that they have a basic understanding of key provisions of the Bill of Rights (along with an understanding that "close" or unclear situations should be escalated to supervisors or prosecutors).

Let's abort frivolous vehicle stops that lack reasonable suspicion.

—

Meanwhile, regarding two side issues:

–Since the entire stop was clearly unconstitutional ab initio, seizing the sign was of course also unconstitutional.

–As for reporting Harrison to the Secret Service and its subsequent (brief) investigation of him, I have less of a problem with that. Had the police simply reported him without ever pulling him over, then I think that would have been permissible.

Previously:
–Questions, June 30th, 2008
–If, By "Probable," You Mean a 5% Chance…

A 14-year-old Wisconsin girl who refused to stop texting during a high school math class was arrested and charged with disorderly conduct, according to police. The teenager was busted last Wednesday at Wauwatosa East High School after she ignored a teacher's demand that she cease texting. The girl … initially denied having a phone when confronted by a school security officer. However, the phone was located after the girl was frisked by a female cop. The Samsung Cricket, the police report noted, was recovered "from the buttocks area" of the teenager. The student was issued a criminal citation for disorderly conduct, which carried "a bail of $298," and had her phone confiscated.

Whatever happened to, "go to the principal's office"? Whatever happened to, "please come to the school to pick your child, who has been suspended"? Whatever happened to, "some incidents simply do not rise to the level of probing a 14-year old girl's buttocks for a cell phone" (not a weapon, not drugs — a cell phone)?

Are teachers these days really such weaselly wimps that they must call the cops to subdue every smart-aleck (but utterly harmless) brat?

Previously:
–Kids in Cuffs: 8-Year Old Aspie Charged With Battery
–From "Kids in Cuffs" to "Kids in Padded Cells"

Here, a property manager thought that the level of short-term traffic coming to and leaving from Baumann's apartment was odd and suspicious.
…
Although neither the manager nor Detective Buetow determined how many people would constitute a "high amount" or a "high volume," or what length of time amounted to "short term" or a "short amount of time," these characterizations were expressions of activities and circumstances the manager actually observed. From those reported facts, Detective Buetow, a trained narcotics investigator, drew an inference that there might be illegal drug activity occurring in the Baumann apartment, and he arranged to confirm the inference through a dog-sniff search.

Here's the sad part about this throwaway case from Minnesota: The dog sniff that was supposedly based upon "reasonable" suspicion was only of the common hallway; it was not the basis for entering the defendant's apartment (until after the dog alerted in the hallway, of course, resulting in an otherwise valid search warrant for the apartment proper).

But why should any quantum of suspicion be required at all for the owner of private property (through his agent) to authorize a search of his premises? Why go through the motions of "getting to reasonable suspicion" (and debasing the standard in the process) when no suspicion whatsoever is required in the first place?

A tenant "buys" a certain amount of privacy when she enters into a lease. That's capitalism. But unless the lease specifically covers common areas such as hallways, then such areas remain under the control of the landlord, who should be able to invite law enforcement onto the non-exclusive areas of the premises for any reason, or even for no reason at all. To the extent that Minnesota law says otherwise, Minnesota law is a ass.

I'm of course not defending sniff dogs — not even close. Nor the War on Drug Users. I don't even like the reasonable suspicion standard, which itself reflects an insolent disregard for the plain text of the Fourth Amendment.

What I'm defending are simple, straightforward, self-apparent principles of property law. (And of contract law: If you want a warranty that there will be no invitations to bring sniff-dog into common areas, then negotiate for it in the lease.)

The case is State v. Baumann, 2009 Minn. App. LEXIS 20 (January 13, 2009) (PDF – 9 pages). Via FourthAmendment.com.

Previously:
–If You Need "Rights," Then You Don't Deserve Them?
–Doesn't the Fourth Amendment Generate Heat Too?
–If, By "Probable," You Mean a 5% Chance…

A special subset of this phenomenon is what I call "Kids in Cuffs," the unconscionable notion that mundane unruliness by small children in a school setting can ever require police intervention — let alone arrest, handcuffing or especially tasering.

It's time to revive that category:

The mother of an 8-year-old autistic girl who was arrested after a scuffle with her teachers said it was horrifying to watch her daughter be led away in handcuffs from her northern Idaho elementary school.

Police in Bonner County, Idaho, charged the girl, Evelyn Towry, with battery after the arrest Friday at Kootenai Elementary School.
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Spring Towry said she got to the school Friday just in time to see 54-pound Evelyn — who was diagnosed at age 5 with Asperger's Syndrome, a high functioning form of autism — being walked to a police car with two officers at her side.

"She started screaming 'Mommy, I don't want to go! What are batteries? What are batteries?'" Towry said. "She didn't even know what she was arrested for."

The battery charge was promptly dropped. That leaves unanswered the precedent question of how teachers could demand, and police carry out, the arrest of any child (with Asperger's or otherwise) too young to have any culpability for any criminal act. No child that young can form the criminal intent necessary to be found guilty of battery.

If — and it's a big "if" — police intervention is necessary in a school setting to restore order, then so be it: let the police "restore order" — until the parent can arrive to take the disruptive student home. Let the school mete out disciplinary or other corrective action as appropriate.

But for (sometimes literally) crying out loud, leave the cuffs in the holster and keep 8-year old kids, especially those with a little-understood and less-accommodated social disorder, out of Central Booking.

Via Popehat. More thoughts at Simple Justice, Arbitrary and Capricious, Asperger Square 8,

The cause of criminal violence is not drugs or alcohol but rather criminals. To believe otherwise is to expect every drug dealer in America to give up and apply for a job at McDonald’s or WalMart the day legalization occurs. Every society contains a sizable element whose members refuse to make an honest living under any circumstances. The legalization of drugs will not change this large-scale reality of human behavior.

This is, of course, utter nonsense.

What Freddoso doesn't get is that the drug war makes it easier, not harder, to be a criminal. Dealing illegal drugs is trivial — which is one reason why kingpins enlist children to do it. "Take this over there and bring back the bag he gives you." Etc. How easy or hard is it, by contrast, to deal in bootlegged alcohol or untaxed cigarettes?

Robbing a liquor store, or shoplifting from Target, or mugging a guy on the street, or setting up a multi-billion Ponzi scheme, is hard. Far harder than dealing drugs. So if one subscribes, as Freddoso does, to the (archaic) view of crime as somehow "structural" and endemic to any society, then the logical course of action is to remove the easy ways to be a criminal — like dealing drugs.

So, like I said, utter nonsense.

Similarly, the drug war is responsible for the invention of the most dangerous drugs in the first place. There's actually very little money to be made in marijuana — or, for that matter, cocaine. But if you're going to break the law — either as seller or buyer — then you might as well break it in the most efficient (i.e., value-added) way possible: crack, crystal meth, ecstasy, etc. They were all spawned directly and proximately by the war on drugs.

Did I mention "utter nonsense"?

—

Just to be clear, this sociological debate over the propriety of drug criminalization is of course not my preferred framing of the issue. Competent consenting adults have a right to wreck their lives via drugs, alcohol, gambling or risky sex as they see fit. And the rest of us have a right not to be subjected to the near limitless incursions upon our civil liberties regularly perpetrated in the name of "saving us from ourselves." It was just that Freddoso's argument, even by "sociology" standards, was so mind-bogglingly asinine as to demand a response, even if a sociological one.

Previously:
–War on Drugs Now Trumps First Amendment
–No Drug Test Left Behind

ITEM: The Supreme Court granted certiorari in an important students rights case:

School officials in Safford, Arizona, ordered the search in 2003 of Savana Redding, who was in the eighth grade. Following an assistant principal's orders, a school nurse had Redding remove her clothes, including her bra, and shake her underwear to see if she was hiding ibuprofen, a common painkiller.
…
The strip search had been prompted by an unverified tip from another girl who had Redding's school planner and some ibuprofen pills. She claimed Redding had given her the pills.

Redding denied it and an initial search of her backpack and pockets did not turn up any ibuprofen. The assistant principal then ordered the strip search to be done in front of the nurse and his administrative assistant, both women.

In fact, the girl had a previous record of illegally selling prescription-strength ibuprofen on school grounds.

There were, as is often the case with questions of constitutional rights violations, two sequential questions. First: Was there in fact a constitutional rights violation? Second: If so, then are the government officials entitled to qualified immunity (i.e., can they be held personally liable for their actions)?

The Ninth Circuit found a Fourth Amendment violation, which is not particularly controversial; the law regarding strip searches is well-established and quite demanding, even in prison settings, let alone a school. The appellate court also found, however, that qualified immunity did not apply and that the assistant principal is personally liable for ordering the search.

My initial guess is that the Supreme Court took the case because of the denial of qualified immunity rather than to revisit the propriety of the search itself. Piercing immunity is a very high hurdle that is rarely upheld: assistant principals, like police officers, are not lawyers and certainly constitutional law scholars. They tend to get the benefit of the doubt.

Therefore, I predict that the court will uphold the Ninth Circuit's 8-3 finding that the search was unconstitutional, but reverse the 6-5 ruling that qualified immunity does not apply.

The case is Safford Unified School District v. Redding, No. 08-479. My previous post on the case here.

ITEM: A federal district judge has ordered the release of a Guantanamo detainee, finding in a habeas corpus review that the government has no credible evidence against him:

Al Gharani was 14 years old when he was captured in Pakistan some seven years ago. He has been at Guantanamo since then. The U.S. government, in Judge Leon’s court, had relied mainly upon statements from two other Guantanamo prisoners who claimed that Al Gharani had stayed at a guesthouse in Afghanistan that was affiliated with the Al Qaeda terrorist network, had been trained at Al Qaeda military camps, had fought against U.S. and allied forces at a battle at Tora Bora in Afghanistan, and was a member of a terrorist cell in London.

Each of those contentions came from other detainees, Judge Leon said, and the judge found the statements inconsistent or unverified, and had no support from other evidence.

Without the Supreme Court's historic — and heroic — ruling in Boumediene v. Bush that wherever the United States Government goes, the Constitution goes with it, this "terrorist" would likely have rotted in Guantanamo indefinitely. But remember that the Bush Administration, to the bitter end, insisted that everyone at Guantanamo is "guilty" and a "terrorist."

The case is Gharani v. Bush, No. 05-429 (D.D.C., January 14. 2009) (PDF – 11 pages). My previous post on Boumediene here.

ITEM: The "exclusionary rule" requires courts to suppress evidence obtained from unconstitutional searches under certain circumstances. The Supreme Court recently eliminated one of those circumstances —

The Coffee County, Alabama Sheriff's Department apprehended Bennie Herring in July of 2004. Upon searching Herring's vehicle, officers discovered methamphetamine in Herring's pocket and a gun under the seat of his truck. However, the situation was complicated by the fact that the initial search had been made on a faulty arrest warrant. The warrant, still active in the neighboring Dale County Sheriff's Office, was supposed to have been recalled five months prior, however someone had accidentally failed to remove it from the computer system.

The Court held, 5-4, that mere negligence is not sufficiently culpable to trigger the rule:

To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.

Others have already labeled Herring the "Barney Fife exception" to the exclusionary rule. My frustration with the reasoning is that it ignores the entire law of torts (i.e., that even "mere" and "non-recurring" negligence still warrants a remedy in the civil context, so why shouldn't it also warrant a remedy — the exclusionary rule — in the criminal evidence context as well?).

The exclusionary rule was misconceived from the outset. It has never been considered a constitutional right, but merely a tool to encourage responsible law enforcement. That logic has always been, and remains, absurd. "Free from unreasonable searches" means free from any and all fruits of unreasonable searches. An absolute, exception-free exclusionary rule is the only possible implication of the Fourth Amendment. It should have, as Justice Ginsburg suggests in her dissent, a "majestic conception" — just like the Fourth Amendment itself.

The case is Herring v. U.S., No. 07–513 (January 14, 2009) (PDF – 28 pages). You can peruse my recent Fourth Amendment posts here.

In response to [Officer] Hurliman's request to see what was in his pocket, defendant "reached in his pocket and removed a silver circular rustic metallic tin." When Hurliman asked if he could look in, defendant became "very agitated and said 'no,'" said the tin belonged to his brother, and then put it back in his pocket. Hurliman told defendant that he believed the tin contained drugs. Defendant told him to "prove it."
…
Defendant's demeanor raised no reasonable suspicion of criminal activity except in one respect — defendant's objection to and apprehension of Hurliman's requested patdown and search of the tin.

A person's reaction to a request for consent to search is not sufficient as a matter of law to support an objectively reasonable belief of criminal activity. As here, where a person has the right to refuse consent, the refusal to give consent to a search undoubtedly caused the officer to have a healthy suspicion that defendant was probably in illegal possession of something; but such a suspicion, however well founded, having been aroused merely on the basis of an assertion of one's constitutional rights, can play no part in creating probable cause for a search. We view defendant's reaction to the inquiries concerning the patdown and the contents of the tin as merely an unsophisticated attempt to assert his right of privacy. Defendant's reaction to a request for consent that he is constitutionally entitled to refuse cannot form the basis of reasonable suspicion. To hold otherwise and allow the police to use defendant's assertion of a privacy right as the basis for depriving him of that right would render the promise of Article I, section 9 [and the Fourth Amendment] illusory. [Internal quotes and citations omitted.]

This fleeting episode of police misconduct is merely the bottom of the slippery slope known as, "If you've done nothing wrong, then why should you mind?" It completely dismisses the notion that one's privacy is an asset — an asset that can be trespassed upon and damaged. There is another negative outcome besides "being caught" — and that's "being searched in the first place."

Like I said, this case is neither high-profile nor particularly precedential. But it helps remind us that there is in fact a slippery slope regarding searches, subsequent to traffic stops, with less than probable cause.

On that slope we have, most notably, the atrocious 2005 Supreme Court case Illinois v. Caballes, which held that the police can detain you — for just a little while, of course — while they fetch a sniff dog to search for drugs, even if there's no reason for the police to think you have drugs. (How long is "just a little while"? The police, and the courts, are still working that out.)

We also have the troublesome 2004 border search case, U.S. v. Flores-Montano, where the government literally disassembled an automobile looking for contraband. Not only was there no warrant and no reasonable suspicion (recall that none is needed at the border), but the search was not even deemed "intrusive." If you've done nothing wrong, then why should you mind if they remove your gas tank?

If it is "unrealistic" to be a Fourth Amendment extremist, then surely it must also be unrealistic to be an anti-Fourth Amendment extremist. Each inch down the slippery slope to tin cans in pockets should be fought vigorously by privacy advocates and civil libertarians, and should be permitted by courts only upon government clearing the same sort of high hurdles that apply to First Amendment issues.

The case is Oregon v. Foland, 2008 Ore. App. LEXIS 1801 (December 24, 2008). (Via FourthAmendment.com.)

Previously:
–Supreme Court Upholds "Quick" Dog Sniff of Vehicle
–"Border Search" Policy Should Not Rest with Congress
–NYC to Bring Sniff Dogs Into Subway System

Now come yet more tales of abuse of the border exception and yet more pledges to do something about it:

One measure, sponsored by Sen. Russell Feingold, D-Wis., chairman of the Constitution subcommittee, would require reasonable suspicion of illegal activity to search the contents of electronic devices carried by U.S. citizens and legal residents. It would also require probable cause and a warrant or court order to detain a device for more than 24 hours. And it would prohibit profiling of travelers based on race, ethnicity, religion or national origin.

Rep. Eliot Engel, D-N.Y., is sponsoring a bill in the House that would also require suspicion to inspect electronic devices. Engel says he is not trying to impede legitimate searches to protect national security. But, he says, it is just as important to protect civil liberties.

It's all well and good that Congress might — might — rein in Homeland Security and other federal bureaucracies and overlay a new "reasonable suspicion" requirement for some border searches (which would still be less demanding that the constitutional standard of "probable cause").

But that's not the point at all, and certainly nothing to cheer about. We should not have to rely on the magnanimity of Congress to extend, by revocable statute, a fraction of either our inherent natural right to be free from oppressive searches or the constitutional embodiment of that natural right — the Fourth Amendment. It should be the courts that are defending our individual liberties from the rudderless passions of majoritarian legislatures — not the other way around.

The federal judiciary's border search jurisprudence is simply wrong. The federal judiciary should be the ones to fix it, based on enduring constitutional principles. Leave Russ Feingold (no champion of the Bill of Rights, incidentally) out of it.

—

Those of you who don't follow me on Twitter, meanwhile, likely did not see this item, in which a federal judge ruled that flying from the United States Virgin Islands (i.e., the United States) to New York City (i.e., the United States) is, somehow, "crossing the border" and therefore subjects one to a warrantless, suspicionless search of one's luggage. Go figure.

Previously:
–On Laptop Searches and Seizures at the Border

The program is modeled after one begun three years ago in New York that has withstood legal challenges. However, experts said it is difficult to measure the effectiveness of such searches, beyond assuring the public that police are being vigilant.
…
Checkpoints will be set up at Metro facilities, and passengers will go through inspections before entering a rail station or boarding a bus.
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Those who refuse to have their bags searched will not be allowed to enter. Transit Police will not arrest people who refuse to have their bags inspected.

In the searches, Transit Police will randomly choose a number, such as 17. Then they will ask every 17th rider with bags to step aside for an inspection before boarding a bus or entering a rail station.

I wrote several blogposts about New York City's program and the (ultimately unsuccessful) litigation challenging it. My thesis, which is entirely applicable to D.C.'s plan, can be summed up rather succinctly:

1. Any inspection regime for a transportation network where a would-be malfeasant can simply turn around, walk away and enter a few moments later at another station (or even another entrance at the same station) is objectively worthless. It has no detection or deterrent effect — absolutely zero.
2. A worthless program is, by definition, unreasonable.
3. Unreasonable searches are explicitly prohibited by the Fourth Amendment.
4. Therefore, any such inspection regime is facially unconstitutional.

The only reason the federal courts upheld New York's program was by embracing a position of unthinking acceptance of completely unsubstantiated assurances from law enforcement and mass transit bureaucrats that "the program works." That's not judicial deference, it's judicial abdication. And it's disgraceful.

The terrorists seek to destroy our way of life. Thanks to programs like this, they are succeeding.

More thoughts from Flex Your Rights, Hit & Run, Cato@Liberty.

—

One ancillary nitpick:

If others are acting suspiciously, Transit Police have the right to stop a person not selected for inspection.

The police, qua police, never have the "right" to do anything. They might have the power (legitimately or illegitimately derived) to act pursuant to their governmental authority, but never the right. Only civilians, qua civilians, can ever have rights.

The federal government and its capital district have no "rights." States have no "rights." Cities have no "rights." Mass transit bureaucracies have no "rights." The police have no "rights." They only have powers — powers that they can and do abuse.

—

Previously:
–Circuit Court Upholds Worthless Subway Searches
–NYC Subway Searches Ruled Constitutional (For Now)
–The Random Searching of Pelham One Two Three
–Subway Searches and Korematsu