Gina “Joe” McCarthy is Speaking Again

In a recent speech to the National Academy of Sciences, the EPA Administrator had this to say in decrying her critics:

…claiming that research is secret if researchers protect confidential personal health data from those who are not qualified to analyze it—and won’t agree to protect it.

By whose definition are the folks who want to see the data for themselves deemed not qualified, Madam? You’re the one keeping the data secret, on what basis do we take your word for it?

Won’t agree to protect what? On what basis do we even conclude the data are personal, when you won’t let us see it—especially given how easy it is to redact the personal identifiers without compromising the data themselves?

Hmm….

The Ground Zero Cross and Atheists

American Atheists filed suit three years ago against having this symbol included in the National September 11 Memorial Museum, which officially opened late last month. Their suit was tossed forthwith as baseless; US District Court Judge Deborah Batts wrote

No reasonable observer would view the artifact as endorsing Christianity. [The museum curators] have not advanced religion impermissibly, and the cross does not create excessive entanglement between the state and religion.

The group appealed to the Second Circuit which responded by instructing American Atheists actually to make a case and not just bellyache, and to do so by 14 July. In so instructing, the Appellate Court cited an amicus brief provided by the Becket Fund for Religious Liberty which argued among other things that

Courts should not allow people to sue just because they claim to get “dyspepsia” over a historical artifact displayed in a museum.

As Eric Baxter, Senior Counsel for Religious Liberty noted,

Taking personal offense is not an injury that warrants invoking the power of the courts to shut down everything you disagree with. The Constitution is not a personal tool for censoring everyone’s beliefs but your own.

Indeed.

IRS and Internal Emails

Like a lot folks, I’m skeptical about the…accuracy…of the IRS’ lately claim that they can’t find Lois Lerner’s emails from before 2011.

My skepticism flows from a number of sources:

  • Why are they only now discovering the loss, a year after all that documentation was subpoenaed by House oversight committees?
  • The IRS claims a hard drive crash is at the heart of the loss—on what basis are we to believe that a single hard drive held all those documents?
  • The IRS’ hard drives—actually, the material stored on them—like all government hard drives/data, and like all such materials in the private, competitive sector, are backed up nightly: what are we to believe happened to all those backups?
  • Are we expected to believe that a professional IT crew would be so careless as to leave a single hard drive at the core of such a critical system? That they would leave all those backups at mercy of a single point of failure?

Note to those of you who believe the IRS’ claim: perhaps I can interest you in some beachfront property north of Santa Fe.

The Courts Get Another One Right

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.