Category Archives: Courts

Expectations of Privacy

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That we have no reasonable expectation of privacy in our personal effects as we cross foreign borders into foreign countries, and in the crossing process are subject to that country’s laws, is well understood.

Should that lack of expectation in those foreign countries matter, though, concerning our expectation of privacy as we cross our own country’s borders re-entering home from a trip abroad?

In a quasi-related expectations matter, our courts have already ruled, in a mind-reading tour de force, that we must have no such expectation when our private matters are given up to third parties.  These rulings come despite the plethora of privacy protection laws that require those third parties to safeguard our personal matters, and they come while ignoring the enormous hue and cry that ensues a third party’s perceived misuse of our personal matters, even when that (mis)use is narrowly legal—which plainly demonstrates that we do indeed have such an expectation.

One Federal District Judge, Edward Korman of the Eastern District of New York, has ruled that we have no legitimate expectation of privacy on crossing our own border pursuant to coming home.  In a case involving the search of the laptop of an American citizen and journalist (a news photographer, specifically), Korman decided that it’s jake for US border agents have the authority to search laptop computers without reasonable suspicion—just the bald fact that an American is coming home.  Korman’s ruling held, among other things, that

[plaintiff] cannot be so naive to expect that when he crosses the Syrian or Lebanese border that the contents of his computer will be immune from searches and seizures at the whim of those who work for Bashar al-Assad or Hassan Nasrallah.

This application of foreign law as a reason to abrogate an American citizen’s rights domestically, is of a piece with other judges’ rulings that Sharia Law applies in American courts, even to the point of justifying spousal rape (it took an appellate court to overturn this travesty).

Compounding this…opinion…is the further fact that Korman used this excuse to dismiss the citizen/journalist’s lawsuit over the search because he had no standing, having suffered no harm: he had not privacy to invade, and so there was no foul committed.

Korman’s opinion can be seen here.

Another Battle

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…in the Progressive war on women.

Here’s it’s the Obama administration’s response to Justice Sonya Sotomayor’s injunction staying Obama’s  contraceptive mandate as it applies to the Little Sisters of the Poor and their nursing home/hospice in Colorado.  Sotomayor, in issuing her injunction, had ordered the Obama administration to respond by last Friday morning with their argument for why the injunction should be lifted.

Solicitor General Donald Verrilli’s response boiled down to the Little Sisters have no legal claim: they aren’t harmed by authorizing contraceptives to be covered by an insurer in their name because they aren’t offering the coverage directly.  Verrilli went on:

…are not required to offer group health plans in the first place.  [They can make a] “choice” between two legal options: provide a group health plan or risk payment of the tax.

As The Wall Street Journal put it,

This case is simply a raw assertion of state power directing the religious to follow orders.  Thus ObamaCare forces women who have taken a vow of chastity and minister for the dying to implicate themselves in what they consider to be grave moral wrongs.

Expectation of Privacy

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In Klayman v Obama, DC District Federal Judge Richard Leon issued an injunction requiring the government to stop collecting metadata on Americans’ phone calls, ruling the NSA’s program likely unconstitutional.  Leon then stayed his injunction pending appeals.

The Wall Street Journal had some thoughts about Leon’s ruling; as some might expect, I have some thoughts about the WSJ‘s thoughts.

While obtaining the content of phone calls requires a warrant, the High Court ruled that people have no “reasonable expectation of privacy” for information about phone calls such as the date, time and length of their calls and the numbers they dial.  Such transactional data inevitably belong to the service provider, not to individuals….

This is plainly fallacious: that I surrender some of my private data to a third party in no way alters my expectation of privacy.  I expect that third party to protect my data as I would; I expect that third party to protect my data as though they were the third party’s own.  We even have laws on the books requiring such safeguarding; the principle is well established.  It’s true enough that the Supremes have ruled on this before, claiming no expectation of privacy (on a wireless telephone wiretap case some decades ago).   However, that Court had to do a fair amount of mind reading to reach that lack of expectation, and it’s not the first time the Court has been wrong.  Leon is presenting the Supremes with a golden opportunity to correct this particular error.

Contrary to Judge Leon, the reality of the information age is that we all have less expectation of privacy.

This is simply wrong.  I’ve not at all lowered my expectation of privacy; in fact, I expect these advances in technology to enhance my privacy, not deprecate it.

No one who makes calls and emails on a smart phone, visits an e-commerce website, uses a credit card, drives with an Easy Pass or otherwise benefits from modern technology can truly believe that he is not entrusting data to third parties about personal behavior.

This is a careless conflation of two separate issues.  In no way do I reduce my expectation of privacy; I simply expect that third party to safeguard my data.  Those third parties even have procedures to allow me explicitly to instruct them either to safeguard my data or not collect them at all.  My smart phone even has the means to turn off the on-board GPS—and if I turn it on, there’s nothing in that act that permits my location data to be collected for any use but my own.  There’s nothing at all in my use of my smart phone (or my car’s mapping facility) that authorizes the collection of my behavioral data beyond the specific task for which it’s collected—most especially not for government collection.

And, to get to the conflation, the fact that a third party comes into possession of my personal data has absolutely nothing to do with the fact that those data concern my personal behavior.

Well, so what?  The NSA isn’t surveilling lighters at rock concerts, or creating personal mosaics.  The agency is collecting the same basic telephony metadata.

It’s amazing to me that the WSJ would make this argument at all, it’s so plainly fallacious.  The government might decide, at any point, that it’s time to begin surveilling lighters, or the rock concert performers.  Or anyone else about whom it decides to manufacture a suspicion.  Or create those mosaics just because—it certainly now has the data with which to make a good start.

No.  The whole structure of our social compact and of our Constitution is to effect prior restraint of government, not to correct it after it has done its wrong.  That’s a one way street, too: that we tell our government that it cannot engage in prior restraint of us in no way means we cannot engage in that prior restraint of government.

And this, written by Robert Turner, co-founder of the Center for National Security Law at the University of Virginia School of Law, in a separate WSJ op-ed about Klayman:

Consider another, more common, type of warrantless search.  Every time Americans catch a flight at a commercial airport, they first must submit to intrusive searches by federal agents without the slightest probable cause or individualized suspicion.  Yet every federal court to decide the issue has held that these searches are “reasonable” and thus consistent with the Fourth Amendment (which prohibits only “unreasonable” searches).

Clearly, the privacy interests infringed by airport searches are far greater than having a government computer glance through our telephone bills to make sure we have not been communicating with foreign terrorists.

This is a specious argument.  Turner carefully ignores the vast hue and cry over these searches—based entirely on their privacy invasion aspect—by the travelling public.  There is, indeed, a very strong expectation of privacy, the mind-reading a judiciary insulated by design from the public notwithstanding.

Expectation of privacy is alive and well everywhere but in the minds of most of that insulated judiciary.  Leon got this right.

Government and Legislative “Intentions”

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Halbig v Sebelius is a case that opened last Tuesday in the DC District Court that challenges the legality of Obamacare subsidies, and through that the applicability of the Employer and Individual Mandates, in states that have ObamaMart—Federal health insurance exchanges—rather than state-run exchanges.

The case hinges on what the Obamacare law says vs what Government says it says and what Congress’ “intentions” were.  Leave aside for now then-Speaker Nancy Pelosi’s remark that it was necessary to pass the law to know what was in it along with the admissions of most Representatives and Senators that they had not even read the 900-page law before they voted on it; following is the argument:

Judge Paul Friedman asked how far, and where, he should go to look for more information about what Congress actually intended with Obamacare.  Plaintiffs—Halbig, et al. (et al. consists of three more private individuals and eight businesses scattered across six states that have ObamaMart running because those states declined to set up state-run exchanges)—said the place to go was the law itself: what does the law say, explicitly, in its text.

Government, on the other hand, says to see the text of the law, but also go further and divine Congress’ intentions when it passed the law.

Which brings me back to Pelosi’s remark and those admissions.  Congress didn’t know what was in the law when it passed it; that information didn’t become available until after it was passed.  Not knowing what was in the law when it was passed plainly means that Congress cannot have known its intentions for the law when it passed the law.  Government’s insistence on divining intentions in this case, then, demands a level of mind reading that’s beyond even the talents of a Federal District Judge.  Or those of appellate or Supreme Court judges, which is where this case will go, no matter Friedman’s ruling.

Yet the question matters a very great deal: are citizens in states that have ObamaMart rather than state-run exchanges eligible for premium subsidies, and from that do the Employer and Individual Mandates apply in those states?  The text of the law says that subsidies are available only for those who buy policies through the state exchanges.  Government argues that those phantom intentions were that the subsidies were to be available for policies purchased through ObamaMart, also.

This matters because subsidies in the 34 states where ObamaMart operates in lieu of state-run exchanges amount to hundreds of billions of dollars of Federal (deficit, debt-building) spending, and those Mandates represent hundreds of billions of dollars (albeit fewer hundreds than those subsidies) of individual and business spending by non-subsidized purchasers of Obamacare policies in order to defray somewhat the costs of those subsidies (and, a separate significance, to pay “insurance” sellers artificially inflated premiums in order to support those sellers’ artificially depressed premiums for subsidized and elderly buyers)

The Judiciary Gets Another One Right–Almost

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Brothers Gilardi, owners of Freshway Foods and Freshway Logistics in Sidney, OH, objected on religious grounds to being required by Obamacare to provide insurance coverage that includes coverage for “contraceptive methods, sterilization procedures,” and so on.  A lower court had sided with the government, but the DC Circuit ruled, muchly but not completely, in favor of the Gilardis.

The majority opinion, written by Judge Janice Rogers Brown, held that the birth control mandate

trammels the right of free exercise—a right that lies at the core of our constitutional liberties—as protected by the Religious Freedom Restoration Act[]

She also wrote that the contraceptive mandate forced the Gilardis into a

Hobson’s choice: they can either abide by the sacred tenets of their faith, pay a penalty of over $14 million, and cripple the companies they have spent a lifetime building, or they become complicit in a grave moral wrong.

but then she applied this only to the Gilardis themselves.  That’s the almost part of the ruling.

Unfortunately, Brown held against the Gilardis as this applies to their businesses (the downside of her ruling):

While we decline the Freshway companies’ invitation to accept Townley’s ipse dixit that closely held corporations can vindicate the rights of their owners, we understand the impulse.  The free exercise protection—a core bulwark of freedom—should not be expunged by a label.  But for now, we have no basis for concluding a secular organization can exercise religion.

But this makes no sense.  If a corporation is person enough to freely engage in political speech (vis., Citizens United), how can it not be person enough to have a conscience from which to speak—and to act?

In a concurring dissent (because he agreed with the majority opinion as it applied to the Gilardis but disagreed with that opinion as it applied to the Gilardis’ businesses), Judge A Raymond Randolph wrote

Why limit the free-exercise right to religious organizations when many business corporations adhere to religious dogma?  If non-religious organizations do not have free-exercise rights, why do non-religious natural persons (atheists, for example) possess them?

More, what is free exercise, if it is not the exercise by entities and individuals not formally…blessed…by government as Official Religious Organizations?

Judge Harry T Edwards’ dissent is even harder to understand.  He wrote, in all seriousness, that legislative restrictions may trump religious exercise.  How does that work, exactly?  It sounds like he’s saying legislative restrictions trump the supreme Law of the Land.

Edwards went on, suggesting

Allowing religious exemptions to for-profit, secular corporations would undermine the universal coverage scheme: if the Gilardis’ companies were exempted from covering contraception, another corporation’s owners might just as well seek a religious exemption from covering certain preventative vaccines.  A Christian Scientist, whose religion has historically opposed conventional medical treatment, might claim that his corporation is entitled to a religious exemption from covering all medical care except healers who treat medical ailments with prayer.

Well, yeah.  And?  The vaccines may be entirely sound medicine—indeed, contraception and sterilization are entirely sound medicine, for those whose religious beliefs permit such.  It seems, though, that Edwards has both misunderstood the Free Exercise Claus and rejected Chief Justice Howard Taft’s sound advice:

The good sought in unconstitutional legislation is an insidious feature because it leads citizens and legislators of good purpose to promote it without thought of the serious breach it will make in the ark of our covenant….

Edwards then wrote in all seriousness

The mandate does not require the Gilardis to encourage Freshway’s employees to use contraceptives any more directly than they do by authorizing Freshway to pay wages….

That wasn’t the question, though.  The question was whether the employer should be required to violate its conscience by offering coverage that covers the contraceptives, not whether the employer should encourage employees to use them.

Then, in the very next sentence, he wrote

[T]he Gilardis remain free to express publicly their disapproval of contraceptive products.

This is just cynical.  I can think of no other reason for this claim in this context.  If a man publicly expresses his disapproval of a sin and then commits that sin, he’s still a sinner—and a hypocrite, even if pushed into sin by the Federal government.

The DC Circuit opinion can be found here.