In the NYC stop-and-frisk case, the 2d Circuit said the district judge Shira Scheindlin created an "appearance of partiality."

It stayed her order and removed her from the case.

The appellate court's 2-page ruling cited this NYT article in a footnote to criticize Scheindlin for the way the related-case rule has directed stop-and-frisk cases against the police to her ever since 1999, when she was randomly assigned the case dealing with the police shooting of Amadou Diallo. The NYT had this (last May):

In a city with dozens of Federal District Court judges, it is striking that a single judge has so many opportunities to rule on one of the Police Department’s signature crime-fighting tactics — a development that has frustrated city officials....

The language of the court rule leaves it to the discretion of individual judges to accept the case as related or not. It instructs judges to consider whether placing the cases in the same courtroom would result in conserving judicial resources, allow more efficient litigation or serve the convenience of the various parties.

The rule calls for related cases to have a “similarity of facts and legal issues” or to stem from the “same transactions or events.” But cases are not related merely because they involve identical legal issues or litigants....

"NSA COLLECTING CONTACTS FROM 500,000 'BUDDY LISTS' EACH DAY."

Drudge, linking to this Washington Post revelation.

AND: In the longer view, we see an artistic parallelism in the President and his wife. Note the facial expression and the hands:


There are 3 headlines under the First Lady:

Squirrels go nuts for First Lady's garden in shutdown...
...tomatoes are rotting
UNHARVESTED...

"Speaking of urban agony... if folks on the right were truly Macchiavellian, they’d be joining the critics of stop-and-frisk."

"The big Blue enclaves are where the crime and racial strife mostly are; letting those get worse would probably benefit folks on the right. Luckily for the hipsters, righties are too principled for that sort of 'heightening the contradictions' thing."

"An extraordinary fuss about eavesdropping started in the spring of 1844..."

"... when Giuseppe Mazzini, an Italian exile in London, became convinced that the British government was opening his mail. Mazzini, a revolutionary who’d been thrown in jail in Genoa, imprisoned in Savona, sentenced to death in absentia, and arrested in Paris, was plotting the unification of the kingdoms of Italy and the founding of an Italian republic. He suspected that, in London, he’d been the victim of what he called 'post-office espionage': he believed that the Home Secretary, Sir James Graham, had ordered his mail to be opened, at the request of the Austrian Ambassador, who, like many people, feared what Mazzini hoped—that an insurrection in Italy would spark a series of revolutions across Europe. Mazzini knew how to find out: he put poppy seeds, strands of hair, and grains of sand into envelopes, sealed the envelopes with wax, and sent them, by post, to himself. When the letters arrived—still sealed—they contained no poppy seeds, no hair, and no grains of sand. Mazzini then had his friend Thomas Duncombe, a Member of Parliament, submit a petition to the House of Commons. Duncombe wanted to know if Graham really had ordered the opening of Mazzini’s mail. Was the British government in the business of prying into people’s private correspondence? Graham said the answer to that question was a secret."

So begins "The Prism: Privacy in an age of publicity," by Jill LePore at The New Yorker.

"On March 12, 2004, acting attorney general James B. Comey and the Justice Department’s top leadership reached the brink of resignation over electronic surveillance orders that they believed to be illegal."

So begins the WaPo article titled "U.S. surveillance architecture includes collection of revealing Internet, phone metadata." It continues:

President George W. Bush backed down, halting secret foreign-intelligence-gathering operations that had crossed into domestic terrain. That morning marked the beginning of the end of STELLARWIND, the cover name for a set of four surveillance programs that brought Americans and American territory within the domain of the National Security Agency for the first time in decades. It was also a prelude to new legal structures that allowed Bush and then President Obama to reproduce each of those programs and expand their reach.

Much more at the link.

"National Security Agency discloses in secret Capitol Hill briefing that thousands of analysts can listen to domestic phone calls."

"That authorization appears to extend to e-mail and text messages too."

ADDED: Just because they can doesn't mean they do. You only have to trust thousands of analysts. Janet Napolitano says:

"I think people have gotten the idea that there’s an Orwellian state out there that somehow we’re operating in. That’s far from the case"....

"[T]here are lots of protections built into the system,” Ms. Napolitano said, pointing to a privacy office embedded in her own department that is “constantly reviewing our policies and procedures.” She further stressed the court review system.

“No one should believe that we are simply going willy-nilly and using any kind of data that we can gather,” she said...

So it's not simply going willy-nilly and using any kind of data and it's far from Orwellian. That is, it's something less than the ultimate extreme. That's not reassuring at all. Even if I take Napolitano at her word: She's not saying much. It's just not utter and complete abuse.

And what are the protections? There's a "privacy office." You know, in "1984," if there were something called the "Privacy Office," its job would be to invade our privacy.  (Recall "The Ministry of Truth.")

Who could possibly feel protected by Napolitano's own privacy office "constantly reviewing our policies and procedures"? That sounds — even as she puts it — like it's about seeing what they can get away with. She brings up judicial review, but we know that those courts have no power/inclination to stop anything the government says it needs to do.

ADDED: They can see you naked. 

"I'm not sure which is worse: the NSA surveillance programs themselves..."

"... or the fact that the leaks about them have caused normally reasonable people to publicly commit themselves to so many strange notions in a desperate attempt to defend the Obama administration, e.g. 'The whole concept of privacy is obsolete,' 'Gathering data about phone calls doesn't raise serious privacy concerns,' 'Surveillance is unobjectionable if it's been going on for many years,' 'We don't have to worry about the 4th Amendment as long as a judge is willing to rubber-stamp the government's actions without any adversarial process,' etc."

"Make no mistake, NSA can and will perform its missions consistent with the Fourth Amendment and all applicable laws."

"But senior leadership must understand that today’s and tomorrow’s mission will demand a powerful, permanent presence on a global telecommunications network that will host the ‘protected’ communications of Americans as well as the targeted communications of adversaries."

National Security Agency memo from the Clinton era, highlighted at Politico under the headline "NSA memo pushed to 'rethink' 4th Amendment" and noting "The quotes around 'protected' appear in the original document." (I haven't read the memo, but the quotes around "protected" may have to do with the third party principle discussed here.)

Also at the Politico link:

The NSA has been a central player in U.S. cyber strategy since at least 1997, according to a separate declassified memo obtained by [George Washington University’s] National Security Archive. That document describes how the administration of President Bill Clinton assigned NSA with “Computer Network Attack” — “a natural companion to NSA’s exploit and protect functions,” the memo said.

But it wasn’t until later, after the infusion of billions of dollars and the new legal authorities that followed the Sept. 11 terrorist attacks, that NSA’s capabilities grew to the scale revealed this week.

I note the groundwork for the argument: Bill Clinton would have averted the 9/11 attacks. Also: Everything is Bush's fault. Before 9/11, he didn't do what Clinton told him to do. After 9/11, he did too much.

"If people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges..."

"... to make sure that we’re abiding by the Constitution, due process, and rule of law, then we’re going to have some problems here," Obama said.

Lawprof Steve Shiffrin (at the Religious Left Law blog) says:

The problem is that federal judges ran away from the Constitution years ago on this very issue, and the President’s characterization of this program as a “modest encroachment” on privacy shows that he either lacks integrity or he has an impoverished conception of privacy....

The notion that we should trust federal judges to uphold the Fourth Amendment is impossible to take seriously.  As the Supreme Court stated in United States v. Miller, “This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” This third party principle permits the Federal Government without probable cause or even reasonable suspicion and without any notice to you: to get all of your bank records, a record of who you have sent mail to and received mail from, and who you have phoned and who phoned you...  The claim is that we have no reasonable expectation of privacy in material we have exposed to a third party like a bank, a post office, or an internet provider.  This line of reasoning is worthy of a totalitarian state.....

Another way of putting that is to say we might be able to trust the judges to follow the existing legal doctrine, but the 4th Amendment doctrine doesn't protect us as much as you might think.

"Obama says federal judges can be trusted to keep data mining/PRISM programs honest."

"Why? When his administration got one, meaning a judge, to sign the Rosen one."

Wait. Now, I am freaked out.

I hate PowerPoint! Are we supposed to consume this? I feel sorry for everyone who has to get through meetings were information is inflicted on you in that form.

AND: Beyond the horror of PowerPoint, why does no one seem to be outraged that a secret national security program is getting leaked and exposed?

"Thank You for Data-Mining: The NSA's 'metadata' surveillance is legal and necessary."

Say the editors of the Wall Street Journal.

Someone leaked a classified three-page order from the special court established by the Foreign Intelligence Surveillance Act, or FISA, to Glenn Greenwald of the Guardian newspaper, who is a committed anti-antiterror partisan....

I suspect it was someone who wanted to distract us from the IRS scandal (and other scandals) so that the scandal of the moment would be one that's about Bush. I supported Bush's war on terror and resisted the "committed anti-antiterror partisan[s]." It became very important to fight terrorism after 9/11, and one reason I decided to vote for Barack Obama in 2008 was that I thought it would be helpful for Democrats to be put in a position where they would need to endorse things Bush chose to do to protect us from terrorist attacks. This is what we are seeing now. It's also important not to violate constitutional rights, but questions of rights and national security need to be analyzed. Don't assume Glenn Greenwald has it right. He's an advocate for one side of a difficult argument.

Back to the WSJ:

The outrage this time seems to stem from the fact that the government is widely collecting call records, not merely those associated with a particular suspect or group. But this fear misunderstands how the program works. From what we know, the NSA runs algorithms over the call log database, searching for suspicious patterns over time.

Here's where the other Obama scandals come in. How do we know the government is dutifully concentrating on national security — fighting terrorists and not political enemies? That kind of mistrust matters, but it's not specific to the NSA program. It undermines everything government does. What would you like government to stop doing now that you can't trust it with anything?

If the NSA's version of a computer science department operates like the rest of FISA, the government is cautious to ensure that its searches are narrowly tailored and specific protocols are reviewed by FISA judges.

If... That's an important if, but that's not the focus of the criticism by people like Greenwald.

The real danger from this leak is the potential political overreaction....

"The National Security Agency’s seizure and surveillance of virtually all of Verizon’s phone customers is an astounding assault on the Constitution."

Says Senator Rand Paul in a press release, received just now in the email:

After revelations that the Internal Revenue Service targeted political dissidents and the Department of Justice seized reporters’ phone records, it would appear that this Administration has now sunk to a new low.

When Sen. Mike Lee and I offered an amendment that would attach Fourth Amendment protections to the Foreign Intelligence Surveillance Act last year, it was defeated, and FISA was passed by an overwhelming majority of the Senate. At the time, Senate Majority Leader Harry Reid remarked that FISA was “necessary to protect us from the evil in this world.”

The Bill of Rights was designed to protect us from evil, too, particularly that which always correlates with concentrated government power, and particularly Executive power. If the President and Congress would obey the Fourth Amendment we all swore to uphold, this new shocking revelation that the government is now spying on citizens’ phone data en masse would never have happened.

I don't know why you'd need to "attach Fourth Amendment protections" to a statute. I'll just observe that Senator Paul is a very active participant in the debate about what rights are. So is President Obama (and so was President Bush in his time). I think the legal questions are complicated, but if people do not find these things "astounding" and "shocking," the President is likely to win. 

UPDATE: Another press release from Paul: "Sen. Rand Paul today announced he will introduce the Fourth Amendment Restoration Act of 2013, which ensures the Constitutional protections of the Fourth Amendment are not violated by any government entity."

“The revelation that the NSA has secretly seized the call records of millions of Americans, without probable cause, represents an outrageous abuse of power and a violation of the Fourth Amendment to the Constitution. I have long argued that Congress must do more to restrict the Executive’s expansive law enforcement powers to seize private records of law-abiding Americans that are held by a third-party,” Sen. Paul said. “When the Senate rushed through a last-minute extension of the FISA Amendments Act late last year, I insisted on a vote on my amendment (SA 3436) to require stronger protections on business records and prohibiting the kind of data-mining this case has revealed. Just last month, I introduced S.1037, the Fourth Amendment Preservation and Protection Act, which would provide exactly the kind of protections that, if enacted, could have prevented these abuses and stopped these increasingly frequent violations of every American’s constitutional rights.

“The bill restores our Constitutional rights and declares that the Fourth Amendment shall not be construed to allow any agency of the United States government to search the phone records of Americans without a warrant based on probable cause.” 

Justice Scalia writes a dissent — in a 4th Amendment case — joined by Justices Ginsburg, Sotomayor, and Kagan.

The case, Maryland v. King (PDF), just released, is about taking a cheek swab for DNA purposes, as a routine part of booking a person the police have arrested. The dissenting opinion begins:

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work.

ADDED: Orin Kerr notes that "Justice Scalia has been on the defense side of every non-unanimous Fourth Amendment case this term:"

King (today’s case in which he wrote the dissent), Bailey (in which he joined the 6-3 majority), Jardines (in which he wrote the majority), and McNeely (in which he joined the Sotomayor plurality/majority opinion). In contrast, Justice Breyer has been on the government’s side in each of the Term’s non-unanimous Fourth Amendment cases: King (in which he joined Kennedy’s majority), Bailey (in which he wrote the dissent), Jardines (in which he joined the dissent) and McNeely (in which he joined the more government-friendly Roberts concurrence/dissent with Alito).

"The Obama Administration fought to keep a search warrant for James Rosen’s private e-mail account secret..."

"... arguing to a federal judge that the government might need to monitor the account for a lengthy period of time," writes Ryan Lizza in The New Yorker.

The new details indicate that the government wanted the option to search Rosen’s e-mails repeatedly if the F.B.I. found further evidence implicating the reporter in what prosecutors argued was a conspiracy to commit espionage.

When is it a rape-threat hoax and when is it a sock-puppeting moby?

I've been thinking about the Meg Lanker-Simons incident. Here's James Taranto asking: "Why are phony 'hate crimes' so common, especially on college campuses?" He also looks into the First Amendment doctrine of "true threats." Obviously, it's not a "true threat" when the threat is actually written by the person targeted in the threat, but the police cited Lanker-Simons for statements she made to them, not for the original statement put up on the University of Wyoming "Crushes" page on Facebook. I can't tell from the articles I've read whether Lanker-Simons was the one who reported the Facebook post to the police, but the police did an investigation and had a warrant to search her computer, where they found evidence that she'd made the statement.

Sarah Zacharias, Wyoming state director for UniteWomen.org, said she and Lanker-Simons are friends. Zacharias spoke Monday during a campus demonstration against UW Crushes.  Zacharias said she was with Lanker-Simons when she found the post on UW Crushes.

“If the police are going to give her handcuffs for this, they need to give her an Oscar as well for her acting skills because I saw a woman devastated,” she said. Zacharias said she’d stake her own reputation on Lanker-Simons being innocent of creating the controversial post.

Did Zacharias report it to the police? Did the police initiate the investigation because of the demonstration? How awful to have the police seize your computer! It was the decision to leverage the Facebook posting into a demonstration — stirring up fear and outrage — that turned this thing into a hoax (and brought the apparently unforeseen horrible consequence of the police going through her computer). Thinking about the potential for the police to search your computer should make victims of true threats worry about calling the police, but it should also be a powerful deterrent to doing a fake threat.

But let's consider the Facebook posting alone:

“I want to hatef--- Meg Lanker- so hard. That chick that runs her liberal mouth all the time and doesn’t care who knows it. I think its hot and it makes me angry. One night with me and shes gonna be a good Republican b----.”

It's really not in threat form. It expresses a desire, not an intent to do something. And, let's be clear: "hatefuck" does not mean rape. It means: "To have sex, especially in a rough manner, with someone who one finds physically attractive but personally loathsome." So — assuming that Lanker really did write the post — we're seeing the work of a sockpuppet + moby. She was a sockpuppet to the extent that she was complimenting herself, proclaiming herself extremely seductive. She was a moby to the extent that she pretended to be one of her own antagonists and made that fake entity speak in a way that would bring her antagonists into disrepute.

Sockpuppets and mobys are ordinary characters all over the internet. As I said in my earlier post about Lanker-Simons: "People need better bullshit detectors!" The elements of sockpuppetry and mobyism are all over that Facebook posting. "Crush" pages for various institutions — like the University of Wyoming, in this case — invite statements about crushes on various students and make these statements anonymous. Of course, students are tempted to post about themselves, advertising how attractive they are. And of course, they are tempted to weave in their political opinions. The Lanker-Simons posting is exactly what you ought to expect. Sharpen up, everyone.

But what are the school authorities supposed to do? If they slough off these postings as the usual internet flimflam, they'll be denounced for minimizing violence against women. There lies the real problem: There's pressure against sharpening up.

Remember when feminism was about consciousness-raising?

"I have seen a lot of post search residences but this one is quite disturbing."

"The agents removed art from the walls, broke the frames and tore the artwork. Mr. Curtis offered his keys but agents chose to break the lock. Mr. Curtis’ garbage was scheduled to be picked up Thursday, the day after he was snatched from his life. A week later, the garbage remains in his home, along with millions of insects it attracted."

Paul Kevin Curtis is the Elvis impersonator who was falsely accused of sending ricin in letters to the President and others.

A fractured opinion about when the police can draw blood for a warrant after a drunk-driving arrest.

It's hard to know where to start in this new opinion, Missouri v. McNeely:

Sotomayor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, in which Scalia, Kennedy, Ginsburg, and Kagan, JJ., joined, and an opinion with respect to Parts II–C and III, in which Scalia, Ginsburg, and Kagan, JJ., joined. Kennedy, J., filed an opinion concurring in part. Roberts, C. J., filed an opinion concurring in part and dissenting in part, in which Breyer and Alito, JJ., joined. Thomas, J., filed a dissenting opinion.

I start with Justice Thomas, who says the natural dissipation of alcohol in the blood is always the "exigent circumstance" that avoids the warrant requirement.  He gives a clear rule.


The Chief Justice writes:

I have no quarrel with the Court’s “totality of the circumstances” approach as a general matter; that is what our cases require. But the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.

He would say that the natural dissipation of alcohol in the blood is an exigent circumstance unless there is time to get a warrant. He wants something closer to a rule.  Kennedy, who is the one who deprives Sotomayor of a majority in some parts of her opinion, wants less of a rule from the Court, so that states and local governments can work out their own rules.

And here's Sotomayor:

The State’s proposed per se rule... fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple....

Basically, using the telephone, it can be made very easy to get these warrants. You wouldn't want to remove the incentive on the police to set up these procedures and to make them efficient and thus to avoid the destruction-of-evidence problem.

"Feds scoop up medical marijuana patient records in Oregon investigation..."

"Because marijuana is still illegal on the federal level – and it’s only by letters of understanding that the U.S. Department of Justice has held off taking action against medical marijuana growers, suppliers and buyers – related records can be seen as evidence of wrong doing."

Who was first to say that it's good if a judge "keeps easy cases easy"?

We're very familiar with the old expression "Hard cases make bad law," from which one can infer that easy cases make good law and, perhaps, an idea that judges should make an effort to keep easy cases easy.

In today's case about drug-sniffing dogs, Justice Scalia said that using a property-rights analysis (rather than discussing the expectation of privacy) "keeps easy cases easy." Justice Kagan picked up the phrase in her concurring opinion to say that using both forms of analysis "would make an 'easy cas[e] easy' twice over."

Should we credit Justice Scalia with the new aphorism "kee[p] easy cases easy"? (Note that I'm using the Kagan approach to brackets as I drop the s on "keeps.")

The only near example I found in the state and federal courts database was Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001), in which Judge Alex Kozinski said that something "illustrates that easy cases are easy, however one analyzes them." But that's not the same as proclaiming it a virtue to keep easy cases easy, so I give the aphorism to Justice Scalia.

By the way, Scalia loves to talk about easy cases. For example, last fall:

"The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state," Scalia said at the American Enterprise Institute.

Sometimes when one lawyer says a case is easy, you want to say — as I once heard Professor Henry Monaghan say — "Yes, but which way is it easy?"