OMG, Call Yourself A Hacker, Lose Your 4th Amendment Rights!

Update (10/24/13): The Register has now picked up the story and uncritically repeats the same erroneous Fourth Amendment claims.

Update 2 (10/24/13): And just as quickly, the Register contacted me to indicate that the article has been updated to remove the Fourth Amendment references.

Two quick, but equally horrible points about this article:

First: this case has zero, zilch, squat, nothing, to do with the Fourth Amendment (or the Fifth Amendment, given the property issues). This case is about a temporary restraining order between two private parties. The Fourth Amendment's prohibition on unreasonable searches and seizures only applies to “state action." There is simply no state action here. Perhaps the author chose the title as link bait. Nonetheless, the headline is not only misleading, but erroneous, and detracts from the issue at hand.

Second, the decision to grant the TRO is based on the defendant's self-label of hacker (emphasis added):

In addition, the defendants have identified themselves as hackers, as discussed above. A well-known characteristic of hackers is that they cover their tracks...This makes it likely that defendant Thuen will delete material on the hard drive of his computer that could be relevant to this case...The tipping point for the Court comes from evidence that the defendants – in their own words – are hackers. By labeling themselves this way, they have essentially announced that they have the necessary computer skills and intent to simultaneously release the code publicly and conceal their role in that act. And concealment likely involves the destruction of evidence on the hard drive of Thuen’s computer. For these reasons, the Court finds this is one of the very rare cases that justifies seizure and copying of the hard drive.

This is highly disturbing, and has potentially broader implications beyond this immediate case. If simply calling oneself a hacker can be used as evidence that someone may have criminal intent is alarming, troublesome, discouraging and discomforting (thank you, Thesaurus.com). We cannot take this sitting down; we must stand up and fight.

Law in Plain English: Koontz v. St. Johns River Water Management District

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Koontz v. St. Johns River Water Management District

Koontz sought a permit to develop a small portion of his land and in return, dedicate the rest of his land to the state for conservation. The St. Johns River Management District said they would grant Koontz his permit if he would improve land already on the District's property (at his own cost, estimated anywhere from $10,000 to $150,000). Koontz refused, and the District denied the permit. The questions before the Court were (1) whether it amounts to a "taking" to deny a development permit for failing to satisfy government-imposed conditions; and (2) whether the taking would violate the essential nexus (a sufficient link between the demand on the property owner and the public policy at issue, from the Court's decision in Nollan v. California Coastal Commission) and rough proportionality (any attempt by a local government to require dedication of a part of private property to a public use has to be proportional to the public impact of the project, from the Court's decision in Dolan v. City of Tigard) tests set out in the Court's prior takings decisions. In a 5-4 decision, the Supreme Court ruled that the government’s demand for property from a land-use permit applicant must satisfy the Nollan / Dolan requirements even when it denies the permit (those cases held that the government may not condition the approval of a land use permit on the owner’s relinquishment of a portion of his property unless there is a nexus and rough proportionality between the government’s demand and the effects of the proposed land use. As a result, the Court reversed and remanded the case. The practical impact of this decision bolsters the rights of property owners to fight unreasonable demands held hostage by building permits.

Law in Plain English: Salinas v. Texas

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Salinas v. Texas

The police asked Salinas to accompany them to the police station, where he went voluntarily (and he was not under arrest). They asked Salinas questions about a murder, all of which he answered. But when asked whether shell casings found at the scene matched a shotgun given to police by Salinas's father, he looked down and did not answer. Salinas was later arrested and charged with the murder. At trial, the prosecutor used Salinas's silence as evidence of his guilt. An innocent person, he said, would have protested. The jury convicted Salinas, and the Court of Criminal Appeals of Texas affirmed. The question before the Court was whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights. In a 5-4 decision, the Supreme Court ruled that Salinas’s Fifth Amendment claim fails because he did not expressly invoke the privilege in response to the officer’s question. As a result, his silence can be used against him. The practical impact of this decision is unclear--the majority's reasoning was split between the failure to invoke (Alito, Roberts, Kennedy) and whether the Fifth Amendment should apply at all (Thomas, Scalia). Prosecutors may be able to use silence as evidence of guilt when a person under voluntary questioning (but not arrest), but the reasoning is not necessarily clear.

A Supreme Court case about raisins--in pictures

There once was a raisin...

Actually, there were a bunch of raisins...

In fact, there were so many raisins that prices plummeted. The government stepped in...

It established the Raisin Marketing Order, which removed surplus

raisins from the open market in order to control prices...

Marvin and Laura Horne of Raisin Valley Farms were not to0

 thrilled with this arrangement. They wrote to the USDA:

“[W]e are growers that will pack and market our raisins. We reserve our rights under the Constitution of the United States . . . [T]he Marketing Order Regulating Raisins has become a tool for grower bankruptcy, poverty, and involuntary servitude. The Marketing Order Regulating Raisins is a complete failure for growers, handlers, and the USDA . . . [W]e will not relinquish ownership of our crop. We put forth the money and effort to grow it, not the Raisin Administrative Committee. This is America, not a communist state.”

Disillusioned with a regulatory scheme they deemed "outdated" and exploitive of farmers, the Hornes looked for ways to avoid the Raisin Marketing Order's requirements, particularly its mandatory raisin reserve program. Because those requirements apply only to handlers, the Hornes implemented a plan to bring their raisins to market without going through a traditional middle-man packer. As part of their plan, the Hornes purchased their own equipment and facilities to clean, stem, sort, and package raisins...

The United States Department of Agriculture was not amused...

An Administrative Law Judge found the Hornes liable for nearly $500,000

of withheld reserve raisins, and the District Court agreed...

The Hornes argued that the reserve requirement was a taking in violation of the 5th Amendment...

The Ninth Circuit ruled that that the Hornes were handlers subject to the Raisin Marketing 

Order, but said that their takings claim should have been brought in a different court...

This would have required the Hornes to take the case to a different court and start over...

Fortunately, the Supreme Court stepped in and decided to hear the case...

The Supreme Court decided that the Ninth Circuit has 

jurisdiction to decide petitioners’ takings claim...

The Court also decided that the Hornes may raise their takings-based defense in the context

of the enforcement proceeding initiated by the USDA under the raisin program...

As a result of this decision, the case will return to the Ninth Circuit, where the

court will determine if the USDA’s imposition of fines and civil penalties on the Hornes,

in their capacity as handlers, violated the Fifth Amendment.

“We are growers that will pack and market our raisins...This is America, not a communist state.”

The Hornes, owners of Raisin Valley Farms, wrote to the Secretary of Agriculture in 2002 to protest the Agricultural Marketing Agreement Act of 1937 (AMAA) and the California Raisin Marketing Order:

“[W]e are growers that will pack and market our raisins. We reserve our rights under the Constitution of the United States . . . [T]he Marketing Order Regulating Raisins has become a tool for grower bankruptcy, poverty, and involuntary servitude. The Marketing Order Regulating Raisins is a complete failure for growers, handlers, and the USDA . . . [W]e will not relinquish ownership of our crop. We put forth the money and effort to grow it, not the Raisin Administrative Committee. This is America, not a communist state.”

Today, the Supreme Court ruled that the Ninth Circuit had jurisdiction to hear the case, and the Hornes may raise a takings-based defense in the context of an enforcement proceeding initiated by the USDA under the raisin program.

Law in Plain English: Horne v. Department of Agriculture

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Horne v. Department of Agriculture

A federal program exists to stabilize raisin prices by requiring raisin handlers (but not growers) to set aside a certain amount of "reserve" raisins that can only be sold in non-competitive markets. The U.S. Department of Agriculture (USDA) accused a group of vineyard owners (growers) of trying to circumvent this program by processing the grapes themselves, instead of passing them on to handlers (where they would be subject to the reserve requirement). The USDA fined the growers, who filed a claim that the reserve requirement was a "taking" of their property. The District Court ruled for the USDA and a panel of the Ninth Circuit agreed. On reconsideration, the Ninth Circuit ruled that the growers should have brought their case to the Court of Federal Claims as a Tucker Act claim instead (where they would have to start all over). The questions before the Court were: (1) whether the Ninth Circuit erred in holding that a party may not raise the Takings Clause as a defense to a direct transfer of funds mandated by the Government, but instead must pay the money and then bring a separate, later claim requesting reimbursement of the money under the Tucker Act in the Court of Federal Claims; and (2) whether the Ninth Circuit erred in holding`that it lacked jurisdiction over petitioners’ takings defense, even though petitioners are required to exhaust all claims and defenses in administrative proceedings before the DoA, with exclusive jurisdiction for review in federal district court. In a unanimous decision, the Supreme Court ruled that the Ninth Circuit had jurisdiction to hear the case, and that a takings-based defense may be raised by a handler in the context of an enforcement proceeding initiated by the USDA under the raisin program. As a result, Horne's takings claim can go forward. The practical impact of this decision is to broaden the circumstances in which parties can make takings claims against the government.

The Boston bombings and the shortcomings of citizen journalism

Consider this article from the Washingon Times's "Communities" section (bold in original article):

Now, the DOJ has announced that Tsarnaev will not be read his Miranda rights, citing the “public danger” exception in the 5th Amendment. But the language in the amendment doesn’t remotely apply to this situation, nor is it even related to the protection against being a witness against oneself. It reads:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

First of all, Tsarnaev is not in the Army, Navy or militia. Even if he were, the language would only have applied if Tsarnaev had been observed with the bomb in his hands just before committing the crime. The exception gives law enforcement the power to arrest him without first getting a Grand Jury indictment under those circumstances. It doesn’t release the government from the prohibition against compelling Tsarnaev to be a witness against himself after his arrest, which is the basis for Miranda.

If Tsarnaev is guilty, then the public danger was over once he was arrested. The government has no authority to waive any of its obligations for due process. He should be read his rights and allowed to remain silent without molestation. He should have an arraignment where he is given the opportunity to hear the charges against him and enter a plea of guilty or not guilty. If he is unable to afford a lawyer, one should be assigned to him at public expense. His guilt should be decided by a jury of his peers, not the government or the media.

This article confuses the "public safety" exception to Miranda (as articulated in New York v. Quarles, 467 U.S. 649 (1984) with the "public danger" phrase of the Grand Jury clause of the 5th Amendment, which means that members of the armed forces are not entitled to grand juries. No one is claiming Tsarnaev has anything to do with the military, or that he isn't entitled to a grand jury  This has zero, zilch, nothing, to do with Miranda, which (in the 5th Amendment context) has everything to do with the right against self-incrimination. Even the ACLU agrees the public safety exception applies (although they would construe it very narrowly).

Most of the commenters agree uncritically with the article's premise. Not one person (save my comment) addresses the fundamental error that absolutely sinks the author's premise. And few people read the Communities page disclaimer:

This is the Communities at WashingtonTimes.com. Individual contributors are responsible for their content, which is not edited by The Washington Times. The opinions of Communities writers do not necessarily reflect nor are they endorsed by the Washington Times.

Sigh.

Boston bombing roundup

This is a summary of the various posts I've put together on the Boston bombings and follow-on events this week.

This is a brief discussion of the initial bombing as a state or federal crime. Here is a follow-up to that post that identifies 18 USC § 2332a (Use of weapons of mass destruction) as the most likely top federal charge in the case (which carries the death penalty). EDIT: The criminal complaint is here; and § 2332a is indeed the top charge.

This is a brief summary of one woman's account of how the fear of the bombing has impacted her.

The Officer Down Memorial Page for MIT Patrol Officer Sean Collier is here.

Here is a brief summary of exigent circumstances, as seen after the assassination of RFK.

The case that gave birth to the "public safety exception" to Miranda is New York v. Quarles, 467 U.S. 649 (1984). The FBI's description of the public safety exception is here. Some analysis with particular relevance to this case is here. EDIT: The transcript of the suspect's initial appearance is here.

At 8:42 PM on Friday night, I reported the suspect in custody and reposted it here.

There is also imagery associated with these events: thermal imaging used in the final minutes (with raw video here), and the moment of capture, and the capture as announced via the scoreboard from the Reds/Marlins game.

Outside links of interest are Orin Kerr's posts on House-to-House Searches and the Fourth Amendment and Tsarnaev and Miranda Rights.

Facial recognition software didn't help identify the Boston suspects, even though images of both were in databases.

Reddit's involvement in trying to crowdsource the case are discussed here (from the perspective of the sister of a misidentified suspect) and here (discussing Reddit's impact on the FBI's official investigation).

Here's a video that seems to blur the line at when a consentual search takes place.

Finally, my post on the shortcomings of citizen journalism.

Law in Plain English: Evans v. Michigan

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Evans v. Michigan

Evans was tried for arson. His attorney moved for a directed verdict and the judge granted it, believing that the state had to prove that the burned building was not a "dwelling." However, the judge erred in believing that this was a requirement. The appeals court reversed the trial court's ruling. As a result, Evans was set to be tried a second time. Normally, this would be precluded by the double jeopardy clause. The Michigan Supreme Court ruled that when a trial court directs a verdict because one of the elements had not been proven, this did not constitute an acquittal. As a result, Evans could be retried. The Supreme Court ruled that regardless of the trial judge's error, the directed verdict constituted an acquittal; and as a result, Evans could not be retried. The practical impact of this decision is that a defendant's protection against double jeopardy will be expanded, even when the trial court makes an obvious error.

These Go to Eleven: When the Law Goes Too Far (ShmooCon 2013)

Law in Plain English: Bloem v. Unknown Department of the Interior Employees

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

I've made a slight change to the "SCOTUS in Plain English" series to reflect the opportunity to discuss a few cases not at the Supreme Court level that are nonetheless interesting and worthy of discussion. As a result, the series is now called "Law in Plain English."

Bloem v. Unknown Department of the Interior Employees

The National Park Service distributed flyers warning Occupy protesters in McPherson Square that they would begin enforcing a prohibition on camping. Subsequently, many items of personal property (some that belonged to Bloem) were destroyed. Bloem filed a lawsuit against the unnamed Department of the Interior employees for the seizure and destruction of his property. The DoI filed a motion to dismiss, alleging that Bloem had failed to state a claim upon which relief could be granted. The District Court ruled that the tent city was expressive conduct, permitted by the First Amendment. Additionally, Bloem's allegations that the DoI had violated his Fourth and Fifth Amendment rights were sufficient, and thus Bloem had stated a plausible claim. For purposes of a motion to dismiss, which in this case is a 12(b)(6) motion, Bloem's alleged facts are presumed by the court to be true. In other words, the court looks at the case and says: even if we assume that all of his facts are true, has he made a plausible claim? This is a procedure hurdle to make sure that baseless lawsuits don't consume valuable time of the court. As a result, Bloem's claim survived the government's motion to dismiss and the case can move forward.

Is the Selective Service Act unconstitutional now?

In 1981, the Supreme Court said no in the case of Rostker v. Goldberg, 453 U.S. 57 (1981). Here are a few excerpts from then-Justice Rehnquist's majority opinion (emphases are mine):

...In light of the combat restrictions, women did not have the same opportunities for promotion as men, and therefore it was not unconstitutional for Congress to distinguish between them...

...The existence of the combat restrictions clearly indicates the basis for Congress' decision to exempt women from registration. The purpose of registration was to prepare for a draft of combat troops. Since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore decided not to register them... 

...Congress' decision to authorize the registration of only men, therefore, does not violate the Due Process Clause. The exemption of women from registration is not only sufficiently but also closely related to Congress' purpose in authorizing registration...

Now that combat restrictions will essentially be lifted, this appears to remove the central rationale for distinguishing between men and women, in terms of the Selective Service Act. As a result, I suspect this may call in question the central holding of Rostker v. Goldberg.

Perhaps the Selective Service Act now violates the due process clause of the 5th Amendment.

What do you think?

SCOTUS in Plain English: Arkansas Game & Fish Commission v. United States

This is one in a series of posts designed to describe Supreme Court decisions in plain English. For more detail and background on the legal issues, see the link to the case at SCOTUblog below. For similar posts, click here.

Arkansas Game & Fish Commission v. United States

In 1948, the U.S. Army Corps of Engineers constructed the Clearwater Dam in Arkansas. For a number of years, the Corps (at the request of farmers downstream) released water over a longer period of time which resulted in extended flooding. The Arkansas Game and Fish Commission (who owned and managed the flooded land) sued the United States, claiming that the extended flooding was a "taking" of property without compensation under the Fifth Amendment because the flooding damaged or destroyed more than 18 million board feet of timber. The Supreme Court ruled that flooding need not be permanent to be considered a taking; even temporary takings may be subject to compensation. The practical impact of this decision is that the government may need to compensate a landowner for takings even when the taking is temporary, although it will depend upon the frequency and duration.

DerbyCon talk info

I'll be speaking at DerbyCon in Louisville, KY (September 27-30, 2012). Here is my talk info:

Title: Flex Your Rights: The Constitution & Political Activism in the Hacker Community

Abstract: Let's be clear upfront: I don't care if you're a Republican or Democrat (or another party), I don't care if you're pro-life or pro-choice. This presentation isn't about politics in the traditional sense. What we should be willing to acknowledge, however, is that public policy issues and the political process increasingly overlap with issues and interests that are important to the hacker community. Issues like free speech, privacy, and copyrights manifest themselves in legislation like SOPA, PIPA, ACTA, the Cybersecurity Act, DMCA (and many others). Surely these issues are worth our time and attention. By exploring recent legislation, court cases, and newsworthy events, it's my aim to convince you that we, the hacker community, need to flex our rights right now, more than ever. Won't you join me?

The schedule is here.

Hope to see you there!

United States v. Fricosu

United States v. Fricosu