Category Archives: rights

The Courts Get Another One Right

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Quartavius Davis was convicted of robbing, in 2010, seven stores in and around Miami and sentenced to roughly 162 years in prison. His prosecutors based their case, in large part, on cellphone records that placed Davis near the scene.

The evidence included records of the cell towers to which their phones were connected when they placed and received calls, according to court documents.

These data were obtained solely on the basis of a claim “that the records were relevant and material to an ongoing investigation.”

The 11th Circuit demurred. Writing for a unanimous court, Judge David Sentelle wrote in part

[I]t cannot be denied that the Fourth Amendment protection against unreasonable searches and seizures shields the people from the warrantless interception of electronic data or sound waves carrying communications. The next step of analysis, then, is to inquire whether that protection covers not only content, but also the transmission itself when it reveals information about the personal source of the transmission, specifically his location.

And [emphasis added]

One’s cell phone, unlike an automobile, can accompany its owner anywhere. Thus, the exposure of the cell site location information can convert what would otherwise be a private event into a public one. When one’s whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts.
…
There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute. [W]e do not see…Davis’s location outside his expectation of privacy.

And ultimately,

Cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.

Yewbetcha.

A 4th Amendment warrant requires a showing of probable cause, a rather stricter standard than just the government claiming an interest. However, the matter isn’t closed with this ruling; the 5th and 6th Circuits have ruled that warrants are not needed in such cases. This points to an eventual Supreme Court case.

The 11th Circuit’s opinion can be read here.

An Illustration

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…of why government is unsuited to run what are essentially business operations.

Not to keep picking on Obamacare, but this program really is a poster child for why government can’t do this sort of thing. All year long, the Federal government has been trying to revamp its failed ObamaMart, euphemistically known as Healthcare.gov. Here’s the status of that effort.

  • ObamaMart still is transitioning to new government contractors to manage basic functions. This transition has been going on since the first of the year. They’re not even stable yet on what companies have been hired to do the work.
  • Some back-end functions, including a system to automate payments to insurers, are running behind schedule—still. These functions were supposed to be fully operational last October 1, at the initial deployment of ObamaMart. The revamp can’t get this right, either.
  • [N]ew versions of some functions still will need to be tested with insurers before open enrollment begins 15 Nov. Actual testing is a new wrinkle. Welcome to be sure, but even though CDS has said that ObamaMart was never seriously tested the first time, apparently CDS still is only testing some parts—spot checking.
  • [The] exchange for small businesses, delayed by technical problems last year…will “launch” without some functions.
  • [T]he system to funnel subsidy payments to plan providers for the benefit of plan purchasers (remember that back end?), originally supposed to be ready for the launch in October, then later set for completion by mid-March, is now scheduled to be fully operational in 2015—well after the enrollment period for purchasing 2015 plans has closed.

These highlights demonstrate a terrible performance, by an entity that has no concept of the cost of money and that has none of the performance incentives that a competitive environment in a free market economy provides.

For Progressives, Some Lives are More Important than Others—A Follow-up

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A bit over a year ago, I wrote about King Cove, AK’s, attempt to get an 11-mile road built to Cold Bay so they could get folks quickly to Cold Bay’s all-weather airport and thence to a hospital. For 30 years, the Feds have been blocking King Cove’s road because the lives of animals are more important than those of the humans who live in King Cove. And die there, as 19 have, recall, over the last three decades because they couldn’t get to medical treatment in time.

Here’s the current status of that shameful situation.

A group of native tribes in Alaska is suing the Obama administration after being blocked for years from building an emergency road from their fishing hamlet to a vital airport over preservation concerns.

The suit, filed in the US District Court for the District of Alaska, claims the Interior Department’s refusal is a violation of federal law and argues no other reasonable transportation alternative exists.

They say they know taking the issue to court will likely make an already lengthy process even longer but say they have exhausted all other options.

And this from Robert Dillon, a spokesman for Senator Lisa Murkowski (R, AK):

Secretary [of the Interior Sally] Jewell has ignored the King Cove folks for six months—despite her very public promise to find a viable alternative to the land exchange.

You can imagine their frustration with Interior when they can’t even get Jewell to acknowledge them. Jewell may be hoping this issue just going away, but it won’t. The people of King Cove are fighting to keep their families safe—that’s not something you give up on.

Recall that the land swap Jewell refused involved 43,000 acres elsewhere in Alaska for the 1,800, or so, needed for King Cove’s short road.

But Jewell thinks the lives of bears, caribou, and birds are more valuable than the lives of a few hundred financially poor Aleut native Americans.

Religious Freedom

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Lebanon High School Principal Kevin Lowery gave a commencement address to his high school students. In the course of his speech, he spoke repeatedly of God and His role in our individual lives and in the life of our nation. Among other things, he reminded his students that our national motto is “In God We Trust,” and that it is imprinted on all of our currency. He gave a short history lesson, generally absent from the classes, that Francis Scott Key’s original version of our national anthem, “The Star-Spangled Banner,” made references to God.

Lowery also wryly noted during the May 23 commencement that even though “God is reflected in the very fabric” of the nation, it would be inappropriate to mention The Almighty at a secular ceremony.

“So while it would not be politically correct for us to have an official prayer this evening,” he said, “I would like for us to have a moment of silence in honor of tonight’s graduates. Thank you. And just in case you’re interested, during my moment of silence, I gave thanks to God for these great students, their parents, their teachers, and for this community.”

A YouTube clip of Lowry’s address is here. Among the comments on the clip, Dave Muscato, Public Relations Director for American Atheists, had this to say:

I find this extremely objectionable. I think it’s clear that Kevin Lowery violated the spirit of the First Amendment separations of religion and government. This was an underhanded and dishonorable way for him to forcibly inject his personal religious views onto his students and the others present and into his role as a government official.

That’s…unfortunate. I find Muscato’s comment extremely objectionable. I think it’s clear that David Muscato is trying to violate the spirit of the First Amendment’s free exercise of religion. This is an underhanded and dishonorable way for him to forcibly inject his personal religious views onto children and the others present and an abuse of his role as gadfly.

The Meaning of the Recent European Union Parliamentary Elections

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Spiegel Online International wrote earlier in the week about the EU’s parliamentary elections. From those elections, there could be a power shift away from the European Council, made up of the heads of the EU member nations, toward the European Parliament, made up of Members of the European Parliament elected by the citizens of the member nations.

This power shift is possible because of two things: one is that the citizens cast their votes for their MEPs based in large part on dissatisfaction with the EU leadership in what in the US would be the Executive Branch—including the European Commission President—with the proximate outcome of a large increase in the number of MEPs representing various euro-skeptic parties at the direct expense of the pro-EU parties.

The other is that these citizens, through their new MEPs, now want their say on who their next Commission President should be, and they have a clear preference. However, the Commission, the traditional determiner of the President with the EU Parliament simply rubber stamping the choice, want to retain that decision, and they want someone else.

That’s a long introduction with which to get to the point of this post. The IOS had this to say, in part, on the matter:

[I]n many countries, the vote’s outcome was more a reflection of domestic political frustrations than a broader statement on European issues.

That, though, is the nature of federations. The constituent states vote their individual interests as determined by the citizens of those states, by design, and compromises among those states’ MEP contingents occur, to be implicitly ratified or rejected by the states’ citizens in the next round of MEP elections—Adam Smith in the political world.

As long as the EU continues to not understand that simple fact, it always will be fraught with the sorts of economic and political failures it has experienced—and still is experiencing— every time there’s even a minor crisis in politics or economics.

It appears as though the misunderstanding will continue for a long and dangerous time.

It comes down to who, in the end, is responsible for choosing the next head of the Commission, a body of 33,000 employees that is in charge of proposing new legislation and monitoring compliance with EU treaties. Is it up to the voters? Or up to the governments of EU member states?