The Volokh Conspiracy

WA Today reports:

The man whose trial has led to controversy over the wearing of a Muslim headscarf in court has been “brutally stabbed” after being stopped in his car, his lawyer says.

Anwar Sayed, who a court yesterday heard had received written and verbal death threats for supposedly agitating to abolish the wearing of a niqab, also known as a burqa, was allegedly attacked this morning....

Police spokesman Samuel Dinnison would not confirm the identity of the victim of the attack, but played it down saying the victim had only suffered “minor injuries or a scratch”. ...

[A] lawyer for Mr Sayed, Andrew Skerritt, told AAP the incident related to the burqa debate....

A judge yesterday reserved her decision over whether a witness in the fraud trial could testify wearing the niqab, which covers her entire face except for a small slit for her eyes.

Mr Sayed’s lawyers have argued her face should be uncovered so the jury can accurately assess her testimony....

For more on the case, see this earlier WA Today article. For posts about an American controversy related to witnesses and veils (though fortunately without a stabbing), see here. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

The brief of Florida and 19 other states, challenging the constitutional of the new health control law, was just filed today. It is a response to the DOJ’s motion to dismiss.

Today the D.C. Circuit held that government use of a GPS device to monitor the location of a car on public roads is a Fourth Amendment “search” when conducted over a long-term period (in his case, a month). The case is United States v. Maynard, and it was written by Judge Douglas Ginsburg and joined by Judges Tatel and Griffith. If it stays on the books, it is a potentially revolutionary Fourth Amendment decision: It introduces a new “mosaic” theory of the Fourth Amendment that allows individual law enforcement steps that are not searches to become a search when collected together. A lot of readers are going to love it for that reason, and I expect it’s going to be a huge hit in privacy law and libertarian circles. But I don’t find the opinion persuasive as a matter of Fourth Amendment law: I don’t think a mosaic theory can work. So I wanted to blog about it, and then why I don’t think it’s persuasive.

I. Some Background

I’ve blogged before about whether installation of a GPS device to monitor the location of a car on public roads is a Fourth Amendment “search.” In my view, Supreme Court precedent is pretty clear here: It is not a Fourth Amendment search under United States v. Knotts, 460 U.S. 276 (1983), which held that the use of a “beeper” device to monitor the location of a car on public roads — a beepter being “a radio transmitter, usually battery operated, which emits periodic signals that can be picked up by a radio receiver” — is not a search. Knotts held:

A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [the defendant] traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.

In my view, the reasoning of Knotts applies to the use of a single GPS device to determine a person’s public location. That wouldn’t apply for use of a location device in a home or private place, as the Court held the year after Knotts in United States v. Karo. And I agree that as matter of policy, we might want a privacy statute to limit what the Fourth Amendment does not. But the Supreme Court’s statement, “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another” — seems to apply in the same way regardless of whether the device used to determine those movements is a beeper or a GPS device. You can read my extended analysis on that here: Does the Fourth Amendment Prohibit Warrantless GPS Surveillance?

Until today, all three federal circuits that have addressed the issue have agreed with that and held that use of a GPS device is not a search: United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010); United States v. Garcia, 474 F.3d 994 (7th Cir. 2007) (Posner, J.); and United States v. Marquez, 605 F.3d 604 (2010). In contrast, several state supreme courts have held that such surveillance is a violation of state equivalents of the Fourth Amendment. State courts are permitted to interpret their state versions of the Fourth Amendment more broadly than the federal Fourth Amendment, and many do: The practical effect of such rulings is to govern the state police in their state but not the federal government. So the precedents have been unanimous that use of a GPS device is not a search under the Fourth Amendment.

II. United States v. Maynard

That brings us to this morning’s decision by the D.C. Circuit in United States v. Maynard. Maynard is a complicated drug conspiracy straight out of The Wire. The defendant here, Jones, ran a nightclub in DC and was part of a conspiracy to sell crack and cocaine. As part of the complex investigation, which included wiretaps and all other sorts of investigative tools, the government slapped a GPS device on the Jeep that Jones drove around town. Perhaps I am just missing something, but I believe the only time the court tells us how the GPS surveillance was actually used is in a footnote on page 29–30. According to that footnote, the prosecution used the pattern of where Jones drove, and at what times, to show that he was in cahoots with the other members of the drug conspiracy. (Season 4 of the Wire? Or was it 5? I can’t remember.) The GPS was on the Jeep for four weeks. There’s some evidence that the government had obtained a warrant but it had expired by the time it was used here — see the footnote on page 38 — but it is agreed now that the government did not have a warrant to install the GPS device when it did. Jones now has challenged the use of the evidence in his case drawn from the 

Maynard starts its analysis with a passage from Knotts that had left open the possibility of a different result in very different circumstances:

[The defendant] expresses the generalized view that the result of the holding sought by the Government [that use of a beeper is not search] would be that “twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision.” But the fact is that the reality hardly suggests abuse; if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.

Exactly what this passage in Knotts was supposed to mean is a bit of a mystery. Some folks think it means surveillance of many people at once. My own sense is that it was dealt with the next year in United States v. Karo, when the Supreme Court distinguished Knotts and held that a warrant is required for use of a beeper to monitor whereabouts inside rather than outside. But the DC Circuit takes the view in today’s decision that GPS surveillance, even just in public and for one suspect, is such a dragnet-type practice. Thus the DC Circuit concludes that Knotts is inapplicable and the court can reach its own conclusion as to whether use of a GPS device to monitor public location is a search.

Maynard then concludes that long-term GPS monitoring is a search. To understand the Maynard court’s reasoning, you need to recall the basic distinction in Fourth Amendment law between inside surveillance and outside surveillance. In Fourth Amendment law, stuff inside — inside homes, inside cars, inside packages, and hidden from public view — is generally protected. In contrast, stuff outside — stuff exposed to the public — is not protected. That creates an obvious problem for holding that GPS monitoring in public places is a search: The monitoring is occurring entirely when the GPS device is outside, obtaining information that an outside observer could obtain. That was the basic reasoning of Knotts: A cop physically following the car in Knotts could get the same basic information as the beeper provided.

Maynard rules that this reasoning does not apply when the monitoring is conducted by way of a GPS device over a long period of time. The court makes two arguments. The first argument relies on what I have called the probabilistic model of Fourth Amendment protection: that whether an expectation of privacy is reasonable hinges on the likelihood that monitoring will occur. As I have explained, the Supreme Court uses this in some instances and rejects it in others. In Maynard, the court adopts the probabilistic model (citing all the probabilistic-model cases) to the entirety of the monitoring that occurred (considered as a single entity) and says that it’s very unlikely that a stranger would conduct that extent of monitoring:

[W]e hold the whole of a person‘s movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person‘s hitherto private routine.

(p 26). The court then addresses a potential counterargument to its view:

The Government does not separately raise, but we would be remiss if we did not address, the possibility that although the whole of Jones‘s movements during the month for which the police monitored him was not actually exposed to the public, it was constructively exposed because each of his individual movements during that time was itself in public view. When it comes to privacy, however, precedent suggests that the whole may be more revealing than the parts. Applying that precedent to the circumstances of this case, we hold the information the police discovered using the GPS device was not constructively exposed.

Continue reading ‘D.C. Circuit Introduces “Mosaic Theory” Of Fourth Amendment, Holds GPS Monitoring a Fourth Amendment Search’ »

By now I’ve read dozens of blog posts and commentaries attesting to the power and persuasiveness of Judge Walker’s opinion striking down California’s Proposition 8 barring gay marriage.  But as far as I can tell, everyone I’ve seen take this position was predisposed to accept Judge Walker’s conclusion.  Lots of supporters of gay marriage and academics who believe it is a constitutional right celebrate the force of Judge Walker’s reasoning.  But what I have yet to see is someone who opposed the legal arguments, or at least approached them as a skeptic, announcing that Judge Walker’s opinion has changed, or at least shaken, their views on the matter.  In other words, the commentary on Judge Walker’s opinion is a perfect example of confirmation bias.

I support gay marriage.  Marriage, in my view, is first and foremost a private institution and insofar as the state has anything to say in who gets married, I don’t think it should distinguish between gay and straight couples.  If two men or two women want to solemnize their love for one another, the government should not stand in their way.  I’ve also been convinced by Dale Carpenter’s arguments that recognizing gay marriage is the prudent — and dare I say “conservative” — thing to do.  But I am not convinced that gay marriage is required by the 14th Amendment, and Judge Walker’s opinion has not changed my view.  He makes many sweeping pronouncements and factual findings with which I agree, but I don’t think his opinion rests on particularly solid legal ground, let alone a proper interpretation of the constitution’s text.  It may well be perfect pitch to Justice Kennedy, but predicting the inclinations of one idiosyncratic justice is not a particularly good measure of a legal argument’s intrinsic force.  So while some fiind Judge Walker’s opinion powerful and convincing, I remain unconvinced.

This morning, in Boardley v. U.S. Department of the Interior, the U.S. Court of Appeals for the D.C. Circuit struck down the National Park Service’s permitting regulations for expressive activities in national parks on First Amendment grounds.  The panel opinion, by Judge Janice Rogers Brown, begins as follows:

It is unlawful to engage in expressive activities within any of this country’s 391 national parks unless a park official first issues a permit authorizing the activity. Michael Boardley argues this licensing scheme is overbroad and therefore unconstitutional on its face. We agree. The regulations in their current form are antithetical to the core First Amendment principle that restrictions on free speech in a public forum may be valid only if narrowly tailored. Because these regulations penalize a substantial amount of speech that does not impinge on the government’s interests, we find them overbroad and therefore reverse the district court.

Judge Brown’s opinion was joined by Judge Kavanaugh and Chief Judge Sentelle, who has written extensively about his own experiences with “expressive activities” on federal lands.

United States v. Williams (7th Cir., decided yesterday) (Judge Michael Kanne, joined by Judge Ilana Rovner and retired Justice Sandra Day O’Connor, sitting by designation) upholds — as usual — a conviction for being a felon in possession of a gun, but has this to add:

the government does not get a free pass simply because Congress has established a “categorical ban”; it still must prove that the ban is constitutional, a mandate that flows from Heller itself. Heller referred to felon disarmament bans only as “presumptively lawful,” which, by implication, means that there must exist the possibility that the ban could be unconstitutional in the face of an as-applied challenge....

[A]lthough we recognize that § 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent, that is not the case for Williams. Even if the government may face a difficult burden of proving § 922(g)(1)’s “strong showing” in future cases, it certainly satisfies its burden in this case, where Williams challenges § 922(g)(1) as it was applied to him. See Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973) (“[A] person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.”). Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of § 922(g)(1).

Other judges have similarly suggested that some nonviolent felons may indeed retain (or regain, after enough time has elapsed after their felony) their Second Amendment rights. See United States v. Abner, 2009 WL 103172, *1 (M.D. Ala. Jan. 14); United States v. Davis, 2010 U.S. Dist. LEXIS 38750, *4 (W.D. Wis. Apr. 20); United States v. McCane, 573 F.3d 1037, 1049–50 (10th Cir. 2009) (Tymkovich, J., concurring); see also, as to state constitutions, Britt v. State, 681 S.E.2d 320 (N.C. 2009) (holding that a nonviolent felon whose crime was long in the past regained his state constitutional right to keep and bear arms); Wilson v. State, 207 P.3d 565, 570 (Alaska 2009) (Mannheimer, J., dissenting) (expressing the view that the state constitutional right to keep and bear arms limited the state’s power to disarm felons in some situations); Posey v. Commonwealth, 185 S.W.3d 170 (Ky. 2006) (Scott, J., concurring in part and dissenting in part) (same). But to my knowledge this is the first U.S. Court of Appeals decision expressing this view, and the presence of Justice O’Connor on the panel should further raise the profile of the case (though strictly speaking her vote has the same legal weight here as the vote of any circuit judge).

Thanks to Prof. Doug Berman (Sentencing Law and Policy) for the pointer.

I just learned that SALT — the Society of American Law Teachers, as which bills itself as “a community of progressive law teachers working for justice, diversity and academic excellence” — has a blog: The SALTLAW Blog. Worth checking out.

In the midst of so much other legal news in the past few days, you might have missed the latest twist in the on-going saga of the legal case regarding Chevron’s Ecuador operations. My co-blogger at Opinio Juris Roger Alford explains.  It is fascinating reading, reaching far beyond international or transnational law issues, going as it does to the ethical relationships between a party and an expert appointed by a court.  It is, as Roger says, an explosive allegation by Chevron, based upon outtakes from the documentary film Crude, of collusion between the plaintiffs’ attorneys and the soon-to-be-appointed court expert.  (If you want background on the case(s), trace back Roger’s Opinio Juris links.)

As I reported earlier, Chevron has secured key outtakes of the movie Crude that appeared to show alarming collusion between the plaintiff lawyers and the Court-appointed expert. According to pleadings filed yesterday pursuant to 28 U.S.C. 1782, the outtakes include some amazing communications caught on tape. The purpose of the filing was to secure the court’s assistance with additional discovery of Crude outtakes to facilitate the arbitration and secure preservation of all relevant evidence “related to the fraudulent ‘Global Expert’ scheme as documented in the Crude documentary and the outtakes produced to date.” (p. 21).

The film outtakes include some choice excerpts of a March 3, 2007 meeting that included plaintiffs’ counsel (Steve Donziger and Pablo Fajardo), plaintiffs’ experts (Charlie Champ, Ann Maest, Dick Kamp) and the soon-to-be court-appointed expert, Richard Cabrera. The apparent purpose of the meeting between the plaintiffs and Cabrera was to develop a plan for the drafting of the independent expert’s report that Cabrera would write as Special Master for submission to the Ecuadorian court. According to Chevron’s filing, the tapes include some pretty damning evidence.

Note to enterprising academic or law student.  Roger adds the following in response to a comment suggesting that the master might have held ex parte meetings with each side prior to drafting a report.  He adds that the defense cannot release the DVD itself containing the full outtakes — it has been suggested that Chevron took quotes out of context — but that a student or academic could go to the courthouse in New York and get the full content:

It is plausible that a Special Master or perito might have ex parte meetings with both sides and get their input before drafting the report.

Problem is, I was able to confirm today with counsel for Gibson Dunn that the Special Master Richard Cabrera never held a similar meeting with defendants or otherwise gave the defense side the opportunity to make suggestions or provide input about the contents of the court-appointed expert report.  They also say their is much more evidence that the Cabrera report was actually drafted with the plaintiffs. They also said that they are hoping that the film outtakes will be made available to the public, but it will require someone (like an enterprising law professor or student!) to go to the New York courthouse and get a copy of the DVD. The Second Circuit order precludes the defense counsel from handing the DVD film outtakes directly to the press.

Update:  Karen Hinton, spokesperson for the plaintiffs, has a response in the comments below. Pulling up a little bit of it; the full official press release from the plaintiffs is in her comment:

I am the spokesperson for the plaintiffs in the lawsuit against Chevron. A couple of thoughts: The CDs filed with the court do not include the entire tape from which the scene was taken. It is Chevron’s edited version of the original tape. So reviewing it does not give you the complete picture. Chevron and the filmmaker Joe Berlinger have refused to provide the plaintiffs a copy of the tapes, as had the court. As a result, we do not have a way to review the original tape.

Randy Mastro’s comment that Cabrera never offered Chevron the opportunity to meet is absolutely incorrect. Chevron chose not to cooperate with Cabrera. Chevron did not submit any information to Cabrera for inclusion into his report. Why? Because the vast majority of the samples taken prior to Cabrera’s appointment showed overwhelming evidence of extensive contamination. Even Chevron’s samples showed illegal levels of contamination, though their levels were lower than the plaintiffs’ tests. We discovered that Chevron (as well as Texaco earlier) falsified their testing levels.

This is not the first time Chevron has taken comments out of context in order to derail the lawsuit.

Update 2:  Roger Alford (an international and comparative law professor at Pepperdine) adds a further post at OJ responding to Karen Hinton’s response as well as a phone call with her in which she told him that plaintiff lawyer Steven Donziger’s remarks that “Because at the end of the day, this is all for the Court just a bunch of smoke and mirrors and bullshit” are not a reference to what the plaintiffs’ lawyers and the expert are discussing doing, but a reference to Chevron’s manipulation of the evidence.  Roger gives the full transcript and says:

As discussed here, one of the key arguments that the Ecuador plaintiffs are making in response to Chevron’s Motion is that the damaging quotes are being taken out of context. Without question one of the most damning excerpt is when lead plaintiffs’ lawyer, Steve Donziger is quoted as saying that “Because at the end of the day, this is all for the Court just a bunch of smoke and mirrors and bullshit. It really is.”

Plaintiffs’ spokesman Karen Hinton told me this morning that Donziger’s comment about “smoke and mirrors and bullshit” was a reference to Chevron’s evidence, not their own. She is quoted in an American Lawyer article today saying the same thing, that “’He was talking about Chevron using smoke and mirrors.’ Chevron is ‘twisting it and manipulating it.’”

I have now received the transcripts of the DVD from Karen Hinton and I have posted them here and here . Read in context, I find it almost impossible to interpret Donziger’s quote about “smoke and mirrors” as a reference to Chevron’s evidence.

I agree with Roger on what the transcript says, in its full context.  I too find it almost impossible to believe that this could be understood as a reference to Chevron’s evidence.  I would be astonished if a US federal judge, reading the full transcript, thought there was any question about what this comment referred to.

NBC Philadelphia has the story; the New Jersey appellate decision itself is here. This family first made the news in Fall 2008, when a bakery refused to write the child’s name on his birthday cake. The appellate court held that the parents shouldn’t regain custody of the children, because of various abuse; the Nazi sympathies get no mention. The court also holds that “evidence of prior domestic violence committed by defendant-father against his ex-wife and the two children of a prior marriage was admissible in this case to prove the risk of harm to these children.”

Thanks to Prof. Jared Williams for the pointer.

Total votes for and against the Republican Nominees (Roberts in 2005, Alito in 2006): 136 for, 64 against.
Total votes for and against the Democratic Nominees (Sotomayor in 2009, Kagan in 2010): 131 for, 68 against.

Very close. Plus, if you take out the votes of Democratic Senators for Republican nominees where the Senators have since said that if they could do it again they would have voted “no”, the numbers are almost exactly the same.

Source: The Roberts vote was 78–22; Alito was 58–42; Sotomayor was 68–31, and Kagan was 63–37.

The Washington Examiner recently posted my op ed on Monday’s ruling in the Virginia health care lawsuit, which I previously discussed in this post:

Monday’s federal district court decision refusing to dismiss a lawsuit challenging the constitutionality of the Obama health care plan is an important step forward for opponents of the plan.

The suit by the state of Virginia focuses primarily on a challenge to the “individual mandate” element of the plan, which requires most American citizens and legal residents to purchase a government-approved health insurance plan by 2014 or pay a fine for noncompliance......

Judge Henry Hudson wrote that the individual mandate “literally forges new ground and extends Commerce Clause powers beyond its current high watermark.” As he put it, “No reported case from any federal appellate court has” ruled that Congress has the power to “regulate a person’s decision not to purchase a product....”

The legal battle over the Obama health care plan is far from over.

Nonetheless, Hudson’s ruling is a victory for those who believe that the individual mandate is unconstitutional. It makes it difficult to argue that the lawsuits against the mandate are mere political grandstanding with no basis in serious legal argument. 

Today we’re mostly focused on the important district court decision yesterday in Perry v. Schwarzenegger, but I note there was also an important confirmation vote in the last hour or so. Congratulations, Justice-to-be Elena Kagan.

It was delivered in late June to the Second Amendment Task Force, a group of Republican Senate aides. (Unfortunately, the Senate’s protocals of partisanship prevent organizations like this from having aides from both parties.) My presentation is here (22 minutes). The presentation by Hans Von Spakovsky, Senior Research Fellow at The Heritage Foundation, is here. And Stephen Halbrook’s presentation is here.

The rationale for Judge Walker’s decision striking down Prop. 8 would equally apply to the federal Defense of Marriage Act. After all, if it’s irrational and unconstitutional for a state to refuse to recognize same-sex marriages within its own boundaries, it’s irrational and unconstitutional for a state to refuse to recognize out-of-state same-sex marriages (a refusal that DOMA allows), and for the federal government to refuse to recognize same-sex marriages in contexts such as tax law and immigration law (a refusal that DOMA mandates). Will the Justice Department face political pressure to file an amicus brief defending this federal statute, by opposing Judge Walker’s decision?

The Department is already defending the constitutionality of DOMA in Gill v. Office of Personnel Management, where Judge Tauro held the law unconstitutional based partly on the same rationale as Judge Walker’s. But I take it that a federal amicus brief in the Prop. 8 case would be higher profile than the Gill litigation has been.

Over at CoOp, Dave Hoffman has more on the relative importance of the facts in Perry:

[T]here are facts, and then there are constitutional facts. Almost every “fact” identified by Judge Walker is of the latter type — “Sexual orientation is a fundamental characteristic of a human being.”; “marriage is widely regarded as the definitive expression of love and commitment in the United States.”; “permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”, etc. It is exceedingly unlikely that any appellate judge or Supreme Court Justice would feel compelled to defer to these factual judgments. That’s just not how constitutional empiricism seems to work. Nor, in my view, should it work that way. Why would Judge Walker have any special expertise at figuring out these tough questions about the social consequences of legal change? And stepping back, the ordinary case for deference to factual findings is built around two intuitions: (1) that the trial judge can smell liars; and (2) that the appellate court doesn’t have the time to review everything, so it should focus on legal issues apparent on the cold record. The first intuition has always struck me as pretty weak, and the second obviously loses force in big cases.

I would add two points:

1) If the standard of review ends up being “rational basis,” the factual record is largely beside the point. Here’s how Justice Kennedy described the role of the factual record in conducting rational basis review in Heller v. Doe, 509 U.S. 312 (1993), with citations omitted and emphasis added:

A State . . . has no obligation to produce evidence to sustain the rationality of a statutory classification. “[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” A statute is presumed constitutional, , and “[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it,” whether or not the basis has a foundation in the record. Finally, courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it “ ‘is not made with mathematical nicety or because in practice it results in some inequality.’ “The problems of government are practical ones and may justify, if they do not require, rough accommodations-illogical, it may be, and unscientific.” 

Given that the rational basis standard “is not subject to courtroom factfinding,” the Court isn’t likely to pay much attention to Judge Walker’s courtroom factfinding if the law is subject only to rational basis scrutiny. It’s a different story if some heightened scrutiny applies — at that point the factual record really matters.

2) Several of the key factual findings in Judge Walker’s opinion are in the form of predictions, not facts. For example, Judge Walker finds that “permitting same-sex couples to marry will not . . . otherwise affect the stability of opposite-sex marriages.” But real predictions have confidence levels. You might think you’re going to get an “A” on an exam next week, but that’s not a fact. It’s just a prediction, and there’s a hidden confidence level: Maybe there’s an 80% chance you’ll get that grade, or a 60% chance. Judge Walker’s prediction-facts have no confidence levels, however. He doesn’t say that there is an 87% chance that permitting same-sex marriage will not affect the stability of opposite-sex marriages. He says that it is now a fact — with 100% certainty — that that will happen.

Appellate judges will naturally discount, if not entirely ignore, efforts to create false certainty out of unknowns by stating that they are facts. To pick an extreme example, imagine Judge Walker made a factual finding that “the defendant’s position that Prop 8 is unconstitutional is incorrect.” If appellate courts have to defer to everything a District Judge labels a fact, then would that mean the appellate courts have to defer to this judgment? If so, that would make the constitutionality of same-sex marriage entirely up to the discretion of the District Court Judge. The judge could make his decision unreviewable — either way — by presenting his legal conclusion as a fact. And what if two District Court judges disagree on the factual findings? What is the Supreme Court supposed to do to reconcile opposite conclusions? For such reasons, the fact section of Judge Walker’s opinion is likely to matter a lot less than it would normally matter in appellate litigation.

Prof. Rick Hasen (Election Law Blog) has an intriguing theory on this:

I assume that Judge Walker, like most lower federal court judges, does not like to be reversed. The opinion he issued today is no doubt the most famous (perhaps also the most important) that the Judge will issue in his life.... 

If Judge Walker denies a stay, then the request for a stay will be filed with the motions panel of the Ninth Circuit. As I explained, this month’s motions panel is tilted liberal, so it is a good (but by no means certain) bet that if Judge Walker denies a stay, the Ninth Circuit will deny a stay too. I have little doubt that if the Ninth Circuit denies a stay, that a stay request will be filed with Justice Kennedy, who will then refer the matter to the whole court.

Getting an emergency stay request before Justice Kennedy during the Court’s summer recess is going to put a lot of pressure on the Justice to decide this matter quickly, and without the opportunity for the reflection that we’ve heard Justice Kennedy engages in when considering more difficult cases. The pressure of time could lead him to grant the stay, and to be put off by the plaintiffs for having brought the case in the first place.

Continue reading ‘Why Judge Walker May Want to Stay His Own Decision Pending Appeal (in the Same-Sex Marriage Case)’ »

The most interesting politico-legal question raised by Judge Walker’s same-sex marriage decision, I think, is whether it will provoke a new — and perhaps narrower — round of Federal Marriage Amendment activity. The earlier attempts at an FMA were quite broad, covering even state courts’ and legislatures’ decisions on marriage within the state. (I opposed those attempts, largely based on that.) I suspect they also struck many people as somewhat premature, since the thing that many voters worried about — federal courts mandating recognition of same-sex marriage throughout the country, and not just what was done by state courts in a few states — was hypothetical. 

But now, with the federal district court decision recognizing a right to same-sex marriage, and another from last month striking down the federal government’s decision not to recognize same-sex marriages (using reasoning suggesting that states had a duty to recognize same-sex marriages), the matter is not hypothetical at all. The question: Will Republicans introduce a narrower amendment, perhaps saying something like,

This Constitution shall not be interpreted in a way that would require any government to recognize a marriage, civil union, domestic partnership, or other similar status, other than a marriage between one man and one woman.

If so, will there be enough votes in Congress to send this to the states, and in state legislatures to ratify it? Even if there aren’t, would this be an effective way for conservatives to argue to the voters that the conservatives’ view of the Constitution better matches the voters’ than does the liberals’ view? And how could liberals effectively argue the opposite?

By the way, I recognize of course that Judge Walker is a Republican appointee; but I take it that it is generally conservatives who oppose his decisions and liberals who support it, and that the voters would recognize that despite the political affiliation of this one judge.

UPDATE: A commenter makes a good point: If, as I strongly suspect, public sentiment will over time turn towards majority support for recognizing same-sex marriage, this proposal might then rebound against the conservative movement. The question is whether conservatives can avoid this by effectively promoting this as an amendment that leaves same-sex marriage to the democratic process, including to changing public sentiment if the sentiment should indeed change.

Judge Walker’s opinion in the same-sex marriage case is notable for its factual record. As a commenter to Andrew Sullivan’s blog writes:

What strikes me about Judge Walker’s opinion is the amount of evidence he included there — numbered, paraphrased facts with direct citation to and quotation from the trial record. As a lawyer, I can’t say that I have ever seen a judge include that much of the trial transcript in an opinion. He would have done this to make his record so that when the case is appealed — as everyone knows it will be — he has included enough direct evidence produced at trial to support his application of the law. His clerks made that trial record their bitch, and Judge Walker took that dog for a walk.

Dahlia Litwhick makes a similar point, focused on Judge Walker’s attention to the Supreme Court’s swing vote. According to Dahlia, the opinion was largely an effort to persuade Justice Kennedy, and the fact sections of the opinion tried to “knit together the trial evidence, to the data, to the nerves at the very base of Justice Kennedy’s brain.” 

The question is, how much will those factual findings matter on appeal? 

If the Supreme Court agrees to hear the case, I don’t think the factual record will matter very much. I think that for three main reasons. First, the Justices will know that this case presents a defining moment for their respective tenures on the Court. This will be one of the biggest decisions of their careers, and its importance transcends a single trial before a single judge with a particular set of witnesses. These sorts of mega-big-picture cases tend rest less on the details of the factual record than other cases. Second, the Justices will certainly recognize the same point that Dahlia Lithwick and the Sullivan commenter made — that is, Judge Walker was trying to use his facts to make an argument designed to persuade the Justices to agree with him. For better or worse, I suspect a majority of the Justices will respond to that dynamic by significantly discounting those facts. 

Finally, a majority of the Court had relatively harsh language about Judge Walker’s rulings on broadcasting the trial when it took the remarkable step of overturning his order back in January. This passage at the end of the Supreme Court’s per curiam opinion stands out:

The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.

That’s not the kind of language that suggests that a majority of the Justices will be overly inclined to defer to the Judge’s factual findings in the resulting trial.

Of course, none of this is to say that the factual findings don’t matter at all. And if the Supreme Court takes the case and agrees with Judge Walker, the Court may discuss them extensively in the opinion. But I suspect the facts in this particular case will matter a lot less than many folks think.

I’m sure some people have thought a lot about this issue, and I hope they’ll bear with me as I pose an amateurish question: Should it matter to the constitutionality of Prop 8 that it was passed as part of a ballot initiative that restored preexisting law? 

Here’s my thinking. Let’s say there’s a really old law on the books — say, a law that’s been around for 100 years. The legislature decides to repeal the law one day. To make matters interesting, let’s assume that there is a special interest group like a large corporation that lobbies the legislature to change the law to help its bottom line (making lots of campaign contributions along the way). But the repeal of the law turns out to be really unpopular with the voters. The next year, the voters decide they want the law back in place and they pass a ballot initiative restoring it. The law is later challenged on constitutional grounds, and a court is asked to determine if the law is supported by a rational basis. 

Here’s the question: When determining whether the law is supported by a rational basis, is the right question whether the law that has been on the books for 100 years supported by a rational basis? Or is the question whether the public had a rational basis for restoring the law by passing the ballot initiative? Put another way, should courts assess the rationality of the law as an abstract matter, divorced from the context in which it was enacted? Or should they assess the rationality of the most recent passage of the law, including the context?

I ask because I can imagine that the public might have quite rational reasons for restoring prior law that are not reasons for supporting the original law. In the example above, for example, imagine the ballot initiative was passed as part of an anti-corruption campaign. Assume that proponents of the ballot initiative wanted the law restored to rebuff the corrupt legislators whose votes were bought by the special interests — potentially deterring them from future shenanigans. Voters expressed their dismay at the legislature by undoing their handiwork and restoring the status quo. Can that anti-corruption rationale provide a rational basis for the law that would be unavailable if the law had been challenged before the legislature repealed the law?

(I really don’t know — just askin’ questions.)

A lot of the legal issues in Judge Walker’s opinion have been addressed elsewhere, but I wanted to focus on one narrow part of the opinion raising an issue of particular interest to me: Whether and when the pragmatic concerns abut rapidly changing social institutions provide a rational basis for rejecting such changes. In the Prop 8 case, the state’s argument that Prop 8 was rational because it is generally wise to implement social changes gradually — and that permitting same-sex marriage would be too sweeping a change. Judge Walker disagreed, finding such concerns irrational. He made two arguments, although they’re blended together a bit in the opinion. First, he argued with the premise by claiming that same-sex marriage is not a significant change in social policy:

Plaintiffs presented evidence at trial sufficient to rebut any claim that marriage for same-sex couples amounts to a sweeping social change. See FF 55.

FF55 refers to the following Finding of Fact:

55. Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.

Next, Judge Walker used his finding of fact that same-sex marriage has no downside to argue that it is irrational to fear a downside from a quick change to same-sex marriage, even if it is a significant change:

[T]the evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive, effect on the institution of marriage and that same-sex couples’ marriages would benefit the state. Id. Moreover, the evidence shows that the rights of those opposed to homosexuality or same-sex couples will remain unaffected if the state ceases to enforce Proposition 8.
. . .
Because the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage, California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples. Proposition 8 is thus not rationally related to proponents’ purported interests in proceeding with caution when implementing social change.

Whatever your views of same-sex marriage — or Judge Walker’s decision as a whole — I think this particular part of the analysis is pretty weak. First, the idea that same-sex marriage is not a significant social change strikes me as plainly incorrect. This is one of the more significant questions of social policy of our time: Whether you think it’s the greatest advance for civil rights in America or the end of the world, it seems pretty clear that it’s a big deal. 

Second, Judge Walker’s reliance on his factual findings to defeat the argument about the pace of social change seems to miss the point. The claim about sweeping social change is an an ex ante argument about uncertainty. Predicting the future is tricky business, the argument runs. Views of enlightened social policy can change, and our perspective today may or may not seem right tomorrow. For that reason, we should proceed cautiously in changing social institutions to avoid errors that may be hard to correct. Whether this is a valid constitutional argument or not, it seems odd to respond to it by making a factual finding about what the future will be like and then saying that the announced factual findings make the concern irrational. It misses the entire argument, which is about our knowledge-uncertainty, by trying to make it a matter of the judge’s power to find facts. (I’m also unsure about whether it makes sense to say that it’s not rational for voters to have had a concern in November 2008 because evidence at a long trial in 2010 persuades a judge in 2010 that the concern is not justified. Given that this evidence wasn’t presented to the voters, as far as I know, were the voters irrational for their failure to understand the situation as clearly as Judge Walker?)

Of course, there are problems with automatically deferring to concerns about rapid social change. If taken too far, it would always lock in the status quo as automatically rational. But whatever the best answer for when concerns about the pace of social change are rational for the purposes of the rational basis test, I don’t think Judge Walker’s opinion offered a persuasive response here. Oh, and to be clear, I favor same-sex marriage, so I’m not saying the argument is persuasive: The issue here is only whether it is irrational.

I’m still studying the decision today in Perry v. Schwarzenegger, which strikes down Prop 8 on both due process and equal protection grounds. I like a lot of the language, and the arguments, as a matter of rhetoric, common sense, and policy. There are some interesting twists on familiar arguments and, overall, the opinion is a pretty good compendium of a policy brief for SSM.

But my concerns about this decision outweigh what I see as its merits. In reading so far, I think a notable feature of Judge Walker’s decision is its judicial maximalism — a willingness to reach out and decide fundamental constitutional questions not strictly necessary to reach the result. It is also, in maximalist style, filled with broad pronouncements about the essential characteristics of marriage and confident conclusions about social science. This maximalism will make the decision an even bigger target for either the Ninth Circuit or the Supreme Court. If that’s right, it magnifies the potential for unintended and harmful consequences for gay-rights claims even beyond the issue of marriage. Think of a possible (but milder) anti-SSM version of Bowers v. Hardwick, which had consequences far beyond the constitutional affirmation of sodomy laws.

Walker is the first federal judge to hold that states must recognize same-sex marriages. By doing so, he eschewed a potentially narrower ruling striking down only Proposition 8, which had been suggested by some commentators. Such an alternative ruling would have focused on what critics regarded as the “animus” behind the passage of Prop 8. In theory, it would have left states free to retain traditional definitions of marriage not reinforced by passion-driven plebiscites. I think a narrow, strictly anti-Prop 8, decision would have tried to thread too thin a needle, but it was an option. Walker mentions anti-gay sentiment in the Prop 8 campaign, especially highlighting the shameful and misleading ads supporting it, but that is not the basis for his decision.

Instead, finding a federal right to same-sex marriage itself, Walker leans on not one but two prominent constitutional arguments. First, he says that the fundamental right to marriage protected by the Due Process Clause includes the right to choose the sex of one’s mate. That’s because, he writes, sex-based classifications in marriage have long since been stripped away.  The ban on same-sex marriage is the vestige of discredited and long-abandoned sex discrimination in marriage.

Few courts upholding a right to SSM have used a fundamental-rights rationale (not even the original SSM decision, Goodridge, did so). It’s an aggressive claim, especially given the composition of the federal courts and the Supreme Court. I see little enthusiasm in this Court for expanding fundamental rights. If the Ninth Circuit and/or Supreme Court decide to reverse Walker’s ruling, they will be more likely to deal with this issue in a way that will set broader precedent. A minimalist decision for SSM by Walker could have left this matter undecided and thus would not have forced a higher court’s hand.

Second, Walker held that the ban on gay marriage violates the Equal Protection Clause.  The interesting question is why. In part of Walker’s opinion, he accepts the case for heightened scrutiny of classifications based on sexual orientation and asserts that denying marriage to same-sex couples is a form of sexual-orientation discrimination (and sex discrimination, which is related).

But he then concludes that because laws limiting marriage to opposite-sex couples are not rational, “the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.” If that’s true, why address the issue at all? He may be hoping, in maximalist fashion, to lay some foundation for future courts to apply strict scrutiny to sexual-orientation discrimination. But at the same time, leaving the intellectual structure unfinished, he invites a higher court to undermine it.

Walker then rejects as irrational each of the reasons offered for Prop 8, including tradition, procreation, and the need to proceed cautiously and incrementally on matters involving important social change. The biggest difficulty with his argument on these matters, as I see it, is that he thinks of gay marriage as a technical change in the law about which there is no need to proceed cautiously. California has enough printers and paper to issue the additional marriage licenses, so what’s the big deal?

The decision, as I read it, relies directly or indirectly upon every prominent constitutional argument for SSM. One could say this is a strength of the decision. If a higher court doesn’t like one reason, it might accept another. But it is also a weakness of the decision, from a gay-rights litigation perspective, since it invites a higher court to address them all if it decides to reverse the result. A sweeping victory becomes a sweeping defeat.

Judge Walker, I am sure, would deny that his decision is maximalist. SSM, he assures us, is not a “sweeping” change. Furthermore, his decision is couched in the lop-sided evidence presented at trial about marriage and the potential consequences of recognizing SSM.  By my count, he uses the word “evidence” 54 times in the “Conclusions of Law” section alone. This evidentiary reliance will be used to try to insulate the decision from meaningful appellate review.  The evidence just leads us, inescapably, to the conclusion that SSM is a neutral or even good thing. What’s more, the evidence is so one-sided that judges are entitled to say so as a matter of constitutional law. But I have never been convinced that the issue of gay marriage would be decided, in courts at least, by a battle of expert witnesses in the way we might decide whether a Pinto is unreasonably dangerous.

Gay-rights groups, you may recall, initially opposed the Prop 8 litigation on the grounds that it was too much, too soon. Though they are publicly  celebrating this ruling, I imagine in the background there is considerable unease about what happens next. The Supreme Court, they reasoned in early 2009, was not ready to declare a right to SSM. Premature litigation, they feared, would do more harm than good (even if there were a temporary win at a lower level). Well, nothing has changed except that the stakes have been considerably raised today in a maximalist decision, bringing us one step closer to Perry v. Schwarzenegger, ___ U.S. ___ (201_) (reversing lower court ruling for same-sex marriage on due process and equal protection grounds).

Much of Judge Walker’s opinion focus on the facts, and why he concludes that there is no rational basis on which a person can oppose same-sex marriage. But here’s a key passage from the law section of the opinion, on pages 113–14 (with citations to the record omitted):

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States. Perry and Stier seek to be spouses;they seek the mutual obligation and honor that attend marriage, Zarrillo and Katami seek recognition from the state that their union is “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold, 381 US at 486. Plaintiffs’ unions encompass the historical purpose and form of marriage. Only the plaintiffs’ genders relative to one another prevent California from giving their relationships due recognition.

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

San Francisco District Judge Vaughn Walker today struck down California’s Proposition 8, the initiative passed by the state’s voters in 2008 defining marriage as the union of one man and one woman.   I’m reading the decision now.

It won’t be the last word on Prop 8, of course. Supporters of the ban on gay marriage will now ask the Ninth Circuit to reverse and, failing that, head to the Supreme Court.

One of the consequences of confirmation bias is that we are overly impressed by ideas that we happen to share. It’s a natural instinct, if not watched carefully. If you read something that reflects or resonates with your own views, you’ll agree with it. Upon agreeing with it, you’ll think it is highly persuasive. And if it’s highly persuasive, it’s probably brilliant. You see this often in the blogosphere when bloggers link to someone’s “superb” and “extremely insightful” post. You click on the link, and you’re underwhelmed by the post. But you realize it is strikingly similar to what the original linker thinks about the topic. It’s possible to take our blinders off, or, more realistically, to minimize them. But it often requires some work, and the amount of work that different people give varies considerably.

Rifqa Bary, about whom I blogged before, is the 17-year-old girl from a Muslim family in America who ran away from home, claiming her father had threatened to “hurt her, kill her or send her back to Sri Lanka” because she had converted to Christianity. A police investigation apparently concluded that the girl’s charges were unfounded, though obviously there’s still a factual dispute between the girls and the parents on this. She is now in foster care, awaiting her forthcoming 18th birthday. Here’s the latest item, as summarized by Prof. Howard Friedman at the Religion Clause blog (which is a must-subscribe if you’re interested in religion and the law):

Rifqa has had a bout with uterine cancer. She underwent surgery, and her physician recommended that it be followed by 45 weeks of chemotherapy even though she is disease-free according to available imaging techniques. Her parents support that recommendation, but Rifqa, who turns 18 next week, opposes that course of treatment, though she will continue to consult her doctors. Yesterday an Ohio juvenile court magistrate ruled that Rifqa is mature enough to make the treatment decision for herself, and said the court cannot order treatment because Rifqa’s health is not in immediate danger. Rifqa’s parents claim the decision to end chemotherapy came after Rifqa attended a faith-healing event. Rifqa’s attorneys, however, say she went to a “prayer conference” shortly after her diagnosis. She had multiple surgeries and began chemotherapy, but it made her weak and sick.

Like Orin, I recommend Vermuele’s interesting and thoughtful review essay in the New Republic.

However, I want to take issue with a couple of Vermuele’s historical claims. 

(1) The troika do not seriously address this possibility, except to remark that the possibility of “majoritarian abuse” may sometimes require a “robust judicial role.” But we lack a reliable technology for identifying abuses, about which lawyers have no privileged insight, and so some argument is needed to show that adding constitutional review by judges will produce fewer abuses overall. That claim is not obvious, because the judges might themselves create new abuses under the guise of constitutional law, or might prevent legislatures from remedying abuses by local majorities, or by the rich; the judges of an earlier day thought it a patent majoritarian abuse to set minimum wages, or to ban child labor.

I’m not aware of any court that held or implied that it was a “patent majoritarian abuse” to “ban child labor.” Every court decision that I’m aware of held that child labor bans were well within the states’ police power. The U.S. Supreme Court, in its only decision on the issue, held 9–0 that a state may regulate child labor.

The Supreme Court did hold that it was beyond the power of the federal government to ban child labor. This was not, however, an issue of “patent majoritarian abuse” in the sense that
Vermuele seems to be discussing, but the limited authority given in the Constitution to the federal government to regulate internal state affairs. Vermeule seems to agree with David Strauss “that the constitutional text is most forcefully and successfully invoked to settle not controversial questions of rights, but matters of governmental structure that are in some sense arbitrary, such as the minimum age for the presidency.” The question of federal authority over child labor was not a question of “rights,” but of the nation’s federalist structure. In some sense, it’s arbitrary that the federal government is given the power to regulate only “interstate commerce,” not domestic state labor conditions, but that’s what the Constitution says.

(2) Common-law constitutionalism can stumble into a bad equilibrium, in which accumulating precedents converge to an appalling rule. (An example is the gradual development of the law of “liberty of contract” before the New Deal, which the judges invoked to kill off welfare-improving social regulation.)

I’m struggling to come up with an example of a law invalidated by the Supreme Court under the liberty of contract doctrine that was likely “welfare-improving.” Housing segregation? No. Minimum wage laws? The welfare-improving nature of such laws is controversial at best, but in any event the Court only dealt with discriminatory laws that only applied to women, laws that few would defend today. A law establishing a state monopoly on the provision of ice? No. A law banning private schools? No. A law forbidding the existence of for-profit employment agencies? No. A law requiring all labor disputes to be settled by a state-imposed arbitration panel? No. A law requiring that bread meet a maximum weight requirement? No. A bakers’ hours law meant to aid established, unionized bakeries at the expense of their competitors? No. A law banning Chinese merchants in the Phillipines from writing in Chinese? No. The most plausible candidate is laws banning so-called yellow dog contracts (banning the signator from joining a union), but the Supreme Court reversed itself on that issue in 1930.

And even if one could come up with some examples, I think it’s pretty clear that overall the liberty of contract doctrine, as applied by the Supreme Court, had positive social welfare effects. The problem from a social welfare perspective, in fact, is that the Court was far too deferential to state regulation, upholding wasteful and inefficient laws ranging from laws banning the sale of margarine to featherbedding laws requiring “full crews” on railroads.

Adrian Vermeule, who is one of my favorite legal scholars writing today, has this interesting review in The New Republic of new books on constitutional interpretation by David Strauss and the trio of Goodwin Liu, Pam Karlan, and Chris Schroeder. Thanks to Howard for the link.

Historian David Beito, chair of the Alabama Advisory Committee to the US Commission on Civil Rights, has an interesting post documenting the abuse of “blight” condemnations in Montgomery, Alabama:

“[E]minent domain through the back door” has become commonplace in Montgomery, the cradle of the modern civil rights movement. Under this system, Montgomery has demolished homes without the normal due process of conventional eminent domainand often gives little notice. The city alleges that these homes are “blighted” but, as the story on Jimmy McCall shows, at least some are in excellent repeir.

Typically, under eminent domain through the back door, the city of Montgomery bills the owner for the cost of demolition and he or she is left with an essentially worthless property. The victims are often low-income blacks, many of home live near or in Rosa Parks old neighborhood.

Beito and I described the broader implications of these kinds of takings in this 2008 op ed. Unfortunately, abusive blight takings are not confined to Alabama. They are a serious problem in many parts of the country. For example, New York’s highest court recently upheld two such condemnations in the Atlantic Yards and Columbia cases. Unlike many other states, Alabama has actually passed a fairly strong post–Kelo eminent domain reform law that defines blight relatively narrowly and forbids condemnations that transfer land to private owners for pure “economic development” purposes (see my analysis of that law and other states’ reforms this article). Unfortunately, sometimes the law on the books is one thing and enforcement is another. 

Adam Serwer has a post up flagging a new suit by the ACLU and the Center for Constitutional Rights (CCR) against the Treasury Department’s Office of Foreign Assets Control (OFAC) over funds expended over the question of whether the Obama administration can designate and then target Al-Awlaki as a terrorist hiding out presumably in Yemen.  Adam tried to contact me to discuss it, but despite this post, I am really, truly out of touch.  In and out of the mountains, about to drive across the desert, and an iffy internet connection.  However, without having read anything at all besides Adam’s post, this is an important lawsuit.  I, as I have remarked various times, see no problem with the US government targeting Al-Awlaki, US citizen or not.  I don’t have a problem with the refusal of OFAC to issue the required license for the expenditure of funds on someone the US government has designated as a terrorist under existing US law.  However, those are separate legal questions, and there are others besides, not least the recent Supreme Court decision approving, if my sun and altitude-addled recollection is correct — and it might not be — something pretty much like what OFAC just did.  But I leave it to everyone else to sort out; I just wanted to flag it to everyone’s attention, and kudos to Adam for being on top of it.

A decision in the federal Prop 8 case is expected tomorrow.

Richard Bejtlich thinks so. Bejtlich’s theory sounds plausible: I also thought it was odd that I’d never heard of the group until today. Further, although the group is supposed to include lots of “big names,” the only person on the list who I had heard of was Mark Rasch, a consultant and former DOJ lawyer (sometimes incorrectly called the former chief of the DOJ computer crime unit — I believe Mark left DOJ before the unit was formed). And even Rasch has allegedly been involved with the group for only a short time. I suspect we’ll know more soon. Stay tuned.

Thanks to commenter Steve P. for the link.

Salon’s Glenn Greenwald has an interesting post about a group called “Project Vigillant,” which it seems is some sort of volunteer private-sector group that tracks hackers (and perhaps other bad guys). I say “seems” because I’ve never heard of the group, and it’s not entirely clear what it does. But a report in Forbes includes the following claim by someone named Chet Uber, who apparently is the head of it:

Uber . . . says the 600-person “volunteer” organization functions as a government contractor bridging public and private sector security efforts. Its mission: to use a variety of intelligence-gathering efforts to help the government attribute hacking incidents. “Bad actors do bad things and you have to prove that they did them,” says Uber. “Attribution is the hardest problem in computer security.”

According to Uber, one of Project Vigilant’s manifold methods for gathering intelligence includes collecting information from a dozen regional U.S. Internet service providers (ISPs). Uber declined to name those ISPs, but said that because the companies included a provision allowing them to share users’ Internet activities with third parties in their end user license agreements (EULAs), Vigilant was able to legally gather data from those Internet carriers and use it to craft reports for federal agencies. A Vigilant press release says that the organization tracks more than 250 million IP addresses a day and can “develop portfolios on any name, screen name or IP address.”

Greenwald’s coverage suggests that the group is in cahoots with the feds, and that it is conducting some sort of mass surveillance of lots of people and then handing over the leads to the federal government. If that is true — which remains unclear to me — then the legality of the project’s work strikes me as questionable. The Stored Communications Act (SCA), codified in relevant part at 18 U.S.C. 2702, generally protects the privacy of ISP records in the United States, including IP addresses, from voluntary disclosure. The question is, does Project Vigilant violate the SCA, and specifically, Section 2702?

There are a few exceptions to this rule in 18 U.S.C. 2702(c) that might apply to “Project Vigilant” — but then, they might not. The weakest rationale for the legality of the disclosure is the rationale offered in the story — that “the companies included a provision allowing them to share users’ Internet activities with third parties in their end user license agreements (EULAs).” There is a consent provision in Section 2702, found in 2702(c) (2), but given that it mirrors the language of the Wiretap Act’s consent exception — and that exception requires actual notice, not constructive notice — I doubt a claim hidden in a EULA suffices to generate consent. As the First Circuit stated in United States v. Lanoue in interpreting the Wiretap Act’s analogous consent provision:

Keeping in mind that implied consent is not constructive consent but “ ‘consent in fact,’ ” consent might be implied in spite of deficient notice, but only in a rare case where the court can conclude with assurance “ ‘from surrounding circumstances ․ that the [party] knowingly agreed to the surveillance.’ ”  Griggs-Ryan v. Smith, 904 F.2d 112, 116–17 (1st Cir.1990) (quoting Amen, 831 F.2d at 378) (emphasis supplied).   We emphasize that “consent should not casually be inferred,” Griggs-Ryan, 904 F.2d at 117, particularly in a case of deficient notice.   The surrounding circumstances must convincingly show that the party knew about and consented to the interception in spite of the lack of formal notice or deficient formal notice. 

I don’t see how a term in a EULA no one actually reads can satisfy that standard.

Another exception is the exception permitting disclosure of non-content records to a non-government entity found in 2702(c)(6). It seems that Project Vigilant is formally a private sector group, but that raises a question that no cases have addressed: What sort of line does the Stored Communications Act draw between a private group and the government? Can a private group essentially launder data and give it to the government to get around the 2702 limitations on voluntary disclosure? I doubt it. Given that the SCA is essentially a statutory version of the Fourth Amendment, I would guess that the private/government line in the SCA is the same as the line drawn in Fourth Amendment law for when a private group becomes a state actor. The Supreme Court has never been entirely clear about what the standard is (circuit court tests vary somewhat), but the general idea, as stated in Skinner v. Railway Labor Executives’ Association, is that “[a]lthough the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government.” Does “Project Vigilant” act as an agent of the government? It’s not clear, but if it does, I would think they cannot rely on the exception permitting disclosure to a non-government entity in 2702(c)(6).

There are two more exceptions that would apply only if the scope of “Project Vigilant” is much much narrower than the Forbes and Greenwald stories suggest. To make a long story short (or at least a long post slightly less long), ISPS can disclose records about actual computer intrusions. They can release records of the intrusion to protect their own network under 2703(c)(3), although the scope of the disclosure has to be tailored to the actual threat to the network. And they can disclose records of individuals who were not legitimate subscriber or customers, such as the hackers themselves, as the limit on disclosure only applies to the records of actual legitimate subscribers. So those disclosures are allowed, but they’re of a much more limited nature than the stories suggest.

If I had to guess, I would guess that “Project Vigilant” is a lot narrower than Uber’s quote suggests. Perhaps this was a bit of exaggeration to the press, or some poor reporting by Forbes (in general, reporters on the surveillance beat turn every story into Big Brother). But if Uber’s quote reflects the reality of what the “Project” does, its legality strikes me as questionable.

This L.A. Times op-ed reports:

It’s true that the official election results — 52% to 48% — appeared quite close. But the truth is more complicated. The data we analyzed show that the No on 8 campaign benefitted from voter confusion.

Polling suggests that half a million people who opposed same-sex marriage mistakenly voted against the proposition. They were confused by the idea that a “no” vote was actually a vote for gay marriage. This “wrong-way voting” affected both sides, but overwhelmingly it helped the “no” side. Our analysis suggests that the division among California voters on same-sex marriage at the time of Proposition 8 was actually 54% to 46% — not so close.

Of course, in many contexts, the difference between 54%-46% and 52%-48% is not great, but my sense is that in elections a 54%-46% result is seen as a much bigger gulf than 52%-48%. The underlying report is here; see especially PDF pp. 105–07. Thanks to Prof. Rick Hasen (Election Law Blog) for the pointer.

UPDATE: Some comments seem to view this as evidence of general voter stupidity, or in particular of conservative voter stupidity (since the errors seemed to be especially prevalent among voters taking what is seen as the more conservative view, that opposed to recognizing same-sex marriage). I’d be cautious about taking that view; the survey reports that only 11% of the voters cast a vote based on their misunderstanding of the proposition, and of those 57% were actually opposed to same-sex marriage (but voted in favor of same-sex marriage) and 43% actually supported same-sex marriage (but voted against same-sex marriage). So the data doesn’t tell us much about voters generally, or conservative voters generally. At most it might be an argument against popular votes on issues because even a small fraction of voter error can skew things dramatically — a potentially important point (though one subject to the obvious counterarguments) but not a general indictment of voter intelligence.

FURTHER UPDATE: Prof. Rick Hasen (Election Law Blog) has a follow-up; the bottom line:

My guess is if that there would have been considerably less confusion if the question was written to say: “Shall the California Constitution be changed to provide that only marriage between a man and a woman is valid and recognized in California?” This appears consistent with the full text of the statute. Indeed, the proponents sued Jerry Brown over the use of the word “eliminates” and lost. I’ve been involved with enough ballot measure litigation to know that the attorney general should not be entrusted with the responsibility of providing a neutral ballot title and summary, because he or she often has a political axe to grind and can be subject to pressure over ballot wording. 

The error rate says a lot about ballot wording, but very little about voter intelligence.

So says Baldwin v. Fischer-Smith (Mo. Ct. App. July 6, posted on Westlaw a few days ago), in holding that a defendant whose Web page allegedly libeled a Missouri dog kennel could be sued in Missouri. (The defendant’s Web page specifically mentioned that the kennel was located in Missouri.) There’s a longstanding dispute about this question of personal jurisdiction, and the opinion basically just adheres to one side of the dispute; but it’s pretty readable, and might be of interest to people who have been following the issue.

One commenter wrote, “(By the way anybody else notice that Hispanic, African-American, or Asian all get flagged by the spell checker if they aren’t capitalized, but white just sails right on through? When are they going to fix that?) ”

Commenter L responded:

I know, it’s almost as though whoever programs the spellchecker thinks that “white” isn’t related to a specific geographical location, and thinks that nouns and modifiers that refer to a specific geographical location are always capitalized in English, and thinks that modifiers that are basic colors are not capitalized in English.

For my part, I capitalize neither “black” nor “white” in any context (except as first word in a sentence, as part of a title, etc.)

But then, I always capitalize “Hitler” and “Satan,” and never capitalize “baby” or “puppy,” so I’m sure you can tell where my sympathies lie, if you are one of those who understand that capitalization has nothing to do with rules of English usage, and everything to do with a secret political agenda dictated from our socialist PC (no pun intended) masters in Redmond.

The Germans, of course, capitalize every noun, and no modifiers at all, a harsh system of inequality that the German Karl Marx railed against in his influential 1867 work “Das Kapital.”