The American Data Privacy and Protection Act, a key piece of federal online privacy legislation, appears to have a carveout for <a href="https://www.dailywire.com/topic/big-tech" target="_blank" rel="noopener">organizations</a> gathering data for the <a href="http://dailywire.com/topic/federal-government" target="_blank" rel="noopener">government</a>.
The <a href="https://docs.house.gov/meetings/IF/IF00/20220720/115041/BILLS-117-8152-P000034-Amdt-1.pdf" target="_blank" rel="noopener">legislation</a> would adopt a “data minimization” approach toward collection of user information such that only the data points “reasonably necessary and proportionate” to specific applications — including user authentication, fraud prevention, and transaction execution — are procured. The bill overwhelmingly advanced out of the House Energy and Commerce Committee at the end of July.
Although a bipartisan group of lawmakers claimed in a <a href="https://energycommerce.house.gov/newsroom/press-releases/bipartisan-ec-leaders-hail-committee-passage-of-the-american-data-privacy" target="_blank" rel="noopener">statement</a> that the bill “puts people back in control of their online data,” the current version exempts government agencies — as well as any “person” or “entity” involved with “collecting, processing, or transferring” relevant data on behalf of a government agency — from its definition of a “covered entity.”
Indeed, progressive nonprofit Consumer Watchdog provided The Daily Wire with a letter sent to House Speaker Nancy Pelosi (D-CA) noting that the American Data Privacy and Protection Act is weaker than the California Consumer Privacy Act and could supersede the existing law.
“A major loophole in the ADPPA allows companies who contract with government entities for data collection to avoid its protections,” the group’s letter explained. “In contrast, under California law, companies that contract with the government are covered businesses that must comply with the law. Sensitive personal information residents choose to protect from companies and the government under the CCPA would be exposed under the ADPPA. That means unfettered access by governments to mass data collection by tech companies like Google.”
In one recent example, Amazon smart doorbell company Ring <a href="https://www.dailywire.com/news/amazon-handed-over-ring-doorbell-footage-to-authorities" target="_blank" rel="noopener">said</a> in a letter to Sen. Ed Markey (D-MA) that the firm had provided law enforcement with videos from user devices in emergency situations nearly one dozen times since the beginning of 2022. Ring explained that it had made a “good-faith determination that there was an imminent danger of death or serious physical injury” to parties needing information on short notice.
“Once data gets into other hands, it goes everywhere and is hard to track,” the letter from Consumer Watchdog added. “Purchasing data is one way governments circumvent the constitutional protections that require them to seek judicial approval through warrants before they violate our Fourth Amendment rights against unreasonable searches. But, under California’s law, any resident who exercised their opt-out choice is protected from a government’s extra-judicial purchase of their private information. ADPPA would overturn that protection.”
According to a <a href="https://www.latimes.com/politics/story/2022-09-06/congress-mulls-data-privacy-bill-that-would-void-california-tougher-protections" target="_blank" rel="noopener">report</a> from the Los Angeles Times, Pelosi has committed to ensuring that the Golden State “continues offering and enforcing the nation’s strongest privacy rights” and will work with Rep. Frank Pallone (D-NJ), a sponsor of the legislation, to address concerns.
While the American Data Privacy and Protection Act does not entirely ban online targeted advertising — which is often the impetus behind sites’ collection of user data — it bans such advertising directed toward children or based upon “sensitive covered data,” including health information and precise geolocation. President Joe Biden <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/03/01/remarks-of-president-joe-biden-state-of-the-union-address-as-delivered/" target="_blank" rel="noopener">called for</a> a similar law in his most recent State of the Union address.
“It’s time to strengthen privacy protections, ban targeted advertising to children, demand tech companies stop collecting personal data on our children,” he said.

Frank Pallone

Lauded Federal Data Privacy Bill Has A Carveout For Government Surveillance

Data Privacy Bill Has Loophole For Companies Collecting Data For The Government

Big Tech

Federal Government

Fourth Amendment

Nancy Pelosi

Privacy

The Supreme Court on Monday ruled unanimously that police illegally seized a Rhode Island man&#8217;s firearms in violation of his Fourth Amendment rights. The SCOTUS decision overturned a 1st Circuit Court ruling that said police officers in the case were well within their right to confiscate the man&#8217;s firearms.
Police responded to a domestic violence call in 2015, at which point Edward Caniglia&#8217;s wife believed he was suicidal. He brought out a handgun, put it on the table, and instructed his wife to &#8220;shoot [him] and get it over with.&#8221; She ended up leaving for the night but had police conduct a welfare check after she failed to reach him, court documents explain.
When police arrived, Caniglia was sitting on the porch. He agreed to undergo a psychiatric evaluation under the condition that his firearms would not be seized. He was taken to a nearby hospital for evaluation, at which point police entered his home and confiscated two of his firearms. Caniglia&#8217;s firearms were confiscated without a warrant because he was deemed a threat to himself and others, police said.
Caniglia sued saying his Fourth Amendment rights were violated. Both the federal court and the 1st Circuit Court of Appeals stated the police were well within their rights. They cited the &#8220;community caretaking exception,&#8221; which was established in the Cady v Dombrowski case. In that case, &#8220;an officer took a gun out of an impounded car without a warrant. The Supreme Court ruled at the time that police can conduct such warrantless searches if they are performing &#8216;community caretaking functions&#8217; in a &#8216;reasonable&#8217; manner,&#8221; <a href="https://time.com/6048974/supreme-court-police-warrants-caniglia-strom/">TIME</a> reported.
According to the Supreme Court, the Cady case is irrelevant to the Caniglia case and &#8220;is not an open-ended license to perform [the community caretaking functions] anywhere,&#8221; as Justice Clarence Thomas explained the Court&#8217;s view in the <a href="https://www.supremecourt.gov/opinions/20pdf/20-157_8mjp.pdf">opinion</a>:
<blockquote>Neither the holding nor logic of Cady justifies such warrantless searches and seizures in the home. Cady held that a warrantless search of an impounded vehicle for an unsecured firearm did not violate the Fourth Amendment. In reaching this conclusion, the Court noted that the officers who patrol the “public highways” are often called to discharge noncriminal “community caretaking functions,” such as responding to disabled vehicles or investigating accidents. But searches of vehicles and homes are constitutionally different, as the Cady opinion repeatedly stressed. The very core of the Fourth Amendment’s guarantee is the right of a person to retreat into his or her home and “there be free from unreasonable governmental intrusion.”  A recognition of the existence of “community caretaking” tasks, like rendering aid to motorists in disabled vehicles, is not an open-ended license to perform them anywhere.</blockquote>
The American Civil Liberties Union (ALCU), the American Conservative Union (ACU), and the Cato Institute filed a <a href="https://www.supremecourt.gov/DocketPDF/20/20-157/166506/20210115135632625_Caniglia%20Amicus%20FINAL.pdf">joint amicus curiae brief</a> in the case, arguing against the Cady application in the case.
&#8220;The Fourth Amendment does not permit such a freewheeling balancing inquiry when it comes to searches of homes,&#8221; the joint brief explained. &#8220;&#8230; Given the capacious array of activities that could be called “community caretaking,” it is hardly surprising that courts have relied on it to uphold warrantless entries based on a wide variety of police actions.&#8221;
Other organizations that <a href="https://www.scotusblog.com/case-files/cases/caniglia-v-strom/">filed</a> amicus curiae briefs include the Institute for Justice, National Association of Criminal Defense Lawyers, Firearms Policy Coalition, American Association of Suicidology, The Rutherford Institute, Gun Owners of America, Second Amendment Foundation, Pacific Legal Foundation, and the Constitutional Accountability Center.

Close-Up Of Guns On Table

Supreme Court Unanimously Agrees: Police Illegally Seized A Man’s Firearms In Violation Of The 4th Amendment

Today, The Bill of Rights may be more relevant than ever before. Yet, this past Tuesday, Bill of Rights Day came and went largely unnoticed. Perhaps this disregard is emblematic of our society’s attitude towards constitutional protections in 2020?
On December 15 1791, Congress ratified the <a href="https://www.archives.gov/founding-docs/bill-of-rights-transcript">Bill of Rights</a>. Composed primarily by James Madison, the first ten amendments to the Constitution effectively define and guarantee the rights of citizens in relationship to the government.
After a year of multiple violations of our rights, and as the nation braces for a second round of draconian lockdowns, Madison’s words feel intensely prophetic.
<blockquote>“It will not be denied that power is of an encroaching nature and that it ought to be effectually restrained from passing the limits assigned to it.”</blockquote>
Violations of the Bill of Rights in 2020
Emergency does not create power — the Supreme Court <a href="https://supreme.justia.com/cases/federal/us/290/398/">said</a> it themselves in 1934. And, yet, under the guise of a national health crisis, governmental authority has bloated to unprecedented levels. As we close in on a year since the start of the pandemic, our leaders show little interest in relinquishing their newfound power. Consequentially, the American people are seeing more and more of the protections afforded to them by the Bill of Rights eclipsed by authoritarian policy. 
From attendance <a href="https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/CDPH-Guidance-for-the-Prevention-of-COVID-19-Transmission-for-Gatherings-10-09.aspx">restrictions</a> placed on Thanksgiving gatherings to the <a href="https://thehill.com/policy/healthcare/public-global-health/487006-newark-nj-warns-of-criminal-prosecution-for-false">threat</a> of criminal prosecution in Newark, New Jersey for disseminating false information about COVID-19 on social media, perhaps the most obvious encroachments have been upon the First Amendment. In 2020, protections of speech, assembly, protest, religion, and press have been under assault from every direction.
A blatant double standard has been revealed in exercising the right to protest during a national health crisis. While anti-lockdown demonstrations were widely castigated by <a href="https://www.washingtonpost.com/opinions/2020/05/03/lockdown-protesters-dont-care-about-lives/">media</a> and politicians alike as grandma-killing crusades, the right to protest has been generously exercised for the advancement of left wing causes. By contrast, such protests appear ideologically immune to the coronavirus, and, according to an <a href="https://www.cnn.com/2020/06/05/health/health-care-open-letter-protests-coronavirus-trnd/index.html">open letter</a> from over 1,000 medical professionals, even “vital to the national public health.”
Another obvious infringement upon the First Amendment relates to the right to practice one’s religion. Restrictions on church attendance have cropped up around the nation, with one particularly absurd example being Governor Cuomo’s policy in New York which required service attendance to be arbitrarily capped at 25, regardless of the size of the house of worship.
Though similar cases have been struck down, a recent Supreme Court ruling may provide a glimmer of hope for religious freedom. Just last month, the Court voted 5 to 4 to overrule Cuomo’s mandate. Justice Gorsuch <a href="https://www.nytimes.com/2020/11/26/us/supreme-court-coronavirus-religion-new-york.html">noted</a>, “There is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues and mosques.”
The Second Amendment is additionally under mounting threat in 2020. Firearms are in higher demand than ever before — sales are up 60% from last year, especially among first-time gun owners. But with lockdown policies <a href="https://www.cnn.com/2020/04/03/politics/nra-new-york-gun-store-non-essential/index.html">shuttering</a> firearms shops as “non-essential” businesses, more and more Americans are being rendered defenseless amidst rioting, looting, and civil unrest.
With inauguration approaching, concerns about the future of gun ownership are understandably heightened. From buybacks to smart-guns, Biden pledges to place unprecedented restrictions upon the Second Amendment which, according to his <a href="https://joebiden.com/gunsafety/">website</a>, “is limited.” Partisan legal cases like that of <a href="https://www.dailywire.com/news/mccloskeys-respond-to-being-indicted-after-defending-home-this-is-an-attempt-to-intimidate-people">Mark and Patricia McCloskey</a> only further inhibits our constitutional right to bear arms.
The Fourth Amendment, protecting against unreasonable searches and seizures, is also among our liberties breached this year. When the state of Washington <a href="https://www.kiro7.com/news/local/king-county-buy-kent-motel-house-covid-19-patients/RKPEH5B42JDQBNTNIMWD7SM3HE/">purchased</a> a motel to quarantine coronavirus patients in March, it ushered in a wave of property seizure. From New York City to Los Angeles, local governments have commandeered privately owned hotels for temporary housing. While some such transactions are voluntary, others are enforced by executive order.
This very mechanism of seizure is in and of itself a constitutional violation. The state of New Jersey, for example, utilized an <a href="https://www.americanbar.org/groups/litigation/committees/real-estate-condemnation-trust/articles/2020/covid-19-constitutional-impact-property-rights-personal-liberties/">executive order</a> to decree upon the local government the right to “commandeer” private property to forcibly shut down “non-essential” business. Business owners who resist face unimaginable consequences — <a href="https://nypost.com/2020/12/14/nj-gym-that-defied-covid-19-lockdown-fined-more-than-1-2m/">Atilis Gym</a> in Bellmawr, New Jersey, has racked up almost $1.2 million in fines for remaining open.
Constitutional violations have also metastasized into cyberspace. COVID-19 apps and <a href="https://www.americanbar.org/groups/business_law/publications/committee_newsletters/cyberspace/2020/202006/contact-tracing/">contact-tracing technologies</a> are accruing massive amounts of personal data, violating reasonable expectations of privacy afforded by the Fourth Amendment. According to <a href="https://constitutioncenter.org/interactive-constitution/blog/covid-19-and-the-constitution-key-takeaways">Lata Nott</a> of the Freedom Forum Institute, “You’re able to track very easily who people meet with, what political events they attend, what protests they attend.… a concern is that once you have that established, that it will be used beyond the scope of this crisis or this emergency” — a sobering reminder that once power is accrued, quite rarely is it willingly relinquished.
How can we protect our rights if we don’t know them?
When encroachment upon civil liberty is this brazen, it can be hard to imagine why outrage is not more widespread. Though any informed patriot is familiar with the Bill of Rights, such individuals are few and far between. A recent <a href="https://woodrow.org/news/national-survey-finds-just-1-in-3-americans-would-pass-citizenship-test/">study</a> revealed that an abysmal 64% of Americans would fail a citizenship test — 37% also believe Benjamin Franklin invented the lightbulb. If the typical American fails so basic a test, they would likely struggle to name the liberties afforded to them in the Bill of Rights.
From this data emerges an even more concerning pattern: the problem is only getting worse. While 74% of those 65 and older passed the test, only 19% under 45 could do the same. This generational divide is symptomatic of an increasing disregard for American History. With only <a href="https://www.nationsreportcard.gov/hgc_2014/">18%</a> of students proficient in our nation’s history, a grim picture is painted for our future. This begs a fundamental question: how can we protect our rights if we don’t even know them?
If 2020 has taught us anything, it has proven that we cannot trust power-hungry politicians to protect and preserve our rights. The proper exercise of liberties is contingent upon a fundamental understanding of them. We are watching in real time the failure of the education system to inform Americans of their rights and empower them to defend their liberties when required. Is it any surprise we are not rising to the occasion?
Bill of Rights Day celebrates the most radical pronouncement of civil liberties in world history. Tragically, however, being grateful for our country, our rights, and their protections has fallen out of fashion. As 2021 approaches, hopefully such barefaced assaults on our constitutional freedoms will inspire more Americans to recognize the value of their liberties through their absence.
As we commemorate the Bill of Rights, let us remember James Madison’s firm warning: “Oppressors can tyrannize only when they achieve a standing army, an enslaved press, and a disarmed populace.” We must stand up — and stand up soon — for our civil liberties, lest his forecast comes to fruition.
The views expressed in this opinion piece are the author’s own and do not necessarily represent those of The Daily Wire.

Andrew Cuomo

As Authoritarians Aim To Erase The Bill Of Rights, We Must Stand Up And Protect Our Civil Liberties

Bill of Rights

COVID-19

First Amendment

Freedom

Lockdowns

Readers Pass

Religious Liberty

Second Amendment

Former New York City Mayor Mike Bloomberg, who is (<a href="https://nypost.com/2020/02/06/bloombergs-naked-bid-to-buy-the-white-house-is-an-assault-on-democracy/">quite literally</a>) currently attempting to buy the 2020 Democratic Party presidential nomination, has found himself in seriously hot water this week. A resurfaced audio clip from 2015 depicts the multibillionaire discussing in rather stark and unartful terms one key aspect of the famously aggressive policing policy he oversaw as New York City mayor. The clip can be <a href="https://twitter.com/BenjaminPDixon/status/1227067093692055553">heard here</a>, and The Daily Wire&#8217;s James Barrett <a href="https://www.dailywire.com/news/trump-tweets-deletes-newly-uncovered-audio-of-bloomberg-total-racist">wrote it up</a> yesterday:
<blockquote>“95% of your murders — murderers and murder victims fit one M.O.,” Bloomberg allegedly states in the audio. “You can just take the description, Xerox it and pass it out to all the cops. They are male, minorities, 16–25. That’s true in New York, that’s true in virtually every city and that’s where the real crime is.” &#8230;
“So, one of the unintended consequences is people say, ‘oh my God, you are arresting kids for marijuana that are all minorities.’ Yes, that’s true. Why? Because we put all the cops in the minority neighborhoods,” he stated. “Yes, that’s true. Why do we do it? Because that’s where all the crime is. And the way you get the guns out of the kids’ hands is to throw them up against the walls and frisk them. And then they start say[ing], ‘Oh I don’t want to get caught.’ So they don’t bring the gun. They still have a gun, but they leave it at home.”</blockquote>
There is a lot to digest and break down here. First, Bloomberg&#8217;s statistics are <a href="https://www.foxnews.com/opinion/why-bloombergs-2015-stop-and-frisk-remarks-are-riddled-with-inaccuracies-john-lott">likely somewhat off</a>, at least using the FBI&#8217;s national Uniform Crime Reports as a helpful proxy for the local statistics in New York City itself. Second, Bloomberg&#8217;s line about &#8220;taking[ing] the description&#8221; of a suspect, &#8220;Xerox[ing] it, and pass[ing] it out to all the cops&#8221; is ugly and plays on some rather unsavory stereotypes. Third, and perhaps most importantly for those of us conservatives of a pro-police bent, Bloomberg&#8217;s rhetoric about &#8220;throw[ing]&#8221; kids &#8220;up against the walls&#8221; paints cops in an unfortunate light and does the thin blue line little in the way of justice or charity.
It would not be improper to describe this as racially charged rhetoric, even if it <a href="https://www.dailywire.com/news/walsh-bloomberg-isnt-racist-but-he-is-a-nanny-state-megalomaniac-control-freak">not per se racist rhetoric</a> because it is far likelier than not that Bloomberg simply exaggerated/misstated his statistics to make an overarching point. The <a href="https://ucr.fbi.gov/crime-in-the-u.s/2018/crime-in-the-u.s.-2018/topic-pages/expanded-homicide">FBI&#8217;s 2018 Uniform Crime Reporting Program states</a> that &#8220;[w]hen the race of the offender was known&#8221; in federal murders, &#8220;54.9% were Black or African American, 42.4% were White, and 2.7% were of other races.&#8221;
The underlying policing policy at issue is stop-and-frisk, which was largely implemented in the 1990s during then-Mayor Rudy Giuliani&#8217;s historic crime reduction in the Big Apple, and which was largely continued by then-Mayor Bloomberg during New York City&#8217;s tumultuous post-9/11 years. Contrary to Bloomberg&#8217;s inflammatory description in the leaked audio clip, here is how <a href="https://www.law.cornell.edu/wex/stop_and_frisk">Cornell Law School&#8217;s Legal Information Institute (LII) describes</a> a cop&#8217;s stop-and-frisk procedure: &#8220;A stop-and-frisk refers to a brief non-intrusive police stop of a suspect. &#8230; If the police reasonably suspect that the suspect is armed and dangerous, the police may frisk the suspect, meaning that the police will give a quick pat-down of the suspect&#8217;s outer clothing.&#8221;
I understand that conservatives, (<a href="https://www.dailywire.com/news/hammer-here-are-three-reasons-why-i-plan-vote-josh-hammer">properly</a>) unified as the overwhelming majority of us are around Donald Trump&#8217;s hopeful re-election as president of the United States, see in Bloomberg&#8217;s audio clip an easy opportunity to score a cheap political shot. I also understand, as previously mentioned, that Bloomberg&#8217;s rhetoric is neither helpful nor (in all likelihood) truly statistically spot-on.
But conservatives, who largely defended stop-and-frisk policy while it was implemented by Giuliani and Bloomberg, must not now turn on it. Stop-and-frisk is (1) constitutional, (2) effective, and (3) proper.
The 1968 U.S. Supreme Court case of <a href="https://supreme.justia.com/cases/federal/us/392/1/">Terry v. Ohio</a> upheld standard stop-and-frisk procedure on Fourth Amendment grounds. &#8220;According to the Terry court,&#8221; LII notes, &#8220;a reasonable stop-and-frisk is one &#8216;in which a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous.'&#8221; The key words here are the multiple times &#8220;reasonable&#8221; (or some close derivative of it) is used. It is almost assuredly true that, while &#8220;probable cause&#8221; is traditionally required for the issuance of most search warrants, &#8220;reasonable suspicion&#8221; suffices as a legal standard to justify a mere stop-and-frisk of suspect believed to be armed and readily dangerous. The text of the Fourth Amendment, after all, prohibits &#8220;unreasonable searches and seizures&#8221; (emphasis added), and here there is necessarily &#8220;reasonable suspicion&#8221; for a Terry stop to be lawful. Some more libertarian-leaning conservatives may <a href="https://twitter.com/jonathanurick/status/1227435098879995904">disagree</a>, but I recall well my criminal procedure professor at the University of Chicago Law School, <a href="https://en.wikipedia.org/wiki/Richard_Epstein">Richard Epstein</a>, announcing to our class his belief in the constitutional soundness of Terry. And Richard Epstein, for what it&#8217;s worth, is the single most influential libertarian legal theorist of the past century.
Stop-and-frisk policy in New York City, furthermore, was undoubtedly effective. &#8220;Since 1990, major crimes have fallen 81.9% in a period that spanned the administrations of four mayors, both Republican and Democratic, including Michael Bloomberg, who switched from being a Republican to an independent during his three terms in office,&#8221; Reuters <a href="https://www.reuters.com/article/us-new-york-crime/murders-in-new-york-city-rose-in-2019-defying-long-term-decline-in-crime-rate-idUSKBN1Z525V">reported</a> last month while lamenting the fact that murders in the Big Apple actually rose last year under the infamously anti-cop reign of Mayor Bill de Blasio. While it is ultimately impossible to disentangle stop-and-frisk from other aspects of the Giuliani/Bloomberg anti-crime public policy portfolio, such as so-called &#8220;broken windows policing,&#8221; the reality is that New York City became one of the safest big cities in America over the exact same time span that stop-and-frisk proliferated in popularity. It is nothing short of tragic that <a href="https://www.dailywire.com/news/jailbreak-is-to-blame-for-spike-in-nyc-crime-de-blasio-admits">de Blasio has reversed</a> these salutary trends.
Finally, stop-and-frisk, as implemented by Mayors Giuliani and Bloomberg, was a generally sound public policy initiative. It is simply true that law enforcement is beset by limited resources, and that police therefore have to routinely make decisions about how to maximize results — here, measured in terms of less crime and fewer criminals on the street — given those constraints. For example, prosecutorial discretion as a law enforcement concept has a centuries-long history in the Anglo-American tradition (that, of course, does not mean that prosecutorial secretion is not <a href="https://www.dailywire.com/news/jeff-sessions-right-end-obamas-unlawful-approach-josh-hammer">sometimes bastardized</a>). Similarly, cops — the procedural antecedents, in a sense, to prosecutors — need to make on-the-ground decisions about where to best deploy resources in order to safeguard the public safety and the common weal. It is simply common sense that they would disproportionately target the neighborhoods where there is actually disproportionate crime committed.
By all means, conservatives can find proper bones to pick with Bloomberg&#8217;s resurfaced audio clip. But please do not lump in all of stop-and-frisk policy with those criticisms.

NYPD

HAMMER: Conservatives Should Not Oppose Stop-And-Frisk Policy

2020 Election

Bill de Blasio

Constitution

Crime

Democratic Party

Michael Bloomberg

New York Police Department (NYPD)

Police

Racism

Another disappointing U.S. Supreme Court term came to an end a few weeks ago. From a conservative perspective, it is exceedingly difficult to find much with which to be enthralled. With the laudable exception of <a href="https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf">partisan gerrymandering</a> — and the possible additional exception of the Fifth Amendment&#8217;s <a href="https://www.supremecourt.gov/opinions/18pdf/17-647_m648.pdf">Takings Clause</a> — there was very little in the way of doctrinal jurisprudential goalpost-shifting toward a more authentically originalist direction. Many high-profile conservative outcome <a href="https://firstliberty.org/cases/bladensburg/">victories</a>, such as the <a href="https://www.dailywire.com/news/43626/hammer-bladensburg-cross-memorial-case-supreme-josh-hammer">key First Amendment Establishment Clause case</a> of the Bladensburg &#8220;peace cross,&#8221; did not result in an actual doctrinal shift wherein the Court overthrew an outmoded, unworkable precedent (Lemon v. Kurtzman, in the case of the Bladensburg &#8220;peace cross&#8221; case). Similarly, anti-administrative state activists <a href="https://www.supremecourt.gov/opinions/18pdf/18-15_9p6b.pdf">could not even get</a> the milquetoast precedent of Auer v. Robbins — which requires federal courts to defer to a regulatory agency&#8217;s reasonable reading of its own ambiguous regulation — overturned.
And the Left would have us believe that this big, scary Court, as presently constituted, would overturn Roe v. Wade? Please.
The reality is that the present Court is not nearly as conservative as pretty much anyone — be it the leftist mainstream media or the <a href="https://www.law.cornell.edu/constitution/articleiii">Art. III cultists</a> of the <a href="https://www.dailywire.com/news/42341/hammer-it-past-time-trump-openly-defy-court-order-josh-hammer">judicial supremacist</a> &#8220;Right&#8221; — would purport to believe. With the exception of Clarence Thomas — in all likelihood, the single greatest living American, period — there is no other jurist on the Court whom conservatives and originalists can deem inherently and wholly trustworthy. Samuel Alito, while rock solid on many cultural issues and laudably tough-minded when it comes to crime, takes a view of stare decisis and the persuasive power of precedent that is far less principled than <a href="https://www.nationalreview.com/bench-memos/justice-thomas-lays-out-an-originalists-perspective-on-stare-decisis/">Thomas&#8217;s position</a>. Neil Gorsuch, while indubitably intelligent and the closest thing on the present Court to a second true originalist, has deeply unfortunate libertarian tendencies when it comes to the nexus of <a href="https://www.conservativereview.com/news/gorsuch-dead-wrong-immigration/">immigration</a>, due process, and <a href="https://www.latimes.com/politics/la-na-pol-gorsuch-supreme-court-conservative-20190712-story.html">crime</a>. And Brett Kavanaugh, the lifelong inside-the-Beltway establishmentarian who is perhaps best thought of as &#8220;<a href="https://www.conservativereview.com/news/6-lessons-the-gop-should-learn-from-winning-the-kavanaugh-fight-but-probably-wont/">Karl Rove in a robe</a>,&#8221; has gotten off to a <a href="https://www.dailywire.com/news/47351/hammer-draw-right-lessons-kavanaughs-bad-start-no-josh-hammer">very slow start</a>.
Which takes us to Chief Justice John Roberts. What is truly remarkable is that, after all these years and after numerous suboptimal choices for the Court — namely, the selection of Gorsuch over William Pryor and the selection of Kavanaugh over pretty much anyone else who was publicly floated for the seat — the chief justice remains conservatives&#8217; single biggest scourge of all.
Roberts, who was reportedly chosen for his perch over the far more reliably conservative Michael Luttig, initially positioned himself during his early years on the Court as an ally to conservatives. In what remains his most famous line ever written in a Supreme Court opinion, Roberts defiantly asserted in the 2007 affirmative action case of <a href="https://www.oyez.org/cases/2006/05-908">Parents Involved in Community Schools v. Seattle School District No. 1</a> that &#8220;the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.&#8221; Even in more recent years, Roberts has occasionally shown signs of hardened juridical principle: The chief justice penned the lead (and quite scathing) dissent in the utterly lawless 2015 same-sex marriage diktat of <a href="https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf">Obergefell v. Hodges</a>.
But the infamous 2012 Obamacare case of <a href="https://www.law.cornell.edu/supremecourt/text/11-393">NFIB v. Sebelius</a>, in which Roberts plainly re-wrote the Obamacare individual mandate as a tax in order to salvage the misbegotten health care statute, marked the beginning of a new era of sorts for the chief justice — an era, that is, seemingly marked more by petty concerns over the Court&#8217;s &#8220;institutional integrity&#8221; than by proper concerns for legal principle. Roberts saved Obamacare a second time in 2015&#8217;s equally egregious statutory case of <a href="https://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf">King v. Burwell</a> and in recent years has been on the wrong side of constitutional principle in doctrinal areas as wide-ranging as the <a href="https://www.supremecourt.gov/opinions/17pdf/17-494_j4el.pdf">&#8220;dormant&#8221; Commerce Clause</a> and the <a href="https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf">Fourth Amendment</a> alike. Much like fellow George W. Bush nominee Alito, Roberts refused to join Thomas&#8217;s 2016 dissent in <a href="https://www.supremecourt.gov/opinions/15pdf/15-274_new_e18f.pdf">Whole Woman&#8217;s Health v. Hellerstedt</a> and has, thus, never once joined an opinion calling for the overturning of Roe v. Wade.
Tellingly, moreover, it was Roberts who — even more so than Kavanaugh or Gorsuch — undermined conservatives and originalists at the Court this past term more so than any other Republican nominee. Roberts repeatedly joined the Court&#8217;s liberal bloc on misguided <a href="https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1961&amp;context=public_law_and_legal_theory">&#8220;shadow docket&#8221;</a> orders ranging from <a href="https://www.dailywire.com/news/43249/hammer-john-roberts-latest-cowardice-reveals-pro-josh-hammer">abortion</a> to the <a href="https://www.dailywire.com/news/43689/hammer-roberts-and-kavanaughs-death-penalty-josh-hammer">death penalty</a> (and was joined by Kavanaugh on the latter). In <a href="https://www.supremecourt.gov/opinions/18pdf/18-15_9p6b.pdf">Kisor v. Wilkie</a>, which was the Court&#8217;s best opportunity in two decades to overturn the aforementioned precedent of Auer, Roberts hugely disappointed anti-regulation/anti-administrative state activists by refusing to overturn both Auer and Auer&#8216;s doctrinal companion, Bowles v. Seminole Rock &amp; Sand Co. Considering that Roberts seems <a href="https://www.supremecourt.gov/opinions/18pdf/17-6086_2b8e.pdf">favorably inclined toward one day overruling</a> the anti-constitutional, pro-administrative state &#8220;non-delegation doctrine,&#8221; which has been legally dormant since the New Deal era, it is baffling that Roberts refused to even overturn the far milder Auer precedent.
And on final day of the Court&#8217;s term, of course, Roberts issued an <a href="https://www.dailywire.com/news/49234/hammer-here-legal-reason-why-trump-must-ask-about-josh-hammer">outrageous ruling</a> in the census citizenship dispute of <a href="https://www.scotusblog.com/case-files/cases/department-of-commerce-v-new-york/">Department of Commerce v. New York</a>. Writing for the Court&#8217;s majority in New York, Roberts outlandishly held that, though lacking neither constitutional nor statutory support, the Trump administration&#8217;s decision to include the citizenship question on the U.S. Census on the asserted grounds of collecting data for Voting Rights Act enforcement was &#8220;pretextual.&#8221; Justice Clarence Thomas excoriated Chief Justice Roberts&#8217; reasoning, decrying it as &#8220;the first time ever&#8221; that &#8220;the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale.&#8221; Justice Samuel Alito, even more livid, defiantly asserted that &#8220;the Federal Judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons.&#8221;
Anthony Kennedy, perhaps the single most pompous, hubristic judge of the past half-century, may have retired. But Roberts has already replaced Kennedy as the Court&#8217;s true swing vote. Conservatives do not have a majority on the present Court. At best, the Court might be presently viewed as a 4-3-2 liberal-conservative-swing split, with Roberts and Kavanaugh both serving as swing votes.
What is so tragic about Roberts&#8217; jurisprudential perfidy is just how easily foreseeable it all was. Daily Wire Editor-in-Chief Ben Shapiro, who was a Harvard Law School student at the time, <a href="https://townhall.com/columnists/benshapiro/2005/07/20/president-bushs-roberts-pick-disappoints-n1301811">warned us all about Roberts</a> back in 2005:
<blockquote>Roberts is not an originalist. There is nothing in his very short jurisprudential record to indicate that his judicial philosophy involves strict fidelity to the original meaning of the Constitution. He is not Antonin Scalia, nor is he Clarence Thomas. At best, he is William Rehnquist, for whom he once clerked. &#8230;
[W]e have no choice but to closely examine Roberts&#8217; words, because he has virtually no judicial record. No one knows where he stands on key cases like Roe v. Wade. Any originalist, whether politically liberal or conservative, would overturn Roe in a heartbeat. &#8230;
Some claim that Roberts will be another Rehnquist; others claim he will form a &#8220;dynamic center&#8221; with Justices Anthony Kennedy and Stephen Breyer. When the Supreme Court wields as much clout as it does, why should originalists sit by while a new 30-year swing-bloc is formed?</blockquote>
It is possible that Ben has never written a more prescient column in his punditry career.
The lessons to learn from Roberts&#8217; tremendously disappointing career on the Court are the same <a href="https://www.dailywire.com/news/47351/hammer-draw-right-lessons-kavanaughs-bad-start-no-josh-hammer">lessons that conservatives ought to learn</a> from Kavanaugh&#8217;s similarly disappointing start. I have <a href="https://www.dailywire.com/news/44037/hammer-three-things-conservatives-must-look-future-josh-hammer">identified three broad criteria</a> for which we ought to carefully vet the next Supreme Court nominee: (1) full-spectrum conservatism, (2) stiff resistance to the &#8220;<a href="https://en.wikipedia.org/wiki/Greenhouse_effect_(United_States_Supreme_Court)">Greenhouse Effect</a>,&#8221; and (3) eagerness to aggressively correct course. And for the love of God, also make sure the nominee is also someone with a lengthy paper trail and who will not be tempted by non-legal concerns — such as Roberts&#8217; obvious and indefensible preoccupation with the Court&#8217;s &#8220;institutional integrity.&#8221;
I certainly have <a href="https://www.nationalreview.com/bench-memos/judge-hos-excellent-opinion-on-title-vii-sexual-orientation-and-gender-identity-part-1/">some people in mind</a>. But, at a bare minimum, next time we desperately need to avoid at all costs the horrific mistake that was the John Roberts nomination.

HAMMER: Kavanaugh And Gorsuch Have Issues. But John Roberts Remains The Court’s Biggest Problem For Conservatives.

Brett Kavanaugh

Conservatism

John Roberts

Judicial Branch

Judiciary

Neil Gorsuch

Supreme Court

Trump Administration

The White House is reportedly seeking to make a temporary surveillance law, that enabled the National Security Agency to collect cell phone metadata in bulk, permanent in December, even though the NSA has abandoned the program.
<a href="https://www.greenwichtime.com/news/article/Permanent-renewal-of-NSA-law-possible-13809653.php">The Washington Post and Greenwich Time</a> both report that the White House has been discussing plans to extend a 2015 revision to the USA Patriot Act, which allowed the NSA to collect &#8220;metadata&#8221; from Americans&#8217; cell phones without warrants.
The program, revealed by then-NSA contractor Edward Snowden, was designed to help the NSA ferret out Americans who had contact with terror cells abroad, and collected basic information about millions of telephone calls made between Americans at home and abroad.
Snowden, of course, is now living in exile in Russia after revealing the metadata collection program, then known as PRISM, to journalists from The Guardian. Snowden had come into contact with information about the program while working for a string of defense contractors who either helped develop or administer the program.
At the time PRISM was revealed, the government contended that the metadata collection program did not require law enforcement to pursue individual warrants since the information gleaned from the program didn&#8217;t contain details of what was said in the calls themselves &#8212; just date, time, duration, and destination information. Several courts, over the years, have disagreed, chipping away at the program and the government&#8217;s self-given blanket permission to spy on American citizens, but only when the plaintiff has provided proof that they were the subject of a warrantless NSA wiretap.
Back in November 2015, the NSA <a href="https://www.lawfareblog.com/nsa-ends-bulk-collection-telephony-metadata-under-section-215">reportedly ended its collection of metadata</a> under the law, and earlier this year, it was reported that the NSA was considering bringing the full program to a halt after the program failed to yield any measurable results. Though the agency captured enough data to fill entire buildings full of servers, it&#8217;s not clear that the program ever yielded a single actionable intelligence item, and may have actually put privacy at risk.
In May 2018, much of the NSA&#8217;s collected data was purged after officials realized that the program had collected additional information, beyond just metadata, much of which it was not authorized to receive, even under the provisions of the Patriot Act.
Although the program in question seems to have been a failure, the NSA reportedly wants the ability to restart the program in the future if they come up with a better way of sorting through and storing the collected data, and the NSA wiretap program may be inseparable from the rest of the ironically named 2015 USA Freedom Act. If the full act isn&#8217;t renewed, some Members of Congress have warned that it could set national security operations back to what they were before the September 11, 2001 terror attacks.
For its part, the White House says it is still undecided on the measure, and it has until after the summer to decide whether to actively pursue reauthorizing the program. The bill won&#8217;t be up until at least November.

White House May Be Looking To Make NSA Wiretapping Permanent

National Security Agency (NSA)

Technology

A group of New Yorkers are suing President Trump and the Federal Emergency Management Agency over a &#8220;Presidential alert&#8221; text message that went out Wednesday, <a href="https://www.cnet.com/news/new-yorkers-sue-trump-and-fema-to-stop-presidential-alert/">CNet reports</a>.
The &#8220;Presidential alert&#8221; deployed for the first time yesterday, but the plan was signed into law by former President George W. Bush, and former President Barack Obama ordered FEMA to follow up on the demand, building and managing a framework for messaging all Americans at the same time.
The &#8220;Presidential alerts&#8221; are supposed to be for emergency situations only; President Trump directs FEMA to issue the alert, and FEMA pulls the trigger &#8212; a system not unlike the universal Amber Alert system that sends emergency messages to phones located in the vicinity of a missing child. But the plaintiffs say they&#8217;re afraid Trump will misuse the system and issue &#8220;weaponized disinformation&#8221; to their cell phones at will.
&#8220;Plaintiffs are American citizens who do not wish to receive text messages, or messages of any kind, on any topic or subject, from defendant Trump,&#8221; the complaint reads. &#8220;His rise to power was facilitated by weaponized disinformation that he broadcast into the public information sphere via Twitter in addition to traditional mass media.&#8221;
The plaintiffs add that they&#8217;re concerned Trump will send &#8220;arbitrary, biased [and] irrational&#8221; messages instead of systematic emergency alerts, and since there&#8217;s no way to opt out, they&#8217;re taking legal action. Because the parameters of &#8220;emergency&#8221; aren&#8217;t clear, Trump, they say, will be free to call just about anything an &#8220;act of terrorism&#8221; and &#8220;threat to public safety,&#8221; and act accordingly.
Plaintiffs add that, in addition to the nuisance and vagueness of the law, the text messages violate their Constitutional right to free speech and their Fourth Amendment rights against search and seizure (as the text messages constitute an unreasonable &#8220;seizure&#8221; of their cell phones).
Concerns about the FEMA mass text messages aren&#8217;t new. Civil rights organizations raised an alarm over the program when President Obama signed it into law in 2016, noting the same vagueness. The law specifies that the program &#8220;shall not be used to transmit a message that does not relate to a natural disaster, act of terrorism, or other man-made disaster or threat to public safety,&#8221; but doesn&#8217;t go far enough, they said, to define the terms.
The problem with the suit may be, though, that the plaintiffs seem to have added the Constitutional concerns only as backup; they&#8217;re more bothered by who is at the helm of the system than the system itself.

New Yorkers Sue Trump After Being Triggered By FEMA Text Message

Barack Obama

Donald Trump

Even if you&#8217;re not on a terror watch list, you aren&#8217;t suspected of a crime, and you&#8217;re not under any sort of investigation, the Transportation Safety Administration may still be watching you, cataloging your &#8220;suspicious behaviors,&#8221; and keeping track of your movements in a database they call &#8220;Quiet Skies.&#8221;
<a href="http://apps.bostonglobe.com/news/nation/graphics/2018/07/tsa-quiet-skies/?p1=HP_SpecialTSA">The Boston Globe reports</a> that the previously unknown program &#8220;gather[s] details about the peoples&#8217; behavior on the plane to try to thwart any potential aviation threats.&#8221;
&#8220;Before people board a plane and are watched by federal air marshals, officials use information from the intelligence community and their previous travel patterns to help choose whom to target,&#8221; <a href="https://www.cnn.com/2018/07/29/politics/tsa-passenger-tracking/index.html">a TSA official confirmed to CNN</a>.
Teams of air marshals and TSA agents then watch passengers while they travel, looking for passengers who might be &#8220;abnormally&#8221; aware of their surroundings, people who sleep on flights, and individuals who might exhibit classic signs of anxiety, like rubbing their hands together, fidgeting, or sweating profusely.
The TSA insists that the &#8220;Quiet Skies&#8221; program isn&#8217;t singling out innocent Americans for increased surveillance, but the field of potential targets is huge, even by their own admission; everyone and anyone who flies from a major American airport on a commercial airline is within the program&#8217;s purview.
&#8220;All American citizens who enter the United States are automatically considered for inclusion in the program as officials check their names against watch lists and examine their patterns of travel,&#8221; according to CNN.
And it&#8217;s all for our own safety, they say.
&#8220;The program absolutely isn&#8217;t intended to surveil ordinary Americans. Instead, its purpose is to ensure passengers and flight crew are protected during air travel &#8212; no different than putting a police officer on a beat where intelligence and information presents the need for increased watch and deterrence. The program analyzes information on a passenger&#8217;s travel patterns while taking the whole picture into account and adds an additional line of defense to aviation security,&#8221; the TSA said in a statement to the Globe.
Don&#8217;t you feel safer?

The TSA’s ‘Quiet Skies’ Program Is Watching — And Tracking — You

Law Enforcement

Surveillance

On Friday, the Supreme Court ruled in a 5-4 decision that government investigators must &#8220;generally&#8221; obtain a warrant in order to gain access to an individual&#8217;s cell-site location information (CSLI).
According to <a href="https://www.npr.org/2018/06/22/605007387/supreme-court-rules-police-need-warrant-to-get-location-information-from-cell-to">NPR</a>, &#8220;a series of armed robberies in 2010 and 2011 &#8230; aimed at stealing hundreds of new cellphones and selling them for tens of thousands of dollars&#8221; led to multiple arrests. One of the detained suspects gave investigators the cell phone numbers of several other individuals who allegedly acted in the crimes. Using these numbers, authorities sought and were granted &#8220;court orders&#8221; under the Stored Communications Act in order to access the cell phone location records of a man named Timothy Carpenter.
According to the <a href="http://cdn.cnn.com/cnn/2018/images/06/22/16-402_h315.pdf">syllabus</a> from the SCOTUS decision:
<blockquote>
Carpenter moved to suppress the data, arguing that the government&#8217;s seizure of the records without obtaining a warrant supported by probable cause violated the Fourth Amendment. The District Court denied the motion, and prosecutors used the records at trial to show that Carpenter&#8217;s phone was near four of the robbery locations at the time those robberies occurred. Carpenter was convicted. The Sixth Circuit affirmed, holding that Carpenter lacked a reasonable expectation of privacy in the location information collected by the FBI because he had shared that information with his wireless carriers.
</blockquote>
The Stored Communications Act only demands that officials show &#8220;reasonable grounds&#8221; rather than &#8220;probable cause&#8221; when seeking certain types of information. The standard for &#8220;reasonable grounds&#8221; is lower than &#8220;probable cause.&#8221;
<a href="https://www.law.cornell.edu/uscode/text/18/2703">18 U.S. Code 2703</a> subsection (d) states in part: &#8220;A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.&#8221;
The Fourth Amendment, however, states in part that &#8220;no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.&#8221;
In his <a href="http://cdn.cnn.com/cnn/2018/images/06/22/16-402_h315.pdf">majority opinion</a> ruling against the lower courts, Chief Justice John Roberts wrote in part (some citations omitted for clarity):
<blockquote>
When an individual &#8220;seeks to preserve something as private,&#8221; and his expectation of privacy is &#8220;one that society is prepared to recognize as reasonable,&#8221; we have held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause. Smith, 442 U.S., at 740&#8230;
The case before us involves the Government&#8217;s acquisition of wireless carrier cell-site records revealing the location of Carpenter&#8217;s cell phone whenever it made or received calls. This sort of digital data &#8211; personal location information maintained by a third party &#8211; does not fit neatly under existing precedents. Instead, requests for cell-site records lie at the intersection of two lines of cases, both of which inform our understanding of the privacy interests at stake.
</blockquote>
Roberts then wrote about two prior cases in which investigators used bank records and a pen register. It was decided that the tactics used in these cases did not violate the Fourth Amendment.
This led Roberts to write about &#8220;third-party&#8221; doctrine:
<blockquote>
We have previously held that &#8220;a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.&#8221; Smith 442 U.S., 743-744. That remains true &#8220;even if the information is revealed on the assumption that it will be used only for a limited purpose.&#8221; United States V Miller, 425 U.S., 435, 443 (1976). As a result, the Government is typically free to obtain such information from the recipient without triggering Fourth Amendment protections.
This third-party doctrine largely traces its roots to Miller. While investigating Miller for tax evasion, the government subpoenaed his banks, seeking several months of cancel checks, deposit slips, and monthly statements. The Court rejected a Fourth Amendment challenge to the records collection. For one, Miller could &#8220;assert neither ownership nor possession&#8221; of the documents; they were &#8220;business records of the banks.&#8221; For another, the nature of those records confirmed Miller&#8217;s limited expectation of privacy, because the checks were &#8220;not confidential communications but negotiable instruments to be used in commercial transactions,&#8221; and the bank statements contained information &#8220;exposed to [bank] employees in the ordinary course of business.&#8221; The Court thus concluded that Miller had &#8220;take[n] the risk, in revealing his affairs to another, that the information [would] be conveyed by that person to the Government.&#8221;
</blockquote>
Roberts later wrote about the Court&#8217;s role in interpreting the Fourth Amendment as it pertains to new technology:
<blockquote>
The question we confront today is how to apply the Fourth Amendment to a new phenomenon: the ability to chronicle a person&#8217;s past movements to the record of his cell phone signals. &#8230; Much like the GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled.
At the same time, the fact that the individual continuously reveals his location to his wireless carrier implicates the third-party principle of Smith and Miller. But while the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records. After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person&#8217;s movements.
We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user&#8217;s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology &#8230; or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter&#8217;s wireless carriers was the product of a search. &#8230;
Having found that the acquisition of Carpenter&#8217;s CSLI was a search, we also conclude that the Government must generally obtain a warrant supported by probable cause before acquiring such records.
</blockquote>
This was a contentious decision. NPR notes that &#8220;in a rare move,&#8221; the four dissenting Justices &#8211; Kennedy, Alito, Thomas, and Gorsuch &#8211; wrote separate dissents.
Roberts did note that &#8220;case specific exceptions&#8221; may be made:
<blockquote>
Such exigencies include the need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm, or prevent the imminent destruction of evidence.
</blockquote>
Friday&#8217;s decision, as close and as narrow as it was, is a significant win for advocates of personal privacy and the Fourth Amendment. There are those who will continuously attempt to use our rapid technological advancement in order to circumvent the constitutional rights of the American people. On Friday, SCOTUS was able to stop such behavior in its tracks &#8211; at least in a very specific context.

SCOTUS: Gov Must ‘Generally’ Have A ‘Warrant Supported By Probable Cause’ To Access Cell-Site Location Information

In 2011, section 1021 was added to the National Defense Authorization Act (NDAA). This text, which features vague language associated with the detention of &#8220;covered persons,&#8221; set off alarm bells among civil rights watchdogs.
Section <a href="https://www.congress.gov/bill/112th-congress/house-bill/1540/text&#8203;">1021</a> reads in part:
<blockquote>
Affirmation of authority of the Armed Forces of the United States to detain covered persons pursuant to the Authorization for Use of Military Force.
(a) In General.&#8211;Congress affirms that the authority of the
President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons.&#8211;A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
</blockquote>
While subsection (e) states that &#8220;nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States,&#8221; Senator Mike Lee (R-UT) believes further clarification is necessary to prevent citizens or legal permanent residents living in the United States from being detained indefinitely without charge.
When then-President Obama signed the bill into law on December 31, 2011, he <a href="https://obamawhitehouse.archives.gov/the-press-office/2011/12/31/statement-president-hr-1540">stated</a> in part:
<blockquote>
I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.
</blockquote>
This assurance wasn&#8217;t enough to satisfy many civil rights advocates. In late 2011, Senator Lee and Senator Dianne Feinstein (D-CA) introduced the &#8220;Due Process Guarantee Act,&#8221; which seeks to clarify the existing law regarding detention of U.S. citizens and lawful permanent residents.
The legislation <a href="https://www.congress.gov/115/bills/s1216/BILLS-115s1216is.pdf">reads</a> in part:
<blockquote>
Sec. 2. Prohibition on the indefinite detention of citizens and lawful permanent residents.
(a) IN GENERAL.&#8212;Section 4001 of title 18, United States Code, is amended by striking subsection (a) and inserting the following:
&#8220;(a) No citizen or lawful permanent resident of the United States shall be imprisoned or otherwise detained by the United States except consistent with the Constitution and pursuant to an act of Congress that expressly authorizes such imprisonment or detention.&#8221;
&#8230;&#8221;(b)(1) A general authorization to use military force, a declaration of war, or any similar authority, on its own, shall not be construed to authorize the imprisonment or detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States.
&#8220;(2) Paragraph (1) applies to an authorization to use military force, a declaration of war, or any similar authority enacted before, on, or after the date of the enactment of the Due Process Guarantee Act.
&#8220;(3) This section shall not be construed to authorize the imprisonment or detention of a citizen of the United States, a lawful permanent resident of the United States, or any other person who is apprehended in the United States.&#8221;
</blockquote>
Currently, 18 U.S. Code 4001 subsection (a) <a href="https://www.law.cornell.edu/uscode/text/18/4001">reads</a>: &#8220;No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.&#8221;
The Daily Wire spoke with Senator Lee about his legislation:
<blockquote>
DW: In brief, what is the Due Process Guarantee Act?
LEE: It&#8217;s there to protect U.S. citizens and lawful permanent residents from indefinite detention without trial, without charge, without counsel on U.S. soil.
The need for it arose when Congress passed the National Defense Authorization Act (NDAA) for fiscal year 2012 sometime in the fall of 2011. Section 1021 of that act contained language purporting to authorize the federal government to detain people &#8211; even U.S. citizens apprehended on U.S. soil &#8211; indefinitely without charge, without trial, based solely on the type of accusations against them. If you were accused of being a terrorist &#8230; even if you were a United States citizen apprehended on U.S. soil, you can be held without charge or trial, without any of the due process protections that the American people have.
There were a number of us who were concerned about it, and Senator [Dianne] Feinstein and I teamed up at that point, and decided to come up with legislation to address it. We ended up introducing something called the Due Process Guarantee Act. We&#8217;ve been pushing that now for the last six years. It actually passed the Senate with 67 votes, but it was inexplicably removed from the NDAA when it went through conference committee.
DW: Do you know who removed it?
LEE: I don&#8217;t. Conference committees are a black box. We&#8217;ve been trying to get a vote on it ever since. Each year, we&#8217;ve been blocked in one way or another from getting it voted into the NDAA.
DW: Why is this such a contentious thing?
LEE: Well, it shouldn&#8217;t be. It&#8217;s not really all that contentious in the sense that a few years ago, it was 67 senators who voted for it. This week, it was 68 senators who voted for it &#8211; at least in the sense that 68 voted against the motion to table it. The overwhelming majority of senators seem to think that it&#8217;s a good idea.
Those who oppose it appear to do so based on the argument that we&#8217;ve got to protect American national security. I get it. Nobody wants to say, &#8220;Yeah, I want to be on the side of terrorists&#8221; &#8211; that&#8217;s not the point anyone is making here. What we&#8217;re saying is, regardless of what you choose to do with someone who&#8217;s apprehended overseas, or even what you decide to do with someone who sneaks into the United States illegally for purposes of harming us, we ought at a minimum be able to draw the line at U.S. citizens who are apprehended while on U.S. soil. They deserve to have access to the panoply of due process protections afforded by the Constitution.
DW: How does section 1021 not run contrary to the Fourth Amendment?
LEE: It does run contrary to a number of protections in the Constitution, including the Fourth Amendment, Fifth Amendment, and Sixth Amendment. I don&#8217;t believe it&#8217;s constitutional. But in order to invalidate a law, you have to have an actual case or controversy. It&#8217;s not as simple as just saying, &#8220;Well, let&#8217;s bring it to court and get it invalidated.&#8221; You have to have an instance in which it&#8217;s being invoked, and someone who can actually challenge it.
In the meantime, this law sits on the books for years, and as it sits on the books, there&#8217;s always a risk that it acquires more perceived legitimacy, and that&#8217;s not a good place to go in a constitutional republic where we want to limit the power of government, and thereby protect the rights of the individual.
DW: The bill hasn&#8217;t been tabled. So what&#8217;s the next step?
LEE: The final bill hasn&#8217;t been passed yet. Final passage of the bill is set to occur on Monday. If between now and then, senators consent to bring it up for a vote, then we could vote on it, and it could pass. If that doesn&#8217;t happen, we will continue to look for other opportunities to bring this up.
DW: Subsection (e) of Section 1021 states that &#8220;nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.&#8221; Does that make the Due Process Guarantee Act redundant?
LEE: Technically, no. The earlier clause contains a prohibition. This clause says that nothing in this legislation can be read as authorizing indefinite detention.
</blockquote>
In a short matter of time, we will know if the Due Process Guarantee Act moves forward as law. The Daily Wire would like to thank Senator Lee for taking the time to speak with us on this issue.

EXCLUSIVE: The Daily Wire Speaks With Sen. Mike Lee About The ‘Due Process Guarantee Act’

Mike Lee

A few days after the American Civil Liberties Union (ACLU) <a href="http://www.dailywire.com/news/19035/memos-nsa-violated-civil-liberties-90-times-under-elliott-hamilton">uncovered</a> over 90 instances of the NSA and the FBI violating the civil liberties of American citizens from 2009 to 2016, House Intelligence Committee chairman Devin Nunes (R-CA) <a href="http://thehill.com/policy/national-security/344226-intelligence-chairman-accuses-obama-aides-of-hundreds-of-unmasking">levied</a> further allegations at the Obama administration. Nunes specifically charged Obama administration aides with filing requests to unmask names of American citizens during the 2016 presidential election.
Nunes directed his outrage to Director of National Intelligence Dan Coats, writing the following:
<blockquote>
We have found evidence that current and former government officials had easy access to U.S. person information and that it is possible that they used this information to achieve partisan political purposes, including the selective, anonymous leaking of such information.
</blockquote>
The letter specifically charged that former U.N. Ambassador Samantha Power, who had no business in the intelligence community, &#8220;made hundreds of unmasking requests during the final year of the Obama administration.&#8221; The letter stated that only one of them was justified in a manner that was not boilerplate.
Last March, Nunes <a href="http://www.dailywire.com/news/14698/8-things-we-learned-house-intelligence-committee-elliott-hamilton">informed</a> the press that Obama had ordered the surveillance of members of Donald Trump&#8217;s campaign and transition teams immediately following his electoral victory against Hillary Clinton. This decision angered his Democratic counterpart, Adam Schiff (D-CA).
The Obama administration received considerable criticism from liberal and conservative groups for Obama&#8217;s 2011 decision to loosen the rules for intelligence officials to unmask the names of people whose emails and phone calls the intelligence community intercepted. The argument stemmed from the Fourth Amendment protection from unwarranted searches and seizures.
Follow Elliott on <a href="https://twitter.com/ElliottRHams">Twitter</a> and <a href="https://www.facebook.com/ElliottRHams/">Facebook</a>.

UNMASKING FIESTA! Obama Unmasked Hundreds For No Apparent Reason

Devin Nunes

Obama Administration

Samantha Power

A Freedom of Information Act (FOIA) request from the American Civil Liberties Union (ACLU) <a href="http://thehill.com/policy/national-security/343785-newly-declassified-memos-detail-extent-of-improper-obama-era-nsa">revealed</a> that the Obama administration had committed over 90 civil liberty violations through the National Security Agency and the Federal Bureau of Investigation from 2009 to 2016. The Hill reported that the memos revealed that the government agencies improperly searched and disseminated information on American citizens without warrants.
For example, some NSA analysts had unmasked the names of American citizens within the intelligence community without the requisite redactions. Another instance revealed that an intelligence analyst ran a query on the same American citizen every workday from 2013 to 2014.
The NSA claims that these warrantless searches only accounted for a minuscule percentage of the warrantless interceptions since the passage of Section 702 of the Foreign Intelligence Surveillance Act, which was instituted in late 2008 at the twilight of the Bush administration. The Act, listed as 50 U.S. Code § 1881a, <a href="https://www.law.cornell.edu/uscode/text/50/1881a">reads</a> as follows:
<blockquote>
Notwithstanding any other provision of law, upon the issuance of an order in accordance with subsection (i)(3) or a determination under subsection (c)(2), the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information
</blockquote>
The law also expressly lists limitations of this law in section (b), saying that the law:
<blockquote>
(1) may not intentionally target any person known at the time of acquisition to be located in the United States; 
(2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States; 
(3) may not intentionally target a United States person reasonably believed to be located outside the United States; 
(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and 
(5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.
</blockquote>
This is not the first time that surveillance agencies have caught fire for listening in on American citizens. Earlier this year, Devin Nunes (R-CA) <a href="http://www.dailywire.com/news/14698/8-things-we-learned-house-intelligence-committee-elliott-hamilton">announced</a> that members of Donald Trump&#8217;s campaign and subsequent transition team had been unintentionally intercepted by the Obama administration.
Once again, the intelligence community seems to have forgotten the meaning of the Fourth Amendment of the Constitution, which reads as follows:
<blockquote>
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
</blockquote>
The United States deserves better from those tasked with protecting freedom and liberty.
Follow Elliott on <a href="https://twitter.com/ElliottRHams">Twitter</a> and <a href="https://www.facebook.com/ElliottRHams/">Facebook</a>.

Memos: NSA Violated Civil Liberties 90+ Times Under Obama

ACLU

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