Law

The Examined Life of the Digital Age

AP Images/Jose Luis Magana
You've seen it on CSI and other police procedurals a hundred times: the detectives take a surveillance photo and watch as their computer cycles through a zillion photos of perps and crooks until it blinks with a match, telling them who their suspect is. You may have known enough to realize that they can't actually do that—computerized face recognition isn't capable of taking a grainy, shadowed photo and identifying it positively as a particular person. Or at least they couldn't until recently. But the technology has been advancing rapidly, and now some law enforcement agencies are using powerful new software that can do just that, at least sometimes. It has a ways to go yet, but the question is when, not if, computers will be able to take the video that was shot of you as you walked down the sidewalk or browsed in a store and know exactly who you are. Last Friday I brought up the question of the future of surveillance, after President Obama's speech proposing new limits on the...

One Small Step for the Fourth Amendment

AP Images/Susan Walsh
Last week, Barack Obama delivered a speech announcing some reforms in response to Edward Snowden's revelations about the National Security Agency. As with most aspects of Obama's record on civil liberties, my response is inevitably mixed. The outlined reforms would certainly constitute a real improvement over the status quo, but they are also too narrow and limited. Some of these limitations reflect real political constraints, while others don't. To start with the good news first, Obama has announced that some checks and balances will be restored to the NSA's inquiries under Section 215 of the Patriot Act. Under current practices, the NSA doesn't need to get judicial approval to query the database of metadata it collects; it can simply make queries if it makes a self-determination that the query was "reasonable." This self-enforced reasonableness standard is functionally indistinguishable from having no standard at all. Obama announced that he was ending this practice: the database...

Can States Protect Access to Reproductive Health Clinics?

The fate of Massachusetts's buffer-zone law doesn't look promising after yesterday's Supreme Court oral arguments. 

AP Images/Steven Senne
Yesterday, the Supreme Court heard oral arguments in McCullen v. Coakley, which concerns a challenge to a Massachusetts law creating a 35-foot buffer zone around health clinics. The Court upheld at least one form of buffer zone in the 2000 case Hill v. Colorado. But as the Prospect 's Amelia Thomson-DeVeaux noted in her comprehensive preview of the case, personnel changes to the Court put the buffer zone on much thinner ice. Two members of the 2000 majority (O'Connor and Rehnquist) have been replaced by justices much more likely to be hostile to the law (Alito and Roberts.) The oral argument generally support this head-counting—the question appears to be not whether Massachusetts will lose but how bad the loss will be. Workers at clinics and women seeking reproductive health care may pay a substantial price. The key issue in the case is whether the 35-foot buffer zone is constitutional as a "place, time and manner" restriction on speech. Speech that would otherwise be constitutionally...

Marijuana Legalization Will Be the Gay Marriage of the 2016 Presidential Election

A Democratic primary voter. (Flickr/Jonathan Piccolo)
In Politico, Reid Cherlin has an article about the "Pot Primary" in which he makes the rather odd assertion that while the next Democratic president is likely to put him/herself where President Obama is on the issue, "Less predictable is what would happen under a Republican—or how the issue might play out in a volatile Republican primary. No one expects marijuana to be the deciding issue, but then again, it might well be a helpful way for the contenders to highlight their differences." Yeah, no. Apart from the possibility of some talk about not sentencing people to overly long prison terms for possession, there isn't going to be a debate amongst 2016 GOP candidates on this issue. The debate will all be on the Democratic side. The reason is that as much as Republicans would like to appeal to a younger, more diverse electorate, in the general election the candidates will be working to win the hearts of activist Republican voters. That means an electorate that is older, whiter, more...

The Internet Service Providers' Triumph

Her joy will soon turn to despair. (Flickr/collegedegrees360)
Yesterday, the Court of Appeals for the D.C. Circuit struck down the Federal Communication Commission's "net neutrality" rules, probably opening the door for Internet service providers (ISPs) to start charging different customers different rates to send their web terrificness to your computer. I say "probably" because there's a good amount of uncertainty over what is going to happen now, which I'll get to in a moment. Chances are you're only marginally interested in the details, and it can get pretty arcane rather quickly, but I do want to point out the absurdity of the arguments the big ISPs like Verizon and Comcast make about net neutrality. This was a very big win for some of the most unpopular companies in America, but how soon they're going to try to destroy everything you love about the Web is hard to determine. There are some reasons to be worried, though. Briefly, the principle of net neutrality says that everyone providing content on the Internet should be treated the same,...

Want to Predict the Future of Surveillance? Ask Poor Communities.

AP Images/Stephen Chernin
S ince Edward Snowden started disclosing millions of classified NSA documents in June, terms like metadata, software backdoors, and cybervulnerability have appeared regularly in headlines and sound bites. Many Americans were astonished when these stories broke. In blogs, comment sections, and op-ed pages, they expressed disbelief and outrage. But I wasn’t surprised. A decade ago, I sat talking to a young mother on welfare about her experiences with technology. When our conversation turned to Electronic Benefit Transfer cards (EBT), Dorothy* said, “They’re great. Except [Social Services] uses them as a tracking device.” I must have looked shocked, because she explained that her caseworker routinely looked at her EBT purchase records. Poor women are the test subjects for surveillance technology, Dorothy told me ruefully, and you should pay attention to what happens to us. You’re next. Poor and working-class Americans already live in the surveillance future. The revelations that are so...

Honor Lincoln and MLK by Getting Yourself an AR-15

This is what Martin Luther King's dream was really about, right? (Flickr/Mitch Barrie)
Let's say you're a local Republican party organization in a Democratic state, and you want to think creatively about how to get media attention. You could put up a "Kiss a Capitalist" booth at the county fair, or hire a local graffiti artist to spray-paint portraits of Ronald Reagan on the homes of poor people in order to inspire them to take a firm hold of those bootstraps and pull. Or, in honor of Abraham Lincoln and Martin Luther King, two liberals who got assassinated with guns, you could raffle off an AR-15 . That's what the Multnomah county GOP is doing, and you have to give them credit: people are noticing! Here's part of their press release: Multnomah County Republicans recognize the incredible time of year we are in. In successive months to start the year, we celebrate the legacy of two great Republicans who demonstrated leadership and courage that all of us still lean on today: Martin Luther King, Jr. and Abraham Lincoln. In celebrating these two men, and the denial of the...

Rebuffing the Zones?

AP Images/Steven Senne O utside Planned Parenthood’s clinic in downtown Boston, a painted yellow line swoops across the sidewalk and into the well-trafficked street, marking a 35-foot half-circle around the entrance. Most days, anti-abortion demonstrators gather on the edge of the line, holding signs and rosaries, and clutching bundles of pamphlets. As women approach the half-circle, the demonstrators spring into action. The goal is getting the women to pause and talk to them before they cross into the “buffer zone” on the other side of the line, which Massachusetts law declares a protest-free space. The Supreme Court will hear oral arguments about the constitutionality of these buffer zones tomorrow, in McCullen v. Coakley . The arguments won’t tackle the polemical question of whether abortion should be available; instead, the justices will be asked to consider whether the buffer zones violate anti-abortion demonstrators’ First Amendment rights. The petitioners are a small group of...

New York’s Pot Legalization Is Still Kinda Square

J ust days after the first state-regulated marijuana shops opened in Colorado—to the delight of everyone who loves a good pot pun in their morning newspaper—reports began to circulate that New York’s Democratic governor, Andrew Cuomo, was poised to bring his state into line with the 20 others that have legalized marijuana for medical use. This week, according to the New York Times , Cuomo will announce an executive action allowing 20 New York hospitals to prescribe marijuana to patients with glaucoma, cancer, and a handful of other chronic diseases, to be determined by the Department of Health. The governor is skirting the state legislature, where four medical marijuana bills, including one that passed the House last spring, perished in the Republican-controlled Senate. The legislative proposals would have allowed patients with a dozen illnesses, including epilepsy, post-traumatic stress, diabetes, and arthritis, to possess two and a half ounces of cannabis, and set up a system for...

David Brooks and the Modern Marijuana Confession

I've long held that much of American politics is a neverending argument between the hippies and the jocks, as Baby Boomer politicians and commentators replay over and over the cultural conflict of their youth. And no issue brings that conflict more clearly to the fore than the question of marijuana legalization. Today, David Brooks wrote a predictably mind-boggling column on the topic, in which he reveals that he smoked pot as a teen but thinks legalization would mean "nurturing a moral ecology in which it is a bit harder to be the sort of person most of us want to be." I'm not going to spend time dealing with Brooks' argument, since plenty of people have done that already (if you want to read one takedown, I'd recommend Philip Bump's ), but there is one aspect of this debate I want to take note of: the change in the nature of marijuana confessions. It isn't just public opinion on marijuana that has evolved. Now, it seems, offering your opinion on legalization requires you to reveal...

No, Obamacare Wasn't a "Republican" Proposal

flickr/Ralf Heß
The filmmaker Michael Moore has, through his fine documentary Sicko and other public arguments, done a great deal to bring attention to the deficiencies of the American health-care system. His New York Times op-ed on the occasion of the first day of the Affordable Care Act's exchanges repeats some of these important points. However, his essay also repeats a pernicious lie: the idea that the Affordable Care Act is essentially a Republican plan based on a Heritage Foundation blueprint. This argument is very wrong. It is both unfair to the ACA and far too fair to American conservatives. Before explaining why a central premise of Moore's argument is wrong, let me emphasize our points of agreement. It is true that the health-care system established by the ACA remains inequitable and extremely inefficient compared to the health-care systems of every other comparable liberal democracy. Moore, unlike some critics of the ACA from the left, is also careful to note that the ACA is a substantial...

Polyamory, the Right to Privacy, and Religious Freedom

Last week, a federal District Court judge in Utah struck down a law used to prosecute members of polyamorous relationships. Predictably, some conservatives immediately brought up the slippery slope to legalized adult incest and legal " teen sex cults ." However, the decision is a very rational and straightforward application of core principles of the right to privacy and religious freedom. It is crucial to understand, first of all, that Judge Clark Waddoups's decision in Brown v. Buhman did not "legalize bigamy." The lawsuit was brought by the reality television star Kody Brown, who lives in a polyamorous relationship with four women but is only legally married to one. Brown did not even contest Utah's limitation of marriage to couples, and Judge Waddoups deferred to a Supreme Court precedent dating back to the 19th century holding that bans on bigamy are constitutional. Rather, the decision concerns an unusual, extraordinarily broad provision of Utah law under which "[a] person is...

Four Takeaways from Yesterday's NSA Ruling

Flickr/passamaquoddy eagle
Flickr/Cliff Y esterday, U.S. District Court Judge Richard J. Leon ruled that the National Security Agency's extensive collection of "metadata"—as revealed by Edward Snowden earlier this year—is likely to have violated the Fourth Amendment. Justice Leon stayed his ruling ordering the government to stop the warrantless surveillance of two plaintiffs pending a trial. Given the inevitable appeal, we're a long way from the end of this NSA program—even if Judge Leon rules again in favor of the plaintiffs. Not every legal challenge to the metadata program was successful. Judge Leon dismissed a challenge based on the theory that the NSA's program exceeded the statutory authority granted by Congress. The court ruled that it lacked the jurisdiction to hear the claim under the Administrative Procedures Act. Judge Leon did, however, find that he had jurisdiction to hear the constitutional claims against the program. "While Congress has great latitude to create statutory schemes like FISA," the...

From Their Cold Dead Hands

Flickr/Jon Payne
This Saturday is the one-year anniversary of the Newtown shooting, and it's remarkable where we've come in that time. In the weeks that followed, everyone said that now we could finally pass some sensible measures to stem the river of blood and death and misery that is the price we pay for America's love of firearms. President Obama proposed some extraordinarily modest measures: enhanced background checks, limits on the kind of large-capacity magazines mass murderers find so useful, perhaps even a new ban on new sales to civilians of certain military-style weapons. Not a single thing that would keep a single law-abiding citizen from owning as many guns as he wants. So here we are, a year later, and what has happened? First of all, at least 30,000 more Americans have had their lives cut short by guns; tens of thousands more were shot but survived. Around 200 children have been shot to death in that time—another 10 Newtowns. There was no federal legislation on guns. It died, because...

The Year in Preview: The First Amendment Takes Center Stage

AP Photo/Pablo Martinez Monsivais
Lots of things happened in 2013. President Obama was sworn in for a second term. We got a new pope and a new royal baby. Two bombs went off at the Boston Marathon and frightened a nation. The Supreme Court stripped power from the Defense of Marriage Act and the Voting Rights Act. But these are all stories we've heard before, and if you haven't, you certainly will in the millions of "Year in Review" pieces set to be posted between now and New Year's. Over the next two weeks, our writers will instead preview the year ahead on their beats, letting you know far in advance what the next big story about the environmental movement—or immigration reform, reproductive rights, you get the picture—will be. You're welcome in advance for not making you read a dozen more retrospectives on Ted Cruz and Twerking and fiscal cliffs and shutdowns and selfies. Today, we cover the upcoming year on the Supreme Court docket. (AP Photo/J. David Ake) 2 014 will be an important year for the First Amendment. In...

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