Here Are The Top 10 Questions Goldman Clients Have About China

Here Are The Top 10 Questions Goldman Clients Have About China

With Chinese stocks soaring in recent weeks, and the blue chip CSI 300 index surpassing its 2015 Chinese stock bubble highs..

momentum chasers investors from around the world are predictably once again poking around in Chinese markets (especially amid the recent confusion surrounding the bilateral crackdown on Alibaba, and the US-led sanctions on Chinese telecom and various megacap stocks), which is why Goldman’s top China strategist Kinger Lau writes that amid the “extensive client conversations” he had in recent days, investor interests and questions have revolved around ten particular topics. Here are the Top 10 China FAQs by Goldman clients, from the latest Goldman “China Musings” report:

1. Upside and drivers? China rallied 26% in 2020. Strong EPS growth (21%/15% for 21E/22E) on stable PEs (GSe: 15.6x vs 15.5x now) will drive 17% total returns for MXCN this year. Goldman expects a more balanced return profile (New vs.Old China) and prefers China A tactically given its higher macro cyclicality and lower sensitivity to external and Internet policies.

2. GDP growth and vaccine? China’s output has surpassed its pre-Covid levels. (GSe: 2%/8% GDPg in 20/21), with consumption being a key growth driver in2021. The first Chinese vaccine has been approved last week but should have only moderate growth impulse.

3. Is China tightening? Policy stimulus should fade this year as growth recovers. However, the recalibration should be gradual and growth-dependent, and, in what may be the most laughable statement in modern history, Goldman claims that “moderating policy support doesn’t always deflate equity returns.” Brilliant.

4. Industry regulation? Antitrust and FinTech regulations are top policy priorities for 2021, but unlike in 2018, regulatory oversight isn’t tightening across the board although it may pressure valuations for certain companies/sectors.

5. US restrictions on Chinese stocks? Clarity has recently emerged for ADR de-listing risks but uncertainty remains regarding the Executive Order, notably the scope of restriction, index exclusion, and forced de-listing. 

6. Rotating from Growth to Value? Goldman stays structurally positive on Growth, but have been scaling up cyclical exposures, instead of pure Value, in its allocation.

7. Themes and sectors for 2021? Following the 14th Five Year Plan as the anchor for thematic investing, Goldman favors a hybrid of Growth and Cyclicals sectors to start 2021.

8. Is China crowded? No, in fact, positioning is at all-time lows according to GS, which expects robust inflows on decent growth, continuing market reforms, and an appreciating Rmb.

9. HSI revamp? More New China, less Old China and HK representation are likely after the index rebalancing in Mar.

10. Risks? Sino-US tensions, private sector policy, leverage, and property tightening:

  • The developments of US-China relationship under a new US administration;
  • Over tightening in China property which contributes to around 20% of GDP via direct and indirect channels;
  • China leverage, which is at all-time highs with rising number of defaults;
  • POE regulation tightening which my present upside risk to equity risk premia.

Tyler Durden
Sun, 01/10/2021 – 20:00

via ZeroHedge News https://ift.tt/39fthAq Tyler Durden

Biden Says He Will ‘Defeat the NRA’ While In Office

Biden Says He Will ‘Defeat the NRA’ While In Office

Authored by Zachary Stieber via The Epoch Times (emphasis ours),

President-elect Joe Biden on Jan. 8 promised to “defeat” the National Rifle Association while he’s in office.

Biden’s official Twitter account was responding to former Rep. Gabby Giffords (D-Ariz.), who was among 14 people wounded in a shooting rampage by Jared Lee Loughner in Tucson in 2011; six people died in the attack. Giffords had recounted how her life and community “changed forever.”

“But the attack did not break me—or the people I represented in Congress. We came together, turned pain into purpose, and found hope in each other,” she wrote, adding that she continues to work to “achieve a safer America.”

Biden responded, saying: “Your perseverance and immeasurable courage continue to inspire me and millions of others. I pledge to continue to work with you—and with survivors, families, and advocates across the country—to defeat the NRA and end our epidemic of gun violence.

The NRA, which has more than 5 million members, seeks to protect and educate people about their Second Amendment rights.

The National Riffle Association of America (NRA) headquarters in Fairfax, Va., on Aug. 6, 2020. (Olivier Douliery/AFP via Getty Images)

While the association didn’t immediately respond to a request for comment on Biden’s post, its lobbying arm recently published an article that says Biden would “begin a concerted attack on the rights of American gun owners” after being inaugurated.

“We must be ready for the onslaught,” the post reads, adding that a Biden administration, if officials get their way, “will ban and confiscate the most-commonly-owned rifle in the United States” and “will arbitrarily limit the number of guns that can be bought per month,” among other measures.

Biden’s website says he has a plan to end “our gun violence epidemic” and boasts that he has taken on the NRA twice and won, referring to his help passing the Brady Handgun Violence Prevention Act in 1993 and in passing a 10-year ban on some weapons and magazines the following year.

“As president, Joe Biden will defeat the NRA again,” the site states.

Some of the proposals include banning the manufacture and sale of so-called assault weapons and high-capacity magazines, restricting the number of guns one person may buy per month to one, and prohibiting people convicted of hate crimes from owning guns.

Follow Zachary on Twitter: @zackstieber

Tyler Durden
Sun, 01/10/2021 – 19:35

via ZeroHedge News https://ift.tt/3i48GTQ Tyler Durden

For The First Time Ever, Real US Investment Grade Yields Turn Negative

For The First Time Ever, Real US Investment Grade Yields Turn Negative

In late December, in our recap of a “year like no other” for credit markets, we showed a stunning chart which perhaps best summarized the “insanity unleashed by central banks.” The chart in question showed that a record-high number of European IG (investment grade) bonds were trading with negative yields. To wit, as of December 15, 41% of the EUR IG iBoxx index yields in sub-zero territory; a level that matches the previous record in August 2019.

Even more impressive: more than 10% of the index now yields below -0.25%, and as Goldman concluded, “negative yields are likely remain a fixture of the EUR IG corporate bond market in 2021, even if bund bond yields back up in response to solid growth next year. Combined with the decent demand tailwind from ECB purchases, this would keep search for yield motives strong.”

Fast forward a few weeks, when it’s not just the EU where the corporate bond market is trading at absurd levels.

As Goldman’s credit strategist Michael Puempel writes, in early December, real yields on USD IG corporate bonds turned negative for the first time in history, against a backdrop of all-time high duration.

As Goldman elaborates, the relentless march lower of real yields to negative territory “reflects the combined effects of the material decline in nominal corporate bond yields and the back-up in inflation expectations.”  The next chart shows how widespread negative real yielding corporate debt in the USD market is, with more than 25% of issues, representing more than 30%of index-eligible par value, priced with a real yield below -0.5%.

This means that a large portion of IG-rated corporations are expected to be paid, on an inflation-adjusted basis, to borrow in the USD market today, according to Goldman. And although all-time high duration comes with its own risks, negative real yields will likely skew incentives for corporate issuers – encouraging them to issue even more debt – while at the same time mechanically increase risks for investors.

A quick look at these two key factors starting with…

Skewed incentives for issuers

There is always competing interests between equity- and debt-holders when it comes to corporate issuance and the uses thereof. This tension will be exacerbated for corporates that can issue at very low, i.e. negative, real yields. Specifically, the lower the yield at which a corporation can issue debt, the higher the incentives are to return capital to shareholders, via either debt-funded M&A or share repurchases (or, more recently, by purchasing bitcoin). Meanwhile, Goldman forecasts that negative real yields for such a large portion of the IG universe has elevated the risk that “the significant increase in gross balance sheet leverage, which was meant to be a temporary response to the sudden stop in the economy, ends up being permanent.”

Elevated risks for investors

The risks for investors in this environment, as it relates to negative real yields is two-fold:

First, and the most acute, is that investor returns are now very susceptible to even the slightest unexpected uptick in the inflation. While traded breakeven inflation is not a perfect proxy for expected inflation, as it embeds a risk premium, positive real yields have historically provided, at least to some degree, a cushion with respect to an unexpected inflation shock. This is no longer the case, because even if realized inflation falls below market expectations, it may not be enough to push ex-post real yields back into positive territory given current levels.

The second risk for investors is related to the second-order effect of low yields; re-leveraging risk. That is, if firms take the “opportunity” presented by yields at historic lows to increase the size of their capital structures even further, this could in Goldman’s words, “manifest itself in heightened fallen angel/downgrade risk under a scenario in which the earnings recovery of highly levered issuers do not rebound at a pace commensurate with expectations.”

While these risks should be manageable in the near-term given improving growth expectations for 2021 on the back of massive stimulus, as the economy reverts back to full-capacity, Goldman concludes that “it will be crucial for both corporate bond issuers and investors to shift their decision-making frameworks to account for real, as opposed to nominal, outcomes.”

Tyler Durden
Sun, 01/10/2021 – 19:10

via ZeroHedge News https://ift.tt/3qcMGcd Tyler Durden

“A Huge Reversal” – Louis Gave Warns “Inflation Will Come Back With A Vengeance”

“A Huge Reversal” – Louis Gave Warns “Inflation Will Come Back With A Vengeance”

Authored by Mark Dittli via TheMarket.ch,

Louis-Vincent Gave, CEO and co-founder of Gavekal Research, sees a dramatic paradigm shift playing out in the world economy. In this in-depth conversation, he explains how investors should position themselves for the future.

Louis-Vincent Gave is a master of the big picture. The co-founder of Hong Kong-based research boutique Gavekal is one of the most esteemed writers about geopolitical and macroeconomic developments and their impact on financial markets.

In this in-depth conversation with The Market NZZ, Mr. Gave shares his views on the Dollar, stock markets, oil and gold prices – and he explains why the United States are starting to act like a «sick emerging market».

Mr Gave, 2020 has been a catalyst for some big shifts in the global investment environment. Looking into the future, what are the biggest topics for you?

I’ve spent most of my career in Asia, so my lens is fundamentally biased towards Asia. With that disclaimer, I would say this: When the Covid crisis started, the view in the West was that this would be China’s Chernobyl Moment. That they completely screwed up, which would eventually weaken the regime. Fast forward to today, and China comes out of this looking much better than most Western countries. If there is one big divergence in the world, it is this: In most Western countries, the population is angry at how their government dealt with the pandemic, either because they think the government did too much or too little. But in China, there is a feeling that there were two big crises in the past 15 years, the Global Financial Crisis in 2008 and now Covid, and China in both cases came out ahead of the West. Most of Asia actually came out of this much better than the Western world.

What else do you see?

When I look at markets, there are three key prices in the world economy: Ten year Treasury yields, oil, and the Dollar. One year ago, yields were going down, oil was going down, and the Dollar was going up. Today, Treasury yields are going up, oil is going up, and the Dollar is going down. This is a huge reversal. When I see a market where interest rates are rising and the currency is falling, alarm bells go off.

Why?

This is what you would see in a sick emerging market. If you’re invested in, say, Indonesia, rising interest rates and a falling currency is a signal that investors are getting out, because they don’t like the policy setting there. Today, the US is starting to act like a sick emerging market. We even have a question mark over whether they have the ability to run a fair election. Suffice to say that at least 30% of Americans believe their election system is rigged. This is mindblowing.

What’s the policy setting investors don’t like in the US?

Government debt in the US has increased by more than $4 trillion this year, which adds up to $12,800 per person. This is a world record, but actually most Western governments have gone on a massive spending spree during this crisis. In a way, they’re using the playbook that China followed after 2008, when they allowed a massive increase in fiscal spending and monetary aggregates. Today, Beijing sits on its hands in terms of fiscal and monetary policy, while the West knows no limits.

They’re doing it to soften the blow of the pandemic. What’s wrong with that?

When China did this in 2008, they funded massive infrastructure projects: airports, railroads, roads, ports, you name it. Some of these projects turned out to be productive and some not, but I always thought they would be definitely more productive than social transfers. But this year, the debt buildup in the US has funded zero new productive investments. No new roads, no airports, railroads, nothing. They were basically just sending money to people to sit at home and watch TV. In the end, this buildup of unproductive debt can be reflected in one of two things: Either in the cost of funding for the government, i.e. in rising interest rates, or in a devaluation of the currency. This is what the French economist Jacques Rueff taught us years ago. Very soon, this is going to put the Fed in a quandary.

In what way?

They will have to decide whether to let bond yields rise or not. If they let them normalize to pre-Covid levels, 10-year Treasury yields would have to rise to about 2.5%. But if they do that, the funding of the government becomes problematic. A 50 basis point increase in interest rates is equivalent to the annual budget for the U.S. Navy. Another 30 bp is the equivalent for the U.S. Marines, and so on. The U.S. is already borrowing money to pay its interest today. If rates go up, they’re getting into the cycle where they have to borrow more just to be able to pay interest, which is not a good position.

Do you expect the Fed to move in and cap interest rates?

Yes, I do. And when they do, I’d say the Dollar will take a 20% hit.

Ten year Treasuries currently yield around 0.95%. At what level will the Fed step in?

I think they will have to cap interest rates at 2%, otherwise the drag on the government will become too big. That question will arise rather soon, because come this spring, the base effects for growth and for inflation will kick in. Growth will be very strong, and so will inflation, which means that yields will quickly try to get back up to 2%.

You recently wrote a piece where you recommended buying gold and financials to prepare for this event. Why gold, and why financials?

My base case is that Treasury yields will move up to around 2%, at which point the Fed will introduce some variant of yield curve control. In this case, the Dollar would tank, real interest rates would drop and gold would thrive. But maybe I’m wrong, maybe the Fed freaks out when they see inflation rising to 4%, and maybe they decide to let yields rise. If that’s the case, then financials will rip higher, driven by a steeper yield curve. So come this spring, if the Fed caps interest rates, gold will thrive, and if it doesn’t, financials will thrive.

But you’d lean towards gold?

Yes. It’s quite possible that in the coming weeks, the Dollar will rise while Treasury yields move up. This could provoke a sell-off in gold. If that were to happen, I’d take the other side of that trade, I would buy gold. But at the same time, you can buy out of the money call options on financials. That would be the hedge for the scenario of the Fed changing its mind and letting the yield curve steepen.

The Dollar has been strong for the past ten years. Has it entered a new structural bear market?

Yes, there is no doubt in my mind. A year ago, the Dollar was the only major currency offering positive real rates. My view is that capital flows into positive real rates, just like water flows downhill. Today, the U.S. has one of the most negative real interest rates worldwide. Given the year-on-year rise we will see in inflation this spring, real interest rates in the U.S. will drop even further.

Apart from negative real yields, what are the other reasons for the Dollar bear market?

We first have to ask ourselves why we even had a Dollar bull market in the past decade. The answer is the shale oil revolution. As the United States moved towards energy independence after 2011, its trade deficit shrank. The shale oil revolution meant that all of a sudden, the U.S. was no longer exporting money.

And that tide has now turned?

Yes. Oil production in the U.S. is collapsing. The Texan wildcatters have lost out in the price war against the Saudis and the Russians. U.S. oil production has already gone down 2.5 million barrels per day and is slated to go down by another 2.5 million over the next twelve months, because every major oil company is cutting capital expenditures. Just look at Chevron and Exxon, their capital spending plans over the next five years are at half the level they were in 2014. And so, as the U.S. economy picks up after Covid, America will be importing oil on a massive scale again. The U.S. will be back to exporting $100 to $120 billion to the rest of the world, mostly to places that don’t like America, who will turn around and sell those Dollars for Euros. This is bearish for the Dollar.

When we see the oil price heading above $50 again, wouldn’t that cause US production to rise?

You can’t turn up oil production like a tap. It will take at least a couple of years to come back. Plus, shale oil production in the U.S. was hugely capital destructive. More than $350 billion was lost in the shale oil patch over the past ten years. Look at the energy sector today, it’s at 2.5% of the S&P 500. When oil was at $10 per barrel, back in 1999, energy was 5.5% of the S&P 500. So I’m going to answer your question with another question: If oil prices go up, and the U.S. could produce more oil again, it would require hundreds of billions of Dollars in capex. Who will provide that kind of capital, with an incoming Democratic Administration that has been ambivalent about fracking? I don’t see it.

So we are moving back into a world where the U.S. is a structural oil importer and a Dollar exporter?

Yes. The seeds are planted. That’s a huge shift that I don’t think people are taking into account yet.

When the world economy normalizes after the pandemic, where will the oil price settle?

Before Covid, it seemed that the oil market had found a balance between 60 and 80 $ per barrel.

Is that the range we’ll head back to?

I think so, and for a pretty simple reason: Above 80 $, China basically stops buying. That’s a big difference relative to ten to fifteen years ago, when China hadn’t built any sizeable inventory and was a forced buyer of oil. This is no longer the case. In fact, you saw it during the Covid crisis: Between April and June, when the oil price collapsed, China imported about 13 million barrels per day, which was 40% more than normal. Clearly, they were building up inventory, taking advantage of the low price. China is the marginal buyer, and its behaviour is a key driver for the oil price: Above 80 $ they stop buying, and below 60 $ they buy in size. Incidentally, in that range, many oil companies make pretty decent money. Saudi Aramco makes a killing at this price level.

You see the Dollar in a bear market. Meanwhile, the Renminbi has strengthened significantly. Is that also a structural shift?

I think so. In the past, every time there was a crisis, the reaction of the People’s Bank of China was to freeze the exchange rate. During and after the global financial crisis, the RMB flatlined against the Dollar at 6.82 for two years. In 2015, when the Chinese equity bubble burst, the RMB was flat for several months. When things went bad, historically, they froze it. Not this year. This year, we saw the sharpest six month RMB rally in history. That is a clear change in policy.

What’s behind that change?

I don’t know, but the facts are clear. China today is the only major economy in the world that offers large positive real interest rates. Thus, capital flows into the Chinese bond market. The PBoC is the only major central bank publicly saying they won’t destroy their currency and they won’t proceed to the euthanasia of the rentier. The consequences of this are hugely important. A strong RMB is a fundamentally inflationary force for the world economy.

How so?

Manufacturers around the world have to compete with Chinese producers. Therefore, a weak RMB drives prices down, whereas a strong RMB drives prices up. You can compare it to the role of the Yen forty years ago. A stronger RMB means stronger consumption in China and Asia, and it means that whatever we buy from China is going up in price. It’s not surprising that as the RMB rerates, the U.S. yield curve steepens and oil prices go up: It’s all part of the same reflationary backdrop.

Given this backdrop: Do you see a return of structural inflation in Western economies?

Yes, I think inflation will come back with a vengeance. One of the key deflationary forces in the past three decades was China. I wrote a book about that in 2005; I was a deflationist then, as my belief was that every company in the world would focus on what they can do best and outsource everything else to China at lower costs. But now, we’re in a new world, a world that I outlined in my last book, Clash of Empires, where supply chains are broken up along the lines of separate empires. Let me give you a simple example: Over the past two years, the US has done everything it could to kill Huawei. It’s done so by cutting off the semiconductor supply chain to Huawei. The consequence is that every Chinese company today is worried about being the next Huawei, not just in the tech space, but in every industry. Until recently, price and quality was the most important consideration in any corporate supply chain. Now we have moved to a world where safety of delivery matters most, even if the cost is higher. This is a dramatic paradigm shift.

And this paradigm shift will be a key driver for inflation?

Yes. It adds up to a huge hit to productivity. Productivity is under attack from everywhere, from regulation, from ESG-investors, and now it’s also under attack from security considerations. This would only not be inflationary if on the other side central banks were acting with restraint. But of course we know that central banks are printing money like never before.

What will that mean for investors?

First, there will be two kinds of countries going forward: countries that massively monetized the Covid shock and those that did not. I’d compare the picture to the late 1970s, where countries like the U.S., the U.K. or France monetized the oil price shock, while Japan, Germany and Switzerland did not. This led to a huge revaluation of the Yen, the Deutschmark and the Swiss Franc. Today, the Fed and the ECB were among the central banks that massively monetized, while many central banks in Asia did not. So I expect a big revaluation of Asian currencies over the coming five years, which in itself is inflationary for the world. If you look at the U.S. today, inventories are at record lows. With the economy improving in 2021, companies will have to restock, and they will have to restock with a falling Dollar. The Dollar is down 20% to the Mexican Peso over the past six months, down 10% to the Korean Won, down 8% to the RMB, so whatever Americans buy from abroad will be more expensive. Countries with weak currencies, the U.S. first among them, will have higher inflation.

Where will inflation rates settle?

I don’t know. There is the idea among central bankers that they can engineer inflation rates around 2.5% and keep them there. I doubt that this will be possible to control. But just for the sake of it, let’s assume they manage to do what they say, that they are the perfect engineers they think they are and get inflation at 2.5% for the next five years. Why on Earth would you want to own Treasuries at 0.9% or German Bunds at below zero? You don’t even have to get to a scenario where inflation accelerates to 4 or 5% to see that bonds are madness today. Even if central banks just manage to do what they say, you are guaranteed to lose money with bonds.

What should investors do to position themselves in this new world?

In the old world, where interest rates were falling, the Dollar was strong and oil was weak, you bought Treasuries and U.S. growth stocks and went to the beach. Now, the world has changed. This means you have to stay away from bonds and U.S. growth stocks. In a world of Dollar weakness, you buy emerging market equities and debt, and within emerging markets, I prefer Asia. In a world where either the yield curve will steepen or the Dollar will collapse, either financials or the commodities sector will be doing well. Everything seems to point towards commodities, including energy, but as mentioned, I’d still buy financials as a hedge against a steepening yield curve. So, in a nutshell: Buy value stocks, buy the commodities sector, and buy emerging markets. And for the antifragile part of your portfolio, buy RMB bonds and gold.

How about Japan?

Absolutely, Japan is in a stealth bull market, it has been very strong, and nobody talks about it. We never get questions on Japan from clients. I’m a big bull on Japan, it’s not a crowded trade, so I feel comfortable in it. In a world that is reflating, Japan typically does well. And in this unfolding new Cold War between the U.S. and China, Japanese industrial companies are well positioned.

Aren’t you a bit early in writing off big U.S. tech?

Growth stocks have had their run in the past ten years, with falling bond yields and a rising Dollar. In a reflationary world, they will underperform. Plus, tech is the main battleground in the war between the U.S. and China. I see the tech world breaking into three separate zones, one dominated by America, one dominated by China and India evolving into a zone by itself. You can own the champions in each zone, which means you can own Amazon or Google for the West, or Tencent in China. In danger are companies that straddle the two worlds. Huawei tried, and we saw it being killed. I see Apple at risk, too. I know I said this to you a year ago, and I turned out to be completely wrong, but I still think Apple is in danger, as it straddles the U.S. and Chinese tech spheres.

In the middle of this tech war sits Taiwan. What are your thoughts about Taiwan and the semiconductor industry?

Taiwan today is what Alsace-Lorraine was 120 years ago. There were two hugely important events this year that most people have missed because of the Covid crisis. One, the market value of the global semiconductor industry has moved above the market value of the global energy sector. The market is telling us that semiconductors are more important than energy; they are the commodity of the future. We should think of Taiwan the way we used to think of Saudi Arabia.

What’s the second important event?

At the end of 2019, the market value of Taiwan Semiconductor Manufacturing was $200 billion, while the market value of Intel was $350 billion. Today, TSMC is $450 billion, while Intel has dropped to $200 billion. Why? This summer, TSMC came out and said they can produce 7 nanometer chips and will be able to produce 3nm chips in 2023. A week later, Intel came out and said they won’t be able to produce 7nm chips by 2021. So in the summer of 2020, we witnessed the passing of the technological baton from Intel to TSMC. The leadership in the semiconductor industry now belongs to Taiwan.

Why does this matter?

It matters because Washington has decided to make semiconductors the battleground in its war against China. And that means that Taiwan is the battleground in the great conflict of the 21st Century, an island that Beijing regards as a renegade province, sitting 60 miles from its shore. Taiwan has always been a sore point between China and the U.S., even when Taiwan produced plastic toys and bicycles. Imagine if Saudi Arabia was a political uncertainty between America and China, where the regime depended on Washington for survival, but the territory was claimed by China. We’d be very worried.

How will that conflict play out?

I don’t know what will happen. But I’d just say that the fact that the Trump Administration decided to make semiconductors the battleground in its fight with China strikes me as extremely dangerous, given the fact that the U.S. has just lost the technology leadership baton to Taiwan. That, to me, will be the most important event in 2020, more important than Covid.

Tyler Durden
Sun, 01/10/2021 – 18:45

via ZeroHedge News https://ift.tt/3borJH2 Tyler Durden

Watch: Likely Capitol Rioter Booted Off Plane For Being A “Terrorist” 

Watch: Likely Capitol Rioter Booted Off Plane For Being A “Terrorist” 

Some pro-Trump rioters who stormed the Capitol complex last week may have already been added to the federal No-Fly List. 

Last Thursday, Rep. Bennie G. Thompson (D-MS), Chairman of the Committee on Homeland Security, released a statement requesting the Transportation Security Administration and the Federal Bureau of Investigation to use their powers to add pro-Trump rioters to the No-Fly List.

“Given the heinous domestic terrorist attack on the U.S. Capitol yesterday, I am urging the Transportation Security Administration and the Federal Bureau of Investigation to use their authorities to add the names of all identified individuals involved in the attack to the federal No-Fly List and keep them off planes,” Thompson said in a statement.

He added: “Alleged perpetrators of a domestic terrorist attack who have been identified by the FBI should be held accountable.”

Federal authorities have requested assistance in identifying people “related to violent activity” in the Capitol building. 

For days, one after another, rioters who stormed the Capitol have been identified and arrested. In particular, the most iconic image of the chaos last week was a man sitting back with his feet on Nancy Pelosi’s desk.

Days later, the man was arrested by federal authorities. 

So here’s where things get interesting. 

A video surfaced on Twitter Sunday via @RayRedacted who said, “People who broke into the Capitol Wednesday are now learning they are on No-Fly lists pending the full investigation. They are not happy about this.” 

The unidentified man, yelling at an unknown airport about being kicked off a plane because he was labeled a “terrorist.” 

In the video, the man could be heard saying, “They kicked me off the plane – they called me a f**king terrorist.” 

We should remind readers the video has yet to be confirmed.

Tyler Durden
Sun, 01/10/2021 – 18:33

via ZeroHedge News https://ift.tt/2LCWmO2 Tyler Durden

“Don’t Panic”: Entire Nation Of Pakistan Loses Power In Massive Blackout

“Don’t Panic”: Entire Nation Of Pakistan Loses Power In Massive Blackout

Top government officials in Pakistan are urging calm after the entire country was plunged into darkness on Saturday night due to a breakdown in the national power grid.

“A countrywide blackout has been caused by a sudden plunge in the frequency in the power transmission system,” Pakistan’s Power Minister Omar Ayub Khan announced, according to Reuters.

Karachi, via AFP

The blackout is nearly unprecedented as it has impacted over 200 million people across every city, town and village. The last power grid shutdown approaching this size hasn’t been seen since 2015. 

According to CNN reporting:

In a statement, the Ministry of Energy said that, according to an initial report, there had been a fault at the Guddu Thermal Power Plant in Pakistan’s southern Sindh province, which had caused power plants across the country to shut down.

…Efforts are now underway to restore power to various parts of the country. Large swathes of Karachi, the largest city in Pakistan, still do not have power, according to information shared by K-Electric, the company supplying power to the city.

The report further quoted residents who were witnessing hours-long lines outside gas stations where people were hoping to fuel generators

“There are long lines outside petrol pumps in the city, cars are queuing as people buy fuel for their back up generators. I was in the line, people have been waiting for hours with petrol cans in hand,” one Karachi resident said.

A Pakistan airline industry official had said, “All major airports in the country have back up generators,” while noting airports and flights remained operational. 

As of early Sunday evening (local time) Pakistan’s energy minister said that power had been restored to much of the country, and faulted a significant technical issue. 

Tyler Durden
Sun, 01/10/2021 – 18:20

via ZeroHedge News https://ift.tt/3oA3Cc5 Tyler Durden

Trump’s Lawyers Surrender in Georgia Despite Giuliani’s ‘Conclusive Proof’ of Election Fraud

Rudy-Giuliani-rally-1-16-21

During the rally that preceded Wednesday’s deadly attack on the Capitol by enraged Trump supporters, Rudy Giuliani, the president’s personal attorney, said he was about to blow the lid off machine-facilitated election fraud in Georgia. That was not true. The next day, President Donald Trump’s lawyers dropped four lawsuits alleging election irregularities and fraud in Georgia, claiming they had reached settlement agreements with state officials, who supposedly had promised to investigate Trump’s outlandish charges. That was not true either.

Those two lies show that Giuliani never had any credible evidence to back up his reckless allegations against Dominion Voting Systems, which he claims helped Democrats rig election machines to switch “hundreds of thousands” of Trump votes to Biden votes. That widely promoted conspiracy theory, which on Friday prompted Dominion to sue former Trump campaign lawyer Sidney Powell for defamation, was at the heart of the grievances underlying Wednesday’s violence. Yet Giuliani now has implicitly admitted it was all a hoax.

According to the final election results, Biden won Georgia by about 12,000 votes. Georgia reaffirmed Biden’s victory after a statewide audit and two recounts, including one by hand. Those recounts, which found that paper ballots confirmed the outcome, should have laid to rest Giuliani’s claim that the election was corrupted by fraud-facilitating software. Furthermore, as Georgia’s Republican secretary of state, Brad Raffensperger, notes in January 6 letter debunking Trump’s fraud claims, “an audit of voting machines…confirmed the software on the machine was accurate and not tampered with.” But Giuliani still was not satisfied.

“If they ran such a clean election, why wouldn’t they make all the machines available immediately?” Giuliani asked thousands of ardent Trump supporters at the “Save America March” on Wednesday. “If they ran such a clean election, they’d have you come in and look at the paper ballots. Who hides evidence? Criminals hide evidence, not honest people. So over the next 10 days, we get to see the machines that are crooked, the ballots that are fraudulent. And if we’re wrong, we will be made fools of. But if we’re right, a lot of them will go to jail.”

Giuliani claimed “one of the experts that has examined these crooked Dominion machines has absolutely what he believes is conclusive proof that in the last 10 percent, 15 percent of the vote counted, the votes were deliberately changed by the same algorithm that was used in cheating President Trump and Vice President Pence.” With that “conclusive proof” in hand, Giuliani was confident that the truth would come out. “So let’s have trial by combat,” he said. “I’m willing to stake my reputation. The president is willing to stake his reputation on the fact that we’re going to find criminality there.”

Given that Giuliani has had more than two months to back up his “easily provable” claims and has repeatedly failed to do so, you might think the ship has sailed on his reputation. But even if you are a diehard Trump supporter who was hoping the evidence would finally materialize, what happened the next day confirmed once again that there is no rabbit in that hat. Facing a state trial on Friday at which they would have had to put up or shut up, the president’s lawyers abandoned four lawsuits challenging Georgia’s election results. It turned out that Giuliani and his associates did not have the guts to face “trial by combat,” or even combat by trial.

Trump campaign lawyer Kurt Hilbert, who participated in the January 2 phone call during which Trump pressured Raffensperger to “find” the votes he needed to overturn Biden’s victory, told a federal judge the campaign was dropping Trump v. Kemp, which alleged that Georgia’s election was “conducted contrary to clearly established law,” “due to an out of court settlement agreement.” But Georgia’s Republican attorney general, Christopher Carr, said there was no such agreement.

While the state officials whom the campaign sued in federal court “do not object to Trump’s voluntary dismissal,” Carr said, “Defendants do object to the false grounds articulated in the notice.” Contrary to Hilbert’s claim, he said “there is no ‘settlement.'” While “Plaintiff’s counsel inquired on numerous occasions about settling the disputes,” Carr explained, “those inquiries were repeatedly rebuffed by Defendants on the grounds that Plaintiff’s litigation efforts were frivolous and the certified results of the November 3, 2020, Election were valid.”

On Thursday, Hilbert also cited “an out of court agreement” in seeking dismissal of Boland v. Raffensperger, a November 29 state lawsuit alleging that “20,312 ballots were cast by individuals who are no longer Georgia residents” and that signature verification procedures were inadequate. Carr again responded by denying that any such agreement had been reached.

Hilbert’s notice of voluntary dismissal in Trump v. Raffenspergera December 4 state lawsuit alleging that Georgia’s election procedures “deviated significantly and substantially” from state law, likewise asserts “an out of court agreement” that Carr says never happened. So does Hilbert’s notice in Still v. Raffensperger, a December 12 state lawsuit alleging “electronic recount anomalies” in Coffee County.

Hilbert insisted that state officials had reached an agreement with the Trump campaign, even if they did not realize it. “We are confident that we have a valid settlement agreement,” he said in an email quoted by Bloomberg News. “If you have doubts, we recommend that you speak with an independent contract attorney who we believe would corroborate our interpretation.”

Raffensperger offers a more plausible explanation in a press release he issued on Thursday. He notes that the Trump campaign was scheduled to present evidence in one of its lawsuits at a trial on Friday before Cobb County Superior Court Judge Adele Grubbs.

“Rather than presenting their evidence and witnesses to a court and to cross-examination under oath, the Trump campaign wisely decided the smartest course was to dismiss their frivolous cases,” Raffensperger says. “Spreading disinformation about elections is dangerous and wrong. It was wrong when Stacey Abrams and her allies made false claims about Georgia’s election processes following the 2018 election and run-up to the 2020 election, and it’s wrong when the President and his allies are doing it now.”

Giuliani’s persistent promotion of baseless allegations regarding Dominion’s role in the anti-Trump plot that supposedly deprived the president of his rightful victory not only sacrificed whatever reputation he had left. It also may expose him to serious legal risk, especially insofar as his conspiracy mongering went beyond advocacy of his client’s position in litigation. On Friday, Dominion filed a $1.3 billion defamation lawsuit against Powell, an erstwhile Giuliani ally who for months has been telling the same basic story.

“As a result of the defamatory falsehoods peddled by Powell—in concert with likeminded allies and media outlets who were determined to promote a false preconceived narrative—Dominion’s founder, Dominion’s employees, Georgia’s governor, and Georgia’s secretary of state have been harassed and have received death threats, and Dominion has suffered enormous harm,” says the complaint, which was filed in the U.S. District Court for the District of Columbia. Since Giuliani is one of those “likeminded allies,” he may face similar litigation, in which case he will finally be forced to produce his “conclusive proof.”

from Latest – Reason.com https://ift.tt/39cBTrm
via IFTTT

Trump’s Lawyers Surrender in Georgia Despite Giuliani’s ‘Conclusive Proof’ of Election Fraud

Rudy-Giuliani-rally-1-16-21

During the rally that preceded Wednesday’s deadly attack on the Capitol by enraged Trump supporters, Rudy Giuliani, the president’s personal attorney, said he was about to blow the lid off machine-facilitated election fraud in Georgia. That was not true. The next day, President Donald Trump’s lawyers dropped four lawsuits alleging election irregularities and fraud in Georgia, claiming they had reached settlement agreements with state officials, who supposedly had promised to investigate Trump’s outlandish charges. That was not true either.

Those two lies show that Giuliani never had any credible evidence to back up his reckless allegations against Dominion Voting Systems, which he claims helped Democrats rig election machines to switch “hundreds of thousands” of Trump votes to Biden votes. That widely promoted conspiracy theory, which on Friday prompted Dominion to sue former Trump campaign lawyer Sidney Powell for defamation, was at the heart of the grievances underlying Wednesday’s violence. Yet Giuliani now has implicitly admitted it was all a hoax.

According to the final election results, Biden won Georgia by about 12,000 votes. Georgia reaffirmed Biden’s victory after a statewide audit and two recounts, including one by hand. Those recounts, which found that paper ballots confirmed the outcome, should have laid to rest Giuliani’s claim that the election was corrupted by fraud-facilitating software. Furthermore, as Georgia’s Republican secretary of state, Brad Raffensperger, notes in January 6 letter debunking Trump’s fraud claims, “an audit of voting machines…confirmed the software on the machine was accurate and not tampered with.” But Giuliani still was not satisfied.

“If they ran such a clean election, why wouldn’t they make all the machines available immediately?” Giuliani asked thousands of ardent Trump supporters at the “Save America March” on Wednesday. “If they ran such a clean election, they’d have you come in and look at the paper ballots. Who hides evidence? Criminals hide evidence, not honest people. So over the next 10 days, we get to see the machines that are crooked, the ballots that are fraudulent. And if we’re wrong, we will be made fools of. But if we’re right, a lot of them will go to jail.”

Giuliani claimed “one of the experts that has examined these crooked Dominion machines has absolutely what he believes is conclusive proof that in the last 10 percent, 15 percent of the vote counted, the votes were deliberately changed by the same algorithm that was used in cheating President Trump and Vice President Pence.” With that “conclusive proof” in hand, Giuliani was confident that the truth would come out. “So let’s have trial by combat,” he said. “I’m willing to stake my reputation. The president is willing to stake his reputation on the fact that we’re going to find criminality there.”

Given that Giuliani has had more than two months to back up his “easily provable” claims and has repeatedly failed to do so, you might think the ship has sailed on his reputation. But even if you are a diehard Trump supporter who was hoping the evidence would finally materialize, what happened the next day confirmed once again that there is no rabbit in that hat. Facing a state trial on Friday at which they would have had to put up or shut up, the president’s lawyers abandoned four lawsuits challenging Georgia’s election results. It turned out that Giuliani and his associates did not have the guts to face “trial by combat,” or even combat by trial.

Trump campaign lawyer Kurt Hilbert, who participated in the January 2 phone call during which Trump pressured Raffensperger to “find” the votes he needed to overturn Biden’s victory, told a federal judge the campaign was dropping Trump v. Kemp, which alleged that Georgia’s election was “conducted contrary to clearly established law,” “due to an out of court settlement agreement.” But Georgia’s Republican attorney general, Christopher Carr, said there was no such agreement.

While the state officials whom the campaign sued in federal court “do not object to Trump’s voluntary dismissal,” Carr said, “Defendants do object to the false grounds articulated in the notice.” Contrary to Hilbert’s claim, he said “there is no ‘settlement.'” While “Plaintiff’s counsel inquired on numerous occasions about settling the disputes,” Carr explained, “those inquiries were repeatedly rebuffed by Defendants on the grounds that Plaintiff’s litigation efforts were frivolous and the certified results of the November 3, 2020, Election were valid.”

On Thursday, Hilbert also cited “an out of court agreement” in seeking dismissal of Boland v. Raffensperger, a November 29 state lawsuit alleging that “20,312 ballots were cast by individuals who are no longer Georgia residents” and that signature verification procedures were inadequate. Carr again responded by denying that any such agreement had been reached.

Hilbert’s notice of voluntary dismissal in Trump v. Raffenspergera December 4 state lawsuit alleging that Georgia’s election procedures “deviated significantly and substantially” from state law, likewise asserts “an out of court agreement” that Carr says never happened. So does Hilbert’s notice in Still v. Raffensperger, a December 12 state lawsuit alleging “electronic recount anomalies” in Coffee County.

Hilbert insisted that state officials had reached an agreement with the Trump campaign, even if they did not realize it. “We are confident that we have a valid settlement agreement,” he said in an email quoted by Bloomberg News. “If you have doubts, we recommend that you speak with an independent contract attorney who we believe would corroborate our interpretation.”

Raffensperger offers a more plausible explanation in a press release he issued on Thursday. He notes that the Trump campaign was scheduled to present evidence in one of its lawsuits at a trial on Friday before Cobb County Superior Court Judge Adele Grubbs.

“Rather than presenting their evidence and witnesses to a court and to cross-examination under oath, the Trump campaign wisely decided the smartest course was to dismiss their frivolous cases,” Raffensperger says. “Spreading disinformation about elections is dangerous and wrong. It was wrong when Stacey Abrams and her allies made false claims about Georgia’s election processes following the 2018 election and run-up to the 2020 election, and it’s wrong when the President and his allies are doing it now.”

Giuliani’s persistent promotion of baseless allegations regarding Dominion’s role in the anti-Trump plot that supposedly deprived the president of his rightful victory not only sacrificed whatever reputation he had left. It also may expose him to serious legal risk, especially insofar as his conspiracy mongering went beyond advocacy of his client’s position in litigation. On Friday, Dominion filed a $1.3 billion defamation lawsuit against Powell, an erstwhile Giuliani ally who for months has been telling the same basic story.

“As a result of the defamatory falsehoods peddled by Powell—in concert with likeminded allies and media outlets who were determined to promote a false preconceived narrative—Dominion’s founder, Dominion’s employees, Georgia’s governor, and Georgia’s secretary of state have been harassed and have received death threats, and Dominion has suffered enormous harm,” says the complaint, which was filed in the U.S. District Court for the District of Columbia. Since Giuliani is one of those “likeminded allies,” he may face similar litigation, in which case he will finally be forced to produce his “conclusive proof.”

from Latest – Reason.com https://ift.tt/39cBTrm
via IFTTT

The Swamp Swallowed Trump

The Swamp Swallowed Trump

Authored by Raul Ilargi Meijer via The Automatic Earth blog,

You would think that if there’s one group of people who’d recognize a coup if they saw one, it would be the American people. Because their intelligence services have been involved in almost all coups in the world for many decades; let’s say since WWII, to keep it simple.

Just in the most recent past, they staged and conducted coups in Libya, Ukraine, Syria, Venezuela and many other places (think Bolivia). Libya was the only real “successful” one, thanks to Gaddafi being sodomized with a bayonet, leading to Hillary’s giddy We Came, We Saw, He Died, the by far ugliest face of the US by a mile. That and the open-air slave markets that resulted from sodomizing to death the man who led Africa’s wealthiest country and gave his people benefits that Americans can only dream of.

And now Hillary’s crew are about to be handed the reins again. Or as Michael Tracey put it: “The new corporate authoritarian liberal-left monoculture is going to be absolutely ruthless – and in 12 days it is merging with the state. This [is] only the beginning.” Duck for cover.

The screwed-up coups in Ukraine, Syria, Venezuela etc. would appear to signal that the CIA is not very adept (anymore?!) at organizing coups, or maybe they just chronically overestimate their skills at it. Whichever way it may be, they have done more damage to America and its standing in the world than Donald Trump could ever have dreamt of doing.

So you would think Americans would recognize a coup, but instead they’re the last group of people on the planet who would. Because their media doesn’t present them as coups. They’re labeled as spreading democracy, freedom etc., as standing up against the bad guys, and liberating innocent people -even if many of them die in the process.

People dying is a feature of these coups, not a bug.

People get shot, bombed, disappeared, in a word: killed.

Anyway, it’s way more and better than ironic that all these very deadly CIA-led operations are not labeled coups, but then the clowns and actors spectacle that took place in Washington DC this week, is. Which is possible only because they never told people what a coup actually is. Only then can you make them believe that some wanker in a furry viking helmet outfit is trying to overthrow the government. At the initiative of the democratically elected president, no less.

Are these people extremists and terrorists or are they clowns and actors? I would lean towards the latter option.

A coup requires a plan, a playbook, most often elites who think they have a shot at taking over a country, which in turn requires support from at least part of an army. The best these folks could think of was sitting in Pelosi’s office and take selfies.

That doesn’t make the march on the Capitol a good thing, far from it, but there are a lot of people out there who don’t like the way the president they elected in 2016 has been treated by the MSM, his political opponents, and US intelligence. And after the theater that has been Russiagate, the Mueller debacle and the Zelensky call-based impeachment, maybe that shouldn’t be too surprising.

The main problem for Trump lately would appear to have been his legal representation. I’ve said all along: let the dice roll where they may, there are many questions surrounding the election and they have the right to go looking for answers to these questions.

But if you look at what the status is today of what the likes of Rudy Giuliani, Jenna Ellis, Sidney Powell and Lin Wood have come up with, you think they might as well have been working for the other side. Still, we’ve at least seen the dice roll, and they came up they way they did. The process was allowed to proceed, and this is the outcome. This has misled Trump as well as his followers. They thought there was something substantial -and tanglible- there, because that’s what they were told all along.

This doesn’t mean the US should continue using voting machines, however. There are many countries that hold elections, and there are very few that either use those machines and/or see their elections contested. There’s a reason for that combination. These things can be manipulated, and they will be if they’re used. Get rid of them or this chapter will be repeated endlessly.

Then again, it all plays out well for anyone but Trump. And perhaps a few GOP’ers who stood by him.

You could say, Trump entered the swamp and drowned in it, it swallowed him whole.

Which is not to say that he’s such a perfect character, hell no, but he was the one and only chance to get rid of the power cabal that is DC. Which is a much bigger danger than he could ever be.

Where career politicians like Pelosi, Schumer, McConnell and Joe Biden can reside for decades, and be handed ever more handsome amounts of money by the lobbyists who write their laws, which benefit the corporations they work for. Trump was the chance to do at least something about this. They ate him alive.

Now the story is that Trump is/was the main danger, and that he was attempting a coup against his own government. To finish off the job, after being hunted down by the MSM for 4+ years, social media, for whom unceremoniously dumping Trump, after he was their main attraction for years -at least for clickbait-, was just a business decision dressed in some vague set of moral principles, are now simply deleting him.

And people cheer that.

They don’t understand that from now on, as US president you serve at the behest, grace and kindness of the CIA, New York Times and WaPo, but even more that of @jack and Zuckerberg, and not that of the American people. As the noise about an attempted coup allows Team Biden to slip in Sally Yates, Susan Rice and Victoria Nuland and their whole gang of neocon warmongers.

The entire media focus on Trump served to hide what those people were doing behind the scenes all along. And now it’s time to duck for cover. They’re going to try and impeach him again, and then prosecute him, and erase everything he’s done, cheered on by the same media who never told you what a coup actually is. Because they are a big club, and he’s not in it, and neither are you.

And if you think you can vent an opinion on social media in the future that doesn’t coincide with that of the big club, perhaps you haven’t been paying attention.

*  *  *

We try to run the Automatic Earth on donations. Since ad revenue has collapsed, you are now not just a reader, but an integral part of the process that builds this site. Thank you for your support.

Tyler Durden
Sun, 01/10/2021 – 17:55

via ZeroHedge News https://ift.tt/35qLgmi Tyler Durden

Remarkable New Fifth Circuit Decision Limiting Cell Phone Searches

Her’s a fascinating new Fourth Amendment case from the Fifth Circuit, United States v. Morton, that sharply limits cell phone searches.  According to the court, warrants must establish probable cause separately for each “category” of information in the phone in order to search it.

In Morton, the Fifth Circuit held that the government properly obtained a warrant for text messages, call logs, and contacts, but that the warrant did not establish probable cause to believe the evidence would be in the form of photographs.  The photographs were therefore suppressed, and the conviction was overturned.

I think the court’s reasoning is wrong, although I happen to think the result in this particular case was correct for other reasons. Here’s an overview of the case, and my concerns with it.

I. The Case and Its Reasoning

The government arrested Morton with drugs and obtained a search warrant to search his cell phone for evidence of drug possession. A search of the phone revealed photographs of child pornography.  This wasn’t exactly a surprise, as the evidence found with Morton suggested he may be a pedophile.  But the warrant was for records of drug possession, not child pornography.

Having discovered the child pornography, the police stopped and obtained a second warrant—this time for child pornography.  The search pursuant to the second warrant led the police to discover over 19,000 images of child pornography on the phone. Child pornography charges followed, and Morton was convicted and sentence to a nine-year prison term.

In the new decision, the Fifth Circuit overturned the conviction because there was not enough information that the evidence of drug possession would be in photograph form to justify searching the photographs when the government searched the phone under the first warrant.  The child pornography had to be suppressed from the first warrant, and that left no basis for the second warrant, so the conviction was overturned.

According to the court, probable cause has to be established for each individual category of information on the phone.  The first warrant was proper in authorizing the government to search three categories of information —  text messages, contacts, and call logs—because there was probable cause to believe these kinds of records would be evidence on the phone.  Morton got his drugs from somewhere, and it made sense that there would be evidence about the buying of drugs in his call logs, contacts, and text messages.  So that part was fine.

On the other hand, the government could not search the photographs because there wasn’t any particular reason to think that the evidence of drug possession would be in photographic form.  The evidence against Morton was of personal use, and there wasn’t a particular reason to think that a user of drugs would have evidence of it on the phone.

Indeed, there wasn’t even enough evidence to get over the Leon good-faith hurdle, the court rules. As a result, all the evidence had to be suppressed.

II.  The Court’s Key Move—Probable Cause by Information Category

What makes Morton so important, I think, is its particular solution to the plain view problem in computer searches.  As regular readers know, I have been writing on this issue for 15 years.  The problem is this: Computer warrant searches are extremely invasive, and the government can use warrants pretextually to search for evidence without probable cause.  If everything on a computer can be searched and can come into plain view, how can you limit computer warrant searches to make sure they don’t turn out to be general warrants in practice?

The Fifth Circuit’s answer is to limit where the government can look.  The government can only look in places where probable cause has been established for that category of record.  Because there wasn’t probable cause that the evidence would be in photograph form, the government couldn’t look in the photographs.

Where did that holding come from?  Its first source was rather remarkable: At oral argument, the government seems to have conceded the point.

The Court: Do you say you’re entitled to everything inside that phone so long as you can look at anything inside the phone?

The Government: No, your Honor.

The Court: Or do you need probable cause for each individual sort of category of information that could be found there?

The Government: That’s correct.

But the court goes out of its way to make this point as a holding, not just a conceded point that it assumes to be true.  According to the Fifth Circuit, the probable-cause-by-category holding is required by Riley v. California:

Riley made clear that these distinct types of information, often stored in different components of the phone, should be analyzed separately. This requirement is imposed because “a cell phone’s capacity allows even just one type of information to convey far more than previously possible.” Id. at 394. Just by looking at one category of information—for example, “a thousand photographs labeled with dates, locations, and descriptions” or “a record of all [a defendant’s] communications . . . as would routinely be kept on a phone”—”the sum of an individual’s private life can be reconstructed.”4 Id. at 394–95. In short, Riley rejected the premise that permitting a search of all content on a cellphone is “materially indistinguishable” from other types of searches. Id. at 393. Absent unusual circumstances, probable cause is required to search each category of content.

The court also suggests that each kind of record is its own constitutional “place,” so that probable cause for each “place” must be established to satisfy the particularity requirement.  The court draws this in part from law review articles:

This requirement is especially important in the context of searches of digital devices that contain so much content. See, e.g., Adam M. Gershowitz, The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches, 69 VAND. L. REV. 585, 597–600 (2016); id. at 609 (noting that in drug cases, warrants frequently “authorize searches for photos and videos [on phones] . . . for which there is typically no probable cause”); Andrew D. Huynh, Note, What Comes After “Get A Warrant”: Balancing Particularity and Practicality in Mobile Device Search Warrants Post-Riley, 101 CORNELL L. REV. 187, 190 (2015) (“The Court’s lengthy discussion about the amount of personal information accessible on a modern mobile device suggests that a search warrant’s particularity may be the next subject for scrutiny.”); William Clark, Protecting the Privacies of Digital Life: Riley v. California, the Fourth Amendment’s Particularity Requirement, and Search Protocols for Cell Phone Search Warrants, 56 B.C. L. REV. 1981, 1984 (2015) (“As the U.S. Supreme Court held in Riley, to allow the police unguided review of the entire contents of a cell phone when executing a search warrant would authorize the exact type of general warrants that the Fourth Amendment forbids.”).

III.  Why I Think the Reasoning of Morton is Wrong

Is the court’s reasoning correct?  I don’t think so.  The Fourth Amendment requires probable cause as to each substantive kind of evidence, but not each form of evidence.  You can’t know ahead of time what form a particular kind of evidence will take.  But the Fourth Amendment doesn’t require probable cause as to form, only to substance.

To see this, imagine I told you that I have put evidence of my crimes—a secret code—somewhere in my cell phone.  At the same time, I pointedly refuse to tell you the form of the evidence.  Maybe it’s the text of an e-mail, but maybe it’s in a text message. Maybe it’s in a note, or a comment attached to a stored contact.  Maybe I took a picture of it and it’s stored as a photograph.  Maybe it’s stored as a .pdf file.  Maybe it’s a mix, like a photograph sent via text.  There are endless forms in which the evidence could be on the phone.

Do you have probable cause to get a warrant to search my phone in the above example? I would say absolutely, yes. The place where the phone is located—or maybe the phone itself—is the place to be searched.  And you have probable cause to believe the evidence is in the phone. That’s all the government needs, I think.  It doesn’t make sense to limit the government’s search within the place to be searched to particular forms of evidence any more than it makes sense to limit the search of tax records in a house to  “documents stored on 8.5 X 11 paper” or “items in boxes designed to store records.” As the Supreme Court stressed in Ross v. United States, “[w]hen a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers . . .  must give way to the interest in the prompt and efficient completion of the task at hand.” Everything in the place to be searched can be searched.

Under the Fifth Circuit’s approach in Morton, though, I gather there wouldn’t be probable cause to search the phone.  Sure, you know the evidence is in the phone.  But without probable cause as to any particular “category” of information on the phone, the phone is unsearchable.  And of course this requires courts to develop a Fourth Amendment jurisprudence of “information categories,” whereby judges announce the inherent nature of different kinds of constitutional data that is on a phone.  (Apparently, photographs are one category, text messages are another, and call logs a third.)

I don’t think the Fourth Amendment can work this way.  And nothing in Riley suggests it, it seems to me.  Riley required a warrant to search a phone given the invasiveness of cell phone searches, but it doesn’t say anything about needing separate probable cause based on the “category” of information on the phone.

Granted, I realize the government in Morton seems to have wrongly conceded the point. I have no problem with the Fifth Circuit accepting the concession in this case.  But I think it should have just accepted the point and ruled accordingly, rather than gone on to make the point what certainly looks like the court’s holding.  It was fair to accept the concession, but as a holding, it seems to me quite wrong.

IV.  But the Right Result In This Case, In My View

At this point some of you are thinking, but Kerr, this case stinks! It sure looks like the government was using the warrant pretextually.  They suspected that Morton had child pornography on the computer.  And they obtained a warrant for something else but probably planned to look for child pornography with the hope that it all came into plain view.  Doesn’t that raise Fourth Amendment problems?

Yes, I think it does. But I think it raises different Fourth Amendment problems than the Fifth Circuit suggested in Morton. In my view, the Fourth Amendment limit is not in where in the computer the government can search, but what evidence the government can use.  As I argued in my 2015 article, Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data, 48 Texas Tech L. Rev. 1 (2015), the Fourth Amendment should be interpreted to impose a use restriction on nonresponsive data in digital search warrants.  Evidence outside the scope of probable cause named in the warrant should not be usable, and thus should be suppressed.  (As regular readers may remember, the Oregon Supreme Court adopted this view under the state constitution in State v. Mansour.)

What difference would this make?  Under my test, if the government had probable cause to believe there was evidence relating to Morton’s drug possession on his phone, it could search the entire phone for that evidence—including the photographs.  However, the government could not use any child pornography it came across during the search based on the warrant it had obtained for evidence of drug possession.  If it came across child pornography in the text messages, they couldn’t use that, either.  Nor could they use the discovery of the child pornography to get a new warrant for that—that is a prohibited use, as my article explains.

Under my approach, then, the Fourth Amendment doesn’t stop the government from looking for all the evidence in the phone.  But my approach eliminates the incentive to conduct a pretextual search by eliminating the possible benefit of a pretextual search. If the government wants to recover child pornography from the phone, under my test, the government needs to gather probable cause for that and obtain a warrant to search the phone for evidence of child pornography.

In the end, then, I think the result in this case is right. In my view, the Fourth Amendment should not permit the government to use the search for one kind of evidence to get evidence of a different kind of evidence.  But the problem isn’t where the government looked, or what kind of file was at issue, but rather whether the evidence recovered was within the scope of probable cause established to obtain the warrant.

 

from Latest – Reason.com https://ift.tt/38um7Ji
via IFTTT