Reason Magazine - Topics > Privacy

Is It Safe?

mriggs@reason.com (Mike Riggs) — Tue, 08 Jul 2008 17:05:00 EDT

Gmail announced on its blog yesterday that it has upgraded its privacy settings to allow users to sign out of their accounts remotely, as well as track who has signed in under their name:

The top table, under "Concurrent session information," indicates all open sessions, along with IP address and "access type" -- which refers to how email was retrieved, for example, through iGoogle, POP3 or a mobile phone. The bottom table, under "Recent activity," contains my most recent history along with times of access. I can also view my current IP address at the very bottom of this window, where it says "This computer is using IP address..."

With this information, I can quickly verify that all the Gmail activity was indeed mine. I remember using Gmail at the times and locations listed. Being extra cautious, I can also click on the "Sign out all other sessions" button to sign out of the account I left open at home.

Scott Loganbill at the tech blog Web Monkey wrote about the privacy upgrades like a gleeful, paranoid voyeur, and calls the new application features an opportunity "to turn the table and spy on the spies"—proof that even innocuous geeks suspect that someone, somewhere, is reading their email.

And now, Marathon Man:

Set a Camera to Catch a Thief

kmw@reason.com (Katherine Mangu-Ward) — Tue, 01 Jul 2008 12:11:00 EDT

A rematch in the citizens-with-YouTube versus law enforcement wars:

Dave Johnson's motorbike was stolen. He wasn't lucky enough to catch the thieves in the act, but he posted a note on Craigslist to keep his neighbors informed. Turns out that one of his neighbors caught the troublemakers on camera attempting another bike heist. They posted the video, which shows the car and faces of the culprits, on YouTube.

The Sacramento sherrif's office is ticked off at engaged citizens for stealing their thunder using basic online tools. A spokesman offers a strange hodgepodge of reasons why the video shouldn't have been posted:

Sgt. Tim Curran of the Sacramento Sheriff's Department said releasing possible evidence in any case can damage the chances of getting a conviction in court.

"It pollutes the jury pool, if you will," he said. "A lot of times, things can come out from that video that the suspect can use in their defense."

But Dave thinks using YouTube may help get his bike back. "Any place that shows their picture is a good idea to me," he said.

The Sheriff's Department says that victims should turn over video evidence to their local law enforcement agency and let them decide if it should be released.

To review: Potential jurors shouldn't see all the evidence, lest they be "polluted"; the accused shouldn't get to use exonerating evidence in their defense; and law enforcement arrogates all judgement calls about evidence to itself.

More on citizen law enforcement via YouTube here, and me on NPR talking about the upsides of living in a surveillance society here.

Via Fark

Would President McCain Obey the Law?

jsullum@reason.com (Jacob Sullum) — Wed, 25 Jun 2008 13:00:00 EDT

In asking Congress to allow warrantless surveillance of Americans' international communications, President Bush is seeking permission to do something he believes he does not need permission to do. Like a parent confronted by a defiant teenager, Congress is giving in while insisting it isn't.

Federal law already says the government may listen to the phone calls or read the email of people in the United States only if it follows procedures established by statute. The amendments to the Foreign Intelligence Surveillance Act (FISA) approved by the House last week say it again. Twice. In effect, Congress is saying, "We mean it. Seriously."

In Congress' defense (did I really say that?), it's hard to think of an effective statutory response to a president who, like Bush, feels free to ignore the law when it forbids him to do what he thinks is necessary to fight terrorism. The only solution to that problem is to replace Bush with a president who is more inclined to respect the rule of law and the separation of powers.

Although he may change his tune if he's elected (especially since he'll face a Democrat-controlled Congress disinclined to check his power), Barack Obama at least claims to believe in these principles. "As president," he told The Boston Globe in December, "I will follow existing law, and when it comes to U.S. citizens and residents, I will only authorize surveillance for national security purposes consistent with FISA and other federal statutes."

The Illinois senator disappointed many of his supporters by backing the FISA amendments, which not only approve warrantless wiretaps but grant retroactive immunity to the telecommunications companies that assisted the Bush administration's illegal post-9/11 surveillance program. Still, he emphasized that Congress has the authority to restrict or rescind the president's spying powers.

"Under this compromise legislation," Obama said, "the president's illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance, making it clear that the president cannot circumvent the law and disregard the civil liberties of the American people."

By contrast, Obama's straight-talking opponent, John McCain, has vacillated on this issue and now seems unwilling to give a straight answer to the question of whether, as president, he would obey the law. "I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is," McCain told the Globe in December. "I don't think the president has the right to disobey any law."

Yet a McCain adviser contradicted that position in a May letter to National Review Online, saying the Arizona senator believes "neither the Administration nor the telecoms need apologize for actions that most people...understand were Constitutional and appropriate in the wake of the attacks on September 11, 2001." He added that "John McCain will do everything he can to protect Americans from [terrorist] threats, including asking the telecoms for appropriate assistance to collect intelligence against foreign threats to the United States as authorized by Article II of the Constitution."

The reference to Article II implies that the president has constitutional authority to flout statutory restrictions on wiretaps, the very position that McCain disavowed in December. Pressed by The New York Times to explain the blatant contradiction, a campaign spokesman wrote in an email message, "To the extent that the comments of members of our staff are misinterpreted, they shouldn't be read into as anything otherwise." Thanks for clearing that up.

In response to the Times story, McCain himself claimed "it's ambiguous as to whether the president acted within his authority" when he ordered the warrantless wiretaps. No more need be said on the subject, according to McCain, because we should "move forward" instead of "looking back." The question for voters is whether they want to move forward with a president whose commitment to obey the law is ambiguous.

The Donkey Likes Angry Sex, and the Man Was Playing Hard to Get

jsullum@reason.com (Jacob Sullum) — Mon, 16 Jun 2008 09:54:00 EDT

In a letter to blogger Patrick Frey, Marcy Tiffany, Judge Alex Kozinski's wife, tries to set the record straight regarding her husband's collection of humorous, sometime raunchy digital pictures. Her most important points:

1. The "website" described by the Los Angeles Times is in fact a set of files on a computer in his home. Kozinski and his family use the computer as the server for their home network and as a way of sharing pictures and other files with relatives, friends, and acquaintances.

2. The files on the computer were never meant to be public but were accessed by Cyrus Sanai, a lawyer with a grudge against Kozinski, who shopped the more risqué images around to various news organizations, including the Times.

3. The images on which the Times focused not only are not the sort of material that would be found to be legally obscene; they do not even qualify as pornography, since their intent is to amuse rather than arouse. Furthermore, although the Times described the "sexually explicit material" as "extensive," it represents just "a tiny pecentage" of the files on the computer, which include many other visual jokes as well as personal files such as family photos.

4. The Times and other news outlets misrepresented the nature of the images. Footage the Times described as "video of a half-dressed man cavorting with a sexually aroused farm animal," for example, was actually a widely circulated YouTube video of "a man trying to relieve himself in a field when he is attacked by a donkey he fights off with one hand while trying to hold up his pants with the other." The San Francisco Chronicle, perhaps taking its cue from the Times, called this an example of "bestiality."

In light of these details, the attacks on Kozinski, whether on his ability to preside over an obscenity trial or on his fitness as a judge, are even more outrageous. Stanford law professor Larry Lessig's take on this, which likens Sanai to a burglar rummaging through Kozinski's home, looking for potentially embarrassing reading material, seems apt.

Previous posts on this story are here and here.

Would President McCain Obey the Law? 'It's Ambiguous.'

jsullum@reason.com (Jacob Sullum) — Wed, 11 Jun 2008 18:30:00 EDT

In a column I wrote a couple of months ago, I noted that John McCain seemed to have a less expansive view of presidential authority than George W. Bush. Now the distance between them seems to be shrinking. In a recent letter to National Review Online, McCain adviser Douglas Holtz-Eakin reported that the Arizona senator believes President Bush acted within his constitutional authority when he violated the Foreign Intelligence Surveillance Act (FISA) by approving warrantless monitoring of international communications involving people in the United States. According to Holtz-Eakin, who was responding to an NRO post by Andrew McCarthy that questioned whether McCain was sufficiently supportive of Bush's position on this issue, the presumptive Republican presidential candidate believes "neither the Administration nor the telecoms need apologize for actions that most people, except for the ACLU and the trial lawyers, understand were Constitutional and appropriate in the wake of the attacks on September 11, 2001."

Holtz-Eakin added that as president, "John McCain will do everything he can to protect Americans from [terrorist] threats, including asking the telecoms for appropriate assistance to collect intelligence against foreign threats to the United States as authorized by Article II of the Constitution." The reference to Article II clearly implies that McCain would feel free to violate any statute he believed impeded his ability to conduct anti-terrorist surveillance.

As The New York Times noted on Friday, that position directly contradicts the one McCain took in response to questions about executive power posed by The Boston Globe last December:

Mr. McCain was asked whether he believed that the president had constitutional power to conduct surveillance on American soil for national security purposes without a warrant, regardless of federal statutes.
He replied: "There are some areas where the statutes don't apply, such as in the surveillance of overseas communications. Where they do apply, however, I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is."
Following up, the interviewer asked whether Mr. McCain was saying a statute trumped a president's powers as commander in chief when it came to a surveillance law. "I don't think the president has the right to disobey any law," Mr. McCain replied.

Note that McCain says there are some areas where FISA's warrant requirements "don't apply," not some areas where they are superseded by the president's inherent powers. The example he gives, "surveillance of overseas communications," refers to email and telephone calls between parties who are both located abroad, which are not covered by FISA's warrant requirement, rather than the domestic-to-foreign communications that were the subject of Bush's order. His statement is a clear disavowal of the notion that "the president has the right to disobey the law." But instead of saying Holtz-Eakin got McCain's views wrong, the senator's campaign offered a series of nonresponses:

Tucker Bounds, a McCain campaign spokesman, said Mr. McCain's position on surveillance laws and executive power "has not changed."
"John McCain has been an unequivocal advocate of pursuing the radicals and extremists who seek to attack Americans," Mr. Bounds wrote in an e-mail message, adding that Mr. McCain's "votes and positions have been completely consistent and any suggestion otherwise is a distortion of his clear record."
Asked whether the views Mr. Holtz-Eakin imputed to Mr. McCain were inaccurate, Mr. Bounds did not repudiate the statement. But late Thursday Mr. Bounds called and said, "to the extent that the comments of members of our staff are misinterpreted, they shouldn't be read into as anything otherwise."

Thanks for clearing that up. The day the Times story appeared, McCain treated anyone who might have been troubled by it to some of his legendary straight talk:

"It's ambiguous as to whether the president acted within his authority or not,'' he said, saying courts had ruled different ways on the matter. "I'm not interested in going back. I'm interested in addressing the challenge we face today of trying to do everything we can to counter organizations and individuals that want to destroy this country. So there's ambiguity about it. Let's move forward.''

There is no ambiguity as to whether FISA required warrants for the sort of surveillance Bush authorized the National Security Agency to conduct, and the argument that Congress unintentionally amended FISA when it authorized the use of military force against Al Qaeda and the Taliban does not pass the laugh test. The only real issue is whether the president has the constitutional authority to disregard statutes such as FISA when they get in the way of actions he considers necessary to prevent terrorist attacks. In December, McCain said the president does not have that authority; now he says "there's ambiguity about it."

Pace Holtz-Eakin, this issue is not of interest only to "the ACLU and trial lawyers"; pace McCain, it is not an excuse for pointless recriminations about long-ago actions that are irrelevant to "addressing the challenge we face today." As we "move forward," there are few questions more important than whether the president is bound to obey the law even when it conflicts with his own ideas about how best to fight terrorism. If McCain cannot give a straight answer to that question and stick to it, he does not deserve the vote of anyone who believes in the rule of law and the separation of powers.

"And Then They Started Having Sex"

mriggs@reason.com (Mike Riggs) — Wed, 11 Jun 2008 15:08:00 EDT

Melinda Henneberger at Slate writes about 82-year-old Dorothy and 95-year-old Bob, whose love affair at the nursing home for dementia patients is considered adorable until it turns sexual.

To justify keeping the two apart, Bob's family frets about the danger posed by his bad heart (which Dorothy's doctor firmly dismissed as just plain wrong), and then more or less admits that they're opposed to the relationship simply on principle: Old people should be contemplative and chaste. Period.

But what it really comes down to is the money:

Dorothy's son-in-law, who is a doctor, suspects Bob's son of fearing for his inheritance. Bob had repeatedly proposed for all to hear and called Dorothy his wife, but his son called her something else--a "gold digger"--and refused to even discuss her family's offer to sign a prenup.

Families don't want their mentally unsound loved ones entering contracts that will leave children and grandchildren sorting through a mess of legal entanglements--fair enough. And something like the "sexual power of attorney" suggested in the article might be a good option. But do we really want to say that forgetful old people shouldn't be allowed to have sex, just because they're, well, forgetful and old?

If boomers are going to make a case for restricting their parents' liberty in the last few years of life, perhaps they should first look their own futures and ask themselves if they want their children oppressing their sexual appetites in the year 2030.

More reason on dementia.

Your Fingerprints Are Literally All Over This Housing Bill

gillespie@reason.com (Nick Gillespie) — Fri, 23 May 2008 11:39:00 EDT

reason contributor John Berlau looks at the fine print of a Senate housing bill and finds a mess of whorls that might just play havoc with your right to anonymity:

...a measure creating a federal fingerprint registry totally unrelated to national security passed a U.S. Senate committee almost without notice. The legislation would require thousands of individuals working even tangentially in the mortgage and real estate industries - and not suspected of anything - to send their prints to the feds. The database and fingerprint mandates were tucked into housing and foreclosure assistance bills that on Tuesday passed the Senate Banking Committee by a vote of 19-2.
The measure the committee passed states that "an indvidual may not engage in the business of a loan originator without first ... obtaining a unique identifier." To obtain this "identifier," an individual is requiredto "furnish" to the newly created Nationwide Mortgage Licensing System and Registry "information concerning the applicant's identity, including fingerprints for submission" to the FBI and other government agencies.

More here.

True confession: The first merit badge I ever earned in the Boy Scouts on the long path to the rank of Eagle, was Fingerprinting.

I Want My CCTV

rbalko@reason.com (Radley Balko) — Mon, 12 May 2008 12:51:00 EDT

New research indicates that Britain's massive CCTV surveillance system isn't particularly good at either solving or preventing crime. So, sorry about doing away with that whole "privacy" thing. Guess it was for naught.

But all is not lost. Boing Boing reports...

The Get Out Clause, an unsigned Manchester band who could not afford a camera crew for their video, 'performed' in front of a load of CCTV cameras, requested the footage from the camera operators under the Data Protection Act and then stitched the results together for their music video.

Here's the result:

reason's seminal 2004 covers story on the benefits of the surveillance state here.

Liberty for All

info@reason.com (Damon W. Root) — Mon, 05 May 2008 15:00:00 EDT

Last week, South Dakota election supervisor Kea Warne announced that state voters will have the opportunity this November to accept or reject one of the nation's strictest anti-abortion statutes, a proposed law that would completely ban the practice except for narrowly defined cases of rape, incest, or the health of the mother. Sponsored by the group VoteYesForLife.com, which gathered well above the 16,776 signatures necessary for inclusion on the fall ballot, Initiated Measure 11, as the proposal is known, puts the question of abortion rights directly in the hands of state voters. If they vote yes, doctors who perform illegal abortions will face up to 10 years in prison and up to $10,000 in fines. But should it matter what the voters think?

Look at it like this. The United States Constitution guarantees a number of specific individual rights, including free speech and the right to keep and bear arms. But what about those rights that aren't listed? Do we have the right to drink apple juice? How about the right to grow a mustache? More crucially, what about the right to be left alone? The Constitution mentions none of them. So if a majority of voters agree that we don't possess these (or countless other) rights, what's to stop the government from restricting our liberty?

The answer for many conservatives, and some libertarians, is nothing. Take Rep. Ron Paul (R-Texas). An outspoken foe of abortion, Paul favors turning the issue over to the states, where local preferences would trump a one-size-fits-all federal policy. Even pro-choice libertarians might like the sound of that. But consider the full ramifications of Paul's majoritarian position. Responding to the Court's disastrous decision in Kelo v. City of New London (2005), which allowed the pharmaceutical company Pfizer to acquire private property seized via eminent domain under an "economic revitalization" plan, Paul argued that the Supreme Court should have simply refused to hear the case. "The issue," he maintained, "is the legality of the eminent domain action under Connecticut law, not federal law....The fight against local eminent domain actions must take place at the local level."

While Paul is certainly right that eminent domain abuse must be aggressively fought on the local level, he's wrong that we should skip the federal fight. As the Fourteenth Amendment declares: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." Yet in Paul's mistaken opinion, this potentially libertarian amendment has no impact on the actions of state or local governments. Legal historians, however, have long agreed that the Fourteenth Amendment was originally meant to apply the Bill of Rights (and other natural rights) to the states.

Similarly, conservative former federal appeals court judge Robert H. Bork has attacked the Supreme Court for "inventing" rights and "usurp[ing] the powers of the people and their elected representatives." Bork is referring to two cases here. First, in Griswold v. Connecticut (1965), the Court struck down that state's ban on contraceptives, holding that the law violated the "zones of privacy" created by the Constitution's "various guarantees." Second, in Roe v. Wade (1973), the Court recognized the right to an abortion within the privacy rights guaranteed by Griswold.

For Bork, the absence of the word privacy in the Constitution means that the document does not protect it. But what about the Ninth Amendment, which states: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." In other words, the Constitution itself recognizes that we possess far more rights than any document could ever list, a situation that the legal scholar Stephen Macedo has likened to islands of government power "surrounded by a sea of individual rights." If Bork had his way, we'd all be drowning in a sea of government power.

Which brings us back to the voters of South Dakota. There's nothing inherently noble about a majority of people agreeing on a particular issue. Indeed, bad ideas often prove more popular than good ones. It's only when popular majorities are anchored to the idea of inalienable rights that they're most entitled to our respect. Without that underlying commitment to individualism, majority rule can and frequently will degenerate into the loss of liberty for unpopular minorities. The racist policies of the Jim Crow South, after all, were often extremely popular among white voters.

So before we get too misty over the will of the people of South Dakota, let's remember that James Madison warned us about the tyranny of the majority, not the tyranny of unfettered individual liberty.

Damon W. Root is a reason associate editor.

More DNA Day Fun: To Test, Or Not to Test?

kmw@reason.com (Katherine Mangu-Ward) — Fri, 25 Apr 2008 12:19:00 EDT

In honor of DNA day:

Congress reached an agreement clearing the way for a bill to prohibit discrimination by employers and health insurers on the basis of genetic tests...
[The bill] would make it illegal for health insurers to raise premiums or deny coverage based on genetic information, and would prohibit employers from using such information for decisions on hiring, firing, promotions or job assignments.

Everybody's favorite fillibusterin' Republican Tom Coburn of Oklahoma has been delaying the bill, but it looks like it's about to shake loose. Coburn says he was worried about a new lawsuit boom as people with genetic conditions sued employers, insurers, or any body who looked at them cross-eyed. Some additional legal protections for employers have been added to the bill in the form of a "firewall" between insurer and employer sections of the bill, so it will mostly affect people looking to get individual health insurance plans.

We're bound to see more debate in this area as the science improves and the price of genetic testing comes down--this particular legislation took 13 years to make it through Congress. On one hand, people are afraid to do (potentially lifesaving) genetic tests right now because they're worried about future insurabiity--surely a suboptimal state of affairs. On the other hand, employers will discriminate on certain conditions, no matter what the law says, and in many cases, they ought to be able to. Why should we demand, for example, that a company invest in training an employee that it knows will likely to be out of commission due to illness in the near future?

And then there's this slippery slope:

[The bill] does not prohibit discrimination once someone already has a disease, and some experts said such protection would have to be the next step.
“You don’t want to be denied health insurance when you are at risk for breast cancer,” said Sonia M. Suter, an associate professor at George Washington University Law School. “But it seems to me you really don’t want to be denied health insurance when you have breast cancer.”

Our insurance system is pretty broken at this point, but layering on legislation requiring insurers and employers to ignore the information made available by quickly evolving science and medicine doesn't seem likely to help much.

Erase Your Porn

rbalko@reason.com (Radley Balko) — Wed, 23 Apr 2008 10:55:00 EDT

The Ninth Circuit becomes the second federal appeals court to rule that border agents can search your laptop without probable cause. The ruling wasn't surprising, but it is unfortunate. Probably good for the external drive and web hosting industries, though.

Akron, Too

rbalko@reason.com (Radley Balko) — Mon, 21 Apr 2008 15:27:00 EDT

In Memphis this week, it was a "terrorism sweep" that failed to catch any terrorists. In Akron, police embarked on a citywide "gun sweep" that didn't turn up any guns.

But like the authorities in Memphis, they did find plenty of other ways to stay busy:

Authorities arrested 72 people in the third night of a Gun Violence Reduction Sweep on Friday night and Saturday morning, Akron police Lt. Rick Edwards said.
Edwards said 115 charges were filed. Of those charges, five were felonies, 35 were misdemeanors and 75 warranted arrests for people with outstanding warrants, Edwards said. Of the warranted arrests, seven were felonies and 68 were misdemeanors.
Authorities also issued 88 traffic citations, including four for operating a vehicle under the influence.
During the sweep, authorities also conducted bar checks at the Bank Lounge at 1078 Kenmore Blvd., where patrons were arrested on drug charges, and at the Boulevard Lounge at 995 Kenmore Blvd., where liquor violations were issued against the liquor permit holder and several patrons were charged with drug offenses, Edwards said.
During the citywide sweep, officers confiscated 5.2 grams of crack cocaine, one-tenth of a gram of powdered cocaine, 13.1 grams of marijuana, 9 Oxycodone pills and 19 Percocet pills, Edwards said.
No guns were confiscated during the Friday-Saturday action, Edwards said.

These allegedly-regulatory "alcohol inspections" of bars that include searching patrons for drugs are becoming increasingly common.

Don't Be Evil, Revisited

kmw@reason.com (Katherine Mangu-Ward) — Thu, 17 Apr 2008 16:28:00 EDT

Google and AOL cheerfully encouraged people worried about their privacy in the age of targeted ads to turn to technological solutions at an event today, and talked about ways they are trying to make it easier for users to block their ads. They were, of course, fending off government regulation.

The Network Advertising Initiative already offers a cookie that lets users opt out of ads from the biggest players, but cookies aren't 100 percent protection, they can expire or be erased.

Google chief privacy officer Jane Horvath predicted that in the future, there may be a technological solution "that will have a cookie or something that will allow this (opt-out preference) to be a constant," adding, "that would be a very promising direction to go."

Other much worse, likely less effective ideas include a federal Do Not Track database, similar to the Do Not Call list. And this:

A broad coalition of consumer and privacy advocates last fall called on the Federal Trade Commission to establish such a registry. The concept is this: Any advertising entity that sets a "persistent" cookie on a user's machine would be required to give the FTC the domain names of servers used to place it. Consumers would then be able to import that list of domain names and block them from tracking their Internet surfing behavior.
Polonetsky said that while he supports the concept, "I think the way to do it isn't a government place where your browser goes and gets stuff."

This sounds like a little bit of the old "Don't Be Evil" to me: Working to make it easier for people opt out is pretty sportsman-like. Personally, even if I could permanently opt out, I'm not sure I would. At least for now, eerily well-targeted ads, like the "Barack and Roll t-shirts" the scroll bar at the top of my email is currently offering, still amuse me. For more ads like these, and fewer for penis pills, I'll happily accept Google's electronic nose sniffing in my email.

Excuse Me While I Post the Sky

jsullum@reason.com (Jacob Sullum) — Fri, 04 Apr 2008 11:58:00 EDT

Recently I've noted several cases in which state courts have interpreted state constitutions as providing greater privacy protection than the Fourth Amendment, as read by the U.S. Supreme Court, does. Last week the Vermont Supreme Court provided another example, ruling that prolonged helicopter surveillance of a marijuana grower's property from heights as low as 100 feet violated the state constitution's ban on "unreasonable government intrusions into legitimate expectations of privacy." It's not completely clear that the U.S. Supreme Court would have ruled differently under the Fourth Amendment, but I suspect it would have. The most similar case it has addressed involved a police helicopter that circled twice over a marijuana grower's greenhouse at a height of 400 feet, which the Court said did not constitute a search.

In last week's decision, by contrast, the Vermont Supreme Court declared that "Vermont citizens have a constitutional right to privacy that ascends into the airspace above their homes and property":

Vermonters normally expect their property to remain private when posted as such. We have also recognized that Vermonters normally have high expectations of privacy in and around their homes. Therefore, we think it is also likely that Vermonters expect—at least at a private, rural residence on posted land—that they will be free from intrusions that interrupt their use of their property, expose their intimate activities, or create undue noise, wind, or dust....
In this case, defendant has demonstrated that he has a subjective expectation of privacy in his back yard. He has taken precautions to exclude others from his back yard by posting his land and by communicating to a local forest official that he did not want people trespassing on his land....It is of no moment that defendant could not effectively post his sky.

My favorite part is that the state police did the aerial search at the suggestion of that "local forest official," who "found defendant's insistence on privacy to be 'paranoid.'"

[via the Drug War Chronicle]

The School Crotch Inspector

jsullum@reason.com (Jacob Sullum) — Wed, 02 Apr 2008 07:00:00 EDT

There are two kinds of people in the world: the kind who think it's perfectly reasonable to strip-search a 13-year-old girl suspected of bringing ibuprofen to school, and the kind who think those people should be kept as far away from children as possible. The first group includes officials at Safford Middle School in Safford, Arizona, who in 2003 forced eighth-grader Savana Redding to prove she was not concealing Advil in her crotch or cleavage.

It also includes two judges on the U.S. Court of Appeals for the 9th Circuit, who last fall ruled that the strip search did not violate Savana's Fourth Amendment rights. The full court, which recently heard oral arguments in the case, now has an opportunity to overturn that decision and vote against a legal environment in which schoolchildren are conditioned to believe government agents have the authority to subject people to invasive, humiliating searches on the slightest pretext.

Safford Middle School has a "zero tolerance" policy that prohibits possession of all drugs, including not just alcohol and illegal intoxicants but prescription medications and over-the-counter remedies, "except those for which permission to use in school has been granted." In October 2003, acting on a tip, Vice Principal Kerry Wilson found a few 400-milligram ibuprofen pills (each equivalent to two over-the-counter tablets) and one nonprescription naproxen tablet in the pockets of a student named Marissa, who claimed Savana was her source.

Savana, an honors student with no history of disciplinary trouble or drug problems, said she didn't know anything about the pills and agreed to a search of her backpack, which turned up nothing incriminating. Wilson nevertheless instructed a female secretary to strip-search Savana under the school nurse's supervision, without even bothering to contact the girl's mother.

The secretary had Savana take off all her clothing except her underwear. Then she told her to "pull her bra out and to the side and shake it, exposing her breasts," and "pull her underwear out at the crotch and shake it, exposing her pelvic area." Sometimes it's hard to tell the difference between drug warriors and child molesters.

"I was embarrassed and scared," Savana said in an affidavit, "but felt I would be in more trouble if I did not do what they asked. I held my head down so they could not see I was about to cry." She called it "the most humiliating experience I have ever had." Later, she recalled, the principal, Robert Beeman, said "he did not think the strip search was a big deal because they did not find anything."

The U.S. Supreme Court has held that a public school official's search of a student is constitutional if it is "justified at its inception" and "reasonably related in scope to the circumstances which justified the interference in the first place." This search was neither.

When Wilson ordered the search, the only evidence that Savana had violated school policy was the uncorroborated accusation from Marissa, who was in trouble herself and eager to shift the blame. Even Marissa (who had pills in her pockets, not her underwear) did not claim that Savana currently possessed any pills, let alone that she had hidden them under her clothes.

Savana, who was closely supervised after Wilson approached her, did not have an opportunity to stash contraband. As the American Civil Liberties Union puts it, "There was no reason to suspect that a thirteen-year-old honor-roll student with a clean disciplinary record had adopted drug-smuggling practices associated with international narcotrafficking, or to suppose that other middle-school students would willingly consume ibuprofen that was stored in another student's crotch."

The invasiveness of the search also has to be weighed against the evil it was aimed at preventing. "Remember," the school district's lawyer recently told ABC News by way of justification, "this was prescription-strength ibuprofen." It's a good thing the school took swift action, before anyone got unauthorized relief from menstrual cramps.

© Copyright 2008 by Creators Syndicate Inc.

'Police Are Like Vampires'

jsullum@reason.com (Jacob Sullum) — Wed, 26 Mar 2008 10:11:00 EDT

As they wait to hear whether the U.S. Supreme Court will rule that the District of Columbia's firearm restrictions are unconstitutional, D.C. police are grabbing guns while they can. Under a program scheduled to begin in a couple weeks in the Washington Highlands neighborhood, police will go door to door, asking for permission to search. Any guns they discover will be confiscated and destroyed, unless they are linked to a crime. The police are promising "amnesty" for violations of the city's gun ban and for any other crimes they happen to find evidence of during the searches. This is hard to believe on its face: If they find a few kilos of heroin, piles of cash, or a severed head, they're not going to ask any questions? Even if they make no immediate arrests, what guarantee is there that they won't be back later, with a warrant ostensibly based on an independent source of information? Not surprisingly, residents are suspicious:

"Bad idea," said D.C. School Board member William Lockridge. "I think the people should not open your doors under any circumstances, don't even crack your door, unless someone has a warrant for your arrest."
Ron Hampton, of the Black Police Officers Association, said he doesn't expect many in the community to comply.
"This is one of those communities where the police even have problems getting information about crimes that are going on in the community, so to suggest, now, that the police have enough community capital in their hand that the community is going to cooperate with them, I'm not so sure that's a good idea," Hampton said.

In Boston, meanwhile, police have scaled back plans for a similar gun hunt in "four troubled neighborhoods" after unexpected resistance from the community. They promise to search only the rooms of minors, with permission from their parents or guardians, and "keep the discovery [of a gun] confidential under most circumstances." An ACLU attorney notes that public housing residents could be evicted for having guns, to which a local advocate of the searches responds by suggesting that police "would support any family that cooperated with the police and oppose their eviction." The Boston Globe says critics complain that "police will not guarantee that residents would face no criminal charges if guns or drugs were found":

"Police are like vampires. They shouldn't be invited into your homes," said Jamarhl Crawford, chairman of the New Black Panther Party in Roxbury, who moderated the meeting [of 100 residents at the Roxbury Family YMCA].
"Vampires are polite; they're smooth," he said in an interview the following day. "But once they get in, the door closes. Havoc ensues."

If you are wondering why anyone would consent to a search of his home when there's evidence of a crime there, there are two main explanations: 1) The person who consents may not know about, say, the bag of marijuana in the dresser drawer, and 2) people are intimidated by the police and may feel constrained to say yes even when they know it will get them into trouble. They may think that police will find a pretext to do the search anyway, in which case they will be angrier, more destructive, and possibly violent. In neighborhoods where residents tend to view police as an occupying force rather than peace officers there to assist them, that reaction may be especially likely.

[Thanks to John Kluge and Brett Wallis for the tip.]

A Clean Page

jsullum@reason.com (Jacob Sullum) — Fri, 21 Mar 2008 18:03:00 EDT

Last week a three-judge panel of the U.S. Court of Appeals for the 9th Circuit unanimously ruled (PDF) that the pre-employment drug testing policy of the Woodburn Library in Woodburn, Oregon, violates the Fourth Amendment. The court said the city of Woodburn, which runs the library, had not demonstrated any "special need" that would override a would-be page's reasonable expectation of privacy. The court rejected the city's claim that the position of library page is "safety-sensitive" (citations omitted):

Jobs are considered safety-sensitive if they involve work that may pose a great danger to the public, such as the operation of railway cars, the armed interdiction of illegal drugs, work in a nuclear power facility, work involving matters of national security, work involving the operation of natural gas and liquified natural gas pipelines, work in the aviation industry, and work involving the operation of dangerous instrumentalities, such as trucks that weigh more than 26,000 pounds, that are used to transport hazardous materials, or that carry more than fourteen passengers at a time. The work of a page, so far as the record discloses, entails nothing of this order of magnitude.

I don't know about that. If you put an oversized book on the wrong shelf, it could fall off and hit somebody's head. I bet that would smart.

The 9th Circuit relied largely on a 1997 case in which the Supreme Court overturned a Georgia requirement that candidates for public office undergo urine tests, which the Court viewed as a purely symbolic measure. By contrast, the Court has upheld suspicionless drug testing for railroad workers and for people seeking Customs Service positions that involve carrying a gun, handling classified material, or participating in drug interdiction. Based on a more paternalistic rationale, the Court also has held that public schools may constitutionally require students participating in sports or other extracurricular activities to surrender their urine. Woodburn tried to combine the safety and for-the-children arguments by noting that children use the library and pages sometimes fill in at the youth services desk. The appeals court did not buy it, but I think the Supreme Court might.

[via NORML]

Stealing Our Sunshine

rbalko@reason.com (Radley Balko) — Thu, 20 Mar 2008 09:09:00 EDT

It's Sunshine Week.

Seem like as good a time as any to look at the Bush administration's continuing efforts to duck Freedom of Information Act requests. Last summer, you might remember that in response to requests for White House emails related to political fundraising, the administration tried to argue that the White House Office of Administration wasn't subject to FOIA, despite the fact that the office has a compliance officer and had posted on its website guides to FOIA procedures.

In response to that and other complaints about the administration's paltry FOIA compliance, Congress passed a bill late last year setting up a FOIA ombudsman to serve as a liaison between federal agencies and FOIA petitioners. The ombudsman would report to the National Archives and Records Administration. Bush reluctantly signed the bill late last year, but just weeks later slid a provision into his budget proposal that would move the ombudsman to the Justice Department. The Justice Department represents the administration in FOIA litigation. In fact, the Washington Post reports that the entire administration is still under a DOJ directive from 2001 instructing all federal agencies to lose all legal channels available to duck as many FOIA requests as possible. Bush wants the ombudsman to report to the people doing everything they can to undermine the people the ombudsman is supposed to represent.

The Treasury Department seems to have gotten the memo. The Department is this year's winner of the "RoseMary Award," presented by the National Security Archive to the least transparent federal agency over the previous year. It's named after Rose Mary Woods, Richard Nixon's secretary who famously erased 18 1/2 minutes of Watergate tapes. The Treasury apparently routinely unceremoniously destroys FOIA requests after stalling on them for months, sometimes years, at a time. One request is 21 years old.

On the flip side, it look as if the Bush administration is ready to bring back Total Information Awareness, albeit under a new name and slightly different auspices, to get around the minor inconvenience that the original TIA was actually banned by Congress.

Privacy in this administration seems to only apply to people working in their official capacity for the government, while "transparency" only applies to the citizenry.

They Ain't Gonna Pee-Pee in No Cup

jsullum@reason.com (Jacob Sullum) — Fri, 14 Mar 2008 10:59:00 EDT

Yesterday the Washington Supreme Court unanimously ruled that random drug testing of student athletes violates the state constitution. The U.S. Supreme Court has upheld random testing not only of athletes but of students participating in other extracurricular activities as well, and its logic (such as it is) suggests that random testing of all students also would be consistent with the Fourth Amendment. But Washington's constitution has a privacy guarantee that goes beyond the prohibition of unreasonable searches and seizures, saying, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." The state Supreme Court has read this clause as providing more protection than the Fourth Amendment, which is why Washington is one of the few states without drunk driving roadblocks. It also seems to be a pretty strong argument against the state law that makes it a felony to place an online bet in the privacy of one's home.

The Washington Supreme Court ruling on student drug testing is here. A couple months ago, I noted that Washington Gov. Christine Gregoire wants to hop on the sobriety checkpoint bandwagon, despite the state Supreme Court's ruling that suspicionless traffic stops violate the constitution she has sworn to uphold. A challenge to Washington's gambling law, based on arguments that it conflicts with the federal Wire Act and the Commerce Clause, is scheduled to be heard next month.

Washington is not the only state where residents enjoy more privacy protection than the Fourth Amendment (as currently read) guarantees. The Pennsylvania Supreme Court, for example, has taken a dimmer view of student drug testing than the U.S. Supreme Court. The Alaska Supreme Court has interpreted the state constitution's privacy clause, which says the "right of the people to privacy is recognized and shall not be infringed," as prohibiting prosecution of people for possessing small amounts of marijuana at home. It has approved drug testing of police and firefighters applying for promotion or transfer but has ruled that random testing of police and firefighters is unconstitutional.

[Thanks to sage and Jim Anderson for the tip.]

The FBI's Experiments in Self-Supervision

jsullum@reason.com (Jacob Sullum) — Thu, 06 Mar 2008 11:03:00 EST

Yesterday FBI Director Robert Mueller told the Senate Judiciary Committee the bureau's agents continued to improperly use the administrative subpoenas known as national security letters to demand personal information about Americans from financial institutions, credit bureaus, Internet service providers, and phone companies through 2006. A March 2007 report by the Justice Department's inspector general, covering 2003 through 2005, revealed that agents were unlilaterally issuing NSLs in nonemergency situations without getting the required clearance from their superiors. Mueller was offering a preview of an upcoming inspector general's report with similar findings about 2006. But all of that "predates the reforms we now have in place," Mueller said. Evidently the FBI now has a rule that says agents have to follow the rules.

A PDF of the 2007 I.G. report is available here.

Before the House Folds

jsullum@reason.com (Jacob Sullum) — Wed, 13 Feb 2008 15:01:00 EST

Yesterday, by a vote of 68 to 29, the Senate approved the surveillance bill favored by the White House, which extends the powers granted by the Protect America Act and gives telecommunications companies retroactive immunity from liability for assisting the National Security Agency with its illegal warrantless eavesdropping program. The House version of the bill, which includes more judicial oversight and leaves out the retroactive immunity, still needs to be reconciled with the Senate version. Here are a couple of questions the House should consider before going along:

1. Why is retroactive immunity necessary to guarantee future cooperation? In a press release I just received, the White House insists "this provision is critical to ensuring the future cooperation of electronic communication service providers." It seems like immunity for future assistance, which the carriers already have, should do the trick. If the real concern is that the telecommunications companies should not be punished for cooperating with a program the administration assured them was legal, that's precisely the sort of issue that should be litigated, especially since testing that defense would highlight the administration's dishonesty and lawlessness.

2. If the government should not have to bear the inconvenience of obtaining a warrant to monitor the communications of suspected terrorists simply because the targets are talking to people in the United States, why should it need a warrant simply because the targets themselves happen to be in the United States? The emergency, wartime logic that permits warrantless surveillance of foreign-to-domestic telephone calls and email messages applies equally to communications that are entirely domestic. A future administration is apt to demand that Congress further amend the Foreign Intelligence Surveillance Act to make its treatment of anti-terrorist eavesdropping consistent.

You can find recent reason coverage of the surveillance debate here and here.

The Whys of Spies

jsullum@reason.com (Jacob Sullum) — Wed, 06 Feb 2008 07:02:00 EST

Last August, panicked at the prospect of an imminent terrorist attack that could be averted only by granting the executive branch new surveillance powers, Congress passed the Protect America Act. With the law scheduled to expire this month, the Bush administration is trying to scare Congress into making the powers permanent.

The alleged crisis is an artificial one created by a president who waited until last summer to seek congressional approval for the illegal surveillance his administration conducted after 9/11. Bush took his time, and so should Congress.

After The New York Times revealed, in December 2005, that the National Security Agency had been eavesdropping on international communications involving people in the U.S. without the warrants required by the Foreign Intelligence Surveillance Act (FISA), the Bush administration insisted the program was perfectly legal. The Justice Department claimed Congress (apparently without realizing it) had implicitly amended FISA when it authorized the use of military force against Al Qaeda and its Taliban allies in Afghanistan.

At the same time, then-Attorney General Alberto Gonzales said the White House had not asked Congress to change FISA because Congress probably would have said no. That explanation was inconsistent not only with the claim that Congress already had legalized the surveillance program but also with the fact that Congress had amended FISA in other ways by passing the PATRIOT Act in October 2001. If any doubt remained that Congress would have been receptive to the administration's request for further FISA amendments, it was dispelled by the hasty passage of the Protect America Act.

Even at this late date, it's not clear why FISA needs to be amended. The administration said it violated the law for years because it could not conduct the surveillance necessary to prevent terrorist attacks while complying with FISA's warrant requirements. But in January 2007, Gonzales suddenly announced that the irresolvable conflict somehow had been resolved and that all anti-terrorist surveillance thenceforth would be conducted in compliance with FISA.

A few months later, what had been impossible and then briefly possible became impossible again, supposedly because of a secret ruling by the Foreign Intelligence Surveillance Court. Acccording to the administration, a judge on the court interpreted FISA as requiring a warrant for surveillance of foreign-to-foreign communications that happen to pass through U.S. wires.

"International communications are on a wire, so all of a sudden we were in a position because of the wording in the law that we had to have a warrant to do that," Director of National Intelligence Mike McConnell told the El Paso Times in August. "If it were wireless, we would not be required to get a warrant....My argument was that the intelligence community should not be restricted when we are conducting foreign surveillance against a foreigner in a foreign country, just by dint of the fact that it happened to touch a wire."

It's hard to see how a judge could have interpreted FISA this way. But even if one did, the administration has never explained why this decision (which it inexplicably did not appeal) required Congress to authorize warrantless surveillance of communications that not only traverse U.S. wires but involve people in the United States.

Instead the administration has obscured the breadth of the powers granted by the Protect America Act. In the El Paso Times interview, McConnell falsely asserted that the communications at issue are "all foreign to foreign."

The administration has contradicted itself even on the question of how urgently needed the FISA changes are. Last summer they were so crucial to national security that McConnell claimed pausing to debate the issue meant "some Americans are going to die." More recently, Bush has threatened to let these absolutely essential powers lapse by vetoing extension bills that do not meet his specifications.

An administration that cannot tell a consistent story in public about why it needs new extrajudicial surveillance powers cannot be trusted to exercise those powers in secret.

Hiding From REAL ID

khowley@reason.com (Kerry Howley) — Fri, 01 Feb 2008 07:00:00 EST

When our sad pack of presidential candidates look you in the eye and tell you they can unite a divided America, believe them. The one thing each of them knows how to do—present the citizenry with unworkable, invasive, underfunded mandates—is the one sure way to bring together bizarre masses of humanity.Take the REAL ID Act, the sputtering effort to unite Americans under a common banner of department of motor vehicle regulations and porous databases. In common purpose, it has united the Amish, gun owners, and advocates for victims of domestic abuse, all of whom want to see it killed.

Though severely hobbled by a state-level revolt, REAL ID is set to enter its first phase in May, when states that have not applied for extensions will be required to comply with new requirements for issuing licenses. Amish groups and other religiously sensitive groups suggest that REAL ID portends the mark of the beast, and those who receive it will be thrown into eternal abyss. Appealing as it is to view REAL ID author Rep. James Sensenbrenner (R-Wis.) as an agent of Satan, it is probably the victims of domestic abuse who provide the best case study in the plan’s overreach. Organizations such as the National Network to End Domestic Violence contend that stores of half-guarded data would empower stalkers, violent exes, and obsessive abusers hunting for information. Abuse survivors are living repudiations of the assumption that only criminals need seek the comforts of anonymity.

But try telling that to the Department of Homeland Security. “Any state or territory that does not comply,” bellowed senior DHS official Richard C. Barth during Congressional testimony, “increases the risk of the rest of the nation.” This is easy to swallow if your chief conception of danger involves foreign evildoers bent on random slaughter of unidentified victims. It’s less so for women who fear actual human beings with whom they may share a history.

DMVs and local governments have always been vulnerable data dumps where a stalker with a good story could potentially score an address. But DMVs were at least limited in scope; you could move from your small town where your abuser knew a guy who knew a police officer who could demand confidential information to another state with another system. The REAL ID Act would interlink all of them, so an irresponsible or incompetent official in Arkansas could track a target in Missouri. “A data breach at one DMV will be a data breach in all of them,” says Guilherme Roschke of the Electronic Privacy Information Center.

DHS regulations also demand that a “residence of principal address” be printed on the cards in a machine-readable format, which presents an obvious danger to women trying to hide said residences. More recently, DHS conceded that women enrolled in state confidentiality programs can claim an exemption. According to Jill Morris of the Pennsylvania Coalition Against Rape, that’s not enough. Few women are actually enrolled in these programs, which sometimes require participants to provide verification of abuse such as police reports or restraining orders. “There are millions of women who won’t call the police,” says Morris. “And police can be abusers too.”

There are other loose ends that leave abuse victims hanging. One way women escape their histories is changing names and having the court record sealed. This will be more risky with REAL ID in that the history of the name change may be present in the various databases. The record threatens to stymie the task of starting over and erasing the past.

Proponents of REAL ID counter that we’re already living in an age of free information, a nationalized ID system being just a single droplet in the waves of revealing data washing over all of us all the time. But the wave itself is blessedly easy to get lost in, which is, after all, part of what scared our solons into passing REAL ID in 2005. The same technology that brings you the exhibitionism of Twitter-addicted teens is also a powerful force for anonymity. Women trying to avoid detection have benefited from the ability to pay bills online, to contact help undetected, to engage with the world from behind a veil of pixels.

The REAL ID concept poses myriad civil liberties issues, and survivors of domestic abuse pose a small--and perhaps surmountable--problem in a much larger debate over national idenfication. But their predicament lays bare the hubris of a government that thinks itself so completely just, so perfectly coordinated, that no honest person ever needs to hide. DHS officials may claim that no one can be secure so long as anyone remains off the grid, but they risk destroying the lives of people for whom the only real security remains anonymity itself.

Kerry Howley is a senior editor of reason.

Discuss this story at reason's Hit & Run blog.

What a Difference Two Weeks Make

jsullum@reason.com (Jacob Sullum) — Wed, 30 Jan 2008 14:02:00 EST

Yesterday the House and Senate both approved a 15-day extension of the Protect America Act, which was scheduled to expire on Friday, to allow time for further debate, mainly about whether to grant retroactive immunity to the telecommunications carriers that assisted the NSA with its illegal surveillance of international communications involving people in the U.S. The White House, after threatening to veto a one-month extension of the law, which amends the Foreign Intelligence Surveillance Act (FISA), has indicated it will go along with the shorter extension. This is the latest in a series of Bush administration reversals and self-contradictions regarding FISA.

After The New York Times revealed the existence of the NSA's warrantless surveillance program in December 2005, the administration said the program was perfectly legal. It also said it had to break the law, and continue breaking it for years, because complying with FISA would have made it impossible to stop terrorist attacks and because Congress would not have agreed to change the law (although it already had done so on more than one occasion). Then, in January 2007, the administration announced that it had found a way to do the impossible: comply with FISA and still conduct the surveillance necessary to fight terrorism. Later that year, it said that what had been impossible and then briefly possible was now impossible again, supposedly because of a secret court ruling finding that FISA requires a warrant to monitor foreign-to-foreign telephone calls and email messages if they happen to pass through U.S. switches, routers, or servers.

Last summer, when the administration asked Congress to fix FISA (something it supposedly had assumed Congress would never do), the bill it demanded not only addressed this technical problem; it also allowed warrantless surveillance of communications between people in the U.S. and people in other countries, as long as the people in foreign countries were said to be the targets. That authority, the administration insisted, was absolutely essential to national security, and even pausing to debate the issue meant that "Americans are going to die." Every day that U.S. intelligence agencies went without this power was a day on which Americans were needlessly exposed to the risk of a catastrophic terrorist attack. Terrified at that prospect (or terrified at being portrayed as insufficiently concerned about that prospect), Congress complied, but it put a six-month limit on the Protect America Act so the issue could be revisited in a less panicky climate.

With the expiration date approaching, the Democrats proposed another temporary extension, but the president said he'd veto any bill that did not make the FISA amendments permanent and add retroactive immunity for the telecommunications companies that had collaborated in the administration's end run around the statute. So even though the administration portrayed Congress as unforgivably reckless for taking time to consider whether the new surveillance powers were necessary and appropriate, Bush was willing to let them lapse just to show how serious he was about protecting us from terrorism. But now he has changed his mind again, seeing the merits of a temporary extension. If the president and his men can't even get their public story about warrantless surveillance straight, how can we trust them to secretly exercise the unilateral powers they are seeking?

If The President Doesn't Sign an Extension, Americans Are Going to Die

jsullum@reason.com (Jacob Sullum) — Mon, 28 Jan 2008 18:51:00 EST

Republicans today failed to muster the 60 votes needed to end debate on a bill extending and expanding the Protect America Act, a temporary measure that gave the executive branch the unilateral authority to order surveillance of international communications involving people in the U.S. The bill the Bush administration wants would permanently amend the Foreign Intelligence Surveillance Act to allow such spying without court approval and give retroactive immunity to telecommunications companies that helped the NSA carry it out before it was legalized. In his State of the Union address tonight, President Bush is expected to attack Democrats for endangering national security by failing to approve the bill he favors. Meanwhile, however, he has threatened to veto any bill that temporarily extends the Protect America Act, which expires on Friday, to allow more time for debate. If he follows through on that threat, he will be depriving intelligence agencies of tools he has said are necessary to prevent terrorist attacks. By his own account, then, Bush is prepared to risk the lives of Americans just to score political points.

I analyzed the Protect America Act's assault on privacy last August and noted Director of National Intelligence Mike McConnell's comments on the fatal effects of criticizing the Bush administration in September.